As I write today’s essay, the North Pole is tilted as far away from the sun as it ever gets. Sadly, it seems this year’s Winter Solstice, the northern hemisphere’s darkest day, coincides with an American political solstice. This is neither an anti-Trump nor a pro-Trump essay, although readers on both sides of our great political divide will interpret it as one or the other.
The People’s House, this week, impeached the President of the United States for the high crime of dangling $390 million of congressionally approved military aid to Ukraine in return for a favor. The favor was for Ukrainian President Volodymyr Zelensky to launch, or at least to announce that Ukraine was going to launch, an investigation of Burisma Holdings, the energy company on whose Board of Directors sits former Vice President Joe Biden’s son, Hunter Biden.
It is not our intent to relitigate, yet again, (pardon the redundancy) the propriety of the favor President Trump was requesting. It was improper, if not per se as the lawyers like to say, then simply because the favor was so obviously targeting the Biden’s, both Joe and Hunter.
Nonetheless, Presidents do have the right to hold up foreign aid under amendments to the Foreign Assistance Act intended to help Ukraine fight corruption. That the aid was already approved by Congress doesn’t really matter if the President was really concerned about corruption in Ukraine. Now, to be clear, one would have to be very naïve to believe that fighting corruption was Trump’s motive in putting a hold on the aid. We all know he was trying to fight Biden, not corruption. Nonetheless, the history of corruption in Ukraine, and the absurdity of Hunter Biden serving as a high-priced board director of a Ukrainian energy company, gives Trump enough cover to claim his telephone conversation with Zelensky was reasonable, if not perfect.
Our purpose is not to defend President Trump, but rather to highlight the tactical blunder of basing an impeachment on the weight of the Trump-Zelensky telephone call. The impeachment, however, was 2019 news. What do we have to look forward to as 2020 rolls in?
The Senate Trial
The trial of President Donald J. Trump in the US Senate is apt to be a reality tv show like no other. It also may quickly become a constitutional crisis. House Speaker Nancy Pelosi is, at present, refusing to initiate the trial process in the Senate by sending the Articles of Impeachment to Senate Majority Leader McConnell until he presents her with the rules that will govern the trial. McConnell’s last word on the issue is that he is in no hurry and that Speaker Pelosi can delay as long she wants. Needless to say, we’re in somewhat uncharted constitutional territory at this point.
President Trump, meanwhile, has proclaimed that he wants a full trial with his defense attorney’s being able to call any witnesses they need. Really? Senate Chief Mitch McConnell says he has no intention of calling any new witnesses, and he has signaled that he intends to make quick work of the entire trial. That, of course, is why President Trump can announce to the world that he wants a full trial with witnesses of the defense’s choosing. He can scream for his day in court knowing full well that Majority Leader McConnell intends to quickly close the book on this impending Senate trial.
Senate leader McConnell knows that if the President is allowed to call witnesses, the President can’t simultaneously continue to exert executive privilege to keep out all of those Administration witnesses and documents that were subpoenaed by the House Justice and Intelligence Committees. If the President really wanted to call his witnesses, you can bet the House “prosecutors” would demand to hear from Mick Mulvaney, Don McGahn, John Bolton as well as Bolton’s former deputy, Charles Kupperman and a host of other Administration bigwigs known to have voiced concerns about the President’s behavior. The President can demand a real trial with witnesses, but he knows full well what a can of worms that would open for him. He has the best of both worlds right now. He can call for a fair and full trial, knowing he is protected by McConnell from having to face a full and fair trial.
On the other hand, you can bet that House Chairmen Schiff and Nadler will be in for a drubbing by the President’s defense team. They came across as two prosecutors who wanted to nail a suspect rather than the two finders of fact they were supposed to be. The House impeachment hearings will, in the Republican-controlled Senate, be recast as a star chamber—hearings with a verdict in search of substantiation. If our nation’s first impeachment trial, that of Andrew Johnson in 1868, should have taught us anything, it was that a highly partisan impeachment was a very dicey proposition.
And if this trial to remove a president is to be a trial with 100 Senators sitting as jurors, one might assume that, like any prospective jurors, those deemed to have prejudged the verdict might be excused from the jury by the presiding judge (Chief Justice John Roberts). Well, doesn’t that raise an interesting question given the oath of impartiality all of the Senators must take? There is the matter of Senators such as Lindsey Graham, Rick Scott, Majority leader Mitch McConnell, and others, making no bones about their total indifference to the oath they will take to impartially judge the evidence that will be presented in the Senate chamber.
GRAHAM: “My goal is to end this as soon as possible for the good of the country because I think it’s a danger to the presidency to legitimize this. I’m not interested in any witnesses. This thing is a sham, a crock. I don’t need any witnesses at all. I am ready to go. How long does it take for the House to appear before the Senate to go over the evidence they used to impeach the president in the House? The trial record should be the documents they use for impeachment in the House – no more, no less. I’m not interested in any witnesses.”
McConnell: “Everything I do during this, I’m coordinating with White House counsel.” “There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.”
And, of course, we could go on quoting other Democratic Senators who are (or were) seeking the Presidency such as Cory Booker, Bernie Sanders, Elizabeth Warren, and former candidate Kamala Harris. All of these jurors have been outspoken in their opinion of President Trump’s guilt.
Hmmm. What would disqualification of jurors who have pre-judged this case do to the 53-47 majority the Republicans have on the impeachment jury. We jest, of course. Then again, this sad chapter in our history is no joking matter. It is the winter of our political solstice.