InfoMullet: Third Time’s a Charm – Impeachment

TLDRUpFront: For the third time in United States history the House has impeached the President.  In neither previous case did the subsequent trial in the Senate result in a two-thirds majority of Senators finding for conviction and thus removal of the President.  Understanding two concepts is vital for the context of what’s about to happen: the “sole power” clause and “inherently political” nature of Congressional Impeachments & Trials in the US Constitution. As the InfoMullet prepares to cover the Senate Trial this post will serve as a repository of the story so far: links to InfoMullet posts on the WhistleBlower scandal from the beginning; resources to aid in gaining context on contentious concepts; and credible sources that have archived, analyzed, and summarized House proceedings. Check back frequently for updates!

 

 

FullContext in the Back:

The InfoMullet has covered the Ukraine/Whistleblower scandal since before investigations began. In this post we’ll cover a few concepts important to understand the Trial, but also provide resources, links, and archives to navigate what’s happened from then to now. This includes:

• Nearly thirty InfoMullet posts tracking the scandal as it developed going as far back as June 2019. (We’ll be adding these over the weekend so check back if not all links work.)
• Resources to credible analysis providing providing in-depth context by experts on contentious oft-debated concepts such as “hearsay” and “Federal rules of evidence.”
• Links to summaries, as well as full transcripts, of the entire House proceedings.
• We are taking suggestions for Resources and links to Summaries, so if you have credible non-partisan sources suggest them on the InfoMullet Facebook page.

‘sole Power’

The first key concept, “sole Power”, is vital to both to understanding how the House has proceeded up to this point, but also the Senate Trial to come. The term originates from the Constitutions clauses on impeachment, emphasis added:

“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.” (ART I, Sec 2) 

 “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” (ART I, Sec 3)

That’s it. The phrase “sole power” is emphasized it is an extremely important concept this procedure as the language of the Constitution is unambigous. As separate bodies of Congress, itself an independent branch of government, neither the House nor Senate has an obligation to conduct an Impeachment or Trial respectively in any other way than they individually see fit.

This is vital to remember when populists argue that an Impeachment and Conviction in Trial would ‘overturn’ a Presidential Election. Officers of Federal Government do not gain their power by elections alone, they gain it from elections authorized and conducted in a manner consistent with the Constitution. It is the Constitution which gives meaning to the election which selects the officer, not the election giving meaning to the office itself.

When the same Constitution that authorized those elections authorizes an act as being the sole power of a body, such as Impeachment by the House of Representatives or Trial by the Senate, it is completely incorrect to say that such acts are ‘overturning’ election results. The Constitution, as a proxy for the People, is sovereign. No individual, officer, State, or even election result stands above the Constitution. And to the extent that any are legitimate, it is because they have derived that legitimacy from the Constitution, not apart from it.

The reverse is true as well.

The Constitutional legitimacy of a Senate Trial derives not from its outcome or perceived ‘fairness’ but whether it comports with Constitutional procedure. I emphasize Constitutional legitimacy here, which is different than political legitimacy (see below). But one of the great misunderstandings of the Constitution is assuming it guarantees outcome absent the need to navigate processes. The reality is the reverse – the Constitution establishes only processes and leaves the value judgement of the outcomes produced by those processes as a political judgement left to the People.

Inherently Political

If all that sole power Constitutional clauses leaves you depressed – take heart – as with all parts of the Constitution there are checks and limits built in. But some of these are hidden and implied, and in the case of Impeachment and Trial it’s the ‘inherently political’ nature of the process that, counter intuitively serves as a check on the House and Senate.

In Federal courts, Judges are not subject to review and accountability for their personal behavior during trials except in cases of egregious behavior. Their rulings may be reviewed and overturned by other courts, but the Judges themselves are not on trial in a normal proceeding. But this is not true in a Presidential Impeachment and Trial, where not only the President, but the House, Senate, and both Parties are in effect “on trial” in the court of public opinion and it’s consequences in political elections.

This is what is meant by the ‘inherently political’ nature of impeachment. Having granted ‘sole power’ to the House and Senate the Constitution implies that any misuse of this sole power is left to the election process to remedy.  And fortunately in 2020 the President, the entire House, and a third of the Senate stand for election. This hidden-check of the Constitution may not be immediately apparent, but it is in the back of the minds of every elected official.  If the People feel the Democrats have been unfair during House proceedings, then the Democrats may pay for it in their bid to keep the House, take the Senate and unseat the President.  If the GOP miscalculates perception over the Senate trial, they may lose vital Senate seats and potentially even hand the election to the Democrats.

And because of this hidden-check, nothing need be “fair” because at the end of the day it’s all about the politics, both within the Trial and externally within the system the Trial takes place in.  This ‘inherently political’ extends also into potential punishments in the Constitution, quoted below with emphasis added:

“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. “(ART I, Sec 4)

A later trial, conducted with legal procedures and protections may find a President guilty for additional punishment. But the act of impeachment itself, as an inherently political act, is limited to an inherently political outcome, the removal of a politician or confirmed appointee from office.

Although using legal mechanisms can provide useful comparisons or proxies or guides…overwrought handwringing by Red (on the House) or Blue (on the Senate) that they aren’t being “legal” enough in their proceedings obscures the Constitutional function of impeachment which is not to conduct a criminal case. There are no criminal punishments, only political ones.

Reviewing any past historical impeachment from the lens of “how much does this match Law & Order” would return a result approaching zero for this reason. They were never intended to follow criminal procedures and no historical Presidential impeachment ever came close to matching standard jurisprudence practices in aggregate. Either in terms of the defense or prosecution.

This is Not the Law & Order you were Looking For

LawFareBlog has a good overview of the process by which the Senate will determine the rules for the Trial and I want to pay particular attention to this phrase:

“The bottom line is that this trial will be all about who can count to 51—and all about how active the chief justice wants to be in determining the default rulings if senators fail to do so. Will Roberts seek to emulate his predecessor Rehnquist’s hands-off approach (according to one book on the impeachment trial, Rehnquist brought court work and playing cards to pass the long periods of downtime)? Or, will he be more like Chief Justice Chase and take an active role in the Senate trial process—and how will senators react if he does this? With only two prior presidential impeachment trials to work from, there’s no strong norm here. So Roberts could also try to chart a course of his own.”

 

And Chief Justice Roberts role is heavily circumscribed by the inherently political nature. This may be jarring to Americans more accustomed to the Judge of a trial holding the power in a criminal or civil suit. But in the Senate trial, as the holder of the sole power, it is the Senate itself which determines all matters. Even the classic trope of a courtroom TV drama, “OBJECTION!” is subject to the political wills of the Senate.

In a normal court, at least on television the procedures of the trial are set by law and regulation well in advance and a script of an objection may read:

Prosecution: Blah blah.

Defense: I object!

Judge: Overruled!

Defense: Fudge

The objection is settled at that point, and may only be brought up on appeal with a superior court.

But in a Senate Impeachment trial, the Procedure is set by the 51-vote majority immediately prior to the trial. In this vote the Chief Justice may hold the tie-breaking vote normally held by the President of the Senate (VP Pence.)  But the Senate remains the final authority on all matters during the trial, including if they wish to change the rules. A script of objection in a Senate trial might read:

Prosecution: Blah blah.

Defense: I object!

Judge: Overruled!

Senate: Hold that thought…/sneaks-off-into-closed-door-debate…votes.

Senate: Judge Overruled!

Judge: Fudge.

Prosecution: Fudge.

Defense: Woohoo!

 

A Feature Not a Flaw: Fast and Slow Gears

There is an important design feature to note. The duties and authorities to Congress are divided into fast-gear and slow-gear bodies. Those powers most necessary to reflect an emerging popular discontent are afforded to the “fast-gear”. Whereas those powers most necessary to change the ordering of the Federal power are assigned to the “slow-gear.”

The House is the fast-gear of US politics. It is to the House that all funding bills most originate, and to the House that Impeachment must arise. These are checks on Federal power which are made available to a body which must stand before the People, in total, every two years. It is only halfway through a Presidential term and but a third of the way through a Senate term that the People, through the House, can decide to begin reversing course.

But it’s not wise to place the entire government at the whims of what might be a temporary momentum of passions in the People and risk the State itself. This is why the Senate is the “slow-gear” where a third stands for election every 2 years. This means six years pass, including a Presidential election and three House elections, before the entire Senate has stood for reelection. The state-making powers of Congress: confirmation of appointments, approval of treaties, and the Trial portion of an Impeachment that are located in the “slow-gear” Senate.

The slow-gear of the Senate acts as a checking  function on the fast-gear of the House. This is why the House is sometimes referred to as the ‘People’s House’ and President Washington described the Senate as existing to “cool” the House, like a saucer is used to cool hot tea. It’s also why the charge “legislation goes to die in the Senate” is true whether it’s levied by the GOP House against Senator Reid 2011-2015 or by the Democratic House against Senator McConnell from 2019 today.

A Surprise would be a Surprise

Given that the Senate has the sole power, and the Trial is inherently political, and Senator McConnell has all but posted a selfie of himself with the verdict, the only possible surprise is if there is a surprise at all.  But there are four areas where surprises could emerge:

Witnesses

Similar to the Clinton impeachment, the Senate is going to proceed with the beginning of the trial before making any determination on witnesses. During the Clinton impeachment, a complete case was handed to the Senate and they decided after review to only call a few witnesses for minor testimony. There was also only one side being accused of high crimes, President Clinton himself. But because of the White House blockade on participating with the House investigation – many crucial witnesses within the White House, Department of Justice, Department of Defense, Department of State and colleagues of Rudolph Giuliani have never been deposed. John Bolton particularly has been making it awkward for everyone as he teases that he wants to be called to testify on what is likely direct knowledge of the man who unceremoniously fweeted him (fired by tweet.) Also, some Republicans want to use the publicity of the Trial to counter-accuse frontrunner Democratic candidate for President, Joe Biden. The recent television interview by Parnas, an associate of Giuliani, claims to have a trove of documentation evidence proving President Trump’s complicity.  This is the chaos-behind-the-door Senator McConnell is trying to hold close.  Any crack opening it may not result in a change to the final outcome – but could have consequences in the political realm as Americans make judgements against one, or all, of the parties involved if it turns into a fiasco or new damning revelations  are heard.

Chief Justice Roberts

Another surprise may be in the behavior of Chief Justice Roberts himself. Although the Justice’s formal powers are limited, as described above, he may still play an incredible shaping and narrative role depending on how he performs his duties. The Chief Justices are the few individuals who have not been drug through the muck thoroughly on this yet, and as a Bush appointee he’s from the conservative side. His statements, demeanor and any chastising of shennagins performed by Senators could cost them.  The Chief Justice has also had several notable spats with the President who will be observing and likely commenting during the Trial itself. Although the Chief Justice can’t bang his gavel to silence Trump’s Twitter feed, much as he may wish otherwise, there may be moments of high drama where the President and the Chief Justice get into a dispute in live time.

Secret Proceedings

Another surprise might be how much of this is actually ever known by the public. Traditionally much of Impeachment proceedings are secret, including the deliberations of the Senate whenever they want to take a vote. Even during the Clinton Impeachment, the only one to have occurred during the internet age, there wasn’t an ability to carry a device into every proceeding and surreptitiously record, tweet, or post every action. And although there are severe consequences for violating Senate secrecy rules, we’ve already seen instances of key “private” meetings of both Democrats and Republicans being live-streamed effectively. There’s also the political cost of keeping parts, or any, of the Trial proceedings secret.

Secret Ballot

None of these three surprises are likely to change the outcome of the Trial, but may influence the political lens within which it is understood. But there is one ‘surprise’ that could dramatically change events, and that is if the Senate decides to hold a secret ballot on the final vote for conviction.  This isn’t in the current rules, and Senator McConnel doesn’t seem to be interested in it.  There is a theory however that more Republican Senators would vote against President Trump, if they could do so anonymously.  And the number might be enough to be the difference between Conviction and a finding of no conviction. But this is impossible to know. It’s just speculation which Republicans would say one thing and do another, and without a move with accompanying 51-vote support to make the ballots secret, it’s not going to happen.

The Trial is not the Ninth Inning

Without some surprises the most probable result for the Democratic swing at President Trump is ‘Casey at the Bat’ rather than ‘Field of Dreams.’ But as an inherently political process the final score, for both parties, whether in the House or Senate, won’t be tallied until November.

 

Impeachment Resources

InfoMullet Coverage as the Scandal Developed

We’re uploading InfoMullet coverage from original Facebook posts over the weekend. We’re currently through September. Check back for updates over the weekend.

June 13, 2019 A Gift Wrapped Censure Motion

September 20th, 2019 Whistle While you Work

September 23, 2019 WhistleBlower Backgrounder on Biden & Ukraine

September 23, 2019 Missed Opportunities with the WhistleBlower Scandal

September 24th, 2019 Called It – House Moves to Impeach

September 25, 2019 WhistleBlower Backgrounder on Ukraine

September 26, 2019 National WhistleBlower Appreciation Day

September 26, 2019 WhistleBlower Identified – Kinda

October 1, 2019 Boundary & Factor Analysis of WhistleBlower Allegations

October 3, 2019 Analysis in the Age of Trump

October 4, 2019 Evidence of an Impeachable Charge – Abuse of Office

October 6, 2019 Cue the Whistle of Irony

October 9, 2019 He Bravely Ran Away – White House Refuses to Participate in House Inquiry

October 11, 2019 We’re Going to Sonderland!

October 17, 2019 Against their Interests

October 17,2019 Friendly Fired

October 19, 2019 The Emperor has no Clothes and the White House has no Walls

October 22, 2019 Another Break in the Wall

October 25, 2019 House Impeachment Proceedings Ruled Legitimate by Courts

October 28, 2019 An Officer Takes the Stand

October 29, 2019 Threading a Mustache through the Eye of a Needle

November 3, 2019 Prior to Whistle Blower CIA raised concerns over Ukraine

November 5th, 2019 Sondland’s European Vacation

November 16, 2019 Explaining Closed Door Hearings with Williams Testimony

November 23, 2019 Impeachable Charges Review

 

Credible Analysis of Contentious Topics

We’re posting useful backgrounders on the contentious topics that have, or may, arise during this mess. If you have sources you enjoy, recommend them on the InfoMullet Facebook page!

Real Law Review: Ukraine Whistleblower, Transcript, Complaint & Impeachment (LegalEagle)

Real Law Review: Is the Whistleblower Complaint HEARSAY? (LegalEagle)

Real Law Review: Quid Pro Quo? Taylor and Vindman testify (LegalEagle)

Real Law Review: Lawyer Examines Impeachment Defenses (LegalEagle)

Real Law Review: Impeached for THAT? Comparing the Trump Articles of Impeachment (LegalEagle)

Real Law Review: What Will the Senate Impeachment Trial Look Like? & Will It Happen? (LegalEagle)

 

Archive of House Investigation

We are adding links throughout the weekend for useful summaries, overviews, and sources for full transcripts for the House Impeachment investigation. Again if you have a source you’re using and don’t see it here, recommend it on the InfoMullet Facebook page.

Summaries of each major witness testimony with links to full depositions (over 4,000 pages!)

Ongoing Coverage & Analysis of House Impeachment & Senate Trial (LawFareBlog)