I’m no Constitutional scholar, as it were, but I like to think I know the document fairly well. At least I did.
Then, impeachment happened.
Backhanded courtesies, curious strategies and outright deception have brought me back to my study for the purpose of unraveling just what it is our Democrat friends are scheming, as a cursory glance at their actions does little to reveal the magic eye painting that has become the Nancy Pelosi chessboard. That being what it is, I was tasked with discerning whether this apparent absurdity was actually brilliance in disguise, or if what seemed esoteric was nothing more than the wild death throes of a Speaker imprisoned by her own partisan mob. After a respectable amount of reading and a series of less-than-respectable skyward exclamations, it’s time to take my own desperate swipe at solving this political Rubik’s cube.
As I turn those blocks around one last time to align colors in a way that makes sense, the picture is one not of next-level strategic landmines, but certain folly.
When it comes to impeachment, the House Democrats’ job is essentially over. The two articles before the chamber have passed, and President Trump is now impeached. The only obligations left to them are to notify the Senate of their conclusions, name managers of the process, and allow the Republican-led chamber to reach a verdict, which is assuredly as predictable as the House vote preceding it. It should hardly come as a shock that articles based on such thin gruel would be received with skepticism in a chamber ruled by the president’s own party, although Senate Republicans can hardly be described as hardcore Trumpers. Nonetheless, what’s about to happen seems to be a complete surprise to Dims.
Late Wednesday night, Pelosi floated the possibility that the House might withhold the articles of impeachment against Trump and not transmit them to the Senate at all. At least, not until she receives assurance from Majority Leader Mitch McConnell that the process will proceed in a manner of which she approves. The unmitigated gall is enough to knock back the most hardened political veteran, but when the shock wears off, one is left to wonder, what the hell is she thinking?
Pelosi is not new to politics. To the contrary, she’s spent decades building a reputation as one of the most shrewd operators in DC — not an easy title to claim in a city full of snakes. She has demonstrated a capacity to advance her party’s interests at all costs, even including her speakership. Knowing that, the question immediately arises of what shrewd game Pelosi is playing this time around. I mean, this is Nancy Pelosi we’re talking about. Surely there is a larger strategy that we’re just not seeing.
Well, no. Not necessarily.
Even with due respect given, her objectives remain blurry. And even once the picture comes into focus, it’s one that is decidedly unsatisfying to the Democrat party’s aims. Dare I say, Nancy Pelosi has bungled perhaps the most important episode of her political career.
There are four main problems with Pelosi’s strategy that belie any notion of strategic mastery, which we’ll use this piece to enumerate and examine.
1) It flies in the face of her approach up to now.
Over the past three months, we’ve been told that the need to impeach the president was such an urgent matter that the House could not wait for the courts to rule on challenges to the White House’s efforts to prevent key witnesses like Mick Mulvaney, Don McGahn, and John Bolton (whom House Democrats didn’t even subpoena) from testifying. These important figures all claimed they would await guidance from the judiciary before consenting to testify, and the indications were that the extraordinary nature of the impeachment process would prove compelling.
Now the courts aren’t even sure if they are obliged to continue litigating the matter. With the articles passed, the issue is all but moot. Dims now insist that the Senate cannot proceed unless it hears from these witnesses, but that is also tacit admission that the fact-finding portion of impeachment proceedings was unduly rushed. Pelosi has tipped her hand.
2) She is asserting power that doesn’t exist.
The second problem with Pelosi’s maneuver is that she will be ignored. Perhaps she is trying to establish herself as McConnell’s foil, but he would have to confer upon her the authority she is demanding. And why would he? The House has no authority to dictate terms to the Senate. Nor should the Senate establish the rules that will govern Trump’s trial until the chamber has been properly informed by the House of the president’s impeachment.
Pelosi is essentially threatening the GOP with a good time. Why shouldn’t the Senate simply dismiss the demands of House Democrats, making them look impotent in the process while drawing out the inevitable? Think what you will of Turtle McConnell, but the man understands leverage. It’s why he’s the Senate Majority Leader. This imagine sword Pelosi is wielding is almost comical, and it will be treated as such.
3) Time is not on her side.
And that establishes the third problem with Pelosi’s maneuver: Time has not been on Democrats’ side. Dims had little choice but to rush the depositional phase of impeachment proceedings, not only because of the presidential campaign calendar bearing down on them but also because public opinion on impeachment has been on a steady decline.
Support for impeaching Trump has declined steadily since the revelations involving Ukraine began to be litigated in the most partisan fashion possible, and that effect shows no signs of slowing. As for the Dims who supported these articles, Senate Republicans will be more than happy to allow them to twist in the wind while also giving the Trump-supporting constituents of persuadable Senate Republicans time to pressure their lawmakers.
This undermines the (theoretical) upsides Dims hope to achieve by withholding impeachment articles from the Senate. According to the strategy put forth by Laurence Tribe, which is the one Dims have adopted, the House could use the delay to continue to build on its evidence for impeachment while possibly scoring additional legal victories that could unlock troves of new evidence and witness testimony. These are the same witnesses that the Trump administration withheld from Congress; the ones Pelosi, Schiff and the crew were in too big of a hurry to let courts rule on. Some of those court cases could be decided within weeks.
Even then, Leader McConnell runs the show in the Senate. He will set the terms of the trial, approve witnesses and determine size and scope of the proceedings. This makes clear the only discernible benefit of this strategy for Dims:
1) Win court victories to gain access to Mike Pompeo, Mick Mulvaney and other key administration officials with direct knowledge of the president’s dealings with Ukraine.
2) Apply public (read: media) pressure to call those witnesses, accuse Senate Republicans of a cover-up if those witnesses are not called.
While this seems simple enough, that court victory over executive privilege is far from assured. And even if it is, the drawing out of an already unpopular impeachment would result in a population who couldn’t care less even if Pompeo and co. were made legally available for trial. Arguably, it already has.
If Nancy Pelosi would like to hamstring the Dim presidential field for the sake of political theater that has already become tiresome to everyone but the far left, I’m sure Mitch McConnell will be happy to accommodate her, especially given our next topic of discussion.
4) Is President Trump actually impeached if there is no trial?
According to scholars on both sides of the aisle, no.
In National Review, Andrew McCarthy writes the following:
In the law, there are many situations in which an outcome is known, but it is not a formal outcome until some ministerial act is taken. A grand jury can vote an indictment, for example, but the defendant is not considered indicted until the charges are filed with the clerk of the court. A defendant can be found guilty by a jury, but there is technically no conviction until the judgment is “entered” by the trial court, usually months later when sentence is imposed. An appellate court can issue a ruling that orders a lower court to take some action, but the lower court has no jurisdiction to act in the case until issuance of the appellate court’s “mandate” — the document that formally transfers jurisdiction.
Plainly, Congress has similar ministerial acts of transference that must occur in order for legislation to pass. Were that not the case, Speaker Pelosi would not be talking about delaying the transfer of impeachment articles.
So it’s all well and good for the Speaker to hold up the works that Democrats, five minutes ago, were breathlessly telling us had to be carried out with all due haste. But many scholars take the position that the Constitution requires a trial if there has been an impeachment.
Noah Feldman, who was among the leftist Constitutional scholars to testify on Dims’ behalf, explains the issue thusly:
If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.
That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.
As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.
Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.
For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.
The folks wearing genitalia on their heads aren’t going to be happy when they get wind of this. Impeachment is the only thing they have to hang their coochie hats on after three long years of screaming at the sky.
Nancy, you better get those articles over to the Senate.
There are many high-minded analyses of what has transpired over the last few days and what could happen going forward, but upon careful examination of all the facts and scenarios before us, it comes down to a simple truth: Nancy Pelosi has allowed The Squad® to bully her into an untenable position.
Adam Schiff, Jerry Nadler and co. didn’t enter into this process with a grand strategy. Rather, they worked backwards from a goal that was thrust upon them by the most vocal and threatening elements of their party; the same faction who sent children to yell at Dianne Feinstein for her unsatisfactory ideas on how to combat climate change. The far left have effectively taken over the Democrat party and we’re now seeing the results of their fervor.
Pelosi didn’t go down without a fight. For years, she has resisted demands to impeach the president. And the socialist powers that be have made her miserable for it. She finally gave in, and now she’s stuck working with the horrible hand she’s dealt for herself. There is no brilliant strategy on her part because there is no brilliant strategy to be had. It truly is that simple. As President Trump said in his recent rally, Dims are on a political suicide march.
If Pelosi hands over those articles of impeachment forthwith, that march comes to a bloody and embarrassing end for the Democrat party. The Senate trial—what there is of it—will be a bloodbath and she knows it. The deck has been stacked in one direction up to now, and the wafer thin case, as Jonathan Turley so succinctly put it, will be exposed for the joke it is. Her only hope is to push a narrative of cover-up by Republicans, so the public might feel that they’ve been denied the real story.
It’s transparently desperate and, frankly, a sad end to an otherwise accomplished political career. Pelosi had the opportunity to go out gracefully, but her cowardice in the face of the mob will become her legacy. A hostage to Trump Derangement Syndrome, Pelosi’s swan song is one of abject absurdity; a surrender to tyranny in the name of partisan vengeance.
There is no true rhyme and reason, only fear. And ultimately, defeat.
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