Image Credits: Nadler for Congress.
If there were ever any prospect that Donald Trump would be impeached, that seemed to go out the window when Congress went into August recess without having formally initiated any proceedings. It doesn’t seem to matter that during that recess a milestone was reached when a majority of House Democrats went on the record favoring an impeachment inquiry. If the removal of the president is important, then it requires swift action, and the opposition party can’t go dormant on the visible aspects of their investigation (or their messaging) for a full month and expect to be taken seriously by the public.
With Labor Day now in the rearview mirror, it’s time for primary season to begin as we ramp up for the early 2020 contests in Iowa and New Hampshire. We’ve left behind the season for any kind of bipartisanship, however limited that is even in the best of times. Ramping up an impeachment effort now, after all the momentum has been squandered, will be met by a wall of resistance, internal Democratic divisions, and a highly skeptical press.
Yet, the Democrats are limping forward with every intention of resuscitating people’s expectations that Trump can be removed from office in any way other than the ballot box. And if the Democratic leadership actually supports these efforts, they are definitely holding their cards very close to their vests.
In the meantime, Washington is stuck in an impeachment muddle — with Democrats straddling an ambiguous line between impeachment proceedings and standard congressional investigations. It’s a dynamic that will test the unity of a diverse Democratic caucus this fall, and shape the party’s battle to hold on to the House and defeat Trump in 2020.
“I don’t think the public is really … clear about what’s going on,” said Rep. John Yarmuth (D-Ky.) on the state of play. “Whether that’s an intentional strategy or not, I don’t know. But I think that’s clearly the case.”
Yarmuth — who has long been in favor of impeaching Trump — said he expects top Democrats, led by Nadler, to make it much clearer in September that the House is indeed moving ahead with the impeachment process.
“I would bet that before mid-October, there will be actual articles of impeachment drafted by the committee. I don’t think there’s much doubt about that,” Yarmuth said in an interview this week. “I think Jerry’s committed to doing that, and I think, a significant majority of the committee is there.”
It’s been hard to discern what level of sophistication is informing Nancy Pelosi’s no-cart-before-the-horse strategy on impeachment. In acting as the Democratic brake on impeachment, she’s tempered expectations, reduced the resistance on the other side, and arguably bought her committees time to make progress in their investigations and in the courts so that when they present their case it will be formidable and game changing. She’s also set things up so that if she ever personally pivots in favor of impeachment, it will carry a lot of punch.
Yet, it hasn’t been clear that she’s approaching this with that kind of cool calculation rather than just responding to the survey information that crosses her desk everyday telling her the public has turned against the president but would rather vote him out themselves than endure an impeachment mess. Her first priority is to protect her majority, and that majority is built on seats that Trump carried in 2016. She is naturally more responsive to the pensiveness of her vulnerable members than the outrage of her safe ones. It’s possible that she means what she says, has no deep plan to throw the president out of office, and no intention of wasting effort on impeaching a president that the Senate will never convict.
A third possibility is that Pelosi simply cannot stop impeachment from moving forward because the Trump administration is stonewalling congressional subpoenas. At this point, it might be easier for Trump to run out the clock by offering cooperation because it would take the most potent irritant off the table. But that would probably cause him severe enough problems to greatly complicate his reelection efforts, so I doubt it’s a strategy that will be contemplated. He’s probably not temperamentally capable of adopting that approach anyway, even if his lawyers and political consultants advise it.
It’s possible none of this will matter to the president because the Democrats seem poised to do something incredibly stupid.
The House Judiciary Committee is preparing to hold hearings and call witnesses involved in hush-money payments to ex-Playboy model Karen McDougal and adult-film star Stormy Daniels as soon as October, according to people familiar with the plans who spoke on the condition of anonymity to describe internal discussions.
Democrats say they believe there is already enough evidence to name Trump as a co-conspirator in the episode that resulted in his former attorney, Michael Cohen, pleading guilty to two campaign finance charges.
To explain why this is a bad move, I’m just going to go back to the last time the House of Represenatives impeached a president over crimes committed to cover up cheating on his wife. On January 21, 1999, while the Clinton impeachment was in its trial phase in the Senate, former Arkansas senator Dale Bumpers spoke on behalf of the defense. Here’s the most memorably part of what he said:
You’re here today because the president suffered a terrible moral lapse, a marital infidelity. Not a breach of the public trust, not a crime against society, the two things [Alexander] Hamilton talked about in Federalist Paper number 65 — I recommend it to you before you vote — but it was a breach of his marriage vows.
It was a breach of his family trust It is a sex scandal. H.L. Mencken said one time, “When you hear somebody say, ‘This is not about money,’ it’s about money.”
(LAUGHTER)
And when you hear somebody say, “This is not about sex,” it’s about sex.
I think the impeachment of Clinton was more about a kind of Melvilleian obsession with harpooning Bill Clinton at any cost, but there were actual crimes involved. Charges of infidelity were not among the articles of impeachment. The problem for the House Republicans was that the public simply didn’t care enough about Clinton cheating on his wife to want to punish him for committing those crimes. When Bumpers said that it was all about sex, he wasn’t telling the truth but was nonetheless offering a potent political defense. In basketball terms, it was a lay-up.
The Republicans are banking in lay-ups over this news already.
Trump allegedly had a one-night stand with Stormy Daniels in 2006 and also allegedly had a 2006 affair with Karen McDougal. Let this sink in: The sanctimonious Democrats are upset that Donald Trump might have had sex with two hot women 13 years ago.
The Democrats can argue all they want that the president’s former personal lawyer Michael Cohen is currently serving time in federal prison for his role in covering up Trump’s affairs from 13 years ago, but the public will agree with the Bumpers defense this time just as they did twenty years ago.
It’s true that Trump, as “Individual-One” in the Cohen indictments, is very clearly guilty of having committed prosecutable felonies in the Daniels/McDougal case. The Democrats must be thinking that this us such a cut and dry case that it is stronger than more muddled issues like the Emoluments Clause or the president’s true relationship with Russia and Vladimir Putin. They’re wrong about that. Going after the president for covering up his affairs in the closing days of the 2016 campaign is their weakest political argument, and impeachment is a political rather than a legal process.
Fortunately, this isn’t the only angle the House Democrats will pursue:
When the House returns to session next week, the Judiciary panel plans to continue focusing on five episodes of potential obstruction of justice by the president outlined in special counsel Robert S. Mueller III’s lengthy report this spring. Democrats have argued that Trump would have been charged with obstruction in those five instances were he not president.
The hush-money payments represent a sixth instance of potentially impeachable presidential misbehavior, they say.
They should absolutely deemphasize the sixth instance here because otherwise it will be the only instance that gets any attention, and then the collective whole will be swatted away like a fly.
The House Democrats have little choice but to move forward, if for no other reason than to defend the powers of their institution. But they erred badly by letting a whole month go by without any focus on the president’s criminal and impeachable behavior. Again, if this matters then it’s urgent, and showing a lack of urgency sends a message that it is not important.
I understand the impulse now to document the atrocities, and there are political and principled reasons for being comprehensive in that task. But they have shown too much patience and have too flawed of a strategy moving forward for me to give them anything other than failing marks.
