December 19, 2019
Posted Quemado Institute
December 20, 2019
In response to the December 18, 2019 passage by the U.S. House of Representatives of two articles of impeachment against President Donald J. Trump, Senate Leader Mitch McConnell delivered the following speech before the Senate:
Last night House Democrats finally did what they decided to do long ago: They voted to impeach President Trump.
Over the last 12 weeks, House Democrats have conducted the most rushed, least thorough, and most unfair impeachment inquiry in modern history. Now their slapdash process has concluded in the first purely partisan presidential impeachment since the wake of the Civil War. The opposition to impeachment was bipartisan. Only one part of one faction wanted this outcome.
The House’s conduct risks deeply damaging the institutions of American government. This particular House of Representatives has let its partisan rage at this particular President create a toxic new precedent that will echo into the future.
That’s what I want to discuss now: The historic degree to which House Democrats have failed to do their duty — and what it will mean for the Senate to do ours.
Let’s start at the beginning. Let’s start with the fact that Washington Democrats made up their minds to impeach President Trump since before he was even inaugurated. Here’s a reporter in April 2016. Quote, “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.”
On Inauguration Day 2017, this headline in the Washington Post: “The campaign to impeach President Trump has begun.” That was day one. In April 2017, three months into the presidency, a senior House Democrat said “I’m going to fight every day until he’s impeached.” That was three months in. In December 2017, two years ago,
Congressman Jerry Nadler was openly campaigning to be ranking member on House Judiciary specifically because he was an expert on impeachment.
This week wasn’t even the first time House Democrats have introduced articles of impeachment. It was the seventh time.
They started less than six months after the president was sworn in. They tried to impeach President Trump for being impolite to the press, for being mean to professional athletes, for changing President Obama’s policy on transgender people in the military. All of these things were “high crimes and misdemeanors” according to Democrats.
This wasn’t just a few people. Scores of Democrats voted to move forward with impeachment on three of those prior occasions. So let’s be clear. The House’s vote yesterday was not some neutral judgment that Democrats came to reluctantly. It was the pre-determined end of a partisan crusade that began before President Trump was even nominated, let alone sworn in.
For the very first time in modern history we have seen a political faction in Congress promise from the moment a presidential election ended that they would find some way to overturn it.
A few months ago, Democrats’ three-year-long impeachment in search of articles found its way to the subject of Ukraine. And House Democrats embarked on the most rushed, least thorough, and most unfair impeachment inquiry in modern history. Chairman Schiff’s inquiry was poisoned by partisanship from the outset. Its procedures and parameters were unfair in unprecedented ways.
Democrats tried to make Chairman Schiff into a de facto Special Prosecutor, notwithstanding the fact that he is a partisan member of Congress who’d already engaged in strange and biased behavior. He scrapped precedent to cut the Republican minority out of the process. He denied President Trump the same sorts of procedural rights that Houses of both parties had provided to past presidents of both parties. President Trump’s counsel could not participate in Chairman Schiff’s hearings, present evidence, or cross-examine witnesses.
The House Judiciary Committee’s crack at this was even more ahistorical. It was like the Speaker called up Chairman Nadler and ordered one impeachment, rush delivery please. That Committee found no facts of its own and did nothing to verify the Schiff report. Their only witnesses were liberal law professors and congressional staffers.
There’s a reason the impeachment inquiry that led to President Nixon’s resignation required about 14 months of hearings. 14 months. In addition to a special prosecutor’s investigation. With President Clinton, the independent counsel’s inquiry had been underway for years before the House Judiciary Committee dug in. Mountains of evidence. Mountains of testimony from firsthand fact witnesses. Serious legal battles to get what was necessary.
This time around, House Democrats skipped all of that and spent just 12 weeks.
More than a year of hearings for Nixon, multiple years of investigation for Clinton, and they’ve impeached President Trump in 12 weeks. So let’s talk about what the House actually produced in those 12 weeks.
House Democrats’ rushed and rigged inquiry yielded two articles of impeachment. They are fundamentally unlike any articles that any prior House of Representatives has ever passed. The first article concerns the core events which House Democrats claim are impeachable — the timing of aid to Ukraine. But it does not even purport to allege any actual crime. Instead, they deploy this vague phrase, “abuse of power,” to impugn the president’s actions in a general, indeterminate way.
Speaker Pelosi’s House just gave into a temptation that every other House in history had managed to resist: They impeached a president whom they do not even allege has committed an actual crime known to our laws. They impeached simply because they disagree with a presidential act and question the motive behind it.
Look at history. The Andrew Johnson impeachment revolved around a clear violation of a criminal statute, albeit an unconstitutional one. Nixon had obstruction of justice — a felony under our laws. Clinton had perjury — also a felony. Now, the Constitution does not say the House can impeach only those presidents who violate a law. But history matters. Precedent matters. And there were important reasons why every previous House of Representatives in American history restrained itself from crossing this Rubicon.
The framers of our Constitution very specifically discussed whether the House should be able to impeach presidents just for “maladministration”— in other words, because the House simply thought the president had bad judgment or was doing a bad job. The written records of the founders’ debates show they specifically rejected this. They realized it would create total dysfunction to set the bar for impeachment that low.
James Madison himself explained that allowing impeachment on that basis would mean the President serves at the pleasure of the Congress instead of the pleasure of the American people. It would make the President a creature of Congress, not the head of a separate and equal branch. So there were powerful reasons why Congress after Congress for 230 years required presidential impeachments to revolve around clear, recognizable crimes, even though that was not a strict limitation. Powerful reasons why, for 230 years, no House opened the Pandora’s box of subjective, political impeachments.
That 230-year tradition died last night.
Now, House Democrats have tried to say they had to impeach President Trump on this historically thin and subjective basis because the White House challenged their requests for more witnesses.
And that brings us to the second article of impeachment. The House titled this one “obstruction of Congress.”
What it really does is impeach the president for asserting presidential privilege. The concept of executive privilege is another two-century-old constitutional tradition. Presidents starting with George Washington have invoked it. Federal courts have repeatedly affirmed it as a legitimate constitutional power.
House Democrats requested extraordinary amounts of sensitive information from President Trump’s White House — exactly the kinds of things over which presidents of both parties have asserted privilege in the past. Predictably, and appropriately, President Trump did not simply roll over. He defended the constitutional authority of his office. It is not a constitutional crisis for a House to want more information than a president wants to give up. It is a routine occurrence. The separation of powers is messy by design.
Here’s what should happen next: Either the President and Congress negotiate a settlement, or the third branch of government, the judiciary, addresses the dispute between the other two. The Nixon impeachment featured disagreements over presidential privilege — so they went to the courts. The Clinton impeachment featured disagreements over presidential privilege — so they went to the courts. This takes time. It’s inconvenient. That’s actually the point. Due process is not meant to maximize the convenience of the prosecutor. It is meant to protect the accused.
But this time was different. Remember: 14 months of hearings for Richard Nixon… years of investigation for Bill Clinton… but 12 weeks for President Trump.
Democrats didn’t have to rush this. But they chose to stick to their political timetable at the expense of pursuing more evidence through proper legal channels. Nobody made Chairman Schiff do this. He chose to.
The Tuesday before last, on live television, Adam Schiff explained to the entire country that if House Democrats had let the justice system follow its normal course, they might not have gotten to impeach the president in time for the election!
In Nixon, the courts were allowed to do their work. In Clinton, the courts were allowed to do their work. Only these House Democrats decided due process is too much work and they’d rather impeach with no proof. And, they tried to cover for their own partisan impatience by pretending that the routine occurrence of a president exerting constitutional privilege is itself a second impeachable offense.
The following is something that Adam Schiff literally said in early October. Here’s what he said: “Any action… that forces us to litigate, or have to consider litigation, will be considered further evidence of obstruction of justice.”
Here is what the Chairman effectively said, and what one of his committee members restated just this week: If the President asserts his constitutional rights, it’s that much more evidence he is guilty. That kind of bullying is antithetical to American justice.
So those are House Democrats’ two articles of impeachment. That’s all their rushed and rigged inquiry could generate: An act that the House does not even allege is criminal; and a nonsensical claim that exercising a legitimate presidential power is somehow an impeachable offense.
This is by far the thinnest basis for any House-passed presidential impeachment in American history. The thinnest and the weakest — and nothing else comes even close. And candidly, I don’t think I am the only person around here who realizes this. Even before the House voted yesterday, Democrats had already started to signal uneasiness with its end product.
Before the articles even passed, the Senate Democratic Leader went on television to demand that this body re-do House Democrats’ homework for them. That the Senate should supplement Chairman Schiff’s sloppy work so it is more persuasive than Chairman Schiff himself bothered to make it. Of course, every such demand simply confirms that House Democrats have rushed forward with a case that is much too weak.
Back in June, Speaker Pelosi promised the House would, quote, “build an ironclad case.” Never mind that she was basically promising impeachment months before the Ukraine events, but that’s a separate matter. She promised “an ironclad case.” And in March, Speaker Pelosi said this: “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.” End quote.
By the Speaker’s own standards, she has failed the country. This case is not compelling, not overwhelming, and as a result, not bipartisan. This failure was made clear to everyone earlier this week, when Senator Schumer began searching for ways the Senate could step out of our proper role and try to fix House Democrats’ failures for them.
And it was made even more clear last night, when Speaker Pelosi suggested that House Democrats may be too afraid to even transmit their work product to the Senate. The prosecutors are getting cold feet in front of the entire country and second-guessing whether they even want to go to trial. They said impeachment was so urgent that it could not even wait for due process but now they’re content to sit on their hands. It is comical.
Democrats’ own actions concede that their allegations are unproven. But the articles aren’t just unproven. They’re also constitutionally incoherent. Frankly, if either of these articles is blessed by the Senate, we could easily see the impeachment of every future president of either party.
Let me say that again: If the Senate blesses this historically low bar, we will invite the impeachment of every future president.
The House Democrats’ allegations, as presented, are incompatible with our constitutional order. They are unlike anything that has ever been seen in 230 years of this Republic. House Democrats want to create new rules for this president because they feel uniquely enraged. But long after the partisan fever of this moment has broken, the institutional damage will remain.
I’ve described the threat to the presidency. But this also imperils the Senate itself. The House has created an unfair, unfinished product that looks nothing like any impeachment inquiry in American history. And if the Speaker ever gets her house in order, that mess will be dumped on the Senate’s lap. If the Senate blesses this slapdash impeachment, if we say that from now on, this is enough, then we will invite an endless parade of impeachment trials. Future Houses of either party will feel free to toss up a “jump ball” every time they feel angry. Free to swamp the Senate with trial after trial, no matter how baseless the charges.
We would be giving future Houses of either party unbelievable new power to paralyze the Senate at their whim.
More thin arguments. More incomplete evidence. More partisan impeachments. In fact, this same House of Representatives has already indicated that they themselves may not be done impeaching! The House Judiciary Committee told a federal court this week that it will continue its impeachment investigation even after voting on these articles. And multiple Democratic members have already called publicly for more.
If the Senate blesses this, if the nation accepts it, presidential impeachments may cease being once-in-a-generation events and become a constant part of the political background noise. This extraordinary tool of last resort may become just another part of the arms race of polarization.
Real statesmen would have recognized, no matter their view of this president, that trying to remove him on this thin and partisan basis could unsettle the foundations of our Republic. Real statesmen would have recognized, no matter how much partisan animosity might be coursing through their veins, that cheapening the impeachment process was not the answer.
Historians will regard this as a great irony of this era: That so many who professed such concern for our norms and traditions themselves proved willing to trample our constitutional order to get their way. It is long past time for Washington D.C. to get a little perspective.
President Trump is not the first president with a populist streak, not the first to make entrenched elites uncomfortable. He’s certainly not the first president to speak bluntly, to mistrust the administrative state, or to rankle unelected bureaucrats. And Heaven knows he is not our first president to assert the constitutional privileges of his office rather than roll over when Congress demands unlimited sensitive information. None of these things is unprecedented.
I’ll tell you what would be unprecedented. It will be an unprecedented constitutional crisis if the Senate hands the House of Representatives a new, partisan “vote of no confidence” that the founders intentionally withheld, destroying the independence of the presidency. It will be unprecedented if we agree that any future House that dislikes any future president can rush through an unfair inquiry, skip the legal system, and paralyze the Senate with a trial. The House could do that at will under this precedent.
It will be unprecedented if the Senate says secondhand and thirdhand testimony from unelected civil servants is enough to overturn the people’s vote. It will be an unprecedented constitutional crisis if the Senate agrees to set the bar this low — forever.
It is clear what this moment requires. It requires the Senate to fulfill our founding purpose.
The framers built the Senate to provide stability. To take the long view for our Republic. To safeguard institutions from the momentary hysteria that sometimes consumes our politics. To keep partisan passions from boiling over. The Senate exists for moments like this. That’s why this body has the ultimate say in impeachments.
The framers knew the House would be too vulnerable to transient passions and violent factionalism. They needed a body that could consider legal questions about what has been proven and political questions about what the common good of our nation requires.
Hamilton said explicitly in Federalist 65 that impeachment involves not just legal questions, but inherently political judgments about what outcome best serves the nation. The House can’t do both. The courts can’t do both.
This is as grave an assignment as the Constitution gives to any branch of government, and the framers knew only the Senate could handle it. Well, the moment the framers feared has arrived.
A political faction in the lower chamber have succumbed to partisan rage. They have fulfilled Hamilton’s prophesy that impeachment will, quote, “connect itself with the pre-existing factions… enlist all their
animosities… [and] there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” End quote.
That is what happened in the House last night. The vote did not reflect what had been proven. It only reflects how they feel about the President.
The Senate must put this right. We must rise to the occasion. There is only one outcome that is suited to the paucity of evidence, the failed inquiry, the slapdash case. Only one outcome suited to the fact that the accusations themselves are constitutionally incoherent. Only one outcome that will preserve core precedents rather than smash them into bits in a fit of partisan rage because one party still cannot accept the American people’s choice in 2016.
It could not be clearer which outcome would serve the stabilizing, institution-preserving, fever-breaking role for which the United States Senate was created, and which outcome would betray it.
The Senate’s duty is clear. The Senate’s duty is clear.
When the time comes, we must fulfill it.’