Yeomans Work

Trump is Standing in the Middle of Fifth Avenue

October 4, 2019

Donald Trump famously said as a candidate that he could stand in the middle of Fifth Avenue and shoot someone without losing support.  He appears determined to test his boast.  Trump is standing in the Oval Office with the smoking weaponry of the presidency aimed at the heart of our democracy.  Trump’s bet is that he’ll get away with it; that he is not constrained by the constitutional guardrails that limit a president.  Here are some things to watch as his bet plays out.

Trump will be impeached. The question now is not if, but how.

It defies belief that Trump has so far escaped impeachment for inviting and embracing the Russian assault on the 2016 election (and obstructing the ensuing investigation) only to encourage Ukraine and China to jump into the 2020 election. Trump called President Zelensky of Ukraine to urge him to interfere in the 2020 election the day after Robert Mueller’s congressional testimony fell flat.  Despite the outraged reaction to his strong-arming of Zelensky to investigate Vice President Joe Biden and his son, Hunter Biden, Trump called on China to investigate the Bidens, as well – this time in public as he was boarding a helicopter.

The House majority is debating whether to follow a narrow, speedy path to impeachment by focusing only on Ukraine or whether to pursue a slower, more expansive approach. The China episode and Trump’s erratic behavior over the past week caution against focusing too narrowly with too much haste. In the phrase coined by Speaker Nancy Pelosi, Trump is self-impeaching, but he needs time to finish the project.

In addition, the pace of the unraveling of the administration is increasing. It is reasonable to expect that more whistleblowers will be moved to act.  And, as damaging facts emerge, more former officials will speak publicly and more insiders will leak, sometimes out of a sense of patriotism, often out of a sense of self-preservation. As jeopardy approaches, people will jockey to get to the front of the line to make deals and salvage reputations before it is too late.

Whatever the timing, the House will approve articles of impeachment.

If the House rushes ahead, it may have to proceed without valuable evidence.

Subpoenas are flying, most notably from the House Intelligence Committee to the White House to obtain such things as the actual transcript of the Ukraine phone call, a full list of all those present, and their communications regarding the call. The memo of the call released by the White House contains obvious deletions and reflects a far shorter call than reports confirm took place.  The White House will not comply with the demands, forcing the House to go to court. Although the House is likely to prevail for the most part, those cases will take months to resolve.  At some point, the House may be forced to impeach before all of the litigation is completed. The timing may be a tough call.

It is the whole narrative of Trump’s presidency that makes the Ukraine and China episodes compellingly impeachable.

While it certainly makes sense to make the Ukraine and China episodes the centerpieces of the impeachment narrative, the argument for impeachment is far more compelling if placed in the context of Trump’s many other abuses of presidential power.  His embrace of the Russian electoral assault, his consistent refusal to acknowledge Russian responsibility, and his obstruction of the ensuing investigation lead directly to his willingness to open our democracy to Ukrainian and Chinese interference. The obstruction of the Russia investigation not only demonstrates Trump’s failure to take care that the laws are faithfully executed, but it shows Trump’s willingness to use the power of the presidency to protect his political victory and corrupt our democracy. His efforts with Ukraine and China rest on the same willingness to use his office for personal political benefit, even at the cost of inviting foreign influence in the 2020 election.

Trump’s attempts – both with Ukraine and China – to corrupt the 2020 election add urgency to his removal. Waiting to remove him through the ballot box  — in an election corrupted by foreign influence — is not an acceptable option.

Trump’s response to efforts to hold him accountable is an important chapter in his abuse of office and should be included in articles of impeachment.

Trump’s resistance to congressional oversight and investigation reflects his extraordinary rejection of our constitutional checks and balances.  He has denied the power of Congress to impose limits on his power.  He has denounced Speaker Pelosi and Chairman Adam Schiff in harsh, juvenile terms.  Increasingly, he has spoken as if he is the government of the United States and what is good for Trump is good for the country.  His behavior is certain to grow worse as impeachment progresses, providing ample additional material for an article addressing obstruction of Congress.

It is premature to predict the outcome in the Senate.

Senate Majority Leader Mitch McConnell has stated that there will be a trial in the Senate, as the Senate rules require, if the House sends articles of impeachment.He pointedly added that he wasn’t guaranteeing how long it would last.  It’s reassuring that McConnell will not pull a full Garland, but the Senate rules leave lots of room for mischief.  While the Constitution and the rules call for the Chief Justice to preside over the impeachment of a president, a majority of the Senate can override the Chief Justice’s rulings.  Most notably, a majority can vote to dismiss the articles of impeachment without the full presentation of evidence and prior to a roll call vote on removal of the president.

The House, therefore, must construct and present to the public a sufficiently compelling case for impeachment to make it politically untenable for Republicans in the Senate to vote as a bloc to truncate the proceedings.

Common wisdom has long held impeachment futile and politically unwise because the Senate would not vote to remove Trump.  The political wisdom argument was always suspect.  As Trump breaks the law in public, flails viciously at and lies about those seeking to hold him accountable, and watches his administration unravel, the futility argument is growing far less convincing.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.