Conventional wisdom suggests the Democrats will fold on delaying impeachment. If they do, it would be good for the Republic. But since when has doing what’s good for the country explained Democrat behavior? Since when has betrayal of the Constitution stopped the Democrats? It didn’t before the Civil War or during the Depression.
After all, House Speaker Nancy Pelosi (D-Calif.) has a strong if risky hand to play. The surprise tactic does reveal the extent to which their leadership appreciates the strength of the administrative state their predecessors created and which they are sworn to expand. That oath, one whose bonds are mighty in budgets and bureaucracy creation, is far more determinative than the formal one to the Constitution they piously intone. Their current worshipful invocation of The Federalist is sickening in its hypocrisy.
Waiting to transfer the articles of impeachment on abuse of power and “obstruction of Congress” until the Democrats can be assured of a “fair trial” in the Senate means they must accept the all-but-inevitable verdict of their rejection. But before that humiliating moment arrives they can inflict terrible damage on President Trump and his Republican supporters in the Senate. The Democrats will have to be destructive in order to justify their foolish drone strategy.
That damage goes well beyond what commentators have already cited: new witnesses, mid-level bureaucrats from the Justice Department, State Department, Department of Defense, ICE, and civil rights enforcement agencies, all the way from the White House down to local agricultural inspectors. The impeachment managers could supplement their charges as examples of hidden abuses of power or obstructions of Congress.
The drone strategy for withholding the articles has been attributed to Harvard law professor Lawrence Tribe. But I’d bet that leading Democratic politicians came up with it on their own and got Tribe to sign off on a moderate version to give the academic respectability they feed on.
There is nothing moderate about this. The immoderate, enhanced, and withheld charges function as a hovering drone over Donald Trump and the Senate through 2021. This deadly device can hurl down missiles at any moment it is convenient for Democrats to strike.
Moreover, this drone beats the Energizer Bunny. It may keep going past the 2020 election and even into the next Congress. (President Clinton was impeached by the House in December 1998 during the 105th Congress and was tried and acquitted by the Senate in February 1999 during the 106th Congress.) With Republicans in charge of both houses of both Congresses back then, that was an easy decision for them.
With today’s split in party dominance, it is hard enough to get Democrats something they’d be willing to call a “fair trial”—which means one that will convict President Trump. But a lame-duck session might yield different results, and one that began in January 2021, with a huge Democratic increase in senators could be another question altogether, although even then unlikely to make the requisite two-thirds vote to convict.
The question then becomes would an enlightened public tolerate the holding over of impeachment charges by more than a year, from one Congress to another, with a change in party majorities? An ordinary bill could not be held over, of course, but it’s not completely clear that an impeachment charge has the same status as ordinary legislation. (Of course it’s also more than theoretically possible for a new, Republican House majority to emerge in 2020, while losing its Senate majority. Could the new alignment in the House withdraw the impeachment charges?)
The public might even buy the argument that the Senate should not be obstructed from conducting a trial, despite what the House claims about its charges.
Is this what the elections of 2016 were all about? To inflict chaos in the constitutional system?
Here we should remember the late Justice Antonin Scalia’s wisdom in his dissent in the independent counsel case, Morrison v. Olsen (1988). Scalia recognized the separation of powers as at the heart of the U.S. Constitution and its concept of the rule of law: the Massachusetts Constitution of 1780, the basis for American constitutionalism generally, listed the separation of powers as among the fundamental rights of citizens, as important as any First Amendment right.
We can apply what Scalia said about independent counsels to drone impeachment: “If to describe this case is not to decide it, the concept of a government of separate and coordinate powers no longer has meaning.” Scalia went on:
What would be the reaction if, in an area not covered by this [independent counsel] statute, the Justice Department posted a public notice inviting applicants to assist in an investigation and possible prosecution of a certain prominent person? Does this not invite what Justice Jackson described as “picking the man and then searching the law books, or putting investigators to work, to pin some offense on him”? To be sure, the investigation must relate to the area of criminal offense specified by the life-tenured judges. But that has often been (and nothing prevents it from being) very broad . . . .
Scalia’s separation of powers principles would likely prevail in today’s Court, should it somehow decide to take such a political mess of a case. The drone strategy will not fly, given the ammunition that can be hurled against it and the administrative state support for it. The forthcoming report by U.S. Attorney John Durham on Justice Department and FBI abuses of power against Trump and associates may well generate support for Trump’s version of his struggles against his bureaucracy.
Thus it is not the tempestuous Trump who threatens the rule of law today but instead the progressives prodding the presumptuous Pelosi. In fact her drone impeachment strategy is a reductio ad absurdum of progressive complaints about constitutional government. She can no more rule America against Trump from her San Francisco district than former Speaker Newt Gingrich could usurp Bill Clinton from the Atlanta suburbs. Congress has frittered away its moral authority.
This becomes even more clear when we reflect that the Left threatened impeachment against anyone who challenged the administrative state—Nixon, Reagan, and now Trump (the Bushes played along with the administrative state too much). On impeachment, both sides seem to realize this when they now appeal to the wisdom of the Founders, who come out winners once again, at least in name.