Saturday, December 7, 2019

Play The Reverse Card

One of the many frustrating problems of modern politics is the partisan nature of almost every aspect of every issue. As many of us have pointed out, the parties seem to flip their positions based on who is in office at the time. This is no way to run a country, especially one that values the rule of law.

As an exercise, I find it useful to look at events with the roles reversed. For me personally, if I would oppose an action by a Democrat, I also oppose it when Donald Trump does it and vice versa. The mental exercise helps me to keep my principles straight rather than bending to partisan biases. It helps to keep me objective.

Along those lines, let’s play a game. Let’s imagine that American politics have rules similar to a giant game of Uno. In our game, let’s throw the reverse card down and see what happens.

In our reversed, bizarro world, Hillary Clinton won the election. Now three years into her Administration, witnesses come forward to allege that she demanded a quid pro quo from a foreign leader, let’s call him the president of Scandalstan, in exchange for access and foreign aid, which has already been approved by Congress. Further, the witnesses claim that Hillary ordered her trusted personal fixer, Sidney Blumenthal, to bypass the State Department’s chain of command and go to the Scandalstan himself to do campaign research.

At some point, Hillary gets the idea that there is a massive scandal against her presumptive Republican opponent, Donald Trump, brewing in Scandalstan. Preferring to face a weaker opponent, she pressures the president of Scandalstan to announce a public investigation that names Trump personally. She ties this announcement to a White House meeting with the new president of Scandalstan and then places a hold on military aid, which Scandalstan needs to defend itself against an incursion by its arch-enemy, Evilonia.

However, Scandalstan doesn’t seem to be taking the hints. Months go by and they haven’t announced the investigation. The Scandalstanians say that they don’t want to get involved in American politics.

So, Hillary agrees to a phone call with the Scandalstanians. In the call, they exchange pleasantries and President Clinton (I shudder to type those words) notes that America does a lot for Scandalstan but that the US does not get much out of the relationship. The president of Scandalstan then says that he needs more American missiles to defend his country against the Evilonian tanks.

“I would like you to do us a favor though,” are the next words out of Hillary’s mouth. She wants Scandalstan to “find out what happened” with people running a website that claims that Hillary is a secret serial killer. The president agrees to look into the people running the fake news site. He stresses that his aids have already spoken with Blumenthal on the matter and that he will do whatever he can to stay in Hillary’s good graces.

Then Hillary asks the president for another favor. She wants him to help Blumenthal look into Ivanka Trump’s business dealings in Scandalstan, which Hillary believes are corrupt. There is no firm evidence of corruption. Hillary doesn’t have enough information to instruct the DOJ to get a warrant or go to a grand jury for an indictment, but she knows that the whiff of Ivanka’s corruption could hobble Trump’s campaign enough for someone like John Kasich or Ted Cruz to become the nominee.

The call, along with other associated meetings on the subject of the investigations, sets off alarm bells in the heads of many staffers. Several White House employees who were privy to the call go to in-house lawyers with their concerns and others file whistleblower reports. Through it all, the vital military aid to Scandalstan is still locked up tight with the end of the fiscal year rapidly approaching. If the aid isn’t released by the end of September, Congress will have to appropriate the money again and Scandalstan’s soldiers will be hard-pressed to fight off the Evilonian tanks.

But then a whistleblower report is leaked. Coincidentally, Hillary releases the aid to Scandalstan the next day. This allows her a fig leaf in her claim that there was no quid pro quo because Scandalstan got its aid without announcing the investigation.

Republicans are apoplectic at Hillary’s behavior. Not only did she try to sell access to the Oval Office for a political investigation, the evidence is strong that she tried to use aid appropriated by taxpayers to benefit her reelection campaign and smear her likely opponent. When Republicans ask the Clinton Administration for documents relating to the delay in the Scandalstan aid, they face a stone wall.

However, the debate over quid pro quos and whistleblowers and the original intent of impeachment obscures one of the most important facts of the entire Ukraine scandal. For a president to use his office to leverage a foreign government to conduct (or announce) a sham investigation of a political opponent is wrong on its face. The favors requested in the president’s own call summary represent a flagrant abuse of power. 

Although no analogy is perfect, this is an accurate representation of the case against Donald Trump. It merely changes the names. If Republicans are honest with themselves, I’m sure that they would be extremely angry at Hillary’s abuse of power in using her position to further her own political career. In fact, the allegations that Hillary used her position as Secretary of State to enrich herself and that she acted as though she was above the law were two of the many very good reasons that Republicans gave back in 2016 when they argued that Hillary was unsuited for the presidency.

Let’s look further as well. Assume that Hillary had been the president who was the subject of the Mueller report’s claims that there were 10 separate episodes of obstructive behavior. Even though Mueller did not ask for an indictment of the president, based on his understanding of the DOJ policy that a sitting president cannot be indicted, Republicans would not hesitate to call Hillary’s behavior disqualifying and impeachable.

Finally, consider the use of a national emergency as a legislative tool. It isn’t difficult to picture Hillary Clinton using the pretext of a national emergency to do what Congress has decided not to do. Maybe Hillary would use a state of emergency after a spate of mass shootings or a terror attack to declare a ban on the private use of “assault rifles.” Maybe she would declare the current health care system a public health crisis and use a national emergency to implement a public option. Again, Republicans would rightly consider such actions to be an impeachable subversion of congressional authority.

To be fair, there is also a weakness in Democratic handling of the impeachment process, however. The Constitution is silent on how the House conducts the impeachment process, an inquiry is not even a constitutional requirement, so the Democrats have much leeway in the nuts and bolts of the process. It also isn’t necessarily a disqualifying factor that Democrats did not allow Republicans to call irrelevant witnesses or unmask the whistleblower. Even though the statute does not protect the whistleblower’s identity from disclosure by anyone other than the inspector general, there are legitimate public policy reasons for protecting the anonymity of whistleblowers.

The best reasons for slowing the impeachment process come from Jonathan Turley and David French. In his French Press column, French argued that the Trump Administration’s stonewalling of Congress is not improper based upon precedent that the president and his immediate advisors cannot be compelled to testify before Congress. This position is based upon a Nixon-era interpretation and was also supported by the Clinton and Obama Administrations. The argument is based upon the president’s need for independence from Congress as the head of a co-equal branch of government.

Second, Prof. Turley argued in his testimony, not that Donald Trump was not guilty of the charges before him, but that the investigation was not complete. Turley told congressional investigators, “A quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet moving forward primarily or exclusively with the Ukraine controversy on this record would be as precarious as it would premature.”

“In the current matter, much remains unknown in terms of key witnesses and underlying documents,” Turley said later. “There is no explanation why the matter must be completed by December.”

As both French and Turley point out, House Democrats have not exhausted all means of obtaining more evidence against Donald Trump. Rather than submitting requests, Congress could issue subpoenas for testimony and documents and ask the courts to enforce the subpoenas on an expedited basis. While Republicans often point out that President Obama rejected congressional subpoenas from the Republican House, it is also true that the Obama Administration turned over the subpoenaed documents when confronted with a court order.

Likewise, lawsuits against Donald Trump’s abuse of national emergency statutes are also winding their way through the legal system. A resolution to these cases could impact the articles of impeachment. If the president loses the case and refuses to back down, it would be another clear example of an abuse of power.

I’ve made no secret of the fact that I believe that Donald Trump’s actions justify impeachment, but that does not mean that I support a willy-nilly rush to impeach before a self-imposed deadline. Polling shows that a plurality of Americans supports impeachment but further investigation and revelations of corruption by the Trump Administration would help to build public support for his impeachment and removal. If there is to be any chance of removing Donald Trump, then overwhelming public support is required. With the current slim edge favoring removal, that strong public pressure on Republicans is simply not there… yet.

I’ll close with more words of wisdom from Jonathan Turley. As you read his quote, don’t forget that Turley was actually called to testify by House Republicans in Trump’s defense.

“The House should not assume that the Republican control of the Senate makes any serious effort at impeachment impractical or na├»ve,” Turley said. “All four impeachment inquiries have occurred during rabid political periods. However, politicians can on occasion rise to the moment and chose principle over politics.”

Originally published on The Resurgent

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