Can Impeachment be Decided by Summary Judgment?
I’m not destroying the lede when I confess we don’t know.
It’s a serious and important question because placing a bet on the answer may be the only way to get the impeachment done before the election.
Why is finishing before the election important?
Suppose the Senate has to vote yes or no on conviction in the middle of the second term election campaign. Does anyone seriously believe we have a hundred souls serving in the Senate who can leave the dipstick election polling out of the decision?
Suppose Donald John Trump is once more able to parlay a popular vote loss into an Electoral College victory? Then the impeachment finishes and he is convicted…based on something he did in the first term?
There is a partial answer in that he can be disqualified from holding office in the future by a simple majority in a vote separate from the vote on conviction. However, it would not be completely irrational to vote to convict but not to disqualify. Should a majority of the Senate take that position, a newly impeached Donald Trump could then get sworn in for a second term.
Suppose he loses the election in both the vote and the Electoral College and then he gets convicted in the impeachment. I don’t think it’s any news flash that he cannot be punished for the crimes of which the Senate convicted him. So the choices are to let him skate or take the evidence to a grand jury and try the criminal part of the impeachment again. What are the odds of giving The Donald a fair trial in that circumstance?
There is normally no summary judgment in a criminal case, but impeachment is not a criminal case. A summary judgment means that the judge takes the case away from the jury and renders a judgment without a jury verdict. The jury is the judge of the facts, but it’s up to the judge to speak the law — so if there are no contested facts, the judge can just decide the case.
Assume two articles of impeachment.
First, Mr. Trump violated the law by soliciting a thing of value — oppo research — from a foreign government.
Second, Mr. Trump obstructed justice by ignoring valid subpoenas and making frivolous claims of privilege — e.g., claiming executive privilege to prevent testimony of persons who never advised the president or even worked for the government.
If the only evidence on Article One were the infamous telephone conversation between Mr. Trump and President Volodymyr Zelensky of Ukraine, it would be possible to gin up an argument about what the words of the conversation meant. Only a solicitation is required, so “no quid pro quo” just amounts to throwing sand in the air, but it’s possible to claim Mr. Trump didn’t really mean to give Mr. Zelensky the impression that he could be left to face Russian tanks without appropriate weapons.
However, Mr. Trump took care of that issue when he invited China to investigate Joe Biden. In public. On video.
Ergo, there is no fact issue on Article One. He made the solicitation, so the only question is whether that is a big enough deal to remove him from office.
Similarly, Mr. Trump has delivered a letter to Congress announcing that he will not cooperate with any investigation. He will not respond to subpoenas and he will instruct anyone subject to his command not to testify.
His ground for non-cooperation is the claim that Congress cannot investigate the POTUS without a House vote endorsing what is already happening, an impeachment inquiry. There is nothing in the Constitution or the laws that requires a House resolution before impeachment can be investigated.
Mr. Trump’s stonewall is a purposeful stonewall and he has admitted it in writing. Ergo, there is no fact issue on Article Two. He decided to stonewall, so the only question is whether that is a big enough deal to remove him from office.
This is like a summary judgment in that the Senate does not need to see any documents in addition to those in the hands of Congress or hear from any witnesses to find that the POTUS solicited a thing of value from a foreign actor and stonewalled lawful efforts to investigate.
If I were managing the impeachment prosecution for the House, I would object to the POTUS offering any evidence before the Senate that he refused to produce for the House after lawful demands. That would certainly move things along quickly if the objections were to be sustained.
The objections should be made even if futile for the same reason the impeachment needs to go to the Senate even if the Senate is likely to fail in its duty. When a White House gets as far off the rails as this one, it’s important to make a record that somebody attempted to do the right thing.
Mr. Trump has admitted to the facts of two Articles of Impeachment. Those two are, of course, not the only possible grounds to impeach Donald Trump, but nobody is likely to vote to convict on other grounds if he or she cannot convict on the two grounds where Mr. Trump has admitted to the facts.
The only impeachment defense at this time is to run out the clock. If the House goes to court over every subpoena ignored and every witness refusing to testify, there is no way to get Articles of Impeachment to the Senate before the 2020 election. Mr. Trump cannot win on these discovery issues in court but he is not in court to win. He is in court to stall.
The way to beat the stalling tactics is to place a bet on the functional equivalent of a summary judgment. The odds on that bet look pretty good, but even if they were not, it’s hard to see any other choice.
