Whither Impeachment?

On Wednesday evening, the House voted two Articles of Impeachment against President Trump. The first alleges “abuse of power,” and the second claims “obstruction of Congress.” Neither is a crime. So we now know the answer to the question posed in the title of my post of November 13, “The Trump Impeachment: What Is The Crime?” The answer is that we’re not even pretending that there is a crime. That may be a big part of the reason why not a single Republican voted in favor, while a handful of Democrats (3 on one article and 2 on the other) voted against.

So what next? If your answer is, on to the trial in the Senate, you are not fully thinking through all the posturings and maneuverings that our politicians are capable of. Just because the odds that President Trump will be removed from office might be zero, that doesn’t mean that there is only one procedural route to get to that final result.

The posturings and maneuverings began yesterday, when Speaker Nancy Pelosi declined to transmit the Articles of Impeachment to the Senate, and indicated that she was seeking to exact some procedural concessions from that body before sending the Articles over. From yesterday’s New York Times:

The day after the House cast historic votes to impeach President Trump, Speaker Nancy Pelosi put an abrupt halt on the proceedings, holding back from sending the charges to the Republican-led Senate in a politically risky bid to exert influence over the contours of an election-year trial. . . .  “We are ready,” said Ms. Pelosi, who has said she would not send the charges or name the lawmakers who would prosecute the case against Mr. Trump until she was certain of a fair process for a Senate trial. “When we see what they have, we will know who and how many we will send over.”

In other words, we demand that the Republicans who control the Senate give us a forum to continue playing our talking points for another few days or weeks. Well, two can play this game. Here are a few things I might be thinking about if I were Mitch McConnell or Lindsey Graham (Chair of the Senate Judiciary Committee).

First, why does the commencement of impeachment proceedings in the Senate need to await formal “transmission” of the Articles from the House? Nothing in the Constitution or any statute says anything about the subject, and everybody already knows what is in the Articles. Apparently the idea that formal transmission is what kicks off the Senate proceedings is contained in the Senate Rules. However, those Rules can be changed by majority vote of the Senators.

And then, why go right to a “trial”? How about starting with a motion to dismiss instead? A motion to dismiss would test the question of whether the facts alleged, even if all true, would constitute an impeachable offense. With no crime alleged, that shouldn’t be too difficult. A few things about a motion to dismiss:

  • Is such a thing allowed in an impeachment proceeding? Actually, there was such a motion made in the Clinton impeachment in January 1999, and the motion went through full argument and a Senate vote, where it was defeated. Here is a link to a transcript of the Senate’s proceedings on that motion. The motion was presented in writing by Senator Robert Byrd, and then argued by the President’s counsel Nicole Seligman. Brief excerpt from Ms. Seligman’s argument: “We submit to you that the moment has arrived where the best interests of the nation, the wise prescription of the framers, and the failure of the managers' proof all point to dismissal. You have listened, you have heard -- the case cannot be made.  It is time to end it.” 

  • In a trial, the first thing that happens is that the prosecution (here, the House’s impeachment managers) get to present their case. In other words, we would have another couple of weeks of listening to the likes of Schiff and Nadler repeating their same old talking points ad nauseam. On a motion to dismiss, typically the moving party goes first.

  • So far, the Democrats have been almost entirely successful in maneuvering to keep the corruption of Joe and Hunter Biden on the sidelines, by ruling the subject out of order every time it has been raised. Now, the other party will control the gavel. A motion to dismiss would provide a perfect opportunity to make an extensive presentation of the Bidens’ corruption in a venue that the television cameras would have a very difficult time avoiding. The simple point is that it can’t be “abuse of power” to ask for an investigation when there is very substantial reason to believe that U.S. aid has been used corruptly to enrich the U.S. Vice President and/or his son. I don’t know any reason that they couldn’t go on for a full day, or even several days, with this stuff.

After presentation on the motion, a vote could be taken. 51 votes would be sufficient to dismiss the Articles and end the proceedings, without the House managers ever getting a chance to present anything more about their case.

Now, McConnell and Graham are very crafty guys, and they may have other and even better ideas than mine. I can’t wait to see what they come up with.