Senate Majority Leader Mitch McConnell has indicated that he is preparing to hold a full trial after the House votes, as expected, along party lines to impeach President Donald Trump this week. But he should not.
Neither of the articles of impeachment states any impeachable offense; and the process in the House involved egregious violations of fairness, due process, and constitutional rights. Democrats’ impeachment sham should not be rewarded with a trial.
President Trump has said he wants to call witnesses in his defense. Certainly he has the right to call the so-called “whistleblower,” who has absolutely no legal claim to anonymity whatsoever. Trump also has the right to call Rep. Adam Schiff (D-CA), who lied to the country about his committee’s prior contact with the whistleblower and then hid behind a staffer rather than present his own impeachment report to the House Judiciary Committee in person.
The President and the Republicans would also like to call former Vice President Joe Biden and his son, Hunter. Their testimony would confirm what even the Democratic witnesses in the House Intelligence Committee admitted: that the vice president had a glaring conflict of interest in Ukraine policy because his son was earning an absurd amount of money as a board member for Ukrainian gas company Burisma. The payments could be seen as a bribe.
But as Senate Judiciary Committee Chairman Sen. Lindsey Graham (R-SC) has pointed out, all of these witnesses could be called in an ordinary oversight hearing, not in an impeachment trial. The president does not need to use impeachment to prove his innocence; the flimsy “evidence,” most of which would be inadmissible in court, cannot possibly sustain a guilty verdict. Moreover, almost everyone in the Senate has already made up his or her mind.
The public already knows that the president will not be removed from office, and few people are interested in an impeachment trial. It would be fun — and well-deserved — to hold a lengthy trial that would keep the Democratic presidential candidates in the Senate from campaigning in Iowa and New Hampshire, but the public does not care about political vengeance, however righteous. People do care about passing the USMCA deal and other priorities.
Moreover, after arguing — correctly — that neither of the two articles of impeachment actually state an impeachable offense, Republicans risk creating a dangerous precedent if they validate either article with a trial. The Supreme Court has already destroyed the basis of the second article, “obstruction of Congress,” by agreeing Friday to hear two White House appeals of congressional subpoenas, thus validating the president’s so-called “obstruction.”
As for the first article, alleging “abuse of power,” there is no precedent for impeaching the president on that basis without any underlying crime ever being alleged. Even the radical Republicans who impeached President Andrew Johnson in 1868 on a similar basis contrived to have him violate some federal statute, however unconstitutional. By holding a Senate trial on a non-impeachable basis, Republicans risk validating what House Democrats have done.
That means validating a process that denied the president, and the House minority, any semblance of fairness; and that saw Schiff abuse his power to spy on a political rival, a journalist, and the president’s lawyer. It also means creating a new “catch-all” standard that would transform our system into a parliamentary one, in which the president serves at Congress’s pleasure. Republicans should not become Democrats’ accomplices in killing the Constitution.
There is a precedent — thanks to Democrats — for considering the dismissal of impeachment charges. In 1999, then-Sen. Robert Byrd (D-WV), considered an authority on Senate procedure, moved to dismiss the impeachment of President Bill Clinton. The motion failed, but the case against Clinton at least alleged that he committed actual crimes. The articles against Trump do not — worse, they even cite allegations of Russia collusion, proven false.
Democrats would, no doubt, cry foul if the Senate dismissed the charges. They would claim that Republicans had simply acted to protect the president for partisan reasons.
But that is precisely the point. The Framers designed the process of impeachment and removal so that only a case so compelling as to transcend partisan loyalties would be brought to the Senate. The Democrats failed to produce one, and damaged the Constitution in the process. No trial.
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.