Impeachment Redux

Clowns to the left of me, 

Jokers to the right…

From “Stuck in the Middle With you” written by Gerry Rafferty. 

It seems reasonably clear that Donald J. Trump, who has by now passed Richard M Nixon in the proverbial race to the bottom, has undoubtedly committed an impeachable offense. It is also reasonably clear that the Democratic Party, in its ongoing love affair with incompetence, is regrettably about to go out of its way to make removing him from office nearly impossible.

The single article of impeachment they are poised to pass is going to accuse Trump of inciting an insurrection. The problem is that the wording is an invitation to partisan sniping and the making of legal arguments that conflate Trump’s political offense with the criminal law. Not only is this going to make a conviction impossible, it is entirely unnecessary. 

National Review’s Andrew McCarthy suggests language that avoids these traps and gets to the heart of the matter. He writes: 

“If what the Democrats truly want is bipartisan consensus in the service of national security, rather than political combat, the articles of impeachment they plan to file should charge the president with (a) subversion of the Constitution’s electoral process, particularly the Twelfth Amendment counting of the sovereign states’ electoral votes; (b) recklessly encouraging a raucous political demonstration that foreseeably devolved into a violent storming of the seat of our government; and (c) depraved indifference to the welfare of the vice president, Congress, security personnel, and other Americans who were in and around the Capitol on January 6.”

The charges contained in McCarthy’s language appear to be beyond dispute. Congress could (and should) pass such an article with dispatch and send it along to the Senate. If the Senate wants to pretend it can’t find a way to vote on the article before January 20, or at least vote to censure Trump, so be it. What had heretofore been known as The Party of Lincoln, will have shown itself to be largely populated by cowering fools, utterly unwilling to stand up to mob violence, and incapable of protecting liberty and our institutions. 

Add to that the cynical calculations of the Democrats, some of whom wish to delay an impeachment trial until after Trump has left office, a course of action Jim Clyburn has suggested. The stated reason for this is that Trump could then be barred from office in the future. 

That is nonsense, for two reasons. First, the impeachment power was designed for removal from office, not punishment. After removal, punishment can be meted out the usual way. Second, As Bruce Ackerman points out in the Washington Post, Congress can ban Trump from holding federal office in the future using Section 3 of the 14th amendment. They could do so by finding that he engaged in insurrection or rebellion against the Constitution of the United States. Moreover, such a finding would not require an impeachment conviction. It would require a simple majority in both houses of Congress. That should be doable. 

If Congress decides to wait months to hold an impeachment trial (at which time Chuck Schumer will be majority leader) it will be simply because they wish to use it as a partisan cudgel while they pass the Party’s progressive wish list, including trillions in new “stimulus” that doesn’t stimulate.  All the talk of getting rid of Trump “immediately” will have been shown to be just that. Talk. And it will be politics as usual. 

JFB

Seriously?

When listening to politicians speak it is always entertaining to observe the high opinion they have of themselves. The latest entry in the comic book hero series comes from none other than Nancy Pelosi, Speaker of the House. Toward the close of her presser today Pelosi noted that she will have to miss the San Francisco 49s playoff game because, she said, “I have, unfortunately, responsibilities to save our country from peril.”

Speaker Pelosi is very busy saving us from ourselves these days. Why just recently, on December 5, in the matter of President Trump’s impeachment she said: “If we don’t act now, we would be derelict in out duty.” By December 18 she had decided that “It is a matter of fact that the president is an ongoing threat to our national security and the integrity of our elections, the basis of our democracy.”

On December 19, the House voted to impeach Trump along strict party lines. But soon after the urgency for action seems to have faded. As of January 8, Pelosi had still not sent the impeachment articles to the Senate; nor had she appointed impeachment managers to make the case before the Senate. Pelosi, with the support of Senate Minority Leader Chuck Schumer, instead insisted that she needed to be assured that the Senate would conduct a “fair trial” before she sending the 2 impeachment articles to the Senate for trial. 

Included in Pelosi’s particulars for a fair trial is a demand that the Senate call witnesses that she declined to call when the impeachment inquiry was underway and she had the power to do so. And the Senate rules that Speaker Pelosi and Minority Leader Schumer find so onerous were the ones used in the impeachment trial of then President Bill Clinton. Those rules were approved at the time by all 100 Senators. Which means that Chuck Schumer voted for them the last go around. 

In the meantime, most of the Democrats in Washington, and all the senior ones, have signaled their disagreement with Trump’s decision to order the killing of Iranian General Soleimani. The latest argument is that Soleimani wasn’t an imminent threat to U.S. interests, thus the killing was illegal. That is quite an interesting argument because it implies that the U.S. President can only take action if an enemy combatant poses an imminent threat. Unless of course they are prepared to argue that Soleimani was not an enemy combatant despite the fact that he has spent decades supervising terror campaigns against the U.S. and its allies, not to mention killing American soldiers and civilians. 

The argument is especially hard to swallow when you consider that previously they had no objection to President Obama’s order to kill (without trial) Anwar al-Awlaki, a Yemini-American Imam (born in Denver) who planned terrorist operations for al-Qaeda. His 16-year old son was also killed in that drone attack. Nor did Democrats object when then Secretary of State Hillary Clinton successfully convinced Obama to start a war in Libya without Congressional approval. Obama said he ordered U.S. military intervention in Libya’s civil war in order to protect Libyans and enforce “the writ” of the international community. 

So judging from their behavior it would seem that what matters is who is taking action rather than what the action is. Which is why serious people do not take them seriously. 

JFB

The Ever Changing Story

She is at it again. Nancy Pelosi, the Speaker of the House who famously said we have to pass this bill to see what’s in it, has issued a conditional “never mind” in the matter of the Trump impeachment. Consider her remarks in March of this year and the subsequent path of events.

“I haven’t said this to any press person before. But since you asked, and I’ve been thinking about 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. And he’s just not worth it.” 

Speaker of the House Nancy Pelosi

So said Nancy Pelosi in the Washington Post Magazine, March 6, 2011, as reported in the March 11, 2019 Washington Post. 

By September 24, 2019 Speaker Pelosi had changed her tune and authorized the beginning of “an impeachment inquiry” after consulting with her caucus, but without seeking a vote in the House. She assigned 6 different House Committees jurisdiction over various aspects of the inquiry.  Stating that she had “no choice” but to act, Mrs. Pelosi voiced “regret”. 

In the beginning, the inquiry was conducted not by the Judiciary Committee which had jurisdiction in prior impeachments, but by the House Intelligence committee. That arrangement allowed the inquiry to be conducted behind closed doors allowing Committee Chairman Adam Schiff to selectively leak documents and broadly hint that there was much more that he was not at liberty to reveal. 

After considerable pressure, Speaker Pelosi eventually relented and sought a floor vote authorizing an impeachment investigation. On October 31, 2019 the House voted 232-196  in favor along partisan lines. So much for the need of bipartisanship. 

Impeachment Was Always Inevitable

When Speaker Pelosi expressed regret at having “no choice” but to go forward with impeachment she did so with crocodile tears. Once they had the power, the Democrats were always going to impeach Trump. The effort began in December of 2016 before Trump had even taken the oath of office. That December, Democratic senators introduced a bill that would require the president of the United States to divest any assets that could raise a conflict of interest. The bill noted that failure to divest such assets would constitute high crimes and misdemeanors under the impeachment clause of the U.S. Constitution. The senators who introduced the bill were: Elizabeth Warren, Dick Durbin, Chris Coons, Ben Cardin and Jeff Merkly. All Democrats, they were obviously laying the groundwork for down the road if and when the opportunity presented itself.

Sure enough, by December 6 of 2017, a motion to impeach Trump was introduced that accused him, among other things, of obstruction, and associating the White House with Neo Nazism and Hatred. Democrat Al Green who introduced the motion also noted that Trump had criticized NFL players who knelt in protest during the national anthem. In the event  the resolution failed as only 58 Democrats voted for it. 

Green’s second attempt came about a month later, instigated this time by Trump’s demeaning and typically idiotic remarks about African countries. That one failed as well, but it picked up some more votes, this time garnering 66 Democratic Congressman in favor. 

The third try was even better. Ninety-five (95) Democratic Congressmen voted voted for it. This time the motion accused Trump of bringing “ridicule, disgrace and disrepute” to the office. This time though was different. The Democrats had just recently captured the House. The 95 who voted “aye” were 40% of the Democratic caucus, including the Squad, and most infamously Rashida Tlaib, who had announced “We’re going to impeach the M***F***” within hours of her swearing-in.

Democrats, now in the majority, began their next attempt to impeach Trump, this time with the backing of the Speaker. With a huge assist from Trump (naturally enough), the 4th time was luck. The vote was 232 voting “Aye” versus 196 voting “Nay”. Only 2 Democrats voted against; No current Republicans voted Yes. A former Republican, Justin Amash, who is now an independent, voted Yes. 

Once they gained the majority, leaning on the slimmest of reeds, the Democrats quickly voted two articles of impeachment. After insisting that an impeachment was such a momentous event that the case had to be bipartisan, overwhelming and compelling, Speaker Pelosi abandoned her prior position and scrambled get to the head of the parade. 

Occam’s Razor

The obvious question is: Why? Employing Occam’s Razor produces a straightforward answer.  Pelosi was about to lose control of her caucus, which now largely reflects the world view of “The Squad”. Rather than let her power slip away she decided to go the impeachment route. 

During the impeachment inquiry / hearings Speaker Pelosi insisted that impeachment inquiry proceed post haste. Which it did, in deference to the “moderate” members of the caucus who did not want to defend their seats after a long drawn out affair. So less than 3 months after the inquiry began, the full House voted 2 articles of impeachment. 

But after the vote, Speaker Pelosi seems to have had another one of those frequent changes of heart to which she is so prone. She announced that she would not yet name impeachment managers for a Senate trial. Nor would she send the just passed articles of impeachment to the Senate so that a trial could begin. It seems that she now agrees with Senator Schumer that, before that can happen, it has suddenly become imperative for the Senate to subpoena specific witnesses that she herself refused to subpoena when she had the power to do so during the House inquiry. 

So at this point, here is where we stand.

  • The Speaker of the House says that impeachment has to be bipartisan. It isn’t. The articles of impeachment passed on a party line vote.
  • The Speaker said that the impeachment case must be compelling and overwhelming. It isn’t compelling and if anything it is underwhelming. 
  • The Speaker says that in the impeachment matter she acted reluctantly. Really? There were already 3 prior attempts, the first one coming before the end of the first year of Trump’s term of office. She acted as soon as she had the votes.
  • The Speaker now insists that she wants to see a “fair trial”; that Senate Majority Leader McConnell has gone “rogue” and that he is not impartial. (Of course he isn’t; neither is she). But she seems not the least bit concerned that 5 Democratic Senators seeking the Party’s nomination have already indicated that they are going to vote to remove Trump. 
  • The Speaker had insisted that time was of the essence in seeking an impeachment vote. Now she is deliberately delaying the process so that the Senate can subpoena witnesses whom she refused to subpoena when she had the power. All to speed up the process that now has to be slowed down.

What is Going on Here?

The con here is on the moderate Democratic Congressman who are about to be sacrificed in the 2020 elections. We have seen this movie before. The moderates were sacrificed for the sake of the Obamacare vote in November of 2009; prior to that the moderates served as sacrificial lambs for the gun control vote in 1994 when Clinton was President. In each case they were wiped out in the following Congressional elections, and the progressive wing kept its grip on the party machinery. 

So the prudential question currently facing Democrats is really not primarily about impeachment and removal. That effort is doomed to failure. The real question has to do with the nature of power within the Democratic Party. Will the Party, egged on by its activists, the #Resistance, its Twitter Mob and most of all its long time office holders, virtually all of whom come from safe districts, maintain their grip on power in the Party by once again leading moderates to electoral slaughter? 

They certainly seem intent on doing so.

JFB

Chilling Effects

CNN is reporting that “current and former FBI officials tell CNN they’re concerned that the harsh rhetoric coming from Trump and Barr has only worsened the bureau’s already tenuous standing with the President, leaving them wondering whether federal agents could be less aggressive the next time they have to pursue an investigation.” 

CNN goes on the report that Barr “…seized on findings in a blockbuster inspector general report to scold the FBI for using “intrusive” tools with only “flimsy” evidence, and he questioned whether they’d been motivated by bias. Those attacks were particularly noteworthy given that the report found no evidence of bias or improper motivation in the FBI’s decisions to use counterintelligence techniques. The report did however point out serious mistakes and mishandling of evidence by the FBI.”

So let’s unpack this, starting with the obvious. The rhetoric President Trump routinely employs reflects the subtlety and nuance of its author, which is to say: none. It is plain to see that Trump has a great deal of difficulty forming complete sentences. It would be nice, for instance, if the President could occasionally utter a sentence—or send out a Tweet—that actually has a subject, verb and object along with a modifier or two. But I’m not counting on it. And juvenile name calling is hardly the standard we should expect from anyone claiming to be an adult. 

But let’s face a few facts here. First, CNN’s sources are interested parties, some of whom may be targets of John Durham’s ongoing investigation into how the whole investigation was handled. Second, contrary to the claims of James Comey, the report of Inspector General Michael Horowitz didn’t vindicate anybody. How do we know? Because that’s his testimony. According to the Washington Post, in his Congressional testimony on December 11, Horowitz said “I think the activities we found here don’t vindicate anybody who touched this FISA,” referring to the Foreign Intelligence Surveillance Act (FISA) applications to monitor Page. 

So the relevant question is what did the IG conclude? The answer is that essentially he found (1) no testimonial evidence of improper political FBI bias in the conduct of the investigation, but (2) he found a whole raft of official misstatements and errors, procedural and otherwise. From which we can conclude that the FBI, from top to bottom, displayed a spectacular level of incompetence, stunning even by government standards. Anyone who doubts this simply has to  take a quick glance through the IG Executive Summary, particularly pages vii through xv. The report can be found here

But it doesn’t stop there. This is the type of egregious behavior that would normally have the ACLU and various other progressive civil liberties groups shouting from the rooftops. Not this time. It looks like concern for civil liberties is getting pretty selective over in those quarters. 

And as for chilling effects—when law enforcement agencies run rampant over citizens’ rights—that’s exactly what we need. 

JFB

Judge Napolitano Discusses Impeachment on Reason TV

After 6 months of studied silence, On Liberty Watch is going to re-open. In addition, the website will be revamped a bit over the next few months. The mission however, remains the same: the defense of liberty. The inanity of the state of the culture and politics demands it.

In the meantime, here is a video of Judge Andrew Napolitano discussing the current impeachment proceedings with Nick Gillespie of Reason Magazine.

JFB