The Impeachment Deal Between The House And The Senate, by Moon of Alabama

The Republicans will show their usual lack of go-for-the-jugular instinct with a short, pro-forma impeachment trial that does no real damage to their alleged political enemies, the Democrats. It will be the standard Washington Kumbaya in which nobody gets hurt and everyone returns to corruption as usual. From Moon of Alabama at moonofalabama.org:

Two weeks ago we analyzed the consequences of an impeachment process of President Donal Trump. We found that the Democrats would lose by impeaching him and would therefore likely censure him instead. We were wrong. A week later Pelosi announced that she would  proceed with impeachment.

It was only today that I understood where I was wrong and what had since happened. Let me walk you through it.

The earlier conclusion was based on this table of possible outcomes of an impeachment resolution:

If more Democratic swing-state representatives defect from the impeachment camp, which seems likely, House Speaker Nancy Pelosi will have a big problem. How can she proceed?

  • If the House votes down impeachment Donald Trump wins.
  • If the House holds no vote on the issue Donald Trump wins.
  • If the House votes for censure, Donald Trump will have won on points and the issue will be over.
  • If the House votes for impeachment the case goes to the Senate for trial.

The Republican led Senate has two choices:

  • It can decide to not open an impeachment trial by simply voting against impeachment. Trump wins.
  • It can open a impeachment trial, use it to extensively hurt the Democrats and, in the end, vote against impeachment. Trump wins big time.

Should the House vote for impeachment the Senate is likely to go the second path.

Looking at the choices it is quite curious why Pelosi took that decision and so far there has been no in-depth explanation for it.

The rather short House Resolution (also here) Pelosi let pass has only two articles of impeachment of Trump. The issues over which he is supposed to be impeached are very limited:

Democratic leaders say Trump put his political interests above those of the nation when he asked Ukraine to investigate his rivals, including Democrat Joe Biden, and then withheld $400 million in military aid as the U.S. ally faced an aggressive Russia.

They say he then obstructed Congress by stonewalling the House investigation.

Ukraine’s President Volodymyr Zelensky himself said that he did not know that Trump withheld the $400 million for Ukraine when he had the phone call with the president in which Trump asked him to dig into the Burisma/Biden affair. The request itself is legitimate as Biden has lots of dirt in Ukraine. But there was no quid-quo-pro and no bribery, at least not in the phone call the CIA ‘whistleblower’ and some of the witnesses complained about. Where then is the evidence that Trump abused his power?

The obstruction of Congress accusation is equally weak. Trump had rejected the House subpoenas to his staff because he wanted a judicial review of their legality. They might indeed infringe on certain presidential privileges. The court process would take several months but the Democrats simply do not want to wait that long. So who is really obstructing the legal process in this?

Law professor Jonathan Turley, who is not a Trump fan and had testified in front of the House Judiciary Committee, finds both points the Democrats make extremely week:

For three years, the same Democratic leadership told the public that a variety of criminal and impeachable acts were proven in the Mueller investigation. None of those crimes are now part of this impeachment.Why? Because it would have been too easy an impeachment? Hardly.

Instead, the House will go forward on the only two plausible grounds that I outlined in my testimony – abuse of power and obstruction of Congress. Unlike the other claims, the problem is not with the legal basis for such impeachable offences but the evidentiary record.

This record remains both incomplete and conflicted. The Democrats have insisted on impeaching by Christmas rather than build a record to support such charges.

This is now the fastest investigation with the thinnest record supporting the narrowest impeachment in modern history.

The Democrats just gave Trump the best Christmas gift he could hope for under these two circumstances …

Professor Turley correctly points out that there are several other serious issues over which Trump could (and should) probably be impeached.

So why did House Speaker Pelosi allow only such a narrow and weak impeachment resolution?

The text of the impeachment resolution is currently in the Judiciary Committee where it will be discussed today. The language may still get sharpened a bit but there will be no additions to its core.

The House will then vote on it within the next week. The Senate will launch the impeachment trial in January.

Which brings me back to the possible outcomes table:

The Republican led Senate has two choices:

  • It can decide to not open an impeachment trial by simply voting against impeachment. Trump wins.
  • It can open a impeachment trial, use it to extensively hurt the Democrats and, in the end, vote against impeachment. Trump wins big time.

The Senate could interrupt the campaigning of several sitting Senators who run in the primaries to stand as the Democratic presidential candidate. It could call Joe and Hunter Biden and the ‘whistleblower’ as witnesses. It could dig deeper into Russia-gate. The risk for the Democrats during this process would be enormous.

But Pelosi still took that way and allowed for only a very weak impeachment resolutions.

That led me to assume that a deal was made that allowed Pelosi to go that way. But there was no sign that such a deal was made.

Only today do we get the confirmation, as open as we will ever get it, that a deal has indeed been made. The Republican led Senate will not dig into the Democrats but will vote against impeachment without using the process to hit at the political enemy:

Senate Republicans are coalescing around a strategy of holding a short impeachment trial early next year that would include no witnesses, a plan that could clash with President Trump’s desire to stage a public defense of his actions toward Ukraine that would include testimony the White House believes would damage its political rivals.Several GOP senators on Wednesday said it would be better to limit the trial and quickly vote to acquit Trump, rather than engage in what could become a political circus.

“I would say I don’t think the appetite is real high for turning this into a prolonged spectacle,” Senate Majority Whip John Thune (S.D.), the chamber’s second-ranking Republican, told The Washington Post on Wednesday when asked whether Trump will get the witnesses he wants in an impeachment trial.

Most notably, a quick, clean trial is broadly perceived to be the preference of Senate Majority Leader Mitch McConnell (R-Ky.), who wants to minimize political distractions in an election year during which Republicans will be working to protect their slim majority in the chamber.

The piece goes on to say that the Republicans allegedly fear that they may not have the votes to call witnesses. That is of course nonsense. The Republicans have 53 Senate seats and the Democrats have 47. And digging into the sleaze of Joe Biden would surely bring additional voter support and not risk any Senate seats.

The only reason why the Senate will go the soft way and just vote the impeachment down is because a deal was made between Leader McConnell and Speaker Pelosi.

The deal prevented an extensive impeachment inquiry and trial that could have hurt both sides with uncertain outcome.

The narrowness and weakness of the impeachment resolution that can not hurt the president was in exchange for a no-fuzz process in the Senate that will not dig into Biden and will not hurt the Democrats during next year’s election.

That a deal was made explains why Pelosi has chosen impeachment and not censure even as polls were showing opposition to impeachment. It explains why she allowed only a narrow resolution based on weak evidence. It explains why the House agreed to Trump’s ginormous defense budget in the same week that it produced an impeachment resolution against him. It also guarantees that there would be no deeper digging by Democrats against Trump. It guarantees the he will under no circumstances be found guilty and impeached.

Both sides can live with the results of this narrow process. The Democrats demonstrate to their core constituency that they are willing to take on Trump. The Republicans show that they stand with their president and against the lame accusations.

Trump will loudly claim that he does not like that the Senate will shut down the issue as soon as possible. He will twitter that the Senate must tear into Biden and other Democrats. He will play deeply disappointed when it does not do that.

But my hunch is that he is in on the deal. The narrowness of the impeachment resolution prevents any other dirty deals by him might from come to light. It makes another real impeachment process more unlikely. It guarantees his political survival.

The question left is if there were additional elements in this deal. What could those be about?

 

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