Narrow and Deep or Broad and Shallow?

Moscow Mitch McConnell, Foreman of the Jury. Official Senate Photo in public domain.

The Foreman of the jury is working with the defendant and admits it!

My problem with selling the Constitution the way you would sell a box of soap is that the process shakes my confidence that people will understand why the document is so valuable. I read history and history tells me the document has served us well. Is it asking too much of my fellow citizens to expect them to develop an informed opinion on something so critical? I hope not.

Impeachment is a strange animal that lives in a terra nullius between politics and law. Moreover, if it is law, procedure is not exactly criminal and not exactly civil but rather something cobbled together each time from elements of both and Robert’s Rules of Order — just one more reason why every impeachment is sui generis.

When the articles of impeachment arrive in the Senate, it appears that the most robust authority over the baseline procedures will be Moscow Mitch McConnell (R-KY) and the person on trial, Donald John Trump. It’s true that the Constitution vests presiding authority in the Chief Justice of the United States, currently John Roberts, but it’s not clear how much authority Chief Justice Roberts is willing to assert.

In the opinion of this dinky-ass retired state court judge, Chief Justice Roberts could take full responsibility for the procedures, announce his decisions in advance, and rule in accordance with those decisions. At this time, however, President Trump is pressing for a drawn out affair bearing great similarity to a reality TV show, while Majority Leader McConnell is expressing interest in a sort of jurisprudential Cannonball Run, over before most of the nation knows it has started.

Neither Trump nor McConnell has shown any inclination to accept input from Minority Leader Chuck Schumer (D-NY). Moscow Mitch may claim that the Senate needs to get this impeachment nonsense kicked to the curb to get on with the country’s business, a claim that would be more credible if he did not revel in calling himself “The Grim Reaper” for running the half of Congress where legislation goes to die. He’s shown little stomach for the country’s business except for passing enough funding to keep the lights on and, of course, confirming federal judges by the boatload as long as they are properly vetted by the Federalist Society.

According to Leader McConnell, who is titular foreman of the jury, the result of the impeachment trial is a foregone conclusion determined by counting the R’s and the D’s. Since the impeachment will be tried under the Broad Daylight Shooting on Fifth Avenue Rule, witnesses are not necessary and all of the arguments were aired out in the House of Representatives. An obvious way to conserve time would be to just cut and paste the headings in the Congressional Record, moving House debates to the Senate and letting the Senate leadership pick the very best arguments to print in the proceedings of what used to be The World’s Greatest Deliberative Body.

A party line vote in an impeachment is outrageous in terms that ought to be front and center: historical terms, the terms that finally drug Speaker Pelosi out of her impeachment bomb shelter. There came a time when failure to impeach would ratify another Trumpian new normal that just cannot be, and letting it be amounts to an informal constitutional amendment. Donald J. Trump could very well go down in history as the President who came into office at the head of one of three branches of government, the executive branch, which was subject to being checked by the other two branches.

The legislative branch could check the executive by the power of the purse until President Trump proved that when Congress will not appropriate funds, the executive can appropriate the funds from other purposes.

The legislative branch could check the executive by the power of impeachment until President Trump proved that no employee of the executive has to answer congressional subpoenas.

The judicial branch could check the executive until President Trump divided the judiciary into Democratic and Republican judges and therefore relegated judicial opinions to partisan nonsense that may be ignored by sensible people. Any force that can be brought to bear to enforce a judicial opinion works for the President and he need not act because the opinions are no longer legitimate.

Assuming that some people in public office do not wish to amend the Constitution outside of Article Five, the aforementioned dinky-ass retired state court judge has a suggestion.

Put the House Judiciary Committee back to work with marching orders based on the Republican complaints about the hearings just concluded. The two articles that are probably going to be passed — abuse of power and obstruction of Congress — can remain, but the vote need not be certified until the other articles are considered.

Other articles?

You know, the ones taken directly from crimes for which we are all assuming a sitting President cannot be prosecuted? He can be impeached for crimes that may or may not call for removal — perjury, for example. I will attempt a rough chronological order, but it’s highly probable I will be unable to remember all the crimes at all — let alone in order.

The earliest crime I can recall involves a conspiracy to violate election financing law. The other conspirators would be the bookkeeper of The Trump Organization, who is cooperating with the government, and Mr. Trump’s former attorney, who is serving time for his part in moving money to a porn star named Stormy Daniels. At his guilty plea, that attorney testified that he paid the money on the instructions of Mr. Trump.

Then there are at least four counts of obstruction of justice set out in the Mueller Report and set out by that well known radical left magazine, Forbes.

Trump obstructed justice attempting to protect his National Security Advisor, Michael Flynn, from prosecutions for lying to FBI agents and violations of the Foreign Agents Registrations Act.

Trump obstructed justice when he fired FBI Director James Comey for the purpose of shutting down the investigation into Russian interference in U.S. elections. According to the Mueller Report, Comey sealed his fate when he refused to make a public statement saying Trump was not personally under investigation.

Trump obstructed justice when he ordered White House Counsel Don McGahn to fire Robert Mueller.

Trump obstructed justice by attempting to persuade members of his staff to misrepresent events. Among other instances, he tried to get McGahn to deny having received an order to fire Mueller.

Two more felonies arose when a reporter asked Trump what he wanted from the Ukrainian president. Quoth the POTUS:

I would think that if they were honest about it, they’d start a major investigation into the Bidens. It’s a very simple answer. They should investigate the Bidens … and by the way, likewise, China should start an investigation into the Bidens. Because what happened to China is just about as bad as what happened with Ukraine.

The felony is soliciting “anything of value” from a foreign nation for the purpose of influencing a U.S. election. In this case, the thing of value was oppo research solicited from Ukraine. When questioned about that, Trump made the same solicitation from China. Remember, the crime is complete when the solicitation is made…it need not be successful.

This is what I came up with by trying to think of specific crimes off the top of my head. There are some other places to look that are fairly obvious.

One is to carefully examine the Trump connections between the persons who worked on the Trump campaign who are now in prison. With any serious connection during the commission of these crimes comes the possibility of a conspiracy count.

Next, I would look carefully over the questions Mr. Trump answered in writing under penalty of perjury. My recollection is that Mr. Trump had enough dramatic lapses of memory to keep him out of trouble, but it would be malpractice not to look when dealing with a person who lies even when the truth would do.

The bottom line is that the House can produce articles of impeachment in the double digits without breaking a sweat. That would in itself be enough to shoot down the Cannonball Run theory of how to try an impeachment. If any evidence is produced in the Senate, the more of it there is the harder it will be for all of the senators to disregard their oaths of office.

It may still come down to counting D’s and R’s, but I just watched the R’s on the House Judiciary Committee call putting the vote off until the next morning “Stalinesque,” apparently because they are not used to working on Fridays. That dog is unlikely to hunt with the voters.

It does not appear that the theory of short and easy to understand articles of impeachment to capture the public imagination has worked. That being the case, the only audience for the articles of impeachment is the judgment of history. That calls for impeaching President Donald J. Trump for what he actually did, no matter how long it takes to plow through the evidence.

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

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