Also, unlike a grand jury hearing, the minority Republicans on the Intelligence Committee were allowed to cross examine the witnesses. But “cross examine” would be generous words for the Republican behaviour in those hearings; Republican strategy, it turns out, was to try to make the hearings appear childish and petulant, to diminish them in the eyes of the public as just blatant attempts to overturn the results of the 2016 election of Trump. Given that the public opinion polls mentioned above had barely moved since the investigation began a month or so ago, it appears their strategy failed. It also probably reduced the public respect for Congress, which was pretty low to begin with. But the fact that those polls show no swing for impeachment either should be cause for concern among the Democrats too. More on this point below.
One problem with this drama is that there are too many interruptions. Congress is in recess again, for the Thanksgiving holiday, until next week. This will give members time to think and reflect, and more importantly to hear what their constituents think of the situation. The latest polls show that the public is evenly divided, 46 percent to 46 percent, over the question of whether Trump should be impeached and removed from office. The next steps come when the Congress returns next week; the House Intelligence Committee, which held the televised inquiry hearings, will send its findings to the House Judiciary Committee, which has jurisdiction on impeachment. The task of that committee will be to draw up articles of impeachment. The Judiciary Committee hearings will look even more like a trial, though it is just a preliminary one. The President can have lawyers there and they will have the authority to call witnesses for the defense. At the end of this process, the Committee will decide whether the evidence warrants drawing up articles of impeachment. If it votes to do so these articles will be sent to the Senate which is the jury and would hear another trial—witness testimony, cross examination, documentation, and arguments—before it votes on the question of whether the President is guilty of the charges or not.
The Constitution sets a very high bar for impeachment of a President—two thirds of the Senate (67 senators). The chances of this happening are, at this time, zero to none. The Republicans have a majority of two, in the Senate, and it would require 14 Republican Senators to defect from their party. The Republican party is more tied to President Trump than is usual in American politics, so defections are unlikely and a defection of 14 improbable, certainly in present circumstances. And the important question arises, how will a failed impeachment affect the election next November; will it bolster their chances of winning the Presidency and returning to power, or will it weaken them and lead to Trump’s re-election? That no one can answer that question is one reason why the Democrats are charging ahead toward impeachment given the very unlikely outcome they seek of removing him from office. The polls are not of much help, as we can see, and it can be argued that it actually helps by bringing Trump’s transgressions into the spotlight just as the election campaign gets rolling. The counter argument is that it allows him to play the heroic victim, victorious over a notorious plot to overturn the peoples will in 2016 and unfairly run him out of office. That he lost the popular vote by almost 3 million in 2016, ironically would not matter very much in this conspiracy theory.
So the Democrats charge ahead on impeachment given the lack of a good reason not to, and one factor driving this is certainly that its left wing is very invested in impeachment and without the left wing turning out in a big way for the election they would have a tough time winning. The entire party is buoyed by the impressive win in 2018 of many Republican-held seats enabling them to control of the House of Representatives, primarily because voters who didn’t turn out for Hilary Clinton 2016 came out in force in 2018. Polls which focus on how people will vote, not on whether they approve of impeachment, show several of the Democratic hopefuls running up to 10 points ahead of Trump. The things that seemed important in 2018 to voters and to those who give Democrats big leads in these latter polls are those called “kitchen table issues”—health care, income inequality, wages—the things that affect everyday lives.
The hearings just concluded were high drama complete with heroism, patriotism, pathos, and telling truth to power. The people testifying were non-partisan “fact witnesses” there to relate the facts as they knew them. They professed no interest in the outcome but only an imperative of truth. They were not politicians, but they were officials who carry out politicians’ orders and official policies, and who were upset by the irregular and dodgy methods the President and his helpers used regular and normal foreign policy channels to achieve personal advantage. The question will be whether Trump’s transgressions rise to the level of impeachable offenses. The “fact witnesses” made ironic contrast with these sleazy acolytes in their professionalism, integrity, and moral courage. At the end of two weeks of testimony and some bold truth telling to power, one could not help but be proud such people still abound in the ranks of our government workers.
But problems abound in the rush to impeachment. The outcome of the Nixon impeachment process was unclear until that “smoking gun,” the tape on which he was heard giving orders for illegal acts was found. Without that tape, there is a strong argument that Nixon would not have been impeached. Despite all the testimony by all those honest and straight forward witnesses, there is still no “smoking gun” in this case; not one of them actually heard Trump give the order. The Administration’s strategy of stonewalling on documents and witnesses (refusing the documents and ordering witnesses not to testify) is working. The Democrats don’t want to take the several months it would take to get the Supreme Court to order the Administration to comply. It would be a true constitutional crisis if Trump refused the court’s order, especially as it was the court that forced Nixon to give up the tape.
And that is my real concern here. There has been a quasi-constitutional crisis under way for some time. For months now, Trump has been implicitly trying to reverse a basic provision the founders planted in the constitution or have been added to its meaning by long-standing precedent —that the three branches of government are co-equal, and that both the Congress and the Supreme Court have oversight responsibility over the executive branch and each other. Of all the things the founders feared, the worst was that some unprincipled leader try to be a king. That is why they wrote an Impeachment clause. But they reasoned that removing a sitting President was a very divisive action, and they wanted to make it hard. In our present political climate of unbridled political partisanship, it is too hard. Now is the time to clear up the ambiguities that might still allow someone to want to be King of America.
The writer is a diplomat, and is Senior Policy Scholar at the Woodrow Wilson International Center for Scholars in Washington, D.C.