Senate Republicans blocked additional witnesses from the President’s Impeachment trial. While this is good, it leaves open the argument that when the final vote acquits him, the trial will have been a sham. Of course, the Left’s lapdogs in the drive-by media will trumpet this from the rooftops. We don’t need this sort of slanderous outcome. There is a better way.
First, let us make it clear that Donald Trump neither exceeded his lawful foreign policy authority in the cause of re-election, nor obstructed Congress in the pursuit of its lawful prerogatives. But an acquittal presumes that the charges Princess Pelosi, Pencil Neck Schiff, and Jerry Waddler so thoughtfully considered and tenderly carried across the Capital are actually “high crimes or misdemeanors.”
Article 2 of the Congressional stillbirth is the easier issue. As Alan Dershowitz pointed out, the House does not have an unlimited right to see Presidential documents and interview Presidential staff. As in Nixon’s case, until the Supreme Court has rendered a final opinion, the President may restrict the House’s access. Only after the Court has ruled against him is it possible for him to obstruct Congress by withholding documents or staff. Anything else would place the Congress above the Executive Branch, destroying the separation of powers inherent in our Constitutional design.
If the Senate acquits Trump on this Obstruction count, it will present to the House the presumption that their essential idea is valid, but that Trump didn’t do what they allege. This is horrible. Instead, it is essential that the Senate rebuff the legal basis for the House’s complaint. Anything less would leave the House open to bring another set of articles for Obstruction the very next time Trump says they can’t have something. They wouldn’t even need to subpoena documents or witnesses. A simple request would become a command, under penalty of impeachment.
The proper action for the Senate to take is to Vacate Article 2 because it fails to state a high crime or misdemeanor. In legalese, “it fails to state a Constitutionally recognized cause of action.” A vote to vacate would say that the House has utterly failed in its Constitutional duty. It would strike the Article from the Impeachment, leaving only Article 1.
Article 1 is somewhat more involved, but the same issue applies. Again, Alan Dershowitz carefully explained that the term “Treason, Bribery, or other High Crimes and Misdemeanors” is an inclusio, where all “High Crimes and Misdemeanors” are acts of a similar degree and criminality as “Treason and Bribery.” We should note with Dershowitz that the terms do not necessarily refer to offenses against statutes. After all, bribery was not defined in US law until after the Constitution was adopted. Thus, in this clause, criminality is not exactly identical to illegality. Instead, the degree of criminality is inherent in the action, and must be notably similar to “Treason and Bribery.”
Uncontroverted testimony showed that there was no criminality in the actions to which the House objected. There were no fact witnesses that even identified horse trading. Thus, the House’s Articles put forward hundreds of pages of supposition, hearsay, and outright fabrication, while failing to identify a single act with inherent criminality. There is not a single documented piece of evidence having anything to do with election interference, the House’s prime concern. The only possible complaint has to do with Trump mentioning Joe Biden, who, incidentally, only decided to run for President four days after Zelenskiy was elected on an anti-corruption platform. Did he think being a candidate would insulate him from legal liability?
In short, Article 1 is as deficient as Article 2. It fails to state a Constitutional crime of Impeachment degree. As a result, the Senate should vote to vacate Article 1. And this leaves the Senate in an interesting position.
If both Articles of Impeachment are vacated by the Senate, the Impeachment will be voided. With a voided Impeachment, the Senate will have no Articles to vote on to either convict or acquit. In a sense Trump won’t be vindicated, because there are no charges from which to be vindicated. In a way, Trump will be “unimpeached” and the House will be reprimanded — told in no uncertain terms that only truly valid Constitutional charges will be considered by the Senate. They got one bite at the apple, and got a face full of cold water rather than sweet fruit. Should similarly deficient articles be submitted, they will also be rejected out of hand.
It is very important to respect the standards of criminality understood by the Founders. The House has made a mockery of Impeachment in its headlong rush to find an excuse to remove this President. If the Senate does not vacate these Articles, we will see a parade of Impeachments from the Democrats in the House. If the Senate does vacate them, the House will have no option but to consider doing a more comprehensive evaluation of any charges against the President before presenting them to the Senate.
Impeachment was always intended to be a remedy for the rare President who paints waaaay outside the lines into manifest criminality. It is inherently political, but it isn’t partisan. The House’s Impeachment push is extremely partisan, and we must prevent such a travesty from happening again.