Monday, November 11, 2019

UPDATED: What's The Principled Way For The Senate To Handle An "Impeachment"

During the past week Hugh Hewitt has written a pair of thoughtful articles on impeachment for the WaPo. Hewitt espouses the view that any articles of impeachment sent to the Senate by the House should be rejected--and he explains the mechanism for doing so. He also makes the argument for why this is the best approach, for the good of the Constitution and our republic. I'm going to present his arguments by combing the two article (which are both very much worth reading in their entirety. I know a lot of us are tempted by the idea of having it out in a big Senate trial, calling a million witnesses, etc. Hewitt himself confesses that he, too, is strongly attracted by that idea--and he presents the arguments in favor of that approach. Overall, however, I suspect that Hewitt has it right when he recommends a rejectionist approach.

Here are links to the articles:

The Senate must not legitimize the House’s sham impeachment
How the Senate can stop a purely partisan impeachment

Now here is Hewitt's argument. I have at places taken some liberties with the formatting. I've also omitted ellipses in the interests of, perhaps, smoother reading. Among my omissions are some details of Senate procedure:

There are three paths before Senate Majority Leader Mitch McConnell (R-Ky.) when it comes to any articles of impeachment the House of Representatives eventually sends the Senate’s way. 
One is short: a quick dismissal by the Senate of the House charges. 
One is long: an extensive trial that would let the president and his defenders expose wrongdoing by Democrats and their ”permanent bureaucracy” allies. 
The third — the only approach that is obviously wrong but that may also be the most likely outcome — would be a far more limited trial that would serve only to reward Democrats for their bad behavior before reaching the foreordained conclusion that the president will not be removed from office.  
Those questions greatly benefit from being reframed: What’s in the best interest of the Constitution, the Senate and President Trump? Looked at this way, the arguments for the first or second approaches become clear, along with the risks of the third. 
A long, drawn-out deep dive into what the president has long inveighed against as a rigged system would improve the president’s reelection chances. That would include a look at the activities in Ukraine of Hunter Biden and sweep in findings from U.S. Attorney John Durham’s probe into 2016 election-related controversies. Taking no prisoners and insisting on an accused right’s to put on a full defense, Trump, with the consent of McConnell and the GOP majority, could force proceedings that will turn the tables on his partisan accusers and rebut the idiocy, introduced by the Steele dossier, that he is some kind of “Russian asset.”
There’s a lot of appeal to such a deep dive, and I have advocated it myself. But I am also torn about how to proceed, because there is a substantial cost, which is the legitimization of Rep. Adam B. Schiff’s (D-Calif.) process, already irretrievably compromised by alleged ex parte contacts with the “whistleblower,” secret hearings, and circumscribed rights for the minority and the president. The assault on due process, accelerated by leaks and inflamed by deep wells of hatred for the president in much of the media, is too far advanced to correct.
But it could be rebuked. 
Americans can be counted on to back McConnell if Senate Republicans decide that bogus articles of impeachment do not merit the Senate’s sustained attention. Peremptory dismissal — think of it as a motion for summary judgment — would serve future presidents of both parties even if it would deny Trump the high-profile political theater he delights in and almost invariably has succeeded in dominating since he came down the escalator. I’d love to see a competent defense team unravel Russiagate or Spygate or whatever you call the last three years of guerrilla political war waged by “the Resistance.” 
But the price of defining “high crimes and misdemeanors” down is steep. “That which gets rewarded gets repeated” is far more than a cliche, it’s an iron law of politics. If House Democrats succeed — in their own eyes and the eyes of their base — in getting the Senate to infuse their Star Chamber proceedings with respectability, then future House majorities have a road map for their own vendettas (and fundraising machines). 
McConnell will be assailed by Democrats and their Manhattan-Beltway media elite annex. But the leader will have done the Constitution a great service.
The one path he cannot allow the Senate to follow is to hold a trial in which the House sends over its prosecutors to blather about the president’s telephone call and quid pro quos for a few weeks, after which the Senate, entirely predictably, falls far short of the two-thirds vote needed to convict and remove. That way is all pain and no gain, except for endorsing the precedent of sham show trials.
There is nothing yet revealed by the Ukraine investigation that supports a “yes” vote on any “impeachable offense” by the House, or “offense of any kind” to anyone familiar with the combustible history of politics, foreign affairs and back channels.   
The current House investigation is deeply compromised by secret hearings, selective leaks and what looks to be the first purely partisan vote to impeach from the House since 1868. Given these assaults on fair process and the horrible precedent a purely partisan impeachment would set, it is fair to ask, should the charges that come out of the House be legitimized in any way? 
Kelly D. Johnston is former secretary of the Senate, a former Senate GOP aide and former staff director for the Senate Republican Policy Committee before that. The secretary of the Senate is the chief legislative, administrative and financial officer of the upper chamber.
Johnston says a critical moment will arise as soon as any “Articles” arrive in the Senate, but before any substantive proceedings occur. Under the standing rules of the Senate, the Senate must approve a “Motion to Proceed” to consider the articles. And it is at that moment that senators — even and especially those critical of Trump for other reasons — should think of a future littered with partisan impeachments born of secret proceedings and abuse of the House minority’s rights, as well as the rights of future presidents. 
If House Intelligence Committee Chairman Adam B. Schiff’s (D-Calif.) sham charges aren’t throttled in their crib by Majority Leader Mitch McConnell (R-Ky.), they will birth future similar charades. But McConnell and fellow Republicans, perhaps with support by Democrats willing to brave enormous blowback from the “resistance,” should step up and say, "This far and no farther. We will not put our nation at risk of a future littered with these sort of vendettas dressed in the garb of impeachment. We won’t ever approve a purely partisan Article of Impeachment for trial.” 
Johnston informed me that when then-Majority Leader Trent Lott (R-Miss.) launched the Senate trial of Clinton, on the opening day of the new Congress, Jan. 6, 1999, he did so with a unanimous consent request for the Motion to Proceed. “Not only was there no objection,” Johnston added, “but it was also clearly worked out in advance with the Democratic leader then, Tom Daschle.”
This is where the fork in history will confront McConnell and Republicans. 
Johnston imagined a scenario in which McConnell offered a measure to move forward, either with a full trial or something shorter, and a senator from either party objected. That would be McConnell’s cue to shut the entire thing down. “Under the rules, there would be unlimited debate until the leader files a cloture motion,” he explained. “That triggers an additional 30 hours culminating in a vote.  
“McConnell could first block the filibuster on any motion to proceed and then move to dismiss any article of impeachment with a simple majority.” 
Which means there would be no trial. 
This process — the refusal by the Senate to approve a “Motion to Proceed” — is how the Senate should flush articles of impeachment from the record as it stands today. Invite the House to begin again if it wants to, but using due process if it does, and backed by a bipartisan majority.

UPDATE: Gregg Jarrett has a nice article today that lends support to the notion that the Senate should not dignify Schiff's impeachment "Clown Show" by affording it a hearing:  The Trump impeachment inquiry is already in big trouble. Here's who Democrats have to thank. Concluding paragraphs:

In the court of public opinion, Schiff increasingly reveals himself to be the court jester playing the fool. He presides over an investigatory charade that is anathema to fundamental fairness and due process. 
If the inquiry was equitable, both sides would be able to call their own witnesses. Yet, the House of Representatives passed its impeachment measure giving Schiff the right to veto GOP witnesses. He has already made it clear that he will do so, rejecting a request that the faux “whistleblower” testify. It is clear that other witnesses, including Schiff and/or his staff, will also be rejected. 
To his credit, Sen. Lindsey Graham, R-S.C., has made it clear that if the unidentified informant who precipitated the impeachment "witch hunt" is not allowed to testify in the House, “this thing is dead on arrival in the Senate.” 
In truth, it was DOA the moment Schiff was put in charge of this clown show.

There have been an increasing number of opinion pieces during the last week suggesting that Pelosi is letting Schiff, with his antics, sabotage an impeachment that she opposes.


  1. Regarding the bennies of the extensive trial option, I presume that (save for Trump's ability, to call for riveting PUBLIC testimony from mopes like Schiffy) Barr/ Durham could produce similar bennies, by various means.
    Indeed, why can't wheels like Lindsey do similar, in their Committees?

    1. I'm in basic agreement here (with my comments below), except I just tried stressing that the question of 'extensive trial or not' can't really be addressed without knowing more about what would come instead - especially what will come from Barr/Durham/Horowitz. One thing I'm certain of is that Trump BADLY wants his story out there, so if he does go along with no trial (though I'm still not convinced Dems will get to 218 on impeachment), it'll be because he thinks he can get his story out there better without one.

    2. Hopefully Barr will get that story out, and he will undoubtedly be in the best position to do that.

    3. I'm nowhere near convinced that Dems will get to 218, esp. if BOTH the Flynn case, and the Horowitz Rept., go quite "south" on them. Esp. seeing that Nancy can duck the vote, by claiming to have run out of time (w/ start of Primary season).

  2. Hannity just showed Lindsey sticking his neck out, saying that impeachment will be DOA in the Senate, w/o the Squeal being forced to show face to the whole House.
    So, unless Lindsey would go back on his public words, and risk being hung from a lamppost in SC, we should expect him to stop any Motion to Proceed.
    Thus, Schiffty may between a rock and a hard place.

  3. Hewitt argues that holding no trial at all will result in some sort of stunning rebuke to the legitimacy of the House's impeachment process. The anti-Trumpers will argue just the opposite, though, that Trump is so obviously guilty that he and his supporters have concluded they must avoid a trial at all costs.

    I have a really hard time seeing how this "Trump is afraid of a trial" argument wouldn’t win out.

    Hewitt also says, "I’d love to see a competent defense team unravel Russiagate or Spygate or whatever you call the last three years of guerrilla political war waged by ‘the Resistance’” but that doing so would "infuse [the Democrats'] Star Chamber proceedings with respectability."

    But if the Star Chamber proceedings are exposed to one and all for being exactly that, and if "a competent defense team unravels ... the last three years of guerrilla political war waged by 'the Resistance,'" how does this "infuse their Star Chamber proceedings with respectability"?

    Seems to me it does just the opposite.

    For the President to turn down the opportunity* to present his case to the people opens the door a mile wide for people to argue he must believe the case against him is stronger than that against his opponents. To be sure, it might turn out that Horowitz/Barr/Durham will make a sufficiently strong case for the President and therefore any trial would be superfluous and/or at cross purposes. But if one believes this to be so, one needs to incorporate it into his argument, and Hewitt does not. Leaving this factor out, running away from a trial is, to me at least, a singularly bad political move.

    *I assume the President would have to go along with a Senate plan to nix a trial in order for that actually to happen. If he insists he wants a trial, no way the Senate denies it to him, right?

    1. In fairness to Hewitt, he says that either of those two options could be good, but the one of the three that absolutely could not is the idea of a short trial. I agree with that. As it is, the situation is fluid and you can be sure that McConnell is in close consultation--including with the WH--over the various possibilities.

    2. Great points, about both Hewitt and McConnell. It could also be the case, pace my anti-Senate ranting below, that Graham and the Senate are staying out because Trump knows he's got nuclear bombs to drop and wants them to stay out to play it safe and to allow him to drop those nukes with maximum impact.

      I can't lie - the suspense is killing me!

    3. My feelings as well. Impeachment is only one part of the grand coup strategy. Granted that Barr and Durham may cause great pain and suffering among the coup plotters, that pain and suffering needs to be directly and publicly connected to the impeachment effort rather than appear disconnected, because it is in fact connected. Anything less is, in my opinion, less than optimaly effective.

      Besides, let the public get entirely sick of all this impeachment. The Democrats started this mess; the Republicans should begin reminding everyone at every opportunity that the criminal element of the Democrat party (that's practically all of them) is responsible for it.

  4. FWIW, I also don't believe House Dems would ever be able to get to 218 on impeachment if the wussy, swampy Senate Rs had waged a vigorous campaign against this process from the start, especially if Graham had simply called all the same witnesses to testify openly the day after their secret House testimony and if they had named and subpoenaed Ciaramella early and explained why he enjoys neither whistleblower status nor any privilege of immunity.

    There, I said it ;^>

  5. "if they had named and subpoenaed Ciaramella...."
    Why not do that now?
    If they expose his B.S., Nancy may well be able to sell to much of her flock, the need to cut their losses, rather than press a doomed hand.

  6. I vote for a long trial.

    Schedule the Senate vote for November 4, 2020.

    1. LOL. I was originally of the same opinion, but now I wonder whether the country is simply tired of it all. This would be one consideratin McConnell is probably weighing.

  7. Democrats and Democrat Media are stuck in a perpetual temper-tantrum. Treating them with undeserved respect simply rewards their behavior and ensures more of it.

  8. Byron York seems to believe that Schiff’s star witness LTC Vindman will be a big fail in his televised hearing. Byron goes into some detail in this “analysis” which includes things many of us did not read/hear before:

    Mark, you might want to have a look at Byron York’s “analysis” here. He really got into the transcript of Vindman’s sometimes weird testimony. I haven’t seen some of this before. If he keeps this up he will not play well in the televised hearings.

    1. Tx, Bebe, I'll do that. It's getting to be a full time job trying to keep up with developments. Despite the seeming calm on the surface of the MSM, there's a lot more going on, and you can imagine the ferment among Dems, too.

      Have you seen that Ciaramella was very much knowledgeable about and involved in the efforts to get the Ukrainians to back off investigating Burisma?

    2. Just finished it. Yes, excellent. Vindman's lawyer was a piece of work. I'm trying to imagine how that would play in the Senate. Not well.

    3. Ciaramella’s lawyer is not exactly first rate either. Baraj’s firm, Compass Rose, is featuring (and boldly linking to) this Whistleblower Aid GoFundMe page, which they apparently were involved in setting up:

      ICIG complaint alleges Trump-Ukraine whistleblower may be soliciting illicit donations

      A newly filed complaint to the Intelligence Community Inspector General (ICIG) alleges that the whistleblower whose allegations touched off House Democrats' impeachment inquiry may have violated federal law by indirectly soliciting more than a quarter-million dollars from mostly anonymous sources via a GoFundMe page.

      The complaint, which was filed last week and obtained by Fox News, alleged the donations from roughly 6,000 individuals "clearly constitute" gifts to a current intelligence official that may be restricted because of the employee's official position pursuant to 5 CFR 2635.203 and other statutes. To date, the GoFundMe has raised over $227,000.


      The complaint also raised the possibility that some of the donations may have come from prohibited sources, and asked the ICIG to look into whether any "foreign citizen or agent of a foreign government" contributed.

    4. Yeah, I saw that just minutes ago. It follows the lines of Gregg Jarrett in my just published update to this post.

    5. I don’t share the doubts of CTH and others about AG Bill Barr. He seems to be a person - extremely knowledgeable in the law and very experienced - who operates purposefully and quietly (no running to the mic/camera) to get a job done. Durham seems to be cut from the same cloth. The quiet is what makes people nervous. They have wanted to see perp walks from nearly Day One. Most have never read about this broad, deep, and very complex plot. The MSM wouldn’t touch it. So they think that Barr is just another “business as usual” bureaucrat. “He’ll never indict anyone…” (never mind that that is the business of the grand jury, not the AG), and they go on to spread their cynicism far and wide.

      Barr was the first to use the word “spying”. That got my attention. I will stick with him until he proves to be other than what I believe he is.

    6. Yes. And that term Praetorian Guard really gets to the heart of the threat to the republic that Fitton and others reference.

  9. I'll go one step beyond my previous comment.

    If the Democrats cannot muster enough votes for impeachment, the Republicans should help them. Let's force their hand, get it all out in the open once and for all. Let the public see what the Democrats and their deep state allies (redundant, I know) were doing, how they screwed innocent people in their quest for power, and very publicly tie each and every indictment to it.

    It's time to go for the throat.

    1. "It's time to go for the throat."

      I totally agree, but there's the question of: who is best suited for that job?

      I believe Barr is. The Senate would devolve into the usual media circus. What we want now are indictments rather than blathering. Blathering will then acquire more focus. With impeachment dragging on, as the witnesses become ever more discredited, this may be how it plays out. Criminal referrals before any articles are sent to the Senate, Dems pretty much implode. I believe it's being choreographed.

      A reminder--check this out:

    2. Yes, that is all well and good. And I have more confidence in Mr. Barr than any Attorney General since . . . I don't know when. He seems to be an extraordinarily capable man who is focused on all the right things.

      Having said that, sometimes the mess is better, in my opinion. When Ted Cruz was in the primaries for his first Senate run, my wife and I saw him and the other candidates at a Tea Party event. He struck me as a bantam rooster, looking for a fight, ready to call a spade a spade. We wanted someone to break things in D.C., and he got our vote.

      Then along came Trump, and he seemed to be looking for a fight and willing to call a spade a f***ing shovel, so he got our vote because we wanted someone to break things.

      I'm willing to accept some short-term destruction and rebuilding in exchange for some "fundamental change" (if I can use that term), un-ratcheting the left wing ratchet as far as possible.

      From the perspective of "who can get this properly done with the least fuss" I completely agree with you. But I want the effects to go way beyond those sent to prison; I want every citizen to finally be faced with the reality that the Democrats are, and have been for 200 years, systemically opposed to our republic and its constitution. And its citizens.

    3. But I never said "with the least fuss". I said, who's "best suited." Barr has more info at this fingertips than anyone else in DC right now.

  10. I want what is best for the Nation and the Constitution. I think that this President has been wronged. I want the perpetrators punished.

    The rational side of me says to look at the big picture and be magnanimous in victory (assuming that we prevail). The emotional side wants draconian punishment for Schiff and others.

    I hope that a clear message is sent that makes it clear that this will never happen again in our lifetimes.