Posts published in “Politics”

Senate Republicans have decided that their political interests are best served by not conducting a full and fair impeachment trial involving all relevant facts and witness testimony.

As a purely political matter, they may be right: Polls show that Republicans overwhelmingly oppose impeachment and believe Trump when he derides the hearings as a “witch hunt” and a “hoax.” But as President Kennedy famously put it, “sometimes party loyalty asks too much.”

Indeed, GOP senators have greater obligations than loyalty to their party. They have an obligation to the Constitution and to history, to the rule of law and the separation of powers.

Yet, by deliberately conducting a sham trial designed to conceal the truth from the American people while covering-up for Trump, Senate Republicans are shirking these greater obligations and doing themselves and the nation a great disservice.

Specifically and ominously, they are undermining the rule of law and he separation of powers, which are bedrock pillars of our Constitutional order.

Rule of Law. Senate Republicans are undermining the rule of law by ignoring or downplaying Trump’s wrongdoing and refusing to thoroughly examine the factual record to see what laws might have been violated.

And the fact that the House of Representatives did not charge Trump with violating any specific law (though it did charge him with abuse of power and obstruction of Congress) is no excuse for the Senate’s abdication of its Constitutional responsibility to conduct a serious and credible trial.

The House did the best it could in the face of obvious Trump administration stonewalling and obstruction of justice. The Senate, because it is controlled by the president’s own (Republican) party, has far greater political leeway and wherewithal to investigate the administration than does the House.

Trump, after all, is far less likely and able to stonewall GOP senators than he is Democratic congressmen. Yet, the Senate declined to fully exercise its institutional prerogatives during the impeachment trial, and the reasons offered up by Republican senators are weak, feeble, and beside the point.

Sen. Lamar Alexander (R-Tenn.), for instance, said that because the House proved its case re: the first article of impeachment (abuse of power, by asking Ukraine’s government to “investigate” Joe Biden and Burisma), there is no need for additional witness testimony or evidence—especially since, in Alexander’s mind, Trump’s offense does not warrant his removal from office by the Senate.

But this legalistic excuse for inaction won’t cut it. Impeachment, remember, is a political act. Consequently, there is a lot more to consider than simple guilt or innocence. The Senate has a responsibility to unearth all relevant facts and information, so that the American people can make an informed political decision on election day, Nov. 3, 2020.

This is especially important since the Senate isn’t convicting Trump—in large part, says Alexander, out of respect for the electoral wishes of the citizenry. There is, he notes, a presidential election Nov. 3, 2020, and Trump’s fate should be decided then not now.

Fair enough, but how is the electorate served by short-circuiting the trial and concealing information from the public record that the American people could otherwise review, weigh and consider on election day?

In fact, because the Senate is acquitting Trump, it has an even greater responsibility to ensure that all pertinent evidence and witness testimony are part of the public record.

The Senate, moreover, doesn’t know what it doesn’t know. While the House did not charge Trump with breaking the law per se, it still unearthed a myriad of information that implicates the president with wrongdoing and abusing his authority.

It is entirely possible that a full and complete trial, with firsthand witness testimony, would have unearthed additional information that might have established clearer-cut instances of illegality by the president.

At the very least, if the Senate had taken the time do its due diligence, we would know more than we now do, and voters would have greater situational awareness and understanding when they go to the polls in November.

Separation of Powers. As for the separation of powers, Congress is supposed to be an independent branch of government that serves as a check on the executive branch. Yet, by covering-up for Trump, the Senate has turned itself into a wholly owned subsidiary of Trump, Inc. and yielded its Constitutional authority to the demands of the executive branch.

In short, when it comes to impeachment, there is no separation, as prescribed by the Constitution, between the Senate and the White House. Mitch McConnell, in fact, said publicly before the trial even began that 

“Everything I do during this I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to how to handle this.”

So much for fidelity to the Constitution and its original meaning.

Of course, the Wall Street Journal Editorial Board ignores all of this and focuses exclusively on the question of removing Trump from office. They say Alexander’s “vote against witnesses was rooted in Constitutional wisdom” and is his “finest hour” as a public servant.

But while a legitimate case can be made that the Senate should not convict Trump, this does not mean it should abort its search for truth and give up on a full and fair trial. These are two separate and distinct questions, which the Journal deliberately and misleadingly conflates 

Thus far from being Alexander’s “finest hour,” his vote against witness testimony was his most disgraceful and shameful act as a senator. And far from being rooted in Constitutional wisdom, this decision instead is an utter abdication of Constitutional duty.

Senate Republicans should hang their heads in shame and be on high alert come election day. The voters may be less forgiving than the GOP’s media apologists at the Wall Street Journal.

Feature photo credit: The Nashville Tennessean via Commercial Appeal.

There have been a lot of smoke and mirrors offered up in defense of Trump’s actions vis-à-vis Ukraine; but one of the weakest defenses is the notion that we have to ascertain Trump’s motives to know whether he did wrong, and that ascertaining those motives is challenging, complicated, and difficult.

The issue of motives arose during the Senate impeachment trial Wednesday when Sen. Collins (R-Maine) asked a question on behalf of herself and Senators Murkowski (R-Alaska) and Romney (R-Utah). The Senators wanted to know how they should consider Trump’s actions if he had more than one motive—rooting out corruption, say, as well as personal political gain.

On the most fundamental level, of course, the question of motives is utterly irrelevant. What matters, after all, is what the president did, not what motivated him to do what he did.

If, for example, you steal a car, embezzle money, rape a woman, or murder someone, does it matter what motivated you? Isn’t what matters that you committed a heinous and illegal act irrespective of your motive? We punish people for crimes and misdeeds, not because they have bad motives or thoughts.

Indeed, as Renato Mariotti observes in Politico:

“At trial, the motive behind a defendant’s commission of a crime usually doesn’t matter. Even if a public official took bribes in order to pay his medical bills, he is still guilty of bribery. If a fraudster ripped off billionaires and gave the money to charity, she is nonetheless guilty of fraud.”

Exactly. So, even assuming that we can’t know what motivated Trump’s actions vis-à-vis Ukraine, we do know what he did: He withheld Congressionally authorized aid to Ukraine while asking the government there to do him a “favor”: investigate Joe Biden and Burisma.

Thus he solicited a personal political favor from a foreign government; he asked that government to interfere in our presidential election by “investigating” his top political rival; and he implied or suggested to that government that their Congressionally authorized aid might be withheld if they were less than forthcoming and helpful to him on this matter.

All of this is wrong and arguably impeachable. Case closed.

Now, whether Trump should be convicted and removed from office for this offense is an altogether different question; but his underlying actions are clearly and obviously wrong. At the very least, Trump should be formally censured by Congress, not simply acquitted, or, as his apologists will no doubt wrongly describe any acquittal, “exonerated.”

Yet, the Wall Street Journal today devotes a brief editorial to regurgitating this irrelevant and disingenuous defense of Trump. 

“House managers,” says the Journal,

“concede that President Trump broke no laws with any specific actions. Instead, they claim that he abused his power because his motives for asking Ukraine’s President to investigate Joe and Hunter Biden were self-interested—to assist his re-election rather than as Mr. Trump claims to investigate corruption.”

First, it has been well-established that a president need not break the law to be impeached. Jonah Goldberg explains why in an excellent piece in The Dispatch. But more to the point, as I’ve just explained, we don’t need to know what motivated Trump to know that what he did was clearly and obviously wrong.

No American president should ever ask a foreign government to investigate his top political rival; and no American president should try and use Congressionally authorized aid as leverage to secure such an investigation.

Motives. That said, it doesn’t require any great powers of discernment or clairvoyance to know what motivated Trump, and it surely wasn’t a zeal to root out corruption in Ukraine.

Trump, after all, had never before expressed even a slight interest in the topic; and, during his phone call with Ukrainian President Volodymyr Zelensky, the word corruption never once left his lips. Moreover, as CNN’s Marshall Cohen has observed,

“Trump showed little interest in fighting corruption before Biden launched his campaign, and official government records suggest Trump was motivated by politics…

“Trump’s effort to end foreign corruption is only focused on one family: the Bidens. Republican Sen. Mitt Romney pointed out that this is no coincidence, noting that ‘it strains credulity to suggest that it is anything other than politically motivated.’”

Additionally, there have been no corresponding anti-corruption policy initiatives or funding pushed by Trump and his administration. Yet, such initiatives, if they existed, would obviously lend credence to the notion that Trump was interested in fighting corruption.

To the contrary, as Cohen notes, Trump’s State Department is trying to reduce funding for federal anti-corruption efforts.

And of course, now there is the unpublished book manuscript by former National Security Adviser, John Bolton, which reportedly confirms Trump “wanted to continue freezing $391 million in security assistance to Ukraine until officials there helped with investigations into Democrats including the Bidens…”

In short, we know what Trump did and we know why he did it, and we know that he did wrong. What we don’t know is why his apologists continue to spin and make excuses for his obvious misconduct.

Feature photo credit: The Hill.

Is President Trump being impeached and tried fairly or unfairly? To Trump and his apologists, the answer is obvious: He is being treated unfairly and denied basic due process. 

His attorneys complain, for instance, that Trump’s been denied the right to call and cross-examine witnesses. Trump, likewise, took to Twitter today to complain that “the Democrats already [have] had 17 witnesses, [while] we were given NONE!”

But this is disingenuous. Aside from Hunter Biden, who has absolutely nothing to do with this impeachment inquiry and thus is a diversion, it is not at all clear who the alleged missing Trump witnesses are.

Trump himself, moreover, invoked executive privilege to prevent both his current Chief of Staff, Mick Mulvaney, and his former National Security Adviser, John Bolton, from participating in the House impeachment inquiry.

More to the point, analogies to a conventional criminal trial are inapt and inappropriate. By deliberate Constitutional design, impeachment is a political process.

This doesn’t mean that basic standards of fairness and due process don’t apply. However, it does mean that all of the legal niceties and procedural safeguards that apply in a conventional criminal trial do not apply in an impeachment hearing.

Conventional criminal trials were designed, first and foremost, to protect the innocent. Impeachment hearings, by contrast, are designed to protect the integrity of our laws and institutions, and the safety and security of our country above all else.

Thus we require guilt “beyond  the shadow of a doubt” for criminal defendants. American presidents, however, enjoy no such presumption. Their guilt or innocence is secondary to the well-being of the country and our government.

The Political Clock. There’s also the matter of time and the political clock. American presidents are elected to a four-year term. Our Founding Fathers recognized that, because of a president’s limited time in office, impeachment hearings must be conducted expeditiously and not allowed to drag on interminably as many criminal trials do. Otherwise, impeachment could be rendered moot.

For these reasons, legal protections accorded to criminal defendants are simply not accorded to American presidents. The Founders believed that political checks and balances and the separation of powers would ensure that any impeachment hearing would basically be fair, or at least result in a just and equitable outcome.

And so it has been. The House of Representatives laid out a legitimate and fair process of inquiry and impeachment. Trump and his attorneys chose not to participate in this process. Instead, they have attacked and undermined that process every step of the way: by lambasting it as illegitimate from the start.

That is certainly their prerogative; but let’s not pretend that theirs is an honest, good-faith complaint, because it’s obviously not. What it is is political posturing and gamesmanship designed to obstruct Congressional oversight and deny Congress its Constitutionally prescribed power of impeachment.

A similar dynamic has played out regarding Trump’s use of executive privilege as an excuse or rationale for withholding documents from Congress and preventing his officials, past and present, from testifying there.

Law professors Alan Dershowitz and Jonathan Turley complain that the House of Representatives should have taken this matter to the courts and let them decide whether Trump’s use of executive privilege is legitimate or illegitimate. But that would have taken many months and years, potentially, at which point the matter would have been rendered moot by the political clock and the 2020 election.

The House recognized that Trump was not acting in good faith, and instead, was stonewalling. Accordingly, then, they charged him with obstruction of Congress, which is the second article of impeachment. The first article of impeachment is abuse of power.

The House then delivered its articles of impeachment to the Senate, in the hopes that the Senate would compel witnesses and documents Trump denied to the House.

That was a smart, fair-minded and legitimate move. Unfortunately, Senate Republicans are uninterested in a fair impeachment trial. For crass political reasons, they want simply to go through the motions and summarily acquit Trump.

They act as his political Praetorian Guard, not as members of an independent branch of government charged with checking the executive’s abuse of power.

The truth is that Trump is clearly and plainly guilty as charged. He abused his authority as president to try and secure personal political favors from a foreign government, and he tried to use Congressionally authorized aid to that government as leverage to secure these favors.

And, because he’s plainly and obviously guilty, Trump and his attorneys refuse to contest the basic facts of the case, or even to participate in that case in any real and substantive way. 

Instead, they complain about process. In so doing, they bring to mind that old law school admonition to aspiring trial attorneys: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”

Trump and his attorneys have spent all of impeachment and the months leading up to it yelling like hell. But anyone even vaguely familiar with the case knows that they’re yelling loudly because the facts and the law are against them.

And what’s really unfair is not the House impeachment, but the Senate trial designed to conceal the truth from the American people while acquitting a president obviously guilty of wrongdoing.

Feature photo credit: Jon Elswick/Associated Press via the Boston Globe.