To this point, I’ve hesitated to throw my hat in the ring with all of this impeachment mess for one simple reason. No matter how I address the misconceptions about the process, what the responsibilities of the House and the Senate are, tribalism will reign supreme and no amount of reasoned writing is going to change people’s minds. This refusal to engage in conversation without bias is single worst consequence of the Trump presidency to date; the complete unwillingness of people, on either side, to be reasonable about anything regarding President Trump has left a scar that will take a long time to heal. That is the tragedy of the last three plus years.
John Locke, the great 17th century philosopher, and the man whom Thomas Jefferson paraphrased liberally while writing the Declaration of Independence stated that because people are reasonable, they should have the ability to create their own government rather than be lorded over by a monarch. He fostered many other ideas that found their way into both the Constitution and the Declaration of Independence, but what I want to focus on is the reasonable part.
As I’ve stated on more than one occasion, my study is in a manner as non-biased as I can be for to truly analyze anything, one must leave said bias at the door; it is an unwelcome guest. So, what I am going to write here is as Dershowitzian as I can be; non-biased, and analytical.
Assuming that all reading this are reasonable, then I submit the following:
1. Quid Pro Quo is NOT an illegal act – unless: Presidents and governments throughout the world function on quid pro quo every day. “You do this, and we’ll pledge to do that” or “if you don’t do that, we won’t do that.” It truly is that simple. To impeach a president, any president, on the basis of quid pro quo is not constitutionally valid, therefore it is not a crime. The evidence presented by the House certainly indicated a quid pro quo, but it did not rise to the level of an impeachable offense. Smelly? Sure. The President’s phone call was not “perfect”, but there was no clear cut “I’m withholding aid unless you find dirt on my political opponent for 2020.” THAT is illegal, but what actually happened as recorded and testified to by House witnesses (there were 18 in all that testified before the House impeachment committee) is not impeachable for it was made rather clear that President Trump was speaking about corruption in the 2016 election, as well as the mythical server Hillary Clinton was supposed to have stored in Ukraine. Any president has within their power the ability to investigate corruption where they believe it to be. In this case, a misguided attempt by President Trump to investigate 2016 election corruption resulted in the phone call which was the basis for this entire process. Still, however ill-advised the call was, there was no crime.
It should be recalled that President Obama also engaged in a quid pro quo, as was shown by the White House defense team when they played a portion of the Obama tape wherein he specifically said to Dimitry Medvedev on an open mike that he’d have “more flexibility after the election” to deal with Putin. NOT an illegal act, but certainly questionable. Finally, Mr. Biden did the same thing when he said that the United States government would withhold aid unless a Ukrainian prosecutor was removed…and he was. Mr. Biden bragged about that fact. THAT was quid pro quo as well, and NOT illegal. Mr. Trump’s actions did not rise to the level of either example, and as a result, no crime, therefore, no impeachment should have taken place.
2. The House declined to call John Bolton when they had the chance. As the House of Representatives was making its case, they called some eighteen witnesses to testify as to what they thought they saw or heard regarding acts by the President and the conversation he had about Ukraine. The idea that there were no witnesses is patently absurd, there were eighteen. Further, the White House defense team was BLOCKED from cross-examination of any witness. That alone indicates a procedural breakdown in applying the law and violates one of our most fundamental ideals; due process. No one, not even Mr. Trump, should be denied an opportunity to face his accusers, which was the case in the House. Can any impartial individual reading this argue to the contrary? Everyone accused of a crime should have the opportunity to cross-examine, but the White House was not given that opportunity. That is the very definition of bias. But the real problem was that the House wanted to rush this through to impeach before Christmas, which they did. When given the option to subpoena Bolton, it was the House that withdrew the subpoena saying that they didn’t need his testimony. The White House invoked executive privilege and blocked him from testifying, but the House, if they were patient, could have taken it to court, dismantled the White House block and had Bolton testify. They didn’t as they felt (and said more than once) they had an open and shut case and didn’t need him or anyone else. The fact is that they rushed it…and did not allow the case to mature properly in their zeal (whether justified or not) to remove the president. That was a tactical error, and one that falls squarely on their (the House’s) shoulders.
3. There is no such thing as obstruction of Congress. This is the easiest charge to dismiss. It simply doesn’t exist. In fact, I would go so far as to assert that the very foundation of our Constitutional Republic is that each branch is supposed to obstruct that which they don’t believe serves the best interests of the nation. In this case, there was no obstruction of Congress as that is simply not a “thing”.
4. Dershowitz is right; this entire thing was largely unconstitutional from the get-go. The entire reason that the framers put impeachment in the Constitution was for high crimes and misdemeanors. No matter how anyone slices it, the existence of the Republic (we are NOT a democracy, but rather a Democratic Republic…big difference) was not at stake as there simply was no crime committed. The idea of impeachment was never to be a political one, yet by all indications, this one was. Not one member of the House, not one, voted to not impeach. Further, not one Republican in the House voted for impeachment. Impeachment was supposed to be bi-partisan…this was not. I would cite that instance alone as symptomatic of a much deeper problem within the halls of Congress and our Republic.
Since no law was broken, no bribery charge levied (as Speaker Pelosi indicated there would be but it never materialized), again, there was no crime committed. Since there was no crime, this impeachment should never have occurred, yet it did. Whether you like President Trump or don’t, the facts must reign supreme, and bias must be left at the door. If you do that, even for a moment, you can’t help but see that there simply is nothing to impeach over. By the way, I’ve long felt that the impeachment against President Clinton was rather weak, but the key difference there was that he did commit a crime, the crime of perjury. That was the basis for his trial. In this case, nothing like that occurred, although one could make the argument that stupid statements emanated from the White House, and I believe most would agree.
5. It’s the House’s job to make the case, find the evidence, and call the witnesses, not the Senate. Their function is to take what the House discovered and analyze it. They (the Senate) adjudicate the findings of the House. This is the sticky wicket that most simply don’t understand or maybe don’t want to understand. In Federalist #65, Alexander Hamilton argued for the Senate to be the body that would decide the guilt of an impeached government official. What’s rather interesting is that Hamilton recognized the difficulty of the entire process when he stated, “In many cases it will connect itself with the pr-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other…” He knew that this was going to be an exercise in partiality on both sides of the aisle. So, let’s put the idea of impartiality away. The House, dominated by Democrats, were going to find some reason to impeach Mr. Trump. Some members said so hours after his inauguration. They felt they had something with the Mueller report, that was a no-go (I read the entire thing – all 400+ pages of it. Astonishingly stupid and pointless regarding Russian collusion). The Senate, holding a slim majority, but needing 2/3 of the members to find the president guilty, were not going to do so, unless there was substantial evidence, hard evidence that there was an instance of a high crime committed. There wasn’t. Even if Mr. Bolton would have testified that there was a quid pro quo, and for the sake of argument, let’s say there was, that, in itself is NOT an impeachable offense as it does not rise to the level of a high crime on any level. If that were the case, every president would be subject to impeachment. Stupid comments on a phone call? Maybe, but not a high crime. As an aside, Mr. Bolton’s aid testified and that testimony seemed to placate the House which was another reason that they took back the subpoena request for Mr. Bolton.
6. It is for the voters to decide, not the House or the Senate to overturn an election. In a few short months the population of the United States, as defined by the United States Constitution, will have the opportunity to have their voices heard via an election. It is at that time that We The People will have a say as to whether or not Mr. Trump violated his oath of office. We are the ultimate adjudicators of this case, and we will have our say come this November. Neither the Supreme Court nor the United States Congress should have the right to overturn an election by the American people. To continue to rely on impeachment as a method to dispose of a president that one party or the other does not like, for any reason, is to set a dangerous precedent, one that would overturn 231 years (since the ratification of the Constitution in 1789) of our Republic’s creation. This is not what the framers had in mind, and one that they would reject out of hand. In the end, WE are the source of all political power, by the power of our votes, and no body, be they the Senate, House of Representatives or the Supreme Court, should have the right to overturn the will of the American people.
7. Final word. There is no question that the Trump presidency has been controversial for many, most especially democrats. I’m sure that many republicans felt the same way when Mr. Obama was elected, twice, by the same populace. However, I would challenge those reading this again to put their hyper-partisanship away for a moment and think about this:
1. Do we really want to live in a nation that is so partisan that we cannot admit any leader, be they democrat or republican is doing a good job, or at least some positive things?
2. Have we become so driven by our need for tribalism that we’ve lost the ability to debate without prejudice? The very thought of debate assumes that one is willing to have their mind changed by a preponderance of the evidence presented. To not accept this notion of debate is to then reject any idea no matter how good it may be as it did not emanate from your “side”. Debate then becomes defend. Defend then becomes argue, and argue becomes an exercise in futility, which then reinforces tribalism. We are at that stage, I believe.
3. President Trump may rub some people the wrong way, and his personal life may be, interesting, but since when does morality mean one cannot lead? If personal morality is going to be a litmus test, then FDR, Eisenhower, JFK, and Clinton must all have their “great president” cards revoked. All had affairs, and scandals, and all are considered great presidents. Great people, men and women in history, have played loose with the morality card, so let us not go down that road and open that door. We may not like what we find inside.
The sad part of all this is that by writing this piece there are going to be people that I’ve called friends for a long time that will disregard my attempt to be non-partisan here. They will chafe at my conclusions, and eventually decide not to be “friends” with me. Tribalism at its finest.
Some will say that there is no way this was a non-partisan article as it supports the Senate conclusion not to call any more witnesses. Mr. Dershowitz, one of the most decorated law professionals in America today is facing the same criticism, and he’s even a democrat. Well, I can’t help any of that, but what I can do is present as clean an analysis as I can, in as non-partisan a way as I can, so I have. Take it as you will.