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Impeach with All Deliberate Speed

No matter the anticipated outcome in the Senate, the House should proceed with impeachment—quickly but flexibly.
December 4, 2019
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If the impeachment process stays on its current course, the result is all but certain.

House Democrats will impeach President Trump on a party-line vote, and then Senate Republicans will refuse to remove him on their own party-line vote.

The pro-impeachment forces in the House already have everything they need. They have Trump demanding a personal “favor” in exchange for an official act. That’s bribery and abuse of power. And if they have the will to go there, they also have several counts of obstruction. And possibly lying under oath in his written submission to the Mueller investigation.

The result in the Senate is just as assured. Short of the discovery of a video of Trump saying, “I, President Donald J. Trump hereby offer you, Ukraine, a bribe,” and maybe not even then, Senate Republicans aren’t likely to vote to remove him from office.

That leaves congressional Democrats with a choice: Knowing that the Senate will refuse to remove Trump if the House impeaches him, should they impeach him anyway, or should they change course and try for something less, like a vote of censure?

The answer is that they should move ahead with impeachment.

But not because it’s politically expedient.

The political fallout of a party-line impeachment vote in the House, followed by a Senate party-line acquittal, is unknowable. Some persuadable voters will see Democratic overreach. Others will see Republican cowardice.

Arguments will be made both ways but, as always, the devil will be in the details. Testimony we haven’t heard and evidence we haven’t seen could tilt public opinion one way or the other. The persuasiveness with which the opposing sides make their respective arguments could also sway voters.

Now look at it from the other direction: What if the House Democrats don’t impeach, and instead try to broker a deal for a bipartisan censure or, failing that, move forward with their own party-line censure? What would be the political fallout of that scenario?

Disaster for the Democrats.

Their base would accuse them of cowardice. Senate Republicans would breathe an enormous sigh of relief that they never had to vote up or down on impeachment. Trump would posture and gloat: “Shifty Schiff and the corrupt Democrats have been running fake investigations against me for years, and even they couldn’t come up with anything impeachable!”

But regardless of who might win the public-relations war, predictions of the political fallout should not be what determines whether the House moves ahead with impeachment.

Bigger things are at stake.

Like the rule of law. Like setting a precedent that discourages future presidents from ignoring constitutional mandates and historical norms. Like demanding accountability from our public officials. Like refusing to give a corrupt president tacit approval to commit similar acts of bribery in the future and otherwise continue to obliterate the guardrails of our democracy.

Impeachment without removal wouldn’t uphold these values as effectively as removing a president from office, but it would place the pro-impeachment forces on the right side of history.

The specter of impeachment has haunted a number of presidents, but only two have been impeached. Trump would be the third. Neither of the other two, Andrew Johnson in 1868 and Bill Clinton in 1998-99, was removed from office. Both of them, however, are forever branded with the I-word.

And again, look at it from the other side. What signal would a failure to impeach send to Trump and others who might aspire to be like him?

In short, permission to act with impunity.

So House Democrats need to ignore the “it’s all meaningless if the Senate won’t remove Trump” whining. They should do their job without worrying excessively about what might happen in the Senate.

Still, exactly how they go about this job is an open question. There are three broad options:

Option 1: Move ahead expeditiously without waiting for the courts to decide whether key witnesses have to testify.

Option 2: Wait until the courts sort it all out.

Option 3: Something in between.

Option 1 is a mixed bag, but not entirely out of the question.

Moving full speed ahead without testimony from the witnesses who have so far refused to appear would allow the House to complete the impeachment process at the earliest possible date—likely in January, although possibly even by the end of this month. That’s important because the closer we get to the 2020 election, the stronger the argument that Trump’s fate should be left to the voters in November.

The downside is that it gives Trump’s defenders an opening to claim that the process is rigged and that the House is rushing to judgment without all of the relevant evidence. Despite the inherent hypocrisy of that argument—after all, it is Trump himself who is preventing key witnesses from testifying—it would likely achieve traction with enough voters to make at least a difference on the margins.

But then there’s this: Trump and congressional Republicans are going to cry foul no matter what the Democrats do.

So why worry about it?

Option 2 is a complete non-starter.

The courts have so far rejected every Trump attempt to withhold documents and prevent witnesses from testifying, but Trump’s strategy isn’t to win in court, it’s to run out the clock. By the time all the appeals have been exhausted, it will likely be so close to the 2020 election that the public tires of it all and says, “let’s just vote.”

That would be fine if there weren’t already enough evidence to impeach, but there is. Or if there weren’t important values and historical precedents at stake, but there are. So there’s no reason to wait, and every reason not to allow Trump’s rope-a-dope strategy to win the day.

Which brings us to Option 3.

To borrow the Supreme Court’s famous phrase, the House should proceed with all deliberate speed.

“Deliberate speed” signals clear intent and resolution, but also a lack of undue haste. In this context, it means the House should set and stick to a reasonably ambitious schedule, not get sidetracked by endless court battles, but retain enough flexibility to accommodate obtaining important evidence from previously unavailable sources if and when the opportunity arises.

Then let the chips fall where they may in the Senate.

Philip Rotner

Philip Rotner is a columnist whose articles appear in national publications and on his website, philiprotner.com. Philip is an attorney who has practiced for over 40 years, both in private practice and as the general counsel of a global professional services firm.  Philip’s views are his own, and do not reflect the views of any organization with which he has been associated.