Julian Epstein, Opinion contributor
Published 12: 57 p.m. ET Dec. 5, 2019 | Updated 2: 19 p.m. ET Dec. 8, 2019
National Security: Democrats may well win the Trump impeachment debate in the court of public opinion. Republicans never managed that when they impeached Bill Clinton.
President Donald Trump’s impeachment now seems inevitable.
The House Intelligence Committee report and the House Judiciary Committee hearing with constitutional experts have laid bare the tawdry, monthslong, political dirt-for-military-aid bribery scheme involving the president and his Cabinet-rank lackeys. Not since President Richard Nixon’s sinisterism has the legal case for removal of a president seemed so strong.
What is so extraordinary about the admittedly abbreviated impeachment inquiry is the strength of the evidence. A dozen witnesses from inside the administration — ambassadors, career foreign service officers, national security advisers inside the White House — all validate critical parts of the story line that the president withheld vital military aid to a critical ally in order to muscle it into interfering in our 2020 elections.
“Everyone was in the loop. It was no secret,” said Ambassador Gordon Sondland, Trump’s handpicked emissary to the European Union charged with effectuating the sleazy deal. The president’s former national security adviser, John Bolton, dubbed it a “drug deal.” And, as esteemed constitutional experts Noah Feldman of Harvard and Pamela Karlan of Stanford explained Wednesday, the principal purpose of impeachment is to prevent abuse of power, betrayal of our national security and corruption of elections.
Any one of these is grounds for removal; Trump is the first president to score a trifecta in a single scheme. Speaker Nancy Pelosi leaned in on that key element Thursday in announcing that the House would draft articles of impeachment: “The president has engaged in abuse of power undermining our national security and jeopardizing the integrity of our elections.”
National Security: Democrats shouldn’t overplay hand
The most principled critique did not come from Republican lawmakers but from George Washington University law professor Jonathan Turley — an old friend of mine from the Clinton impeachment days whom I admire. He argued that the president dangling a meeting with the Ukrainian president could not be an element of a bribery charge under Supreme Court precedent, and that the president couldn’t be guilty of obstruction until his privilege claims are exhausted in the courts.
But Turley glossed over the fact that Trump’s other lever — withholding military aid to Ukraine in exchange for its election interference — does meet today’s bribery standard (even if you believe that the statutory standard on bribery, rather than the broader constitutional standard, governs here). And the courts have already ruled that presidents do not have absolute immunity from congressional process, as Trump has argued, so the president’s blanket refusal of cooperation presents a strong legal case of obstruction.
So have the Democrats won the debate? Nothing left to do but the vote? Not quite.
Successful impeachments, as we learned in the cases of Richard Nixon and Bill Clinton, depend on convincing the middle third of voters that corruption rather than politics is driving the effort. In 1998, the public rebuked the Republicans and independent counsel Kenneth Starr for overplaying their hand and for their blunderbuss (“We have to impeach Clinton for the sake of children!”) when Clinton tried to mask an extramarital affair. Democrats won the public argument: Clinton’s approval rating soared to 73% after the House voted to impeach him that December; Starr’s sank to 28%.
Democrats similarly overplayed their hand during the Mueller inquiry — call it Trump impeachment 1.0. Fueled by the breathless cable news repetition loop and the sugar highs of Twitter likes, Democrats regularly proclaimed evidence of Trump’s collusion with Russian interference despite clear indications that the evidence of actual conspiracy was less than definitive, as special counsel Robert Mueller would later concede. That vital middle-third group of voters smelled politics and tuned out, and support for impeachment dropped to the 30s earlier this year.
National Security: Ukraine triggered impeachment 2.0
Of course, September presented us with the giant reset — call it impeachment 2.0 — when news of Trump’s pay-to-play scheme with Ukraine hit the fan. Unlike the Mueller investigation, the evidence here appeared compelling. The eagle-eyed Pelosi seized on it, shed her passive-aggressive opposition to impeachment and took control with an iron fist.
With the cool-headed Rep. Adam Schiff of California leading a fact-driven inquiry, the Democrats’ tone quickly took on more restraint, more solemnity and less dopamine-driven political hyperventilation. The bomb-throwers on the far left were rarely seen any longer on TV.
Pelosi clearly learned the lesson of 1998 and, as a result of the more sober approach, 57% of Americans now have been convinced that the president committed an impeachable offense. That’s the good news for Democrats. The bad news is that only 47% want removal.
That said, barring new facts or a sea change in public opinion, it’s unlikely the Senate will vote to convict the president. But that’s not the only court that matters. In the court of public opinion, if Democrats convince, say, 60% to 65% of the country that the president committed impeachable offenses, they will have won where the GOP lost in 1998.
National Security: Winning without Trump removal
First, Democrats will have properly discharged their duty to defend the Constitution. Second, they will make clear to future presidents the unacceptability of Trump’s conduct. Third, they will saddle him with a permanent scarlet letter of a shakedown thug in the White House who scarified national security for personal greed. And that won’t help Trump or many of his flunky apologists either in the 2020 election or when their story is finally written.
Andrew Johnson expert: Democrats should rethink complicated ‘bribery’ strategy on Trump impeachment
Moving public opinion further will require the same serious, fact-driven approach we saw from the Democrats in the past month. If they are nimble, they will limit their articles of impeachment to the Ukraine scheme and efforts to obstruct it, and sideline the breathless raised fists on the left that hijacked the debate during the two-year Mueller probe. In this day of social media bubbles, cable news scream fests and a public that mostly tunes out the Beltway’s chattering class as irrelevant to their lives, that’s a considerable challenge.
Even so, Pelosi is the smartest, most effective hands-on leader House Democrats have had in decades. And if the past several months are any indication, she might just have the mettle to pull this off.
Attorney and legal analyst Julian Epstein was Democratic chief counsel for the House Judiciary Committee during the Bill Clinton impeachment and before that was chief of staff for the House Oversight and Reform Committee. Follow him on Twitter: @JulianEpstein
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