A Day at the (Fixed) Races: A Recap, and Look Ahead, at the Trump Impeachment

Following the ongoing impeachment proceedings against President Donald Trump makes one feel like a gangster watching a horse race that he knows is rigged. Spectators cheer and bite their nails on all sides and a broadcaster excitedly announces each move of the race, while the mobster sits smiling under the brim of his fedora, cigar perched in his mouth, knowing full well how little any small shifts in position will matter in the end.

On December 18, members of the House of Representatives expressed their righteous indignation about the president’s egregious abuse of executive power or, alternatively, about the partisan coup being orchestrated against him. Sometime after eight o’clock that evening, the tally was taken and the “historic” measure to make President Donald Trump the third White House occupant to be formally impeached was passed on almost totally partisan lines.

As soon as the vote was final, staffers for hundreds of elected officials across the country pressed the send button on their preprepared statements praising or condemning the move and media flashed with headlines, about this ostensibly momentous event.

A House of Cards, With Lots of Jokers

The “almost” part of the House vote was noteworthy. Two Democrats opposed both articles of impeachment against President Donald; one of them is Rep. Jeff van Drew, who announced his intention to switch parties and become a Republican. The fact that the lifelong New Jersey Democrat felt compelled to flip his affiliation, in and of itself, speaks to the dangerous waters that the divisive age of Trump has led America into.

Republicans and Democrats have always had their mavericks who were thorns in the sides of party leaders charged with holding the line on votes, but they gave their parties some aspect of ideological pluralism. Rep. van Drew’s claims that the six of his staff members who resigned shortly after the announcement did so under threat from Democratic leaders that they would never work in politics again, should they remain, if true, bodes even worse.

Such an attitude of increased intolerance for dissent is one thing that seems fully bipartisan. Former Republican Rep. Justin Amash, a strong Trump critic and early supporter of impeachment, departed from his party and became an independent this past July.

Reps. van Drew and Amash tell one story: you can selectively waver from the party line on policy — e.g., Rep. van Drew was an outspoken gun-rights defender. But in 2019, for Democrats, unbridled hatred for the president — and for Republicans, blind loyalty to him — are not negotiable.

Another aspect of the vote that carries a significant message was the unbroken Republican ranks in opposition to sending articles of impeachment to the Senate. Like so many talking points of the present political moment, this too is a fact completely open to convincing dual spinning. For the GOP, the unity cements their claim of a purely partisan campaign. In 1998, when the House voted to impeach President Bill Clinton, five Democrats joined what then, too, was a mostly partisan vote.

It is a crucial talking point for the president’s defenders since as recently as this past March, Speaker Nancy Pelosi herself said that “impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path.”

In the constant split screen of the Trump era, the lack of Republican dissent tells another story as well — one of a caucus so afraid of its Trumpian base or of being called a nasty name on the commander in chief’s twitter account that any sense of objectivity or independent thinking (or at least acting) has gone the way of the rotary phone.

To swing the pendulum back yet again, it could be argued that the Democrats’ breakneck pace, impeach-or-die strategy, and lack of interest in hiding that their absolute contempt for the president was the real gas in the impeachment engine, left Republicans with little choice but to vote no. How many Republicans would have supported a motion to censure, calling out the president’s abuse of power but recognizing the reality of the impossibility of his ultimate removal, we will never know.

The question calls to the stage the one member who seems to deserve a hero’s reception, Hawaii’s Rep. Tulsi Gabbard. The Democrat with a strong record of support for “progressive” causes, who endorsed Sen. Bernie Sanders in 2016, voted “present,” an essential abstention from the impeachment vote.

“I could not in good conscience vote against impeachment because I believe President Trump is guilty of wrongdoing. I also could not in good conscience vote for impeachment because removal of a sitting president must not be the culmination of a partisan process, fueled by tribal animosities that have so gravely divided our country,” she said.

Rep. Gabbard went on to introduce a measure to censure the president for an eclectic bag of foreign-policy moves she seemingly opposes (she is from Hawaii, so a little color is in order), as well as for his actions regarding a request for the Ukrainian president to investigate the Bidens, the object of the present impeachment effort. The censure would issue a formal reprimand and calls on President Trump to “acknowledge and admit wrongdoing.”

The measure’s chances of making inroads in the House were roughly equal to those of the president heeding her call to deliver a contrite mea culpa. Yet, it was a welcome attempt for someone to show a modicum of independent thinking in addressing what is a legitimate national conundrum. The move gained more recognition than Rep. Gabbard’s ongoing presidential bid (yes, she is running for president), but served as a rallying cry to none.

A Bumpy Road to the Senate?

As impeachment proceedings were in their early stages in the House, former Senators Trent Lott and Tom Daschle, who served as majority and minority leader respectively during the Clinton impeachment, penned a joint op-ed saying that, despite their opposing views on the efforts to remove the president in 1998-9, the two worked out procedures that were hailed as fair on all sides. They implored their political heirs to follow in their footsteps.

In an NBC interview on the day of the House impeachment vote, Sen. Lott commented that Senate leaders are “going to have to find a way to get it done, they’re not getting off to a great start.”

Few could come to a different conclusion than the retired Mississippi senator.

Only hours after the House passed its articles of impeachment, Speaker Pelosi signaled an unexpected threat to withhold the charges until the Senate agreed to terms for the “trial” that she deemed fair. The statement cued the public in to a little-known aspect of the impeachment process — that it is left to the House leadership’s discretion when or even whether to transmit the articles voted on to the Senate.

Likewise, the speaker would not commit to name the “managers,” House members designated to serve as prosecutors in the Senate, until more detailed information was known about the procedures the Senate leadership would agree upon. The Clinton impeachment trial saw 13 House Republicans at work, several of whom lost their seats in Congress shortly after. One who held his position, Sen. Lindsey Graham, has been one of the president’s staunchest defenders and will now be among those voting on the present impeachment charges.

Due to their prominence in the House’s hearings, it is widely expected that Reps. Adam Schiff and Jerold Nadler will both be on the team.

Speaker Pelosi was not the only one throwing cold water on a smooth transition to the Senate.

Senators Mitch McConnell and Charles Schumer, the Senate’s majority and minority leaders respectively, have already begun a public sparring match over the scope of witnesses to be called. Both are known as masters of the Senate’s complex and often arcane rules and the present showdown is likely, at the very least, to be a valuable lesson in the mechanics of the legislative branch.

Sen. Schumer began the discussion with an opening offer that would allow Senate Democrats to call high-level White House officials such as Chief of Staff Mick Mulvaney and former National Security advisor John Bolton. The former and several other current staffers were barred by the administration from cooperation with the House’s inquiry and the latter said he would not appear without being subpoenaed.

Sen. McConnell has denied the request, saying that he favored rules that would mirror those used for President Clinton’s trial, which had no witnesses appear before the Senate, relying mostly on the report generated by Special Investigator Kenneth Starr, but presented some prerecorded testimony.

“The Democratic leader wants to write a completely new set of rules for President Trump,” Sen. McConnell said. “The same process that Senator Schumer thought was good enough for President Clinton he doesn’t want to afford President Trump. Go figure.”

Democrats argue that the administration’s consistent stonewalling of the House’s inquiry put the Senate in a different position than it was during the Clinton trial. Some speculated that Sen. Schumer’s move was a more calculated one.

With full knowledge that Sen. McConnell holds the cards in the Senate, the request was possibly a warning shot to those such as Sen. Ted Cruz, who has spoken of calling witnesses such as the whistleblower who keyed Congress in to the Ukraine affair and Hunter Biden, in an attempt to use the Senate trial to shift the focus of the impeachment process. Sen. Schumer’s request made clear that any such move would open a two-way street, one he would take full advantage of.

Whatever Sen. Schumer’s intentions might be, his core argument holds little water. First, one of the articles passed by the House is obstruction of Congress which is a catch-all phrase for the president’s total lack of cooperation with the process. To use the Senate trial on that very charge as a stage to poke at the administration’s actions on this front, rather than as a judgment of them, is somewhat oxymoronic.

Second, House Democrats made a strategic decision to move ahead with their inquiry at the highest possible speed without stopping to fight the White House’s no-show orders in the courts. The thinking was that a quick inquiry was more important than a thorough one, given the fact that the transcript of the president’s call with his Ukrainian counterpart largely spoke for itself, and that the 2020 election is fast approaching. For Democrats to now use the Senate trial as a stage to fill in the gaps they deliberately decided to leave is a patent attempt to have their cake and eat it too.

This early-stage showdown seems to foreshadow what will presumably be a wry role reversal in the Senate trial. Until now, it was Republicans who harped constantly on what they saw as procedural unfairness and decried the railroad impeachment hearings. As the stage shifts to the GOP-controlled Senate, all seem ready for the tables to turn.

What We Do Know

While unknowns remain, the Constitution and America’s thin history of presidential impeachments do give us some idea of what the Senate trial will look like. Rules for the proceedings were created for the nation’s first presidential impeachment, that of President Andrew Johnson in 1868. Even though President Richard Nixon resigned before the House could even vote on articles of impeachment against him, following his resignation the Senate took up the job of modernizing and expanding the rule book. The task was not completed until the mid-1980s. Those agreed upon by Senators Lott and Daschle in 1998-9 provide another layer of precedent.

A handful of basics are certain. House managers will present their cases and the president will be defended by his own legal team. The trial will be presided over by Chief Justice John Roberts. During the Clinton trial, then-Chief Justice William Rehnquist drew much attention for the three gold stripes that adorned the two arms of his robe. The mark of distinction was added several years prior to the impeachment, after the chief justice was impressed by the costume of a “high magistrate” in a light opera. Yet, as the Supreme Court’s proceedings are not visually recorded, most of the public had never seen them. Everything in Chief Justice Roberts’ past tells us that he will be a fair arbitrator but gives little hope for such effective comic relief.

At the end of the trial, senators each ceremoniously vote from their seats in the chamber, declaring either “guilty” or “not guilty” to the charges presented.

At the beginning of the proceedings, all senators take an oath that says, “I solemnly swear [or affirm, as the case may be] that in all things appertaining to the trial of the impeachment of [the person on trial] now pending, I will do impartial justice according to the Constitution and laws; So help me G-d.”

Much ado was made of statements by Senators McConnell and Graham that they are not impartial “jurors” and that the president’s acquittal is as much a forgone conclusion as was his impeachment by the House. The statements provided unnecessary fodder, but do not amount to the subversion of the process some have made them out to be. Democratic Senators Kamala Harris, Richard Blumenthal, and Elizabeth Warren each announced their conclusions of the president’s guilt while the House inquiry was ongoing.

While common parlance refers to senators in an impeachment trial as jurors, conservative opinion columnist Jeff Jacoby argued that the term is a misnomer.

“Just as impeachment doesn’t require a true crime, notwithstanding the constitutional standard of ‘high crimes and misdemeanors,’ neither does the Senate trial require true impartiality.”

Mr. Jacoby went on to point out that in 1999, an objection to the use of the term “jurors” by a Democratic senator was sustained by Chief Justice Rehnquist.

Quoting an essay by political scientist Jonathan Bernstein, Jacoby goes on to point out that the very fact that the Senate was chosen by the framers as the stage of impeachment shows their intention to make the process more political than legal.

“An impeachment trial is not a judicial trial, and senators are not members of a jury. They are partisan politicians. They have well-formed political opinions about the president, his behavior, and his fitness for office. Most of them know going in exactly how they intend to vote. That was the case at Andrew Johnson’s trial in 1868 and at Bill Clinton’s in 1999. It will be true at Trump’s impeachment trial as well. It’s why everyone already knows the Senate won’t vote to remove the president,” he wrote. “If the [Constitution’s] framers had wanted the president’s fate to depend on politically neutral actors … then United States senators are the very last people they would’ve given the responsibility to.”