Monday, October 07, 2019

Three Questions about Impeachment

There are three questions to ask about impeachment: 1) Did the President commit a crime? 2) If the President committed a crime, is it an impeachable crime? 3) Are the Democrats running the impeachment process qualifiedethically or politicallyto judge him.

Did the President commit a crime? I'm not sure we know this. I think a lot of people think he acted unethically, but not all unethical behavior is criminal. By saying someone committed a crime, we mean one of two things: either he violated statutory law, or he engaged in behavior that legal case law has adjudged to be criminal.

The President's opponents accuse him of 1) asking a foreign government for a partisan favor, and 2) the request was contingent on the foreign government receiving aid from the United States.

If he violated a statutory law, which one did he violate? Federal laws have numbers. "Pub. L. No. 108-45" is the 45th law passed by the 108th Congress. What is the number for the statute Trump violated?

If he violated the findings of some judicial ruling, then what ruling was it?

I'm not saying there are no good answers to these questions. I'm just saying that, as someone who has paid pretty close attention the debate, I have not heard a single person address these questions. It is supposed to violate campaign finance law. Which one? What does it say? Some people say it could violate several laws. Which ones?

For all the certainty about the fact that Trump violated laws, it is curious there has been so little discussion about the laws themselves.

This is important, since laws are stated in ways that often invite interpretation. But when you have no particular law you can refer to, it's kind of hard to figure out whether the activity you are pointing to violates it or not.

If the President did commit a crime, was it an impeachable crime? This is even more murky, since the Constitution says that a president may be impeached for "high crimes and misdemeanors" What makes a crime or misdemeanor "high"? The Constitution gives no guidance on this, nor, apparently, does case law. Given that fact, the determination is a political judgment.

We as a people have to decide, through our representative government, whether it qualifies or not. If we decide it does, then it does. If we decide it doesn't, it doesn't. Period.

The outcome of that process is yet to come.

Are the Democrats running the impeachment process qualified to judge him? This, in the end, is the most important question. The one that will really tell.

For Americans to see Trump's actions for what they are, they are going to have to have confidence that the people doing the judging themselves be above politics and partisanship. They are going to have to know that the process is fair.

On this ground alone, impeachment hangs. Even if the other two questions are answered in the affirmative, the answer to this one is determinative. And to mark it worse, it is the one of which Trump's enemies seem clueless. 

The Democrats will kill their own impeachment agenda. No one except the most blind Democratic partisan believes that the partisan Democratic politicians who are now engaged in the impeachment inquiry are even remotely fair and nonpartisan. 

First, House Intelligence Committee Chariman Adam Schiff has already stepped in it twice--once by rewriting the President's comments in the transcript of the call to the Ukrainian president, and then again when he lied about when he knew about the whistleblower complaint. 

Schiff cannot play both sides of the track here. He cannot act as a partisan one moment, and in another pretend to be scrupulously judicial. It hasn't worked so far, and will continue to plague the investigation.

Second, the Democrats would impeach Trump of anything if they could, legal or illegal, ethical or non-ethical, and the voters know this. They were talking impeachment before he even took office. Americans have seen a parade of charges, one after another, each eliciting a cheer from Democrats as the think that will take down Trump, and each fading into obscurity. The Ukraine call is only most recent of these charges.

At some point (and I think we have reached it), voters just say, well, Democrats just don't like Trump and they will stop at nothing to bring him down. This is just another attempt, and it will fail like all the rest.

Can we talk about something else now?

Third, House Speaker Nancy Pelosi's failure to call a vote on articles of impeachment makes the Democrats look even worse in this regard. Trump's defenders know this, and are honing in on this weakness. The administration is now refusing to turn over documents until this is done, which is the smartest thing they could do, since it puts Pelosi in a dilemma: either she calls an impeachment vote, which she knows, at this point, her party really doesn't want, or she doesn't call it, in which case she denies the administration legal protections that the formal impeachment process provides. 

Pelosi won't call a vote on impeachment, but not because she doesn't have the votes. She may have the votes, but that doesn't mean members want a public vote. In these kinds of cases, there are people who will vote yes when it comes to it, but they don't want to pay the costs of such a vote. They are the ones that, right now, are approaching Pelosi and discouraging her from calling a vote. 

Democrats have managed till now to convince the public that they are now operation according to some "formal process" of impeachment, when, in fact, they are not. The only "formal process" when it comes to impeachment is impeachment. And the only thing that qualifies as impeachment is a vote for articles of impeachment.

The only claim the so-called "impeachment inquiry" has to formality is their own rhetoric. This is what the Trump administration is betting on: that they can make this clear by refusing to provide documents.

And let's be plain about this: Pelosi doesn't have the votes for articles of impeachment. The only support she now enjoys is support for an "impeachment inquiry." And those aren't impeachment votes. This is why the Democrats will continue to punt on actual impeachment and continue equivocate about an  "impeachment inquiry" constituting a "formal" impeachment process.

All of this goes, again, to the issue of fairness. The Democrats are accusing Trump of using his office for partisan gain. But if the public becomes convinced, as I think many already are, that the Democrats are only using the impeachment process for partisan gain, then how, they will ask, are they any better than the man they are trying? People will not accept the legitimacy of a process in which the judge is guilty of the same crime as the person being tried. They just won't.

So far, the Democrats are playing right in to Trump's strategy here. Some people think his tweets hurt him. They don't. They further anger his Democratic opponents, and they overreact, looking partisan themselves, and play right in to his strategy.

They will continue to do this. This is why Pelosi won't win her vote, and why, even if she does, the Senate will acquit. And will help Trump in the 2020 election.


Anonymous said...

Another baffling head-scratcher from Mr. Cothran.

1) and 2) are seemingly invalidated by Wikipedia.
"The notion that only criminal conduct can constitute sufficient grounds for impeachment does not comport with either the views of the founders or with historical practice."
If Mr. Cothran disagrees with this widely held interpretation, he should explain why.

3) If there are valid reasons for impeachment, then the Democrats are not using impeachment only for partisan gain, but also using it for the good of the country. "Partisan" doesn't have to mean dishonest or unethical. [Although perhaps it may in Kentucky where the Transportation Secretary's abuse of her position to favor Kentuckians is not seen as a wrong but as a triumph to be trumpeted in her husband's re-election campaign.]


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