Nancy Pelosi has mumbled (again) through an announcement that the House will not send the Impeachment Resolution to the Senate for Trial until Mitch McConnell tells her how the trial will be structured. Welcome to Tactics 091. This isn’t even a Freshman level class. This is remedial instruction for the “master of political tactics.”
Anyone who watches the news knows that rabid Democrats in the House voted in favor of two Articles of Impeachment. But low information partisans may not realize that President Trump may not have actually been impeached until the House appoints managers who then present the Articles to the Senate. Many legal authorities suggest that, like many other legal processes, impeachment is not completed until that “ministerial act” is complete. This seems to be Princess Pelosi’s understanding.
Other experts have suggested that the impeachment is complete with the sound of the gavel and “The motion is agreed to” in the House. Thus, the ball is now in the Senate’s court, and the Senate has “the sole Power to try all Impeachments” (Art I, Sec 3). If we accept this approach, since Republicans control the Senate, they can set rules and start the trial without the House ever sending a manager over. When no House Manager shows up, Senator McConnell would be within his rights to ask Chief Justice Roberts for summary dismissal of all charges. After all, the House has neither presented its 600 pages of charges nor appeared to present testimony. The term is “failure to prosecute.” As part of this motion, the Majority Leader can ask the Chief Justice to declare the impeachment null and void, thus vacating the House’s indictment of the President.
We all know that the odds of the Senate convicting and removing the President in any trial are Slim and None, and Slim has left town. So as long as Princess Pelosi attempts to get some sort of a quid pro quo from Senator McConnell before appointing managers, she’s in denial, and that’s not a river in Egypt.
The Speaker of the House is playing tactics, while the Majority Leader in the Senate is playing strategy. He knows he will win this war. She’s trying to gain a partisan advantage on the way to defeat, ignoring the fact that every stunt she pulls raises President Trump’s approval with the public. And she’s ignoring the fact that when playing tactics against McConnell, he’s holding Aces to her deuce-7 off-suit. She can’t win. All he has to do is wait. They both know she has no cards, because in this game, they’re all face-up.
Assuming that Trump has not been impeached until the House sends its managers over with the Articles, the Senate is under no obligation to do anything at all. And that’s just what Mitch will do publicly. Privately, he’ll be preparing. The Senate will adopt the rules for the Trial by majority vote. No filibuster will be allowed. So as long as the rules are not manifestly unfair, the Republicans should accept them with their 53 votes to the Dems’ 47.
Here is my modest proposal for Senators McConnell and Graham. Since the House thought they had a compelling case with the handful of witnesses they called, no further witnesses will be allowed. The managers will be allowed to “prove their case” with those same witnesses, plus the “whistleblower.” Thus, there will be a real trial. The managers won’t be able to hold up a 600 page report and declare their case proved. They’ll get to do it in open Court. With a twist.
The Senate should require that the rules for testimony under the Federal Rules of Criminal Procedure be followed to the letter. Since the presiding judge will be Chief Justice Roberts, he’ll know those procedures cold. Consider the following.
Manager: “Ambassador Yovanovitch. How did you feel when Rudy Giuliani pushed for your dismissal?”
Senate Counsel: “Objection! Relevance!”
Justice Roberts: “Objection sustained.”
Manager: “Lieutenant Colonel Vindman. What were your thoughts when you heard of the delay in aid to the Ukraine?”
Senate Counsel: “Objection! Hearsay! Relevance! Also, it calls for a conclusion from the witness.”
Justice Roberts: “Objection sustained.”
All testimony that calls for hearsay, conclusions, or is irrelevant would instantly be excluded. If Ambassador Yovanovich or Sondland is asked about their opinion regarding Rudy Giuliani operating outside of Foggy Bottom’s procedures, that should be allowed. It will prepare the way to cross-examination regarding the fact that every President (all 45 of them!) has used personal emissaries who did not answer to the State Department.
When all the prosecution witnesses have been heard, we will know one incontrovertible fact. Ambassador Sondland, the only witness with direct knowledge of the President’s intentions, received a direct order from Donald Trump that he was not to ask for anything. There was no deal-making to be considered. Further, all of the testimony from all the other witnesses will have been ruled out of order.
This will be great theater. The Dems will parade witnesses who will basically be muzzled because they have no direct testimony about anything. They will not be allowed to testify at all, because they have nothing relevant to say. Instead of the stage-managed House hearings where the Republicans were handcuffed, this time the Democrats will be shown to be completely vacuous in their arguments.
If the direct examination is properly managed by the Republicans, cross examination will show that no Ukrainian officer ever knew about the hold up in aid or any demands by President Trump. Further, every President uses special envoys, whether they hold a title or not. The Abuse of Power Article will vanish, and the public will see it for what it is: a case of the vapors by the Democrats.
Because the “whistleblower” is not protected from exposure in this arena, Republicans can call him as a hostile witness in their case. They can develop the fact that he conspired with Adam Schiff. They can show that everything in his “complaint” was illegally leaked hearsay. His complaint had nothing to do with the Intelligence Community Inspector General’s jurisdiction, and was only allowed by a retroactive rules change created just to attack the President. The whistleblower will have to either admit those facts or claim his Fifth Amendment privilege, which will look even worse.
At this point, the Republicans will have proved a conspiracy by Democrats to unlawfully remove the President. They won’t need to discuss the fact that under Article II, section 3 of the Constitution, the President is the chief law enforcement officer of the US, and he would have been derelict in his duties if he did not pursue an investigation into the Ukraine, since there is ample evidence that major US figures have committed multiple US crimes there. That wouldn’t prevent them from using it in their opening statement.
While the Dems will have been completely stymied in their Abuse of Power Article case, the Obstruction of Congress Article remains. And here the Republicans should move for Summary Dismissal of the charge.
The House has alleged that Donald Trump “obstructed Congress” by refusing to turn over documents and witnesses. In short, the House is asserting that it is superior to the Executive Branch. But the House only subpoenaed a handful of witnesses, and dropped the subpoenas when the President resisted. Further, in the case of Trump vs. Deutsche Bank, the House has subpoenaed his financial records for multiple years. The Supreme Court accepted the case, affirmatively declaring that such disputes belong in the Courts, not in impeachment. In this it is following multiple precedents, most famously going back to Richard Nixon’s tape recordings in the Watergate affair.
The fact that the House wanted to “hurry up” the process to throw Trump out before the 2020 election is irrelevant. The Legislative and Executive branches are “co-equal” under the Constitution. Disputes between them are resolved by the courts.
In my humble opinion, the approach I’ve outlined will work to Donald Trump’s great advantage. Strategically, he cannot lose. Tactically, there can be great theater that shows that the Democrat charges are the result of a childish temper tantrum, executed through illegal conspiratorial channels.
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