The impeachment effort will blow up in the Democrats’ faces

The Democrats lost ground in the polls with the House hearings, with fewer favouring impeachment and more opposing it as the process unfolded

by Conrad Black

Given the almost total failure of the Canadian media to overcome their stylistic distaste for U.S. President Donald Trump, and the recently expressed ideological leanings of two-thirds of Canadian voters as well to the left of anything in the U.S. except the Sanders-Warren wing of the Democrats, I offer a critique of the Trump impeachment controversy as a public service. This is an analysis of the established facts and their legal implications, not a commentary on the Trump presidency. The compulsive five per cent of cyber-correspondents who write whenever I mention Trump (and on some other occasions), accusing me of being a Trump stooge, a convicted criminal, and a traitor to Canada, and the carrier of many more exotic afflictions and shortcomings, are encouraged to sit easy at their keyboards.

The Constitution of the United States provides for the impeachment of high federal office-holders including the president, if the majority of the House of Representatives votes articles of impeachment charging “high crimes and misdemeanours” such as “bribery (and) treason,” and the president is removed if two-thirds or more of the U.S. Senate, after a trial presided over by the chief justice of the United States, finds the accused guilty. The allegation that is emerging from the current proceedings is that the president offered and solicited the bribe of the government of Ukraine of conducting a hostile investigation of former vice-president Joe Biden and his son Hunter for their conduct in Ukraine, in exchange for the release of material assistance that the Congress had voted for Ukraine. This representation of the events as a bribe was determined after focus groups engaged by the Democratic National Committee concluded that the allegation of bribery would be most influential and because a bribe is specifically mentioned in the Constitution as an impeachable offence.

U.S. House Speaker Nancy Pelosi holds a news conference on Capitol Hill in Washington, on Dec. 6, 2019. Pelosi has asked a House committee to draft articles of impeachment against President Donald Trump. Loren Elliott/Reuters

There is also much talk of claiming abuse of office, obstruction of justice and illegal solicitation of foreign intervention to corrupt the American presidential electoral process. Since no president has been removed, only two (of the 44 holders of that office) have been impeached, and one other has had articles of impeachment pass the committee stage, the jurisprudence is thin. The wording in the Constitution is not exclusive and the fact is that anything the majority of the House chooses to be impeachable is impeachable. This raises the danger that Alexander Hamilton in particular among the prominent co-authors of the Constitution warned of — that the process could degenerate into a shabby and extra-legal escalation of partisan or inter-branch policy differences. It is evidently a political question, and the only check on the majority in the House of Representatives in these matters is public opinion. And the war for public opinion is very intense.

Unconfirmed but uncontradicted media reports say that the House Democrats have committed to vote impeachment along some or all of the grounds above. No polls now show a majority of Americans favouring removal of the president and only a few show a narrow majority in favour of impeaching him. The president’s defenders reject the charges of obstruction as former special counsel Robert Mueller specifically testified that he was not obstructed in his investigation and because the failure of the House intelligence committee to observe normal rights for the defence to call and question witnesses and contradict claims vitiated it and relieved the president of any obligation to co-operate with it. The Intelligence committee chairman, Adam Schiff, congressman from Hollywood, claimed for two years that he had evidence of collusion between Trump and the Russian government in rigging the 2016 election, which proved to be false, and denied that his office had had contact with the so-called whistle-blower who initiated the complaint about Trump’s conversations with the president of Ukraine prior to the complaint being filed, which was also inaccurate. The Republicans have explicitly labelled Schiff as compulsively untruthful, a man who couldn’t lie straight in bed and who is probably lying when his lips aren’t moving and certainly is when they are. The president described him on Monday as “mentally deranged and motivated all his adult life by complexes for obvious reasons.” The battle lines have been drawn clearly; the Democrats lost ground in the polls with the House hearings, with fewer favouring impeachment and more opposing it as the process unfolded.

The Republicans control the Senate and their leaders there have left no one in doubt that they will turn the tables completely: the Senate judiciary committee chairman, Lindsey Graham of South Carolina, will subpoena Schiff and the whistle-blower and the Bidens, and Trump will be happy to send his whole administration to testify, something he refused to allow at the House intelligence committee investigation. Given that the Democrats could not move opinion in their favour when they had carriage of impeachment, they are unlikely even to hold their present position in the polls when the Republican leaders in the Senate assault their case, which has many weaknesses. Trump never asked anyone in Ukraine for an investigation that would condemn the Bidens, only for the facts; which is reasonable — both parties should know if the former vice-president, now a leading candidate for the Democratic nomination, acted improperly in Ukraine, or not. There is no actual evidence that Trump tied release of aid to Ukraine to such an investigation: President Zelensky of Ukraine denies it, and the aid was released and there has not been an investigation of the Bidens. As a case at law, the Democrats, it is universally conceded, have no chance of convincing 67 senators, including 20 Republicans, beyond a reasonable doubt that President Trump committed “high crimes or misdemeanours” on these facts, nor of rousing an over-arching state of public opinion behind these charges.

Removal of a president from office by the Congress was contemplated by the Constitution’s authors as a remedy for heinous acts, such as treason or an attempted coup d’état or other grievous affronts to the Constitution. There is no objective evidence of such an occurrence here. Presidential impeachment was first tried in 1868 against Andrew Johnson, who succeeded to the presidency on the assassination of Abraham Lincoln. He fired the secretary of war for insubordination and the issue was the desire of the Republicans in the Congress to impose a severe peace on the late Confederacy in the Civil War, which Johnson, a Tennessean Democratic senator who had remained loyal to the Union, opposed. The attack on Johnson was an outrage; though he survived by only one vote in the Senate. Impeachment of a president was not seriously considered again for over a century, until Democrats and their media allies whipped up a climate of public moral outrage against Richard Nixon in 1974 over the Watergate affair. There has never been any conclusive evidence that Nixon committed any crimes, though some members of his entourage did, but he did lie to the public on several aspects of the related issues. Nixon denied to his death that he had broken any laws, but he manfully conceded that he had squandered the moral capital of his office and resigned. In 1998, president William J. Clinton was impeached for perjury to a grand jury over his relations with intern Monica Lewinsky; the Republicans pushed it through the House but could only get a bare majority, well short of two-thirds in the Senate, and the president’s popularity rebounded.

This is the danger the Democrats face — a failed impeachment drive in an election year (Nixon and Clinton were already in their second terms). They have a flimsy legal case and aren’t winning the political argument, and the former administration is facing serious legal problems of its own over the phoney Trump-Russia collusion scam. Trump’s loyalists are a solid army of roughly half the people, no defections in the House or the polls; he should win decisively enough to deter frivolous and vexatious criminalization of policy differences against presidents for a long time.

First published in the National Post


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