How to Do Impeachment Right (And How the Dems Could Blow It)

Sep 25, 2019

Donald Trump woke up Wednesday morning knowing that he is now likely to be the third president in American history to be impeached.

And then he made it worse.

Remarkably, the White House appears to have imagined that releasing a non-transcript transcript of Trump’s call with Ukrainian President Volodymyr Zelensky would be seen as exculpatory. Instead, it made him look like Mafia don.

When the Ukrainian leader brings up the issue of military aid, Trump responds, “I would like you to do us a favor though…” In the call, he asks Zelensky to investigate the Bidens, and Zelensky agrees. Trump also urges the Ukrainian to work with his personal lawyer, Rudy Giuliani, who he refers to as an envoy.

Of course, we now know that the call itself was not a single, off-the-cuff incident. Instead, it was part of an even larger story that is laid out in today's Washington Post. The key quote:“Rudy—he did all of this,” one U.S. official said. “This s---show that we’re in—it’s him injecting himself into the process.”

What could possibly go wrong?

We are about to find out.

In the short term, though, all of this makes the formal impeachment by the House a near certainty.

Trump will, of course, lash out at the Democrats, the media and the "#Resistance" for launching a "witch-hunt," but the reality is that he brought it all on himself. History will note with bemusement that he made his call to the Ukrainian president, the day after Robert Mueller's testimony made it clear he was likely not to be formally charged with obstruction of justice in the Russian independent counsel investigation.

It was just another episode of Trump being Trump on steroids. He is exactly who we thought he was. Only worse.

But impeachment is not without its risks. As Josh Kraushaar notes, Speaker Nancy Pelosi is literally betting the House on it:

It’s a high-risk, high-reward bet for Pelosi. Polls have consistently shown a clear majority of Americans opposing impeachment. Pelosi’s decision gives Trump the chance to motivate an aggrieved GOP base for the upcoming presidential election. By encouraging many swing-district moderates to go on record in support of impeachment hearings, she’s putting the House in play if the gambit backfires. The strategy goes against her disciplined tactics in the midterms, when she urged Democratic candidates not to mention Trump and to focus on bread-and-butter economic issues.

But there is also another calculation here: Pelosi and the Democrats have evidently decided that the risk of doing nothing is greater than the risk of action. Their failure to hold Trump accountable has clearly emboldened him to think that he is above the law.

At this point, failing to act would mark a fundamental breakdown of the system that we had thought was in place to protect us from this sort of thing. As JVL noted in his newsletter:"the machinery of our constitutional republic is necessary, but not sufficient to protect the nation. Without elected representatives willing to put aside partisan loyalties, the machine is deeply vulnerable to corruption."

But there is a right way to do this. And a wrong way.

Nate Silver offers some advice:

https://twitter.com/NateSilver538/status/1176573840312418305?s=20

I'd offer some complementary warnings:

Don't exaggerate. Stick to the facts. Hysterical overstatement is not your friend. In other words, more Neal Katyal. Less Richard Painter.
Don't get ahead of yourself. Wait for the facts. (Which may have been good advice 48 hours ago.)
Get it right, for God’s sake. Every error will be magnified and weaponized.
Cut the bloviating. Deploy the lawyers. (Remember the Lewandowski hearing. It was a mess until they let Barry Berke do the questioning.)
Keep it simple and direct. Message discipline. Stay focused.
It’s the corruption, stupid.

Perhaps the best advice comes from the folks at Lawfare. Susan Hennessey, Quinta Jurecic, and Benjamin Wittes suggest that Congress focus on five discrete areas and avoid the temptation to indulge in ideological self-pleasuring.

It is, they write, “critically important to be disciplined at this juncture—to base articles of impeachment only on that activity which is not merely a plausible basis for removal but is unambiguously justified as a basis for removal.”

Specifically that means avoiding policy disagreements. “For example, Congress should strongly resist the temptation to include disputes over border security—including both spending on the wall and the grotesque policy of family separation—in any articles it might draw up.”

They acknowledge that this may be frustrating because it will mean that “a great deal of maddening conduct—indeed impeachable and even criminal conduct—on the president’s part will necessarily take a back seat.”

The Lawfare folks also urge Democrats to conduct the process “in a defensible and coherent fashion that makes a statement about acceptable presidential behavior.”

Here are the five areas they highlight:

(1) Obstruction of justice and abuse of law enforcement institutions and personnel. “This basket covers the president’s efforts to impede the special counsel investigation of Russian interference in the election and the campaign against the FBI those efforts entailed.”

(2) Trump’s “attempts to leverage the power of the presidency to cause investigation and prosecution of political opponents.” This includes Trump’s request to then-Attorney General Jeff Sessions to—as the Mueller report describes—“reverse his recusal so that Sessions could direct the Department of Justice to investigate and prosecute Hillary Clinton.”

(3) Trump’s abuse of “foreign policy authorities and misuse of congressionally appropriated money to induce a foreign head of state to violate the civil liberties of U.S. persons and interfere in a presidential election.” In other words… Ukraine.

(4) Trump’s efforts to obstruct or impede congressional investigations. This includes Trump’s “evident decision to frustrate congressional oversight of his conduct in general by refusing to comply with subpoenas.”

(5) Trump’s lying to the American public. “The 1974 article of impeachment concerning Nixon’s obstruction of justice also noted his lies to the public about the Watergate investigation: Nixon, the Judiciary Committee charged, made ‘false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted’ on the Watergate matter and that White House and Nixon campaign officials had no involvement in the burglary.” I would add to this any evidence that the president is using his office to enrich himself and his family. Voters understand old-fashioned pocket-lining-graft.

Finally, don’t miss David Jolly’s discussion of the Founders and impeachment:

https://twitter.com/DeadlineWH/status/1176601175153684480?s=20