December 13, 2019
Another Friday the 13th, like the one in September that launched this entire fiasco when House Intelligence Committee chair Adam Schiff wrote to the acting Director of National Intelligence Joseph Maguire demanding that he release the whistleblower complaint to the congressional intelligence committees, as required by law. No one knew what was in it, but Schiff noted that Maguire’s refusal to transmit the letter on the grounds that the person it concerned was not a member of the Intelligence Community meant that “the Committee can only conclude… that the serious misconduct at issue involves the President of the United States and/or other senior White House or Administration officials.”
And here we are, three months later, in a full-fledged constitutional crisis.
Today’s drama started last night, when Judiciary Committee chair Jerrold Nadler (D-NY) called a recess just after 11:00 and Republicans exploded. They had dragged yesterday’s hearings out as long as possible, hoping the impeachment vote would happen in the middle of the night and thus get less attention. Nadler wanted the vote when people were awake to watch it. After the session ended, Republicans gave media interviews insisting that the Democrats were not playing fair.
(As an aside, let me add here that it is very hard to give an accurate reporting of Republican behavior at this point without sounding biased. In this case, GOP leaders had played the system to their own ends all day, using parliamentary procedures to drag out the situation to their benefit-- that’s what all the requests to strike the last word were: for every amendment proposed, every member had the right to speak for five minutes. That’s fine; Congress has always had sharp parliamentarians in it. But when the Democrats did something much milder, simply gaveling down a session until Americans could watch what is one of the most momentous events in our history, the Republicans went ballistic and played the victim in front of the media. They are not acting at all in good faith; they are developing a narrative that plays to their base. But when you call them out, Trump supporters jump on you for being biased. Once again, this is classic abusive behavior, constantly keeping the actual victims on the defensive.)
OK, back to the story:
The impeachment vote took place this morning shortly after 10:00. The House Committee on the Judiciary passed two articles of impeachment against President Donald John Trump by a party-line vote of 23-17.
Now the case goes to the House as a whole, which will likely vote on the articles next week. They are expected to pass, although there may well be some Democratic defections from Democrats in swing districts. House Speaker Nancy Pelosi has said she will not “whip” that is, pressure, Democrats to vote with the party. This is a “vote of conscience,” she says.
There might not be defections, though, as Republicans have made it clear they are simply sticking with Trump regardless of the facts, which are so clear that the GOP is either not dealing with them or denying them altogether.
It has been a bit of a scandal that Republican Senators have been coordinating their plans for a trial with the White House, and that went nuclear last night when Senate Majority Leader Mitch McConnell met privately with White House Counsel Pat Cipollone and another White House legal advisor, then told Sean Hannity on the Fox News Channel that he would remain in “total coordination” with the White House. Although the Senate is supposed to act as an impartial jury in an impeachment trial, McConnell said “There will be no difference between the president’s position and our position as to how to handle this….” “There’s no chance the president will be removed from office.”
This is awkward, since in 1998, the Senate developed quite detailed procedures for a Senate impeachment trial (they’re really weirdly detailed, like they are a film script). One of the requirements is that Senators must take an oath, saying: “I solemnly swear (or affirm, as the case may be) that in all things appertaining tot the trial of the impeachment of ------ -------, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
At stake is that McConnell’s statement erases our separation of powers and puts the legislative branch—Congress—at the disposal of the president. This was enough to draw former Republican and still staunch conservative Tom Nichols to tweet: “People ask me when I think protest is appropriate and matters, since I’m usually not a fan. This, right here, should bring people into the streets of every state with a Republican Senator. This is a direct attack on the Constitution, not by Trump, but by an entire party.”
Nichols is the very opposite of an alarmist. His statement is a very big deal indeed. Another conservative agreed with him. Washington Post columnist Jennifer Rubin tweeted: “If McConnell continues to collude and four R’s do not defect to demand a real trial with witnesses then peaceful, mass protest is in order. This should not stand.” Democrats are also pushing back. Val Demings (D-FL) says McConnell needs to recuse himself. “He has effectively promised to let President Trump manage his own impeachment trial. The Senator must withdraw.”
McConnell’s declaration might leave room for voters to insist on a fair trial. McConnell can only cut off witnesses and evidence if he has 51 votes to do that. It is possible that, under pressure from constituents, some Republican senators would vote for openness. Greg Sargent and Paul Waldman in the Washington Post argued that this would enable Democrats to demand the testimony and witnesses Republicans previously blocked on the grounds that the House investigation was illegitimate.
In the end, if Congress caves to Trump, will the courts retain their independence? Today the Supreme Court agreed to hear three cases concerning Trump’s finances. He has insisted that Congress cannot investigate the president, and thus that the lower courts who have upheld house subpoenas for his taxes and finances are wrong. (You will remember Trump’s lawyers agreed with the hypothetical scenario that even if the president shot someone on Fifth Avenue he could not be investigated while president.) Precedent would say that the Court would uphold the lower court rulings-- of course the president is not above the law-- but now, with Trump appointees Neil Gorsuch and Brett Kavanaugh on the Court, the outcome is unclear. It will decide the cases in late spring, at the earliest (showing how effective it has been for Trump to tie everything up in lawsuits).
While McConnell seems to have ceded Congress to Trump and the Supreme Court’s stance is unclear, the president seems worried. He’s tweeting madly, and more bad news is coming his way. Yesterday, the Department of Defense and the Office of Management and Budget began releasing documents about the Ukraine scandal as required by a federal judge, but they were almost entirely blacked out, which will spark another court battle. Today a federal judge ordered the State Department to produce more documents about the Ukraine scandal, focusing on contacts between Giuliani and Secretary of State Mike Pompeo.
And today, the Editorial Board of the Orlando Sentinel, in a state Trump will need for reelection, called not just for impeachment, but also conviction.
NOTES:
Schiff’s letter: https://intelligence.house.gov/uploadedfiles/20190913_-_chm_schiff_letter_to_acting_dni_re_whistleblower_-_subpoena.pdf
Wisconsin case: http://www.startribune.com/wisconsin-judge-hears-challenge-to-234k-voter-registrations/566163601/
Rules of Procedure and Practice in the Senate when Sitting on Impeachment Trials.” https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113-pg223.pdf
Nichols:
Rubin:
Pompeo case: https://www.kansas.com/news/nation-world/national/article238359678.html
Orlando Sentinel: https://www.orlandosentinel.com/opinion/editorials/os-op-impeach-donald-trump-editorial-20191212-7sb3uedyqfdonh5o3eypyxk7um-story.html
Senate trial: https://www.washingtonpost.com/opinions/2019/12/13/impeachment-trial-democrats-can-put-republicans-defense-heres-how/