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Mitch McConnell Would Sabotage An Impeachment Trial

I’m still undecided on whether or not the Congressional Democrats should initiate impeachment proceedings. There is little doubt in my mind that Trump has committed impeachable acts. Trump was elected in 2016 with the assistance of Russia. The former TV reality star solicited and accepted the help of a foreign adversary to win an election.

After that, Trump did everything he could to obstruct the investigation of his collusion with Russia. But for the fact he is president, Trump would have already been indicted for obstruction of justice. If Trump fails to win a second term, he could be indicted for obstruction of justice after he leaves office. Moreover, special counsel Robert Mueller has referred fourteen investigations of Trump and his various organizations to other offices.

As president, Trump and his family have clearly profited off his presidency. Foreign powers and domestic special interests routinely do business with the Trump hotel in Washington and his Mar-A-Lago club in Florida to curry favor with the orange hued mogul. The Founding Fathers placed the emoluments clause in the Constitution because they feared foreign interference in domestic U.S. politics.

As president, there is no doubt that Trump has abused the power of his office and has pushed the envelope on presidential power. Currently, Trump has defied all Congressional subpoenas aimed at collecting evidence of both his criminality and general incompetence as president. The purported billionaire and his Republican lackeys in Congress are blocking more than twenty Democratic Congressional investigations.

Trump is testing our Constitution like its never been tested before. Our unique separation of powers system was set up under the assumption that there would be no political parties. Once political parties emerged during the Washington Administration, our system has required a certain level of cooperation between the parties in order to function.

Trump’s decision to reject all Congressional subpoenas will sorely stress the Constitution. The only recourse the Democrats have to Trump’s unprecedented refusal to cooperate with investigations is to file suit in the federal courts to compel compliance.

Under the best case scenario, it will take anywhere from one to two years to resolve these disputes. Moreover, the federal courts are being increasingly packed with activist right wing judges selected by the partisan Federalist Society. I wouldn’t be surprised if the five GOP appointees on the Supreme Court gut prior precedents on executive privilege and rule for Trump. This is a very political “conservative” majority.

One possible remedy to Trump’s assault on the Constitution would be for the Democrats in the House to initiate impeachment proceedings. The proceedings during the attempted Clinton impeachment in 1998–99 provide the best template of what to expect.

It all began in the House Judiciary Committee. In 1998, Ken Starr testified in favor of the impeachment recommendation made in his infamous, x-rated report. Constitutional experts testified on both sides as to the merits of impeachment. No actual witnesses who were involved in the relevant events were called to testify.

Once the House Judiciary Committee reported out impeachment on a straight party line vote, the action moved to the House floor. The House held a full debate and then voted to impeach Clinton. This meant the matter was sent over to the Senate for a trial. It is the equivalent of a criminal indictment.

The odd thing about impeachment is that the one hundred senators establish the rules for the trial and act as a jury. What that means is that there are no standard rules and the Senate passes a resolution first laying out trial procedures. “When the Senate decided what the rules were going to be for our trial, they really made them up as they went along,” said Greg Craig, who helped represent Clinton in the 1999 impeachment trial.

What that means is that whether or not the Senate considers a particular piece of evidence comes down to the vote of the one hundred senators. In the Clinton case, the Senate voted 56 to 44 to allow the videotaped depositions of key witnesses. Vernon Jordan, Monica Lewinsky and Sid Blumenthal were the only witnesses who were deposed.

A subsequent straight party line vote rejected a Democratic motion to suppress the videotaped depositions of the witnesses. Moreover, the Senate voted 70 to 30 to allow the videotaped depositions to serve as testimony in lieu of live testimony.

What this means is that in the event of a push for the impeachment of Trump, the House proceedings would consist of the testimony of legal experts in the Judiciary Committee and a series of speeches on the House floor. Quite frankly, it wouldn’t be very compelling.

A Senate trial would be controlled by Mitch McConnell and the Republicans. Any evidence of Trump’s wrongdoing would be excluded and only exculpatory evidence would be allowed. There would be furious debates about the inclusion and exclusion of evidence. (That is assuming that McConnell would even allow a debate.) Once again, the proceedings wouldn’t be very compelling.

I’m undecided about impeachment because I don’t see it as a panacea or silver bullet to Trump’s wrongdoing and incompetence. Our only real recourse is to oust him in 2020. Trump is vulnerable because his approval ratings are stuck in the low 40s. The only way Trump could win would be if a third party candidate were to split up the anti-Trump vote. It’s been reported that Howard Schultz has largely disappeared in the last few weeks and that he may not run for president after all.

The only way to rid our country of Trump is to win in 2020. We just have to do the hard work of getting out the vote. I plan to contribute my time and money next year to the Democratic presidential nominee. United we are strong! United we will win!

I’m a trial lawyer, a Democratic activist and a sports fan.

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