Jonathan Adler: The ‘stain and blame’ impeachment strategy

Jonathan Adler writing at The Daily Beast provides a strong analysis and his strategy for the impeachment of Donald J. Trump, and taking “The Enemy of The People,” Senate Majority Leader Mitch McConnell and his GOP-controlled Senate down in the process. Yes, Democrats Should Impeach Trump—and Make Mitch McConnell Defend His Acquittal:

Judging from its disappearance from the headlines, impeaching President Trump seems like it will be consigned to the back burner when the House reconvenes next week. Not so. Over the break, a dozen more Democrats came out in favor, bringing the number to 131, and Rep. Jerrold Nadler said an impeachment inquiry might begin in late fall, after hearings this month and next.

The pooh-bahs of the House leadership are proceeding cautiously. One of them rightly told me last week that the worst thing they could do would be to lose an impeachment vote. They need a majority of the House—217 Democrats (plus independent Justin Amash)—which means they must gather at least 87 more commitments by the end of the year. There are currently 235 Democrats.

Can they get there? (Any later than early 2020 and it’s too close to the election). The party line is Democratic members will do their duty and look at the evidence, which Trump is fighting furiously in court to withhold. This argument is partly legit (it’s important to build a public case) but mostly window-dressing. House Speaker Nancy Pelosi and the moderates already know that the man obstructed justice, abuses power every day, and is clearly unfit for office.

What’s holding them back is a faulty analysis of the politics of impeachment. They’re still caught in the grips of myopic conventional wisdom about the way the whole thing would actually play out in a trial in the Senate.

Recall that in the July 31 debate, Sen. Michael Bennet repeated the familiar argument that the Senate will not remove Trump from office. If the House impeaches him, Bennet said, Trump “would be running saying that he had been acquitted by the United States Congress.”

Julian Castro shot back: “If they don’t impeach him, he’s going to say, ‘You see? You see? The Democrats didn’t go after me on impeachment, and you know why? Because I didn’t do anything wrong.’”

Conversely, Castro continued, if the House impeaches Trump, the public would conclude that “his friend, Mitch McConnell, Moscow Mitch, let him off the hook.”

Castro’s argument was so persuasive that Bennet did something you never, ever see in a debate—he changed his mind on stage: “I don’t disagree with that. You just said it better than I did. We have to walk and chew gum at the same time.”

‘stain and blame’

Walking and chewing gum at the same time—a useful cliché—usually means in this context legislating and investigating Trump simultaneously. But it could also mean something else: attacking Trump and McConnell at the same time. It may be that a winning Democratic impeachment strategy is coming into view, one that simultaneously upholds the rule of law and yields political dividends.

I call it “Stain and Blame”—stain Trump by impeaching him, and blame McConnell [and every Republican who votes for acquital] when he is acquitted in the Senate.

There’s only one modern case of a Senate impeachment trial of a president, and the circumstances differed. But I covered Bill Clinton’s trial for Newsweekin 1999 and the procedure that was followed then is instructive.

The Clinton trial took place in a Republican-controlled Senate and was presided over by Chief Justice William Rehnquist, who wore a special robe embroidered with ribbons he adopted from a Gilbert and Sullivan opera. [Way to treat a solemn occasion with the requisite seriousness.] The prosecutors in the case were 12 “House Managers” (including then-Rep. Lindsey Graham); the defense was handled by Clinton’s private lawyers—including a brilliant, wheelchair-bound litigator named Charles Ruff—and one Democratic senator, Dale Bumpers.

Because the evidence of perjury and obstruction of justice contained sexual material, much of it was heard behind closed doors and all three witnesses to the possible obstruction of justice—Monica Lewinsky, Vernon Jordan, and Sidney Blumenthal— appeared only on videotape. With 67 votes required for conviction, Clinton’s acquittal was—like Trump’s—a foregone conclusion.

But Clinton’s impeachment, while unpopular at the time, was nonetheless a humiliating blow. The next election after the whole process was completed was not the 1998 midterms—won by Democrats before Senate acquittal—but the 2000 presidential election, which George W. Bush (barely) won over Clinton’s vice-president, Al Gore, in part by promising to “restore honor and dignity to the Oval Office.” The argument worked, even though Clinton wasn’t on the ballot. In 2020, after impeaching Trump, it would work much better. Without impeaching him, it has no sting.

This time, the trial in the well of the Senate would be presided over by Chief Justice John Roberts, who, like Rehnquist, would run it like a quasi-trial, with evidence, witnesses (who would likely appear in person) and summations. Nadler and others from the House Judiciary Committee would serve as prosecutors. Trump would have private lawyers defending him. The senators would be the jury.

It would be Roberts’ job to make sure the rules are followed, which means the prosecution and defense must stick to the indictment—the articles of impeachment approved by the House. McConnell would not have the 60 votes needed to change those rules or dismiss the motion to consider the articles.

what a senate trial would look like

This necessity of adhering to the articles of impeachment has received no discussion. But it is crucial to understanding how a Senate trial would actually go. Recall Robert Mueller’s testimony. With the exception of Reps. John Ratcliffe and Louie Gohmert, no Republicans tried to claim Trump did not commit obstruction of justice.

Instead, they changed the subject to Fusion GPS, the Steele dossier, and other counter-charges irrelevant to what would be at issue in a Senate trial. Except in the defense’s opening argument and summation, these distractions would likely not be allowed during the bulk of the Senate trial, televised for tens of millions.

Think about the defense that Trump would be compelled to mount. His trial lawyers would have the unenviable task of shooting down at least eight clear examples of obstruction of justice outlined in the Mueller Report, plus explain why Trump did not abuse and disgrace his office and obstruct Congress (other likely articles of impeachment). They would have to explain why it was perfectly okay for Trump to feather his own nest by directing his people to stay at Trump hotels, after promising he would not tend to his businesses in the White House. (That article of impeachment could fall under either abuse of power or violation of the emoluments clause). 

The point is, Trump would be flayed every day for the duration of the short trial—hardly helpful to his re-election. Meanwhile, vulnerable Republican incumbents from blue states like Cory Gardner and Susan Collins would face a very tough vote. To save their seats, they might be forced to vote for conviction, which would hurt Trump even more in battleground states.

And our vulnerable unelected appointed Senator Martha McSally would have to take a recorded vote.

Now contrast this with what would happen if the House decides not to impeach Trump. Without a trial, the whole thing goes in the rear view mirror, except whenever Trump wants to fling it in the Democrats’ face. 

Beyond acquittal in the Senate, the other conventional argument against impeachment made by House moderates in swing districts is that they want to campaign in 2020 as they did in 2018–on real issues that people care about, like health care.

That would be a good point if Democrats were stressing Trump’s failure to protect people with preexisting conditions—a big issue in the midterms. But that argument received zero attention in the recent presidential debates, which showed that the more Democrats discuss health care, the more divided and impractical they look. And impeachment would hardly prevent Democrats from returning to smart health care arguments after the primaries.

A related piece of conventional wisdom is that impeachment and a Senate trial would open Democrats up to the charge—already being made by the GOP against pro-impeachment House members—that they are not working for their constituents.

But if the Clinton case is any indication, a week-long Senate trial would wrap up only a month or so after impeachment. That means the whole thing would be over in January or February. The Democrats could shower blame on McConnell for the acquittal and move on. By summer, Democratic members would have had plenty of time to refocus their attention on constituent concerns. No Republican challenger can credibly argue in October of 2020 that the incumbent Democrat ignored constituents for a brief period 10 months earlier while he or she voted for impeachment. People can’t remember what happened two weeks ago, much less 10 months ago.

With one exception: The impeachment of the President. The memories of that are long. Despite his acquittal, impeachment—a convenient shorthand for all of his despicable qualities—would hang around Donald Trump’s neck all the way to Election Day. And he would be stained forever in history, his just deserts.

I agree in principle with Jonathan Adler’s “stain and blame” strategy. There is no question that unindicted coconspirator “Individual 1” has committed several crimes, those known and yet to be fully developed through discovery that he is currently obstructing, and is committing several more impeachable offenses that do not constitute crimes per se: abuse of power, obstruction of Congress, violation of his constitutional duty to take care that the laws be faithfully executed (see, the Nixon Articles of Impeachment).

This is without question the most corrupt and criminal administration in history, and even many Republicans in private will admit this. The failure of Senators to vote to convict for what are obvious impeachable offenses that stain the office of the presidency and jeopardize the national security of the United States out of pure partisan GOP tribalism amounts to political jury nullification, when jurors acquit a defendant who is factually guilty because they disagree with the law, or in this case, the political consequences. A case can be made that these senators are aiding and abetting Trump’s criminal and impeachable misconduct as accessories after the fact. They are equally culpable, and should all be removed from office.

But Jonathan Adler’s “stain and blame” strategy suffers from one problem: “The Enemy of The People,” Senate Majority Leader Mitch McConnell, controls the Senate. Which raises the obvious question, “Does the Senate have an obligation to conduct a trial of the president if the House impeaches him?”

Lawyer Bob Bauer addressed this question at Lawfare Blog. Can the Senate Decline to Try an Impeachment Case?

[M]ost discussions of impeachment have assumed that, should the House vote to impeachment, the Senate will then hold a trial. This is the logical construction of the Constitution’s provisions setting out the impeachment process: If the House impeaches, then it would follow that the Senate tries the case. This is what the Senate did on the two occasions, in the cases of Andrew Johnson and Bill Clinton, that the House voted articles of impeachment.

The current Senate rules would further support this view. They contemplate that when the House has voted an impeachment, the Senate will be notified, the House managers will present their case and trial proceedings, which the rules prescribe in some detail, will begin.

But it is also possible that, in this time of disregard and erosion of established institutional practices and norms, the current leadership of the Senate could choose to abrogate them once more. The same Mitch McConnell who blocked the Senate’s exercise of its authority to advise and consent to the Supreme Court nomination of Merrick Garland, could attempt to prevent the trial of a House impeachment of Donald Trump. And he would not have to look far to find the constitutional arguments and the flexibility to revise Senate rules and procedures to accomplish this purpose.

The Constitution does not by its express terms direct the Senate to try an impeachment. In fact, it confers on the Senate “the sole power to try,” which is a conferral of exclusive constitutional authority and not a procedural command. The Constitution couches the power to impeach in the same terms: it is the House’s “sole power.” The House may choose to impeach or not, and one can imagine an argument that the Senate is just as free, in the exercise of its own “sole power,” to decline to try any impeachment that the House elects to vote.

The current rules governing Senate practice and procedure do not pose an insurmountable problem for this maneuver. Senate leadership can seek to have the rules “reinterpreted” at any time by the device of seeking a ruling of the chair on the question, and avoiding a formal revision of the rule that would require supermajority approval. The question presented in some form would be whether, under the relevant rules, the Senate is required to hold an impeachment “trial” fully consistent with current rules—or even any trial at all. A chair’s ruling in the affirmative would be subject to being overturned by a majority, not two-thirds, vote.

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The Senate has options for scuttling the impeachment process beyond a simple refusal to heed the House vote. The Constitution does not specify what constitutes a “trial,” and in a 1993 case involving a judicial impeachment, the Supreme Court affirmed that the Senate’s “sole power” to “try” means that it is not subject to any limitations on how it could conduct a proceeding. Senate leadership could engineer an early motion to dismiss and effectively moot the current rule’s call for the president or counsel to appear before the Senate. The rules in place provide at any rate only that “the Senate shall have power to compel the attendance of witnesses”: they do not require that any other than the president be called. Moreover, the Senate could adjourn at any time, terminating the proceedings and declining to take up the House articles. This is what happened in the trial of Andrew Johnson, in which the Senate voted on three articles and then adjourned without holding votes on the remaining eight.

This discussion does not engage in depth with all the parliamentary possibilities and intricacies. But it is sufficient to say for present purposes that, if the House of Representatives were to impeach the president, Senate Republicans would be in a position, if so inclined, to scuttle any trial.

* * *

Professor Laurence Tribe has argued that the Senate retains a clear constitutional “duty” to proceed with a trial. He grounds that obligation in the “structure, history, function, and logic of the impeachment Power, not from any mandating language.” On this we agree: the Senate does have this duty to try any impeachment voted by the House. The individual senators would violate their oath in altogether ignoring the House’s constitutional judgment that the president, having committed impeachable offenses, is unfit to retain the office. For the Senate and a majority to adopt this course is wrong and dangerous.

But such a duty is not the same as a clear-cut constitutional obligation expressed in the text, and, depending on events and their political impacts, the Republicans may be motivated to exploit the difference. If a Senate majority can readily enough accomplish the result of altering its rules and sidestepping a trial, then the opposition can only respond to this initiative through the application of public pressure and the threat of harsh electoral justice meted out in the next election. No one disputes that there is no judicial remedy or other means of enforcing the constitutional duty that Tribe identifies.

“Electoral justice meted out in the next election” — Defeat. Every. Republican.