The Dogs That All Barked

You’re probably just about as sick of focusing on the now-concluded presidential impeachment as I am. Irrespective of which side of the Great Divide you’re on, you surely had known more or less how it was going to turn out for quite some time, and while the show was underway you probably engaged with as much commentary from pundits (most or all of them on “your” side, natch) as you wanted, so now, presumably, you would rather turn your attention to fresh topics.

I have no desire to relitigate the partisan points that have already been rehashed innumerable times; but I do feel compelled to make a final observation about today’s votes that you may not have considered.

I see the two articles of impeachment put forward by the House as having been very different from each other. Neither one alleged a crime, per se, but to me the first one was at least understandable in the context of severely (and, if you will, legitimately) split perspectives on the facts, the president’s character and what the framers of the Constitution meant by the phrase “high crimes and misdemeanors”.  

As I have made clear in previous posts, I don’t believe that Trump committed a meaningful Abuse of Power or that, even if he did delay the aid to Ukraine to pressure that country’s government to investigate the Bidens, he should for that reason have been removed from office and prevented from running again this year. Be that as it may, though, I understand that opinions contrary to my own on those points can be held rationally and in good faith, and I completely respect your right to disagree if, in fact, you do.

The second article – Obstruction of Congress – is something else entirely. On that article, I think the arguments put forth by the House were so ridiculous – and, in the end, dangerous – that it shocks me to the core that not a single Democrat voted against it.

The premise of the Obstruction charge is that the president had no right to assert Executive Privilege and to insist that, if the House (or rather, the Intelligence Committee of the House, since the House as a whole had not voted to authorize the impeachment inquiry) wished to enforce its subpoenas it would have to ask the courts to decide the extent to which the Executive Branch would have to comply. Since every President has asserted Executive Privilege repeatedly in conflicts with Congress, and heretofore all such disputes had been referred to the courts or settled among the parties, this attempted assertion of unilateral power by the House flies in the face of historical precedent and upends the balance of power among the three coequal branches of government.

If the House (or even a mere House committee) can demand that an Administration obey its commands, under the threat of the President potentially being ejected for the “crime” of Obstruction, the branches are nothing like co-equal – Congress reigns supreme. Our system would become something much more closely akin to the British system, where Parliament can defenestrate the Prime Minister through a vote of no confidence than like the tripartite structure set out in our Constitution and honored by Americans for centuries. Did the Democrats really think that they could get away with that?

If, by some miracle, the House’s managers had prevailed in their effort to get rid of the Trump through the impeachment process, surely it would have been because they convinced two thirds of the Senators that the behavior charged in the first article had happened exactly as they alleged and fully justified overturning one election and intervening in another.

Under no circumstances would the second article have been needed to achieve the House Managers’ goals. By the House Managers’ own argument, if Trump hadn’t been (in their minds) guilty of the first charge, there would have been no need for him to “obstruct Congress”. The alleged guilt on the first article would have necessarily preceded the (absolutely non-criminal) behavior charged in the second.

So why even go there on the second article? I’m guessing that the House strategists’ answer was: to make Trump look guilty as sin as a means of winning the argument about the first count, and to harm his chance (in light of the overwhelmingly likely impeachment defeat in the Senate) of getting re-elected. They could have asserted the probative value of his “obstructive” behavior for the light they thought it shed on the first count without designating it as a separately impeachable offense.

In short, it was a spurious, unnecessary, unprecedented and Constitutionally dangerous charge that the House Managers leveled for partisan tactical reasons. They should be ashamed of themselves.

I hate to write it, but one almost expects such behavior from certain Members of the lower house of Congress. This trial was a unique opportunity for Schiff, Nadler and Pelosi to endear themselves to the most rabid partisans in their base of support. They wanted to lay it on thick, and they did – but they didn’t have to charge the second “offense”.


 Separately, it’s not like the Democratic Senators didn’t understand both the gravity and the radically unprecedented nature of the House’s second charge: the arguments against the Constitutional legitimacy of the Obstruction article were forcefully set forth by the President’s lawyers and both echoed and amplified by many Republican Members of Congress. Even so, not a single Democrat Senator was willing to acknowledge the seriousness of the Constitutional arguments against this article by, say, voting “guilty” on the first charge but “not guilty” on the second. Not one.

I guess in their minds it was more important to slime Trump – even in impeachment defeat, which was more than clear by the time they voted on the second article – than to worry about the precedent they were setting.

To me, the Senatorial Democrats’ unanimity on the second article of impeachment is the single most depressing aspect of this whole, sordid affair, because it shows that none of them was willing to think for him or her -self or stand up for what has until now been a shared understanding of our Constitutional norms.

M.H. Johnston               

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