Even as the House Democrats voted to impeach the president this week, there was universal recognition that the effort to remove him was a dead pigeon on arrival at the Senate (assuming House Speaker Nancy Pelosi summons the courage to apprise the Senate officially of the results of the House vote).
The battle, for some time already, has been at the public relations level, and there the president is winning. USA Today, an anti-Trump newspaper with regular anti-Trump polling results, reported a five point decline in the numbers of people who approved impeaching the president, and other polls indicate that this is a clear trend; he is now ahead of where President Obama was in the polls eight years ago. These polls also probably reflect the gathering disquietude of the country about revelations of unprecedented political skulduggery by the FBI in the Horowitz report.
The pathetic spectacle of tie-less former FBI director James Comey being transformed into Swiss cheese like Faye Dunaway and Warren Beatty at the end of “Bonnie and Clyde”—and by Chris Wallace who is no Trump-admirer—is of a piece with the general unease generated by that report. The inspector general of the Justice Department acknowledged that there could have been political bias in starting the Trump-Russia investigation, and though he didn’t find proof of it, all of the many shortcomings he found in the improper FISA surveillance of the Trump campaign were on the anti-Trump side of the election.
The lowering clouds of that sequence of outrages raised grave questions about the politicization of the FBI and the intelligence networks and they do not create an optimal atmosphere for the orgy of righteousness of the Democrats and the anti-Trump media now. Rarely have the denizens of a thinly-walled and roofed glass house hurled such a torrent of stone projectiles.
I have suggested (in National Review Online) that the matter should be referred to the Supreme Court to see if the articles of impeachment adopted by the House of Representatives fulfilled the criteria cited by the Constitution as justifying the removal of the president. The issue is whether the grounds enumerated—treason, bribery, “high crimes and misdemeanors”—are exclusive or illustrative. The grounds invoked in this case are abuse of power and “obstruction of Congress.”
The second count is utter nonsense (as it was in the third count issued by the judiciary committee against Richard Nixon in 1974); President Trump did not comply with a procedure that denied him every relevant protection in the Bill of Rights. He was no more contemptuous or obstructive of Congress than the House Democrats were of the president as head of the co-equal executive branch of the government. And the president had every reason to be contemptuous of committee chairmen Reps. Adam Schiff (D-Calif.) and Jerry Nadler (D-N.Y.); they have committed procedural outrages, are pathologically hostile, and have lied to the public incessantly about the president throughout his term.
If the House Democrats had taken the time to get a court adjudication of whether the administration witnesses they subpoenaed had to appear, they either would have appeared and this charge would have vanished, or if the president prevented their appearance, there might be some merit to the charge. As it is, it is a frivolous accusation.
As all the world now knows, the charge of abuse of power rests on the mind-reading and other suppositions that the president used his office to elicit an electoral advantage in 2020 by brow-beating a foreign leader (President Zelensky of Ukraine) into investigating former Vice President Biden and his son’s activities in that country. It is a far-fetched charge as Trump was asking for an investigation and not directing the result of the investigation, and the funds that were the supposed consideration in exchange for the investigation were withheld for legitimate bipartisan reasons of concern about corruption in Ukraine, were released anyway, and the investigation did not occur.
It seems to be fairly clear that the authors of the Constitution intended that presidential impeachment and removal was only envisioned in the case of much more serious assaults on the Constitution than anything that is alleged in this case (or was alleged against previous presidents threatened by impeachment: Andrew Johnson, Richard Nixon, and Bill Clinton). The Senate leaders should consider asking the Supreme Court to opine on the necessary criteria for this extreme measure before the United States affirms in practice the famous comment of President Gerald Ford that impeachment can be for any reason the House majority determines.
The consequences of that, as many observers on both sides of the present dispute have recognized, will be that impeachments will occur frequently when the House and White House are in the hands of different political parties, but the frequency of conviction and removal by two-thirds of the Senate, (which of course has never happened and is not about to happen now), will not become more frequent. No one considers this to be desirable; it would encourage and accelerate the attempted criminalization of policy differences, which is essentially what all the impeachment efforts in history have been, despite the malingering legend that Watergate was any kind of just proceeding.
For proposing a Supreme Court referral, I was rebuked by my editor at National Review Online, Charles Cooke, who wrote: “If I’m reading his piece correctly”—he wasn’t—“Conrad Black aims to avoid making a ‘mockery of the Constitution’ by proposing a scheme that would contradict the contemporary explanation, the original public meaning, the historical practice, and the governing precedent of the Constitution.” The contemporary explanation, Hamilton’s Federalist 65, and the governing precedent, the Rehnquist Supreme Court’s decision in the impeachment of a federal district judge, both allocated the power of trial of federal impeachment cases unconditionally and exclusively to the Senate.
That has nothing to do with what I wrote, which was that the high court should be asked to determine the correct criteria for conviction and removal of an incumbent president, not intrude on the decision-making process, before or after a Senate impeachment trial. The Democrats, including their media chorus, are using a spurious impeachment proceeding to try to taint the president and impute its failure to blind Republican obedience to the White House rather than the absence of any case against the president. The Supreme Court should be should be mobilized to lend its integrity to the just outcome of this death struggle launched and rabidly pursued by the Trump-haters.
Illustrative of this tactic is the formerly serious publication, The Economist, which declared in its December 14 issue that ”The main facts are not in dispute . . . Mr. Trump’s manipulation of a foreign government to smear his opponent is the sort of election-rigging that bothered the Framers. So much the worse that the president was also acting against the national interest by endangering an ally . . . .[Ukrainian President] Zelensky’s [denial] is open to doubt.”
The allegations against the Bidens, says the Economist “were not . . . substantial . . . (Joe Biden) was not protecting his son . . . Mr. Trump wanted to tilt the 2020 election in his favour . . . That is why Mr. Trump should be removed . . . The Republican [resistance] has been contemptible.”
No, The Economist is contemptible—it’s presentation of the issues is a tissue of lies, and the magazine conveniently admits, as many elected Democrats have, that this warped and slanted assault on the president and the Constitution started as an alternative to trying to defeat the president in next year’s election in the normal way.
Impeachment is just an effort to strengthen the Democrats as they make the uphill battle to persuade the voters to evict him next year for confected moral turpitude, since he can’t be challenged on his accomplishments in office. He has had the most successful first term of any president since Abraham Lincoln, except for FDR and Nixon.