23/09/2020

Trump’s Senate impeachment trial is a minefield. Will Republicans and Mitch McConnell repeat Nancy Pelosi and House Democrats’ mistakes?

Imagine an alternate timeline in which House Democrats declined to pass articles of impeachment against President Donald Trump on Dec. 18, 2019.
In that universe, the last four weeks would have been most eventful. It would have been a month that saw the release of emails from Office of Budget and Management officials obtained via Freedom of Information Act requests that indicate the order to withhold Ukrainian security aid came directly from the president. Meanwhile, a federal appeals court would have continued to litigate the Democratic subpoena of former White House counsel Don McGahn, who was compelled to testify against the presidents wishes by a lower court on Nov. 25. Elsewhere in the judicial system, the subpoena of former national security adviser John Boltons deputy, Charles Kupperman, would have also been under review (even though House Democrats withdrew that subpoena in November). January would have culminated in the nonpartisan Government Accountability Offices finding that the delay Trump allegedly ordered was not programmatic and violated the law.
Back in our current timeline, though, Democrats have all but surrendered control of the impeachment process to Republicans.
Back in our current timeline, though, Democrats have all but surrendered control of the impeachment process to Republicans. The OMB emails uncovered by independent government watchdogs landed with a thud. The severity of the GAOs finding will be left to Republicans to determine. The courts that were litigating Democratic subpoenas dismissed those cases when the venue in which Trumps associates might have testified the House impeachment inquiry effectively closed. And the stunning accusations levied against the president by Rudy Giuliani associate Lev Parnas have been made in forums like cable news, where his truthful testimony cannot be compelled.
Given the revelations that have emerged over the last month, however, the GOP risks repeating House Democrats mistakes if they fail to take their prerogatives seriously while they control the impeachment process.
Democrats comfort themselves with the notion that Speaker Nancy Pelosis decision to delay the transmission of articles of impeachment to the Senate put new pressure on Republicans to call witnesses like Bolton, who has said he is willing to testify now that the courts are no longer an obstacle. But the original impasse persists. Even if Republicans call new witnesses during Trumps trial in the Senate, any presidential effort to block that testimony would be adjudicated by the judiciary. The GOP will appeal to a federal court to resolve the stalemate, and the process begins again from square one.
Its exceedingly difficult to identify the strategic advantages Democrats acquired by withholding articles of impeachment, but its not hard to see the advantages they squandered by rushing the House inquiry. As a result, and even with the ensuing delay, Pelosi has still prematurely handed control of the process to Republicans. The presidents opponents insist that they did not rush this process, but that assertion is rendered hollow by their own efforts to slow proceedings to a crawl.
The presidents opponents insist that they did not rush this process, but that assertion is rendered hollow by their own efforts to to slow proceedings to a crawl.
Pelosi spent the better part of last year trying to persuade her colleagues to avoid the impeachment trap. Perhaps she was wary of putting her vulnerable members in Republican-leaning districts in a difficult position. Maybe she wanted to avoid imposing on the presidential primary calendar. Or it could be that Pelosi just wanted to avoid the perception that the 2020 election was being prosecuted in the fractious and unpopular Congress. Whatever Pelosi’s motives, her instincts were right. Now, having transferred control of the impeachment process to Republicans, however, those same political downsides apply to the GOP.
Moving toward a speedy acquittal without seeking out the evidence Democrats left on the table presents its own set of risks. Its surely better for Republicans to manage the flow of information on their terms than for new details about the presidents alleged misconduct to emerge, lets say, in the autumn of a presidential election year.
Though Republicans may not see it as such, Boltons offer to testify has done them a favor. According to a recent Quinnipiac University poll, two-thirds of all respondents, including a plurality of self-described Republicans, want to hear what he has to say. Bolton has given the GOP the opportunity to appear sober, solemn and thorough. But while Republicans are now contemplating new witness testimony, theyre also flirting with the naked politicization of the process.
If Bolton is to be called, some Republicans now insist that they should receive reciprocity. Some, like Sens. Rand Paul and Ted Cruz, have entertained the idea that controversial witnesses like the original whistleblower and even Hunter Biden should testify, too. While calling the whistleblower would be a hazard what new evidence could this witnesses admittedly second-hand account deliver that wasnt provided by the numerous first-hand accounts of Trumps conduct provided to the House? at least that testimony would be pertinent. Calling Joe Bidens son, however, would be far riskier.
Republicans should be just as cautious about behaving as a de facto arm of Trumps reelection campaign.
Just as Democratic tacticians were justifiably leery of appearing to litigate the political case against Trumps presidency through the mechanism of impeachment, Republicans should be just as cautious about behaving as a de facto arm of Trumps re-election campaign. They, too, are members of a deeply unpopular legislative body. The risks to the GOP are particularly acute if Joe Biden emerges as the most likely Democratic presidential nominee over the course of the Senate trial.
The former vice president has been cautious about defending his sons conduct before Democratic audiences. He will have an easier time navigating the matter when that case is being made by Republicans alone. The logic of negative partisanship will compel Democrats to rally to their likely presidential nominees defense. Moreover, no independent investigation of Hunter Bidens association with the Ukrainian gas company Burisma has turned up any sordid conduct beyond the ignoble appearance of nepotism, which will be a difficult charge for Republicans to prosecute. If the privileged connections enjoyed by the adult children of powerful politicians is insufferably corrupt, Trumps GOP certainly cannot make that case.
The central allegation against the president is that he sought to leverage the power of the presidency to tar the Bidens by coercing Ukraine to announce not necessarily to conduct, crucially a criminal probe of Hunter Bidens associations. A frivolous examination of Joe Bidens son on the witness stand reinforces the notion that this wasnt just Trumps objective, but the Republican Partys. Poll after poll shows that the vast majority of voters believe Trumps conduct vis-à-vis Ukraine was wrong, even if they disagree about whether that conduct merits removal from office. If congressional Republicans arent careful, they might assume a healthy share of that disfavor for themselves.
Democrats played a risky game by impeaching the president, but that ball is now in the GOPs court. Theyd be well advised to learn from the Democrats mistakes and mitigate the repercussions that a heedless trial of the president could bring down around the Republican Senate majority.