Pollak: The Case Against Impeaching President Donald J. Trump
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Introduction
President Donald Trump has not committed any of the offenses listed by Article II, Section 4 of the Constitution as grounds for impeachment — “Treason, Bribery, or other high Crimes and Misdemeanors.” The impeachment effort is the culmination of a political scheme — an attempted “coup,” in the words of one of its leaders — that began before Trump even won the Republican Party nomination, and which has itself involved violations of federal law.
The legal case against impeachment is simple. President Donald Trump was acting in pursuit of his constitutional duties when he asked Ukraine President Volodymyr Zelensky to “do us a favor” — “us,” as in the United States. It is in the national interest to investigate public corruption by officials, even — and especially — if it involves a former vice president. It is also in the national interest to investigate foreign interference in elections, so as to prevent it.
The political case against impeachment is also straightforward. Democrats are pursuing a partisan impeachment that lacks any pretense of procedural fairness. They are dividing the country for short-term political gain. The damage to our Republic will be long-term, and perhaps permanent. The bitter divisions in our politics today are partly the result of the impeachment of President Bill Clinton two decades ago — and he, unlike Trump, committed a crime.
Impeachment is, as Alexander Hamilton wrote in Federalist No. 65, inherently “political,” but that does not mean it should be partisan. The Framers of the Constitution specifically designed impeachment so that the president would not be a prime minister who serves at the pleasure of Congress. Speaker of the House Nancy Pelosi (D-CA) is fond of quoting Benjamin Franklin: “A republic — if you can keep it.” This impeachment is a step towards its dissolution.
The President’s Phone Call with the Ukrainian President Was Legal, Necessary, and Also Praiseworthy
House Democrats launched an impeachment inquiry on the basis of a letter by a so-called “whistleblower” dated August 12, 2019, who claimed that the president “is using the power of his office to solicit interference from a foreign country in the 2020 U.S. election” by “pressuring a foreign country to investigate one of the President’s main domestic political rivals.” The “whistleblower” admitted that he was “not a direct witness” to anything.
The original basis for the claim was a telephone call on July 25, 2019, between President Trump and Ukrainian President Volodymyr Zelensky. The White House announced Sep. 24 it would release the rough transcript of the call, and did so Sep. 25. It refuted the “whistleblower’s” claims. Neither party mentioned the 2020 elections; there was no pressure applied; and the president did not ask Zelensky to “dig up dirt” on former Vice President Joe Biden.
Rather, the president asked Zelensky to “look into” how Biden had “stopped” a previous prosecution — namely, an investigation into Burisma Holdings, a Ukrainian oil and gas company in which Biden’s son, Hunter Biden, served until recently as a well-paid board member. The elder Biden boasted openly in 2018 that he threatened to withhold $1 billion in U.S. aid unless Ukraine fired a prosecutor — who, he failed to note, had been investigating Burisma.
At the very least, Joe Biden had a conflict of interest. Trump might benefit politically if Biden’s conduct were probed — as would Biden’s Democratic rivals. But there is also a compelling national interest in investigating corruption. The fact that Biden is running for president does not grant him immunity, nor does the fact that rivals might benefit. Trump was not asking for a “fishing expedition”; he was asking for an explanation of discrete events.
Moreover, both Democrats and Republicans agree that it is a goal of U.S. foreign policy to help Ukraine fight corruption. The U.S. and Ukraine have even signed a number of agreements to cooperate in fighting corruption, for which the president is ultimately responsible.. Ukrainian officials had reportedly tried before to interest U.S. prosecutors in possible wrongdoing by American officials, to no avail. Biden’s conflict of interest had to be probed.
Biden also had to be investigated as a matter of protecting the U.S. from foreign interference in elections. For years, Democrats had defended the Obama administration’s counter-intelligence investigation of then-candidate Donald Trump because of he might be a Russian agent, or that Russia might have compromising information on Trump that could be used to manipulate him. They cited Trump’s overtures to Russian President Vladimir Putin as evidence.
House Intelligence Committee chair Rep. Adam Schiff (D-CA) argued in a Washington Post op-ed in April: “If a foreign power possessed compromising information on a U.S. government official in a position of influence, that is a counterintelligence risk. If a foreign power possessed leverage, or the perception of it, over the president, that is a counterintelligence nightmare.” The same arguments apply to Biden, whose links to Ukraine are far more explicit.
As the so-called “whistleblower” also noted, Trump sought information about the possible origins of the Russia collusion accusations — claims later disproven by Special Counsel Robert Mueller’s long investigation. Ukraine’s interference in the 2016 election, on behalf of former Secretary of State Hillary Clinton, was insidious. Politico found that a Democratic National Committee (DNC) consultant worked with Ukraine to produce dirt on Trump.
As Democrats insisted repeatedly throughout the many investigations into Russian interference in the 2016 race, it was necessary to know what happened in the past to prevent it from happening again in the future. The president, by asking for cooperation in investigating Ukraine’s role in 2016, was doing exactly that. Far from soliciting foreign intervention in the 2020 election, he was doing his constitutional duty to protect the country from that interference.
Moreover, contrary to what the so-called “whistleblower” claimed, there was no pressure placed on Zelensky. Both leaders also confirmed that in a joint press conference at the United Nations on Sep. 25. The president’s opponents have tried to claim that he exerted subtle, implicit pressure, imagining a dialogue from a Hollywood mobster film. There is no basis for those claims, which are based on mind-reading, not the feeling of participants themselves.
The Claim that the President Was Soliciting a Bribe Fails to Meet Any of the Elements of Bribery
Others claim that the president was soliciting a bribe, since he was asking Ukraine for something of value — i.e. information about his possible opponent — in the context of a conversation that, at other points, addressed U.S. aid. But Trump’s exact words were: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.”
It would be extremely unlikely for the president to ask that a bribe be handled through the chief law enforcement official in the Department of Justice. To some of the president’s more extreme opponents, Attorney General Barr is already held in suspicion because of the way he brought the Mueller investigation to a conclusion — which was not the conclusion that they had expected, and predicted, for years. To a reasonable person, the idea is simply absurd.
But let us examine the charge itself in greater detail. To commit bribery, under federal law, a federal official must not only seek something of “value” in return for “being influenced in the performance of any official act,” but must also do so “otherwise than as provided by law for the proper discharge of official duty” and with “corrupt” intent. That means that the bribe must have been solicited with what a jury thinks is “an evil and blameworthy purpose.”
The charge fails on every count. To begin with, the president had no corrupt intent. That is why it is relevant that he immediately released the transcript of the call, and stated publicly that he would ask Ukraine (and China) to look into possible corruption by the Bidens. The president sees nothing wrong in asking foreign governments to assist the United States in investigations involving suspected public corruption and past foreign interference in U.S. elections.
The president was carrying out “the proper discharge of official duty.” That is why no one who was listening to the call — not even Lt. Col. Alexander Vindman, one of the key witnesses for those seeking to impeach Trump — has said that they thought Trump did anything illegal. (Vindman believed it was inappropriate, and consulted a National Security Council ethics lawyer, who happens to be his twin brother. Even then, no legal referral was made.)
Other witnesses have said that there was no “quid pro quo.” Certainly there was no explicit request for anything in return, or a threat to withhold something from the Ukrainian government, on the phone call. Others have said that they later thought aid was being withheld in exchange for cooperation in the investigations, but they had no direct knowledge of a quid pro quo. In other words, it is impossible to show that Trump demanded anything in return.
It is even questionable whether what Trump was asking Ukraine to do even qualifies as something of “value.” He was asking for the Ukrainian government to look into allegations of past election interference, and into why the prosecution of Burisma was closed. Those investigations could have turned up nothing; in fact, they could even have exonerated the Bidens. The information would have been of public value, regardless of the outcome.
Moreover, the White House itself submitted to the transcript to the (DOJ) for investigation, specifically into the question of whether the president had somehow violated campaign finance laws by gaining something of political value in his request. Had he done so, he would likely have been subject to an administrative fine — something nearly every presidential campaign has faced. In the event, the DOJ found no evidence of wrongdoing and closed the case.
There Was No ‘Quid Pro Quo,’ But It There Were, It Would Have Been Perfectly Legal
There was no “quid pro quo” — an offer of one thing in exchange for another — on the telephone call. Even the oft-cited request by Trump that Zelensky do him a “favor” — referring to the investigation into Ukraine’s past election interference, not into the Bidens — does not imply a quid pro quo: a “favor” is typically something done without anything being done in return. But Trump’s opponents say that one developed in the wake of that conversation.
Several witnesses at the impeachment inquiry have already testified that there was no quid pro quo — especially former Special Representative to Ukraine Kurt Volker, hardly a Trump lackey. Those who have said they believed there was a quid pro quo — that U.S. military aid was dependent on cooperation with investigations, or a statement favorable to administration policy — have based that entirely on their own presumptions, not on contact with Trump.
At some point, the military aid was withheld. The White House is legally allowed to withhold that aid, within certain deadlines, even after the Department of Defense and the State Department have certified that a foreign country is in compliance with legal requirements (as they did in this case). In the end, the aid was delivered — and the portion that was withheld did not even include the anti-tank missiles with which Ukraine was most concerned.
The Ukrainian government was reportedly not even aware that there was a delay in aid until Politico reported it in late August — along with conspiratorial whispers Trump was an “asset to Russia.” (President Barack Obama gave no military aid to Ukraine.) U.S. Ambassador to the EU Gordon Sondland, who amended his testimony to note that he began to “presume” a quid pro quo, did so in September. Other witnesses also cited media reports as their sources.
But even if there had been a “quid pro quo,” it would not have been illegal. The president’s request for information about past corruption and election interference was in the national interest. And it is routine for U.S. presidents to withhold or restrict aid as a way of exerting leverage on other countries. Biden himself did so, citing President Obama’s authority; Obama did it to Israel, controversially, during its war of self-defense against Hamas in 2014.
Democrats have recently resorted to accusing the president of “extortion.” But that claim fails the test of common sense. Presidents use the powers of their office to encourage — or compel — foreign governments to behave in ways beneficial to the United States all the time. We are in a trade war with China, for example, in which Trump is using tariffs to force a change in Chinese behavior. His own businesses might benefit; so, too, would the U.S. economy.
In September, before the Ukraine story broke, House Democrats passed a bill with an explicit quid pro quo related to allegations of Russian election interference. It would block all loans to Russia, public and private, until the U.S. could certify that Russia had not interfered in the most recent U.S. election. Given that allegations of Russian interference are almost invariably lobbed at Republicans, this was a quid pro quo with a partisan edge — and legal.
The President Has Not Committed Abuse of Power, Which Is Not Sufficient Cause for Impeachment Anyway
Those who wish to impeach the president argue that he is nevertheless guilty of an “abuse of power.” That is a vague standard that could apply to almost any president. As former Obama administration official and noted legal scholar Cass Sunstein recently wrote: “Almost every American president has, on more than one occasion, passed the bounds of his power, in the sense that his administration has done something that it is not lawfully entitled to do.”
Sunstein is correct. President Barack Obama abused his power when he declared the Senate in recess and appointed Richard Cordray to the National Labor Relations Board. His decision was struck down in a rare 9-0 unanimous ruling by the U.S. Supreme Court. Likewise, Obama said literally dozens of times that he could not use executive power to change immigration law — then he did so, creating policies he himself once said were unconstitutional.
Obama also arguable violated the Treaty Clause of the U.S. Constitution by agreeing to the nuclear deal with Iran without ratifying it in the Senate. With Obama’s approval, Democrats in the Senate filibustered a vote of approval on the deal under the Iran Nuclear Agreement Review Act. Worse, Obama took the deal to the UN Security Council before Congress had any chance to review it. These were gross abuses of power — but few called for impeachment.
The Obama administration also used the power of the Internal Revenue Service (IRS) to neutralize conservative nonprofit organizations in advance of the 2012 election. Though the president claimed not to have known what senior officials in the agency were up to, Democrats had loudly and publicly called on the IRS to do exactly what it eventually did. These were gross abuses of power. But no one called for President Obama to be impeached for them.
In this case, the president has not even done anything unlawful. The argument is that he used the power of his office, and the funds appropriated by Congress, to pressure Ukraine to provide information that would damage a likely political opponent. But even assuming all of that is true — which it is not — it is not an abuse of power, because what Trump wanted Ukraine to do was wholly consistent with his official duties and with U.S. interests.
Impeachment Should Involve the Actual Commission of a Crime, Not Disputes over Policy and Opinion
Advocates for Trump’s impeachment argue that the Constitution is sufficiently vague about the meaning of the phrase “high crimes and misdemeanors” that they can impeach the president for any reason. Some cite then-Rep. Gerald Ford (R-MI), who said: “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history,” though he clarified he was talking about judges, not presidents.
In practice, the House has never impeached a president for any reason other than the actual violation of a law. In the first-ever impeachment, that of President Andrew Johnson, the House searched mightily for any possible reason to impeach him. Johnson was a southern Democrat who had remained loyal to the Union during the Civil War. But in the aftermath, he resisted Congress’s efforts at Reconstruction. Republicans decided he had to go — for any reason.
The parallels to the present case are striking. Historian David Stewart recalls that the House Judiciary Committee began meeting in secret to consider all manner of accusations against Johnson. One witness claimed that Johnson had been conspiring with the Confederacy, and the proof existed in a letter from Johnson to Confederate president Jefferson Davis — but he did not have the letter and did not know what it said and would not reveal his sources.
Others implied — with no direct evidence — that Johnson had invited prostitutes to the White House and sold pardons to former Confederates. One accusation involved a fabricated newspaper report, accusing Johnson of asking the attorney general about a Congress that did not admit members from Southern states was legitimate. The journalist in question had written the story because he “supposed” it was the sort of thing Johnson would do.
On and on it went. In the end, the House Judiciary Committee voted against impeachment articles. It decided that Johnson should only be impeached if he had actually violated a law. He later did so when he fired his secretary of war, Edwin Stanton, in violation of the Tenure of Office Act, a minor (and unconstitutional) law that barred the president from firing any official without Senate approval if the appointment required initial Senate confirmation.
Johnson was famously saved from removal by a single vote on each of the counts that the Senate considered. But his impeachment stands as a monument to excessive partisan vindictiveness, and most historians agree that Johnson never should have been impeached. (Stewart argues otherwise — that impeachment was better, in the circumstances, than a re-opening of armed conflict.) Even in that runaway impeachment, the House searched for an actual crime.
Moreover, the limited debate among the Framers of the Constitution reveals that they never intended to allow the president to be impeached merely for political differences, or because of “maladministration.” The president ought not serve merely at the pleasure of the legislature, nor should he (or she) be impeached and face removal from office over policy differences. The appropriate remedy, the Framers clearly believed, was an election — not impeachment.
If Democrats impeach President Donald Trump simply because they hold the majority in the House, they will cite the text of the Constitution. But they will violate the meaning of its words as understood when they were written. And they will certainly violate its spirit, as well as the lessons of historical precedent. They will stoop lower than the Radical Republicans who persecuted Andrew Johnson — who at least had the decency to look for a crime.
The Impeachment Effort is the Result of an Attempted Coup, and the Evidence Is Fruit of a Poisoned Tree
President Trump’s political opponents — both Democrats and Republicans — have been planning to impeach him since long before he even won his party’s nomination in the 2016 elections. A Politico article from April 2016 reported ongoing conversations about how Trump’s impeachment could be carried out almost as soon as he had taken office — and this at a time when almost no one predicted that he had a chance of beating Hillary Clinton.
Trump’s Republican opponents hired an opposition research firm, Fusion GPS, to find dirt on Trump. (Officially, Fusion GPS worked for the Washington Free Beacon, a conservative news website, with the costs covered by anti-Trump billionaire Paul Singer.) After Trump won the GOP nomination, however, the Free Beacon ended its work with Fusion, which was taken up by the Hillary Clinton campaign and the Democratic National Committee (DNC).
One of the threads Trump’s opponents tried to follow involved the idea that he was in cahoots with Russian President Vladimir Putin. The Obama administration had adopted a posture of appeasement toward Putin, with Clinton playing a leading (“reset button”) role. But Obama was disillusioned after Russia seized the Crimea. Once Putin began praising Trump in late 2015, and Trump reciprocated the compliment, Russia was seen as an enemy.
Fusion hired Nellie Ohr, the wife of DOJ official Bruce Ohr. But she found very little on Trump and Russia. So Fusion hired a former British spy, Christopher Steele. As journalist Lee Smith notes in his recent book, The Plot Against the President, Steele had contacts in Russia but had not been there himself in many years. His primary claim to fame had been exposing corruption in international soccer, including its ties to Russian oligarchs.
Smith argues — convincingly — that Steele picked up bits and pieces of stories that had already been planted in the media. His eventual “dossier” — including the sensational accusation that Trump had hired prostitutes in Moscow to urinate on a bed that Obama had once used — was largely based on four “proto-dossiers.” These, in turn, cited media reports about Trump’s supposed ties to Russia — reports that Fusion, through its extensive contacts, likely planted.
In July 2016, as Wikileaks began releasing emails that it had downloaded from the DNC’s server, Democrats blamed Russia. Trump joked at a press conference that he hoped Russia would find other emails — namely, the 30,000 emails that were missing from Hillary Clinton’s illicit, unsecure private server, which she had used during her tenure as Secretary of State, possibly to mask her dealings with the Clinton Foundation’s fundraising operations.
Fusion developed the Russia conspiracy theory, Smith suggests, partly as a way to distract from the scandal that would emerge if Clinton’s missing emails were ever really found. By accusing Trump of colluding with Russia, Fusion and the Democrats hoped to minimize the political damage by focusing public attention on how the emails (which remain missing) were found rather than the fact that they contained classified or embarrassing information.
In any event, the Obama administration took Trump’s jest as the opportunity to organize a counter-intelligence operation. It would also later claim that a tip from an Australian diplomat about a junior Trump aide, George Papadopoulos, suggested that the Trump campaign was working with Russia to obtain Clinton’s emails. As Smith shows, that tip was likely a setup, one the FBI had contrived to provide a pretext for an ongoing investigation.
The counter-intelligence investigation used FISA warrants — obtained without revealing to the court that the source was the unverified Steele “dossier” — that allowed the FBI to eavesdrop on individuals connected to the Trump campaign. FBI agent Peter Strzok and FBI lawyer Lisa Page — who hated Trump, and were in an extramarital affair — sent each other text messages describing aspects of the investigation as an “insurance policy” in case Trump won.
After the election, efforts by bureaucrats in law enforcement and other departments did their best to undermine the incoming administration. They contrived an investigation of incoming National Security Adviser Michael Flynn — based on wiretaps, and misinformation — in pursuit of supposed violations of the Logan Act, a centuries-old law that is rarely enforced and that Flynn likely could not have violated anyway, given his upcoming White House role.
Flynn’s name — and other names — were then “unmasked” by senior Obama administration officials. The Obama administration changed the rules to allow classified information to be disseminated more widely in the government — ostensibly to protect intelligence on Russian collusion from being destroyed, but also to make press leaks more likely. Flynn’s name was then illegally leaked to Washington Post journalist David Ignatius; Flynn lost his job.
FBI director James Comey was involved in these efforts, and showed the Steele “dossier” to the president in an effort to glean more information. When he refused to say publicly that Trump was not under investigation, Trump fired him — something Democrats once urged that he do, but now claimed was evidence of obstruction of justice. By leaking memos of his conversations with the president, Comey then triggered the appointment of a special counsel.
Democrats hoped — and expected — that the special counsel’s report would implicate Trump. Mueller, inexplicably, appointed a team of attorneys who included a number of registered Democrats, one who had been present at Hillary Clinton’s victory party, and another who had represented the Clinton Foundation. There were no Republicans on the team (aside from Mueller himself). Trump complained about a “witch hunt” but the White House cooperated fully.
Mueller’s report found that there have been no collusion between Russia and the Trump campaign. It also declined to recommend prosecution for obstruction of justice, instead referring ten examples of possible obstruction to the Attorney General and Deputy Attorney General Rod Rosenstein, who declined to recommend prosecution. The president had not withheld any evidence; his public attacks on the investigation were, they said, merely politics.
Nevertheless, despite the fact that Trump had largely been exonerated, more Democrats began to call for him to be impeached — suggesting that had been the plan all along. A resolution to that effect failed — as had two previous efforts, both of which attempted to impeach Trump for what can only be described as trivial reasons. But then, in August, just weeks after the conclusion of Mueller’s lackluster testimony before Congress, the whistleblower arose.
Though his name has been suppressed (rather unsuccessfully), it is known — from the Inspector General of the Intelligence Community (IGIC) — that the whistleblower had a partisan bias in favor of a Democratic candidate. He was also a CIA analyst who had worked in the Obama administration and would have come into contact with two “holdovers” at the National Security Council (NSC) who left — and were later hired to work for Schiff’s committee.
Instead of taking his complaint directly to the IG, the “whistleblower” approached Schiff’s committee — a fact that Schiff lied to the nation about when he claimed publicly that “we” had no contact with the whistleblower before the story emerged. Moreover, the “whistleblower” checked a box on his report form — which mysteriously had been altered to allow the provision of second-hand information — indicating, falsely, that he had first-hand knowledge.
Moreover, the “whistleblower,” according to RealClearInvestigations, may have had contact with a DNC consultant, Alexandra Chalupa, who was involved in the effort to use Ukraine to produce dirt on Trump during the 2016 election. The “whistleblower” was also suspected of being behind a leak in 2017, dutifully reported by the media, that claimed — inaccurately, that Putin had advised Trump to fire Comey. He was sent back to the CIA after that.
The “whistleblower” is represented by attorney Mark S. Zaid, who founded an organization at the outset of the Trump administration specifically seeking to recruit whistleblowers. He and his partner also offered whistleblowers in the Trump administration discounted rates for representation. Most damning of all, Zaid had a history of rabidly anti-Trump tweets: in January 2017, he tweeted that the “coup has begun,” promising “impeachment will follow.”
In sum, what emerges is an effort to remove the president by any means necessary, including through what the “whistleblower’s” own counsel called a “coup.” It involved coordination between Democrats, bureaucrats, the mainstream media, opposition research firms, and rogue law enforcement officials at the very top of the ladder. Some may have believed they were doing what was best for the country. Regardless, none had any right to do so.
The circumstances that led to the launch of the Russia collusion investigation are now themselves the subject of an investigation by U.S. Attorney John H. Durham, who has reportedly impaneled a criminal grand jury to consider charges against those involved. Given that the Ukraine controversy has its origins in what appears a criminal effort, using intelligence and law enforcement resources, to overthrow the president, impeachment is premature, at best.
The Rules and Procedures of the Impeachment Inquiry Violate Rights, Due Process, and Precedent
Other impeachments began with secret inquiries that later became formalized through a House vote. However, all were then handled by the House Judiciary Committee. The impeachment inquiry into President Trump is the first ever to be conducted largely under the auspices of the House Intelligence Committee. One of the reasons is that the House Intelligence Committee could conduct hearings in a Secret Compartmentalized Information Facility (SCIF).
From the beginning, committee chair Rep. Adam Schiff (D-CA) used secrecy to full advantage. Though he, and others, likened the impeachment inquiry to a secret grand jury investigation, attempting to justify the fact that the president — unlike Bill Clinton and Richard Nixon — had been denied access or legal representation in the committee, Democrats made sure that selective bits of testimony were released to the press, and reported.
That, in turn, tilted public opinion against the president and helped Democrats marshal votes for an impeachment inquiry. Initially, Speaker Pelosi and the Democrats claimed that they did not need to hold a vote, saying that the Constitution imposed no rules on the House. But precedent suggested otherwise — and the spectacle of holding secret hearings made Democrats look bad, especially after Republicans stormed the SCIF and staged a protest.
The House resolution that finally passed departed from the rules in earlier impeachment inquiries in many respects. One was that it farmed out the inquiry to Intelligence and other committees. Another was that while it allowed Schiff to veto Republican witnesses, subject to appeal to the committee as a whole, it did not allow the minority to do the same. It also combined the president’s counsel to the Judiciary committee — after witnesses had testified.
Even after the resolution was passed, Democrats continued to exploit their advantage. Schiff and his Democratic staff had full access to the transcripts of earlier interviews, and prepared choice excerpts for release, with prepared spin for the media. Republicans could only access a single copy of each transcript and had to be observed by a Democratic staffer while reading it; they could not prepare responses until long after each media cycle had passed.
Within the hearings, it became clear that Schiff was doing his best to block Republican questions, often erroneously citing points of law as he did so. Once the inquiry was formalized, he issued a letter to ranking member Rep. Devin Nunes (R-CA) restricting Republican witnesses to those who could answer three narrow questions tailored to the Democrats’ case. He has also threatened ethics probes against anyone asking about the so-called “whistleblower.”
The inherent unfairness of the process hurt Democrats politically: it unified Republicans in opposition. But it made clear that Democrats’ purpose had nothing to do with actually removing the president from office. Had they wanted to do so, they would have tried to make the process fair, to appeal to the Senate. As such, they were pursuing a purely partisan exercise — the opposite of what Pelosi promised, and against the lessons of past impeachments.
Democrats now claim that President Trump should be impeached for obstruction of, or contempt of, Congress. As Sunstein has said in the past, this is “no legitimate basis for impeachment” if there is a good-faith reason for not cooperating. President Richard M. Nixon would have faced impeachment for contempt of Congress, one of the three articles passed by the House Judiciary Committee, but in his case he was actually concealing evidence of crimes.
Sunstein explains: “Presidents should cooperate with legitimate investigations, but it is not a high crime or misdemeanor to refuse to cooperate with a congressional investigation into an offense that is not independently impeachable. Congress cannot gin up an impeachable offense by investigating an offense that is not impeachable, and then encountering presidential resistance.” That applies exactly to the facts here: a ginned-up impeachment.
Democrats Are Violating the Principles They Themselves Established During the Clinton Impeachment
When a Republican-controlled House impeached President Bill Clinton in 1998, Democrats argued vigorously against it. Few could deny that he had likely broken the law by lying under oath and obstructing justce — which is why some Democrats crossed the aisle to support the impeachment inquiry. But the subject matter of his offenses was largely personal in nature, which led many to argue that they did not meet the standard for impeachment.
Others went further. Rep. Jerrold Nadler (D-NY), who now heads the House Judiciary Committee (which will ostensibly draw up articles of impeachment against Trump), and has been urging that Clinton (and Supreme Court Justice Brett Kavanaugh) be impeached, said in 1998 that impeachment was the “undoing of a national election.” He said he was “angry” that Republicans were “ripping asunder our votes … telling us that our votes don’t count.”
Rep. Maxine Waters (D-CA), who has led chants of “Impeach 45!” (refusing even to say the president’s name), also inveighed against impeachment. Rep. Nancy Pelosi (D-CA), now Speaker of the House, said that “privacy, fairness, checks and balances have been seriously violated” because “the Republicans in the House are paralyzed with hatred of President Clinton.” She said exculpatory information should be immediately reported to the public.
Then-Sen. Joe Biden (D-DE) declared: “The President of the United States does not serve at the pleasure of the legislature. … He is elected directly by the people of the United States of America … the only nationwide vote the American people will ever cast, and that’s a big deal … And we in Congress had better … make darn sure that … if we decide to upset their decision, that our decision to impeach him was based upon principle and not politics.”
Democrats have thrown all of those principles aside in urging Trump be impeached — some, as soon as he took office. In February 2017, the Washington Post reported that “most Democrats” already wanted to impeach Trump. Speaker Pelosi tried to fend off those demands: “When and if he breaks the law, this is when something like that will come up,” she said. Notably, she now supports impeachment, though cannot name a law Trump has broken.
Democrats are using impeachment today as a first resort, not a last resort. They have begun an impeachment inquiry with a year to go before the next presidential election, arguably usurping the role of the voters in deciding whether President Trump should continue in office. And they have done so for what the majority of the American public rightly believe are primarily political motives, not concern that any impeachable offense actually took place.
If the Ukraine call was to have been examined at all by Congress, it should have been subject to ordinary oversight. If there were legitimate legal concerns, a special counsel could have been appointed. All of these steps are necessary prerequisites before proceeding to impeachment, and invoking the strongest power that Congress has against the president — a power so grave that Congress hesitated for more than a century after Johnson before using it again.
Democrats are not just attacking the president. They are attacking the Constitution itself, and the American people. They refuse to acknowledge the legitimacy of the 2016 election, and they are abusing impeachment to affect the 2020 election. They are conducting a show trial, not a fair process. If, after this, they vote to impeach President Donald J. Trump, he will be acquitted by the Senate. But the stain will cling to the their party for generations.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.
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