House Speaker Nancy Pelosi (D-Calif.) opened the farcical impeachment debates with a speech invoking American history, including the Battle of the Bulge during which Americans overcame a surprising Nazi counterattack to prevail ultimately in World War II.
I have another comparison for the speaker; Napoleon Bonaparte in Moscow. On September 14, 1812, Napoleon led his Grande Armée into Moscow with the expectation that the Russians would surrender. After a month with no surrender, Napoleon began a long retreat that ended in the loss of approximately 90 percent of his force and the eventual defeat of France.
There will be no delegation of Republican congressmen quietly slipping over to the White House to urge a dignified resignation. The pattern of accuse, investigate, leak, rinse, and repeat has come to an end. The next step is an unwinnable Senate trial or the Democrats’ retreat.
There could be no more efficient takedown of the Democrats’ impeachment effort than the short 30-minute speech delivered by Senate Majority Leader Mitch McConnell (R-Ky.) the day after Democrats passed the articles.
The often underestimated McConnell gave the speech of his life on Thursday. In approximately half an hour, Senator McConnell did what so many Democrats have claimed to do over these last several weeks: He meticulously applied the Constitution and historical precedent to the facts at hand and to the articles of impeachment the House passed on Wednesday. McConnell’s speech is both educational and wickedly fun to watch.
Let’s start with the fact that Washington Democrats made up their minds to impeach President Trump since even before he was inaugurated. Here’s a reporter in April of 2016—April of 2016! “Donald Trump isn’t even the Republican nominee yet. But impeachment is already on the lips of pundits, newspaper editorials, constitutional scholars, and even a few members of Congress.”
Justifications for impeachment included rude behavior to professional athletes and reporters, changing Obama’s policy on transgender in the military. “A few months ago,” McConnell added, “Democrats’ three-year-long impeachment in search of articles found its way to the subject of Ukraine. House Democrats then embarked on the most rushed, least-thorough impeachment inquiry in modern history.”
McConnell then contrasts the “Get Trump” effort to the “mountains of evidence” gathered in both the Nixon and Clinton processes. The Nixon impeachment process required 14-months of hearings in addition to a special prosecutor. The Clinton impeachment followed years of an independent counsel investigation.
“House Democrats’ rushed and rigged process produced two articles of impeachment [which] are fundamentally unlike any articles that any prior House of Representatives have ever found,” McConnell explained. Article I involves the “timing of aid to Ukraine.” But the articles do not even purport to allege an actual crime. “Instead, they deploy the vague phrase ‘abuse of power’ to impugn the president’s actions in a general and indeterminate way.”
The Democrats might not be required to allege a crime, but McConnell warned, “history matters and precedent matters. And there were important reasons why every previous House of Representatives in American history restrained itself . . . from crossing the Rubicon.”
The vagueness of the “abuse of power” article is effectively a “mal-administration” charge rejected by the Constitution’s Framers because it would so easily be used to attack presidents over policy differences. If the Democrats are successful, all presidents henceforward will be impeached whenever the opposition party achieves power in the House.
“So there were powerful reasons why every House of Representatives for 230 years . . . required presidential impeachment to revolve around clear, recognizable crimes,” McConnell said. “That 230-year tradition died last night.”
Of the second article of impeachment, “Obstruction of Congress,” McConnell said, “What it really does is impeach the president for asserting executive privilege . . . a two-century-old constitutional tradition.” Presidents beginning with Washington have invoked it and courts repeatedly have recognized it. The House requested extraordinarily sensitive information—exactly the type of requests against which presidents from both parties have asserted privilege.
“It’s not a constitutional crisis for a House to want more information than a president wants to give up,” McConnell said. “That’s not a constitutional crisis! It’s a routine occurrence. Separation of powers is messy—by design. Here’s what should have happened . . . either the president and Congress negotiate a settlement or the third branch of government, the judiciary, addresses the dispute between the other two.”
That’s what happened in both the Nixon and Clinton impeachment inquiries. In both instances, the House went to court to resolve the disputes.
Following this process, “takes time, it’s inconvenient,” the majority leader said. “That’s actually the point. Due process is not meant to maximize the convenience of the prosecutor. It’s meant to protect the accused.”
McConnell shot down the suggestion that the Senate should force the president to give up more information to facilitate the trial. As I recently wrote (perhaps McConnell is a reader), impeachment means “ready for trial.” It’s not the proper role of the Senate to investigate and impeach the president. “Nobody made Chairman Schiff do this,” McConnell said of Schiff’s decision to forego court assistance to overcome the president’s lack of cooperation with the probe. “In Nixon, the courts were allowed to do their work. In Clinton, the courts were allowed to do their work.”
But these House Democrats, he added, “decided that due process is too much work.”
McConnell further challenged House Intelligence Committee Chairman Adam Schiff’s attempt to bully the executive branch out of asserting executive privilege. He quoted Schiff saying, “any action that forces us to litigate . . . will be considered further evidence of obstruction of justice.”
What the Democrats are trying to say, in effect, is that if the president asserts his constitutional rights, it’s just that much more evidence that he’s guilty.
McConnell further explained how the House impeachment effort harms separation of powers by attempting to make the president serve at the pleasure of Congress. But the process also infringes upon the Senate as an independent body.
The House can follow whatever process it chooses for impeachment. But it is now attempting to dictate how the Senate discharges its duties. The House has made a “demand that this body redo House Democrats’ homework for them. That the Senate should supplement Chairman Schiff’s work to make it more persuasive.” Further, the House could effectively swamp the Senate whenever it wants by passing flimsy impeachment articles to force a Senate trial.
Quoting Pelosi’s now-abandoned warnings that impeachment should not be done without an overwhelming and bipartisan case, McConnell said, “by the speaker’s own standard . . . she has failed the country. The case is not compelling, not overwhelming, and as a result not bipartisan.”
The weakness of the Democrats’ case is demonstrated by Senate Minority Leader Chuck Schumer’s calls to supplement the House’s shoddy work with new Senate-led investigations. And now, McConnell observed, it appears that the House is too afraid to send the articles of impeachment to the Senate where they rightly fear they will lose their case.
“It looks like the prosecutors are getting cold feet in front of the entire country,” McConnell added. “The articles aren’t just unproven, they’re also constitutionally incoherent.” If the Senate blesses either of these articles, “we will invite the impeachment of every future president.”
Pelosi was shell-shocked. Watch her stammer during her own press conference just a few minutes after McConnell concluded his speech. A friendly reporter asked whether the Republicans might accuse the House of playing games by holding onto the impeachment articles too long. Pelosi mumbled something about needing to know Senate trial procedures before she could appoint House managers. It’s a nonsense argument that she can’t even explain.
The Democrats have their impeachment. There will be no Trump surrender. There’s nothing left for them to do but begin the long retreat.