Blue State Blues: The Senate Should Throw Out the Impeachment Charges

Lindsey Graham and Mitch McConnell (Alex Wong / Getty)
Alex Wong / Getty

The behavior of Democrats at this week’s “impeachment inquiry” in the House Intelligence Committee leaves little doubt that the House of Representatives will vote to impeach President Donald Trump.

They will do so on the basis of what liberal legal scholar Jonathan Turley rightly calls “the narrowest basis for impeachment in the history of this country.”

Republicans say they will hold a trial in the Senate. But, as Mark Levin argues, there is no reason to do so.

Quite simply, the Democrats provided no evidence of an impeachable offense — or any other kind of offense. Were it not for the media’s mob-like applause, they would have withdrawn the inquiry in shame.

Instead, they are said to be planning four articles of impeachment in the House Judiciary Committee (where the inquiry should have been handled in the first place): 1. Obstruction of Congress; 2. Obstruction of Justice; 3. Bribery; 4. Abuse of Power.

Let us take each of these in turn.

1. Obstruction of Congress: This is not a constitutional basis for impeachment. The Judiciary Committee approved such an article in the Nixon impeachment, but only by a narrow margin. Put simply, it is the duty of the executive to resist encroachments by the other branches. As former Obama administration official Cass Sunstein recently wrote, obstruction of Congress is “no legitimate basis for impeachment” if there is a good-faith reason for not cooperating.

2. Obstruction of Justice: Special Counsel Robert Mueller investigated this charge and declined to recommend any prosecution. He left that to the discretion of the Department of Justice, which concluded that no conviction would be possible, given Trump’s cooperation with the investigation and given the unique political circumstances to which he was responding. It would be unjust for the House to indict the president for what a Special Counsel would not.

3. Bribery: As I have explained here before, nothing that Democrats have alleged meets the elements of the crime of bribery. Intelligence Committee chair Rep. Adam Schiff (D-CA) tried to argue this week, absurdly, that a meeting at the White House was an “official act” for which Trump had demanded a bribe. If that is bribery, then every single member of Congress should turn themselves in: they all make special time for big campaign donors on Capitol Hill.

4. Abuse of Power: This may not be impeachable. Sunstein argued “abuse of power” would indict every president. Regardless, there is no evidence of a “quid pro quo” for aid. Moreover, the witnesses admitted foreign election interference is a problem, and that the Bidens had conflicts of interest. For years, Democrats defended investigating an opposing candidate for ties to Russia; by the same logic, Trump’s actions were not only justified, but necessary.

In addition, the Senate could refuse to try the case on the grounds that the impeachment process in the House was so unfair, violating every precedent and denying the president due process. It was an Inquisition, not an impeachment.

Just as a judge can throw out a criminal case if the police violate a defendant’s constitutional rights, the Senate can decide that the impeachment involved such a grotesque violation of constitutional norms that it must be set aside.

True, a Senate trial might be tempting. Republicans would call their own witnesses, including the “whistleblower” and the Bidens. They could also keep Democratic Senators who are running for president off the campaign trail during the key primaries and caucuses.

But it would be far simpler, and arguably better, to save the country the trouble. As Sen. Robert Byrd (D-WV) did during the Bill Clinton trial, they could move to dismiss. And “vote aye.”

Joel B. Pollak is Senior Editor-at-Large at Breitbart News. He earned an A.B. in Social Studies and Environmental Science and Public Policy from Harvard College, and a J.D. from Harvard Law School. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. He is also the co-author of How Trump Won: The Inside Story of a Revolution, which is available from Regnery. Follow him on Twitter at @joelpollak.

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