National Review Online
Monday, February 03, 2020
The impeachment saga is drawing to a close.
The Senate is prepared to acquit without hearing from
witnesses, after Lamar Alexander, a swing vote, came out against calling them
late last week.
In his statement, Alexander expressed the correct view on
the underlying matter — one we have been urging Republicans to publicly adopt
since impeachment first got off the ground.
The Tennessee Republican said that it has been amply
established that Donald Trump used a hold on defense aid to pressure the
Ukrainians to undertake the investigations that he wanted, and that this was,
as he mildly put it, inappropriate. But this misconduct, he argued, doesn’t
rise to the level of the high crimes and misdemeanors required to remove a
president from office. If the Senate were to do so anyway, it would further
envenom the nation’s partisan divide. Besides, there is a national election
looming where the public itself can decide whether Trump should stay in office
or not.
Since we already know the core of what happened,
Alexander explained, there was no need to hear from additional witnesses in the
Senate trial. (On this theory of the case, the Senate is in effect acting like
an appellate court, rendering a judgment on a threshold question of law, rather
than a trial court sifting through the facts.)
In the wake of Alexander’s statement, other Senate
Republicans endorsed his line of analysis, which, it must be noted, is superior
to the defense mounted by the White House legal team over the last two weeks.
Because the president refused to acknowledge what he did,
his team implausibly denied there was a quid pro quo and argued that one hadn’t
been proven since there were no first-hand witnesses. Obviously, this position
was at odds with the defense team’s insistence that no further witnesses be
called. It also raised the natural question why, if people with firsthand
knowledge had exculpatory information, the White House wasn’t eager to let them
come forward.
Additionally, the White House maintained that a president
can’t be impeached unless he’s guilty of a criminal violation. This is an
erroneous interpretation of the Constitution, although it is true that past
presidential impeachments have involved violations of the law and that such
violations provide a bright line that’s missing if the charge is only abuse of
power. Alan Dershowitz argued this position most aggressively for the
president’s defense, and made it even worse by briefly seeming — before walking
it back — to argue that anything a president does to advance his reelection is
properly motivated.
As for the House managers, they were at their strongest
making the case that the president had done what they alleged, and their
weakest arguing that he should be removed for it.
They tried to inflate the gravity of Trump’s offense by
repeatedly calling it “election interference.” At the end of the day, though,
what the Trump team sought was not an investigation of Joe or Hunter Biden, but
a statement by the Ukrainians that they’d look into Burisma, the Ukrainian
company on whose board Hunter Biden sat. The firm has a shady past and has been
investigated before. Trump should have steered clear of anything involving his
potential opponent, but it’s not obvious that a new Burisma probe would have
had any effect on 2020 (the vulnerability for Biden is Hunter’s payments, which
are already on the record) and, of course, the announcement of an investigation
never happened.
They said that Trump’s seeking this Ukrainian
interference was in keeping with his welcoming of Russian meddling, implying
that Trump had been found guilty of colluding with the Russians in 2016, rather
than exonerated. (Part of the complaint here is that Trump made use of material
that emerged via Russian hacking. Then again, so did Bernie Sanders in his
fight with the DNC.)
They alleged that the brief delay in aid to Ukraine
somehow endangered our national security, a risible claim given that the
Ukrainians got the aid and that Trump has provided Ukraine lethal assistance
that President Obama never did.
They accused the president of obstruction of justice for
asserting privileges invoked by other presidents and not producing documents
and witnesses on the House’s accelerated timeline, a charge that White House
lawyer Patrick Philbin effectively dismantled.
Finally, they insisted that a trial without witnesses
wouldn’t be fair, despite making no real effort to secure the new witnesses
during their own rushed impeachment inquiry.
As for the Senate trial being a “cover up,” as Democrats
now insist it is, there is nothing stopping the House — or the Senate, for that
matter — from seeking testimony from John Bolton and others outside the
confines of the trial. This would be entirely reasonable congressional
oversight (despite the White House arguing otherwise) and there is still a
public interest in knowing as much as possible about this matter, even if Trump
isn’t going to be removed.
If nothing else, the last two weeks have been a forum for
extensive discussion about the respective powers of the two elected branches of
government. We are sympathetic to the view that the executive branch has too
much power. If Congress seeks to remedy this imbalance by impeaching and
removing presidents, though, it will be sorely disappointed, since the
two-thirds requirement for a Senate conviction is an almost insuperable
obstacle to removal (as both House Republicans and House Democrats have
experienced the last 20 years).
It would be better if Congress undertook a more
systematic effort to take back prerogatives it has ceded to the executive
branch and the courts. But we aren’t optimistic on this score, since the same
Democrats who claim to be sticklers about congressional power on the Ukraine
matter won’t say a discouraging word about Elizabeth Warren’s and Bernie Sanders’s
promised adventures in unilateral rule as president.
At the end of the day, Nancy Pelosi impeached knowing
that the Senate wouldn’t convict, and so here we are — with nine months to go
until voters get to make their judgment: not just about Ukraine, but about the
last four years and Trump’s eventual opponent.
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