January 17, 2020
Ever since it has become clear that the House would vote to impeach the president, the White House and Senate Republican leaders have struggled over the Senate trial. Senate Majority Leader Mitch McConnell did not want the Senate to devolve into the circus that the House did. There, GOP representatives worked hard to please Trump and his base, but they horrified regular voters. McConnell wants to hold the Senate in the 2020 elections, and there is no upside to putting the GOP Senate further into disrepute. He is eager to make this whole trial go away, acquitting the president as quickly and quietly as possible. No witnesses, no debate. Just get it done.
But Trump loves spectacle, and has been tweeting all along about demanding that the Chair of the House Intelligence Committee, Adam Schiff testify, alongside Hunter Biden, and the whole roster of people that Fox News Channel personalities have identified as the villains in their alternative-fact version of the Ukraine Scandal. His goal seems to be the usual: create such nasty chaos—as GOP leaders like Devin Nunes (R-CA), Doug Collins (R-GA), and Jim Jordan (R-OH) did—that Americans get overwhelmed and tune out, and he gets away with a crime that at this point is ridiculously well established.
Today, Trump took a big step toward creating his ideal scenario. He added Alan Dershowitz, a retired Harvard Law School professor, and Ken Starr, famous both for his role investigating Bill Clinton and in the Baylor University football scandal. Both Dershowitz and Starr were lawyers for pedophile Jeffrey Epstein, who recently perished in prison. Two of the girls Epstein trafficked have accused Dershowitz of raping them; he says they are “liars.”
In 1994, Starr was appointed to investigate the Whitewater Scandal. From that, he investigated firing of White House Travel Office personnel, potential abuse of confidential FBI files, whether or not the Clinton’s had hidden money in a failed Arkansas bank, Vince Foster’s death, and eventually the Monica Lewinsky scandal that led to Clinton’s impeachment. (Supreme Court Justice Brett Kavanaugh worked for Starr digging up dirt on Clinton, by the way. Small world.)
In 2010, Starr became president of Baylor University; three years later, he was also named chancellor, the first person to hold both positions at once. This meant there was no one else to blame when at least six female students accused the university of failing to respond to reports of rape and sexual assault. In the wake of reports, two football players were convicted of rape and the university removed Starr from the presidency. He chose to resign the chancellorship as well.
Trump also added Former Florida Attorney General Pam Bondi, who made the news when it came to light that she decided not to pursue dozens of complaints against Trump University in 2013 after her reelection campaign received a $25,000 donation from the Donald J. Trump Foundation.
These three will assist White House Counsel Pat Cipollone and Trump’s personal lawyers Jane Raskin and Jay Sekulow, who will be in charge. Also helping will be Robert Ray, who replaced Starr as the Independent Counsel overseeing Clinton, and who wrote the final report on Clinton’s relationship with Lewinsky.
Media matters notes that the people on Trump’s impeachment team have appeared on the Fox News Channel more than 350 times in the past year.
Trump clearly wants this to be made-for-TV chaos, and Susan Hennessey, executive editor at Lawfare, and a former lawyer for the Intelligence Community, thinks it will backfire. “For everything Starr says to defend Trump, there will be clips of him taking the opposite position against Clinton. It will only underscore the Republican hypocrisy.”
But McConnell is doing his best to keep cameras and recording equipment out of the Senate chamber, and to limit journalists’ access. Today a coalition of 17 transparency and First Amendment groups asked McConnell, Senate Minority Leader Chuck Schumer (D-NY) and the leaders of the Senate Rules Committee to lift the unprecedented restrictions on the press and to let CSPAN use cameras.
This afternoon, Dershowitz said that his role will simply be to present an hour-long argument against impeachment, arguing that “Abuse of power, even if proved, is not an impeachable offense. That’s what the framers rejected. They didn’t want to give Congress the authority to remove a president because he abused his power.”
This. Is. Absurd.
The Founders designed impeachment precisely to rein in a president run amok. The Founders worried terribly about abuse of power, and in Federalist No. 65, Alexander Hamilton—who was no leveler—actually talked about the Senate’s role in impeachment trials. The Senate must judge “those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Perhaps more to the point, the third of the Nixon articles of impeachment explicitly dealt with abuse of power. (The House didn’t vote on these, but they would have passed and he would have been convicted by the Senate if he hadn’t resigned).
It charged that he had willfully ignored subpoenas issued by the House, refusing to produce documents “deemed necessary… to resolve by direct evidence” what the president had done. By refusing to produce the documents, Nixon substituted “his judgment as to what materials were necessary for the inquiry,” for the judgment of Congress. This set “the powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.” This was, the article said, “subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.”
So abuse of power has not, previously, been seen as acceptable. (Nor has ignoring subpoenas. Just saying.)
Today, more documents were released, and some of them put the spotlight on Devin Nunes. As Ranking Member of the House Intelligence Committee, Nunes was particularly scathing of the impeachment investigation and repeatedly tried to derail it. The new documents show his top aide, Derek Harvey, asking Lev Parnas for help gathering information on the Clinton Foundation, among other things, and communicating frequently during the period in which US Ambassador to Ukraine Marie Yovanovitch was being smeared, as well as asking Parnas to chase down “rumors” that Hillary Clinton and the Ukrainian government worked against Trump in 2016.
For me, today’s news brings into stark relief where we are as a nation. We have a president who is eager to turn into a circus one of the most serious moments of our democracy, and he is aided and abetted by the leaders of his political party, who appear to be willing to condone any activity so long as it means they can hold onto power. Laws don’t matter, reality doesn’t matter. Even using the power of the government to rig the next election—which is what the Ukraine Scandal is about, after all-- doesn’t matter, so long as it keeps the Republicans in office.
This is not democracy. It looks more and more like the oligarchy of Russia.
But the law still holds: today, Chris Collins (R-NY), the first member of Congress to endorse Trump for president, was sentenced to 26 months in prison after pleading guilty to securities fraud. And in the court of popular opinion, Americans are shifting away from the oligarchic takeover of our democracy. Disney, which bought most of Australian-born right-wing media mogul Rupert Murdoch’s empire last year, has taken notice. It announced today it will drop the name “Fox,” from the historic film company “Twentieth Century Fox,” a move likely designed to guarantee, as the New York Times put it, that “consumers won’t mistakenly connect the Disney-owned studio with Mr. Murdoch’s polarizing Fox News [Channel].”
Federalist No 65: https://avalon.law.yale.edu/18th_century/fed65.asp