• The Listener
  • North & South
  • Noted
  • RNZ
Illustration/Joseph Qiu/Listener

Why Trump's impeachment was never going to be a proper trial

It didn’t matter that the “arguments” – 11 of them outlined here – against impeaching Donald Trump were wafer-thin. 

What do you call a trial in which the jurors decline to hear from a key witness who could provide damning testimony against the accused because they’d made up their minds to acquit before they’d even heard the opening statements?

A) A farce.

B) A sham.

C) A travesty.

D) An abdication of civic responsibility.

E) A repudiation of constitutional obligations.

F) All of the above.

When the trial in question is the impeachment of President Donald Trump, the answer is F.

Republican senators supposedly sitting in judgment were momentarily put on the spot when former National Security Adviser John Bolton unequivocally confirmed, via leaked book extracts, that Trump was the prime mover behind the so-called “drug deal”: coercing the Ukrainian Government into launching, with fanfare, an investigation into former Democratic Vice President and potential presidential rival Joe Biden and his son, Hunter.

But they got over it. They’re beyond embarrassment, beyond shame, indifferent to the truth, right and wrong or the national interest. Indeed, the various defences offered on Trump’s behalf provide a snapshot of US conservatism’s moral and intellectual collapse and reinforce the depressing reality that, with a few honourable exceptions, congressional Republicans have chosen to be the high priests of Trump’s cult of personality.

John Bolton, whose willingness to testify was unrequited. Photo/Getty Images

1. There was no quid pro quo

It began with an anonymous whistle-blower’s complaint that, in a July 25, 2019 telephone conversation with Ukrainian President Volodymyr Zelensky, Trump made almost US$400 million in military aid, urgently needed to resist Russia’s depredations, conditional on Ukraine launching an investigation into the Bidens. A partial summary of the conversation provided by the White House confirmed that interpretation.

Not so, insisted Trump and his defenders. According to the President, the conversation was “perfect”. Republican Senator Kevin Cramer declared “it clearly isn’t a quid pro quo”. Among White House talking points issued to congressional Republicans was, “Let’s be clear: there was no quid pro quo for Ukraine to get US aid in exchange for looking into Biden or his son.”

2. So, there was a quid pro quo

So what? Testifying before a House of Representatives committee last November, several officials confirmed the July 25 call was merely the tip of the iceberg: there had been a sustained campaign, headed by Trump’s personal lawyer, Rudy Giuliani, to pressure Ukraine into investigating the Bidens.

The new talking point was that quid pro quos are part and parcel of bilateral relations. Republican Senator Lindsey Graham, who’d earlier said a quid pro quo would be “disturbing”, now insisted Trump was just doing the right thing: “It’s clear to me that there is ample evidence for the President to be concerned about conflicts of interest on behalf of Hunter Biden and that Vice President Joe Biden’s failure to take appropriate action was unacceptable.”

Leaving aside the risible premise of Trump as an anti-corruption crusader, there’s zero evidence that either Biden was involved in corrupt activities. Former US special envoy to Ukraine Kurt Volker, a member of the Giuliani cabal, testified that there was no validity to the Biden allegations.

And when Bolton revealed that, two months before the Zelensky call, Trump directed him to assist in the Ukraine shakedown, Republicans couldn’t see what all the fuss was about. “[Bolton’s] point is what?” asked Senator John Kennedy. “That doesn’t tell us anything.”

Monica Lewinsky. Photo/Getty Images

3. The Democrats are trying to overturn the 2016 election

This is absurd on several counts. First, impeachment is the constitutional remedy for presidential malfeasance. Second, if it applies now, it most certainly applied in 1998 when Republicans, with some of Trump’s most vociferous defenders to the fore, impeached President Bill Clinton over his dalliance with White House intern Monica Lewinsky. Clinton had been elected twice, on both occasions by significantly more emphatic margins than Trump’s in 2016. Third, if impeachment had led to Trump being removed from office, he would have been replaced by his 2016 Republican running mate, Vice President Mike Pence.

4. The Democrats brought nothing new to the Senate table

You have to be a particularly brazen hypocrite to bar witness testimony and stymie attempts to procure relevant documents while complaining that the prosecutors haven’t come up with anything new, but then brazen hypocrisy is now central to the Republican brand. Furthermore, focusing on what the prosecutors didn’t present is a feint to distract from the Republicans’ refusal to consider the case that was presented. According to multiple polls, a majority of Americans found that case sufficiently persuasive to support Trump’s removal from office.

Chuck Schumer. Photo/Getty Images

5. Even if Trump did everything that he’s accused of doing, it doesn’t warrant impeachment

“[Impeachment] is a constitutional remedy that was designed for the most extreme of cases,” said Senator Roger Wicker, “and we’re just not anywhere in that ballpark.” The second component of this argument is that no crime was committed. (The Constitution specifies “high crimes and misdemeanours”, the latter being an imprecise term that can mean general bad behaviour or legal bad behaviour that doesn’t rise to the level of a felony.)

In fact, US federal law prohibits political campaigns from taking “a contribution or donation or anything of value” from foreign entities. Furthermore, the Government Accountability Office, a non-partisan public watchdog, found that the White House Office of Management and Budget violated the law when it withheld the military aid for Ukraine that had been allocated by Congress.

6. Americans don’t care about Ukraine

We know this because America’s top diplomat, Secretary of State Mike Pompeo, a former Republican Congressman, told a reporter so. To reinforce his point, he challenged the reporter, National Public Radio’s (NPR) Mary Louise Kelly, to find Ukraine on a map. Aides were dispatched to find a map of the world without names or boundaries. Quite why the State Department should have such maps is a question for another day.

Kelly is an experienced and much-travelled reporter on national-security issues with a master’s degree in European studies from Cambridge University. She also lectures on her specialist subject at Georgetown University. As New York magazine’s Jonathan Chait put it, “this is a bit like daring a professional mathematician to multiply four times 12”. According to Pompeo, though, Kelly didn’t get within cooee: she placed Ukraine in that corner of the Asian subcontinent occupied by Bangladesh. “Well, oof,” wrote the Bulwark’s Charlie Sykes. “As in, ‘oof, what a stupid and implausible lie’.”

Trump’s response to Kelly’s account of her interaction with Pompeo, which included being on the receiving end of a profanity-laced rant, was to threaten to cut public funding for NPR, a non-profit entity created by Congress in 1971 that provides content to more than 1000 public radio stations.

Ken Starr. Photo/Getty Images

7. There’s way too much impeachment these days

Trump’s legal team included Kenneth Starr who, as independent counsel, oversaw the exhaustive investigation into the Lewinsky scandal that culminated in a report recommending impeachment.

In his reincarnation as counsel for the defence, Starr told the Senate that “in this particular juncture in America’s history, the Senate is being called to sit as the high court of impeachment all too frequently. Indeed, we are living in what I think can be aptly described as the age of impeachment. How did we get here?” (In fact, only three presidents have been impeached, the third being Andrew Johnson in 1868.)

How did we get here? Well, for starters, as Vanity Fair pointed out, “once upon a time, an independent counsel named Kenneth Starr wrote a report that got a president impeached for lying about a blow job”.

It’s interesting to note that, when Trump was a New York real estate developer, he described independent counsel Starr as “wacko” and a “lunatic”. Interesting, also, that Starr’s ethics adviser resigned, accusing his boss of being so fixated on his pursuit of Clinton that he violated his obligations under the independent-counsel statute.

As Lewinsky tweeted, “This is definitely an ‘are you f---ing kidding me’ kinda day.”

8. If the President believes his re-election is in the public interest, then pretty much anything he does to that end is above board

This argument was put forward – to the accompaniment of sharp intakes of breath and sagging jaws – by another Trump lawyer, Alan Dershowitz, who has previously represented OJ Simpson and Jeffrey Epstein.

Dershowitz told the Senate that “every public official I know believes that his election is in the public interest. Therefore, if a president does something that he believes will help get him re-elected – in the public interest – that cannot be considered the kind of quid pro quo that results in impeachment.”

As was swiftly pointed out, by that logic Richard Nixon shouldn’t have had to resign to avoid impeachment over the Watergate scandal. That began with a team of ex-spies and shady characters assembled by the Committee to Re-elect the President (popularly known as Creep) breaking into the Democratic National Committee’s headquarters in the Watergate building in Washington DC. Their mission was to plant listening devices and obtain documents that might prove useful in Nixon’s 1972 campaign against the Democrat candidate, George McGovern. Given that conservative America regarded McGovern as a dangerous radical – imagine Bernie Sanders only nicer and without the chequered history – Nixon certainly wouldn’t have been alone in believing his re-election was in the national interest, to the point of the end justifying most means.

Dershowitz’s reasoning “would unleash a monster”, said Senate minority leader Chuck Schumer. “More aptly, it would unleash a monarch.”

Mitch McConnell. Photo/Getty Images

9. Trump is different and should be judged accordingly

“Trump’s not like other presidents,” said Senate majority whip John Thune, apparently with a straight face, “and shouldn’t be evaluated like them.”

There’s not much that needs to be said about this, beyond that it’s what scraping the bottom of the barrel looks like. And it’s probably worth nothing that Thune’s not saying Trump should be treated as the exception to the rule because he’s unusually high-minded or well-intentioned or even unworldly. On the contrary: he’s implying that Trump falls so far short of the standards America has historically expected of its presidents that it’s unfair to hold him to those standards.

10. It’s politics as usual and we’ve got the numbers

We can’t say we weren’t warned. Weeks before he swore a solemn oath to “do impartial justice”, Senate majority leader Mitch McConnell blithely declared that, “I’m not an impartial juror. This is a political process; there’s not anything judicial about it. The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate.”

This is disingenuous. In impeachment proceedings, the House acts as the prosecutor, the Senate as the jury. If members of the jury who belong to the president’s party have made up their minds in advance to acquit, impeachment as envisaged by the Founding Fathers is obsolete.

A more pertinent take was offered by Senator Lisa Murkowski. She’s often described as a “moderate Republican”, an endangered species whose most marked characteristic is a tendency to flatter to deceive by encouraging the perception that they’re prepared to buck the party line but hardly ever doing so.

Explaining her decision to wash her hands of the matter à la Pontius Pilate, Murkowski said, “I’ve come to the conclusion that there will be no fair trial in the Senate. It’s sad for me to admit that, as an institution, Congress has failed.”

Lisa Murkowski. Photo/Getty Images

11. The people should decide

Lurking beneath the surface of much of the Republican defence of Trump is a proposition that goes something like this: we were like you once. We thought Trump was unfit for office on any number of grounds. But look what happened: he trounced more than a dozen conventional Republican candidates to secure the party’s nomination. Then he defeated Hillary Clinton, the liberal establishment’s candidate. He won. We got used to it. Why can’t you?

The most striking, yet at the same time most vexatious Republican contribution to the entire process was this from retiring Senator Lamar Alexander: “There’s no need for more evidence to prove something that has already been proved. It was inappropriate for the President to ask a foreign leader to investigate his political opponent and to withhold US aid to encourage that investigation. The question then is not whether the President did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election.”

A seductively common-sense way of resolving the situation were it not for what happened in 2016 and the fact that Trump was impeached for trying to strong-arm a foreign government into smearing the man who may well be his opponent in said election.

Special counsel Robert Mueller concluded that Russia interfered in the 2016 election to assist Trump, something the latter encouraged – “Russia, if you’re listening” – but continues to insist didn’t happen. The Mueller investigation was unable to establish whether the Russians co-ordinated their activities with the Trump campaign, despite the suspicions aroused by the activities of Trump operatives and convicted felons Paul Manafort and Roger Stone, among others.

The FBI and other parts of the US security apparatus have repeatedly warned that Russia will interfere in this year’s election, if it hasn’t already started. Indeed, it doesn’t seem unduly alarmist to suspect the Russians will bring their dirty-tricks playbook to bear on the Democratic primary process with a view to assisting the candidate Trump would love to run against. (Hint: it’s not Biden.)

American democracy is in crisis and under attack. The second front is the courtroom where Trump’s legal army presses on with their assertion of virtually unlimited presidential power and total presidential immunity. Executive privilege is being further extended to prevent witnesses from testifying, withhold documents and generally render Congress impotent. Stacking the judicial system with reliably ideological judges, the only area of presidential activity in which Trump’s productivity puts his predecessors to shame, is the final element in the strategy to dismantle the system of checks and balances created by the Founding Fathers.

Against that background, it’s staggering that congressional Republicans should be so complicit in reducing their branch of government to a position of utter subservience to the White House and creating precedents that set America on a course for murky, uncharted waters. And given the forces at work and putting it mildly, it’s insouciant to advocate, in effect, that the political class should just stand back and let the chips fall where they may.

This article was first published in the February 15, 2020 issue of the New Zealand Listener.

For more on the political, cultural and literary life of the country, follow us on Facebook, Twitter and Instagram and sign up to our weekly newsletter.