One of the things often heard about impeachment is that it is essentially a political process. This seeming truth is said with a kind of sleepy sapience, as though only the naïve or the self-deluded would imagine anything otherwise. So, this vein of argument usually goes, if the Democrats fail at the politics of the impeachment of Donald Trump—if they don’t produce enough sexy sound bites, or if, despite the evidence, they can’t persuade Republicans of Trump’s guilt in trying to use the State Department as a shakedown office for his reelection campaign—then they will have failed utterly, and the blame will lie squarely with them.
Certainly, there’s a sense in which impeachment is a political process, in the same sense that any legal prosecution is partly political. Judges and juries are people with political opinions, and courtrooms are filled with people who share the sentiments and the prejudices of the moment. A prosecutor’s decision to undertake a case is always made with an eye to whether, given a typical jury and the evidence at hand, a conviction can be obtained. The evidence may be good but not good enough to convict. Or the evidence may be good enough but, given the public passions at the time and place of the trial, may not result in a conviction.
In this limited but universal sense, impeachment is political; it should be undertaken with an eye to the likely consequence of the jury’s decision. This is why Nancy Pelosi, a smart politician, was for so long dubious about the merits of launching an impeachment inquiry against Trump. There appeared to be no point in attempting to bring him to justice if justice would not be done.
But there’s another, more urgent sense in which impeachment exists as an alternative to politics. Recall that both modern-day impeachments in this country were launched against Presidents who had won overwhelming reëlection victories. Impeachment in this sense is anti-politics; it presumes that there exists a constitutional principle that overrules the politics of popularity. The point of an impeachment is not to do the popular or the poll-tested thing but to have the courage to do an unpopular thing, because what is at stake is a larger, even existential matter. When the Republicans impeached Bill Clinton—Senator Lindsey Graham, who was then a member of the House of Representatives, among them—they certainly at least acted as if they believed this to be true. (Though they, and he, are apparently not yet ready to admit that lying under oath in order to cover up an affair seems something less of a high crime than running a shakedown racket in a dependent foreign country.)
When the Founders were writing the Constitution, an impeachment that seems to have loomed large in their minds was that of Warren Hastings, the first British Governor General of India. In a trial that ran, intermittently, from 1788 to 1795, in the British Parliament, Hastings was charged with a series of high crimes and misdemeanors that included corruption and what we would now call war crimes. Edmund Burke, a Whig member of the House of Commons—who was once a hero of the American right, though not usually because he was passionate about the well-being of colonized people against their colonizers—led the fight against him.
It was an impeachment that was, as Burke knew by the time it came before the House of Lords, doomed; in the end, just six peers found Hastings guilty, and on only some of the charges. Nonetheless, Burke pursued it, because the principle involved seemed to him so clear. Hastings took for a major aspect of his defense what, essentially, Attorney General William Barr has imagined for Trump’s defense. In Hastings’s case, this meant that, as the magistrate in power, he had a right to act without impediment. Executive power, being his, was his to use. Hastings claimed that right by appointment, although Trump does so by election. But both men claim arbitrary power to act without any system of law or procedure to constrain them.
This, for Burke, was a mortal sin in government. No one could act by “whim” or desire outside a framework of fixed and transparent law. “Law and arbitrary power are in eternal enmity,” he told the Lords. “Name me a magistrate, and I will name property; name me power, and I will name protection. It is a contradiction in terms, it is blasphemy in religion, it is wickedness in politics, to say that any man can have arbitrary power. In every patent of office, the [idea of] duty is included.” All power is bound by duty; no magistrate—or President—can act badly and then just say that they do so by right. Impeachment is not a substitute for politics; it appeals to the principles of law and duty that make politics possible.
It is the unprecedented gravity of our moment, still perhaps insufficiently felt, that makes this confrontation essential, whatever the political consequences. Pelosi, too, now acknowledges this fact. As she told The New Yorker in September, about Trump, “He has given us no choice. Politics has nothing to do with impeachment, in my view.” The political consequences of impeachment are no longer the primary or even the secondary issue at stake; more important is the survival of the principle of the rule of law against the unashamed assertion of arbitrary power. Postponing a reckoning until the next election implies that what is at issue in Trump’s attempted extorting of the Ukrainian government are a series of policy choices, which voters may or may not endorse. According to this reasoning, if Watergate had happened during Nixon’s first term, and he had been reëlected anyway, attempted political burglary and obstruction of justice would have become acceptable practice. By invoking law against arbitrary power, the Democrats may not “win,” and who knows what the political outcome will be, but, as Pelosi says, there is no longer a choice. Law and arbitrary power remain in eternal enmity. You pick your side.
On July 29, 1986, at the King David Hotel in Jerusalem, Vice-President George H. W. Bush met with Amiram Nir, a counterterrorism adviser to the Israeli government. Nir briefed Bush in detail about the latest doings in a shadow foreign-policy scheme authorized by President Ronald Reagan. With Israel’s help, the United States had secretly sent arms to Iran, in the expectation that American hostages held by Iranian proxies in Lebanon would be released. Reagan had pledged never to negotiate with terrorists, yet Bush had endorsed the operation and, according to a retired Air Force general who was involved in it, was “very attentive, very interested” in Nir’s update. That November, news broke about what became known as the Iran-Contra scandal, which eventually led to the indictments of fourteen Administration officials. Early on, Bush spoke about his role in a manner that was “at best misleading and at worst a lie,” in the judgment of Jon Meacham, his authorized biographer. Secretary of State George Shultz remarked privately that Bush was getting drawn into a “web of lies. Blows his integrity. He’s finished, then.”
In the unravelling of White House malfeasance, there comes a time when the bonds of omertà dissolve and the reckonings of high-level conspirators begin. In the case of Donald Trump’s attempt to bully Ukraine into investigating Democrats for his political gain, that juncture seemed to arrive last week, with the testimony of Gordon Sondland, Trump’s Ambassador to the European Union. Sondland had earlier given a closed-door deposition to the House Intelligence Committee, which is conducting the impeachment inquiry into Trump. Last week, in public, he set out to clarify the “bigger picture” on Ukraine. He explained, “We followed the President’s orders” while carrying out a wide-ranging effort to strong-arm Ukraine’s President, Volodymyr Zelensky, into aiding Trump’s reëlection. Was there a quid pro quo? “The answer is yes,” Sondland declared. His remarks were replete with such lines for the ages. One in particular seemed certain to jolt Vice-President Mike Pence and Secretary of State Mike Pompeo: “Everyone was in the loop.”
Pence and Pompeo have sought to evade accountability in the Ukraine affair. Pompeo is reportedly considering a Senate run in Kansas next year; both men are seen as eventual contenders for a Republican Presidential nomination. Since September, as sundry rats on Trump’s foundering ship of state have scurried for dry ground, Pompeo and Pence have addressed the Ukraine matter tersely, protected in part by White House stonewalling of House subpoenas for documents and testimony. Sondland’s appearance has made their attempts at political finesse considerably more difficult.
Sondland is a Trump-lite figure who made a fortune in hotels and donated a million dollars to Trump’s inaugural committee before the President appointed him to the ambassadorship. In that role, he joined the Administration’s attempt, earlier this year, to persuade Zelensky to announce investigations into former Vice-President Joe Biden and his son, Hunter, and also into supposed coöperation between the Democrats and Ukraine during the 2016 campaign. Hunter Biden served on the board of Burisma, a Ukrainian gas company, when his father was Vice-President; both Bidens deny any wrongdoing. Fiona Hill, who, until earlier this year, served as the Trump Administration’s top N.S.C. expert on Russia, forcefully testified on Thursday that claims of Ukrainian electoral interference are a “fictional narrative.”
To undermine the Democrats, Trump asked Sondland to work with his personal lawyer, Rudy Giuliani, and Sondland duly attended meetings with Zelensky, while coördinating with the U.S. Embassy in Kyiv and the White House. Throughout, his boss at the State Department, Pompeo, “knew what we were doing and why,” Sonderland testified. It was already clear that, as the campaign to pressure Ukraine intensified, Pompeo had failed to stand by the U.S. Ambassador there, Marie Yovanovitch, whom Trump fired in May. (Pompeo has said that she was not fired for “a nefarious purpose.”) Sondland provided new evidence—excerpts from four e-mails that he wrote to Pompeo and others between July and September—which showed that he kept Pompeo updated on the back-channel operation. Beginning in July, the Administration withheld hundreds of millions of dollars in congressionally approved military aid to Ukraine. Several diplomats and N.S.C. officials have testified in the inquiry that the suspension was designed to coerce Zelensky; Sondland’s e-mail excerpts suggest that Pompeo may have been briefed on this part of the pressure campaign. (A State Department spokesperson said that it was “flat-out false” to suggest that Sondland had told Pompeo that Trump had linked the aid to investigations.)
Sondland also testified about Pence’s role—in particular, about a meeting that he and Pence had with Zelensky on September 1st, in Warsaw. At the time, Pence told reporters that the aid was being held up because of “great concerns” that he and Trump had about “issues of corruption,” but he offered no specifics. Pence had denied publicly that the delay had anything to do with Trump’s reëlection bid. Sondland’s testimony undercuts that assertion; he recalled that he “mentioned” to Pence in Warsaw that he “had concerns that the delay in aid had become tied to the issue of investigations” into Trump’s domestic opponents. Pence’s chief of staff has denied that this conversation took place.
Pence and Pompeo are hardly alone in having forged Faustian bargains with Donald Trump, or in having gambled that they will somehow survive his heedlessness and serial disloyalty. Clever and ambitious politicians do occasionally outlast complicity in Presidential scandals. In late 1986, George Shultz warned George H. W. Bush to stop misleading the public about Iran-Contra before he destroyed his chance to succeed Reagan as President. Bush bristled, but took the advice and lay low; he won the White House in 1988. These are darker times. The Republican Party, because of its capitulation to Trump, is headed for a moral and political accounting. The President’s racketeering scheme in Ukraine is likely to inflict lasting damage on the reputations of all those at high levels of his Administration who have participated or stood by mutely.
Witness by witness, the case for Trump’s impeachment is strengthening. Yet the political equation in Washington remains at a stalemate. If the Democratic-controlled House does impeach the President, the Republican-controlled Senate still looks set to acquit him. The Ukraine dossier—and all that it continues to reveal about Trump’s indifference to the Constitution—seems headed for the voters. A year from now, we’ll know their verdict. ♦
Unfortunately in this trump criminal administration, they believe they can. As trump showed time and again, he couldn’t care less about destroying careers of dedicated government workers.To him, they’re just collateral damage to his nonsensical egocentric whims. He detests ethical governance and ethical employees. He thinks they’re losers for honoring their oaths to the constitution and the American people. But they will be his downfall. John Hanno
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Ezra Klein…We’re all wondering the same thing. John Hanno