Impeach Him And They Will Come

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Nancy Pelosi Golf Claps for Trump

The House needs to state that they are impeaching Trump.

Slate is up with an article praising Nancy Pelosi’s political strategy on impeaching Trump.

They’re wrong about the politics and they don’t consider the legal issues at all.

To reiterate, Trump has already set up multiple legal battles by refusing to comply with subpoenas and telling his toadies, even people who don’t work for him any more, to refuse to testify before House committees. Any of these issues that actually end up in court will get to the Supreme Court quickly. U.S. v. Nixon, 418 U.S. 683 (1974), went directly from the trial court to the Supreme Court, which agreed to hear it “because of the public importance of the issues presented and the need for their prompt resolution” (at 687).

That was a unanimous decision finding that Nixon had to surrender recordings of his Oval Office conversations to the special prosecutor, which Nixon then did. The recordings in question then prompted the House Judiciary Committee to vote out an article of impeachment against Nixon, so obvious was the criminal conduct they revealed, but the special prosecutor sought them as part of his criminal prosecution of the men who started the whole mess by breaking into the headquarters of the Democratic National Committee.

That fact introduced a layer of legal complexity to the decision that will be absent from a dispute between the House and the president in an impeachment proceeding. In another Supreme Court case, coincidentally, Nixon v. U.S., 506 U.S. 224 (1993) (different Nixon), the Court held, again unanimously, that the grant by the Constitution of “sole” power to conduct an impeachment trial to the Senate left the Court powerless to intervene in the decisions of the Senate about how to conduct the trial. The Constitution similarly grants to the House the “sole” power of impeachment, so logically, the Court should have no power to intervene in decisions of the House about how it conducts an impeachment inquiry, absent some obvious violation of the rights of an individual.

So the House will be on very strong legal ground before the Supreme Court if it is conducting an impeachment inquiry.

As to the politics, Pelosi is right that any impeachment will rally Republican voters, but it will also rally Democratic voters, of whom there are more than there are Republicans. She and so many others seem to forget that the Democrat won the popular vote in the 2016 presidential election and that 2018 saw historically huge turnout that allowed Pelosi to become Speaker by returning the Democrats to control of the House of Representatives.

The Slate article quotes Pelosi as noting that Nixon resigned after “months of investigation,” but she gets the history wrong. Nixon was defiant until the last moment, when the overwhelming evidence of his criminality turned up in evidence that had been under his control all along finally came to light because of the subpoena at issue in U.S. v. Nixon. It wasn’t the months of investigation that prompted Nixon to resign. It was the specific demand for evidence that proved damning.

Nixon tried to refuse to surrender that evidence, presumably because he knew how damning it was. Similarly, Trump, or his toadies, since he’s too stupid to know it himself, know how damning the evidence is, which is why he refuses to comply with subpoenas. The politics and the law coincide in this instance.

Granting that the Republicans, as of now, will not vote to remove Trump, having him in office for two more years, post impeachment, will likely only further incite the country to more resistance to him of the sort we manifested in 2018, only on behalf of the Democratic presidential candidate in 2020.

Pelosi is wrong on this point. She should declare the present investigation an impeachment investigation to improve the legal posture of the House.

Written by

Uppity gay, Buddhist, author, historian.

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