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The Democrats' Impeachment Dilemma

Senate Minority Leader Chuck Schumer (D-N.Y.) at a news conference at the Capitol on March 5, 2019. (AP Photo/J. Scott Applewhite)

So now we’re presented with an impeachment that isn’t really an impeachment until the Empress of America declares it to be, by presenting it to the Senate, which she shan’t do until the Senate establishes rules to her liking, Constitution be damned. I probably should gloat a little bit, since this brings us back to my original prediction that there would be no impeachment — after all, their own “legal scholar” said it isn’t an impeachment until it is transmitted to the Senate.

I notice, however, that the coverage of the question has swung quickly to how Trump’s lawyers are interested in that bit of legal theory.

In any case, I’m not going to bother to gloat, because Nancy Pelosi’s wind may at any moment turn back north-north-west, and it will turn back into an impeachment again.

The Democrats now have a real dilemma: should they risk going to a Senate trial, or hope they can still make political hay out of a pseudo-impeachment they’re afraid to prosecute?

I don’t think this, any of this, is the result of any Hilbert-space-chess infinite-dimensional strategery. It’s primarily driven by the fact that the Democrats have, from the moment they realized Grandma lost, been driven by two primary impulses: revenge and fear. Revenge because they clearly are offended that someone like Trump might have actually won the election and must be punished for the effrontery. (I suspect that’s a major motivation for some of the hardcore NeverTrumpers as well.) Fear because it’s becoming more and more clear the Obama administration was using the FBI, the intelligence community, and illicit outsiders like Perkins Coie and Fusion GPS to accumulate and even manufacture opposition research that was then fed into the intelligence community to justify more intrusive spying.

As Glenn Reynolds supposed some time ago, I think, “The spying-on-Trump thing is worse than we even imagine, and once it was clear Hillary had lost and it would inevitably come out, the Trump/Russia collusion talking point was created as a distraction.”

At some point, probably after the first minutes reading the Mueller report executive summary, they had a Governor LePetomane moment and realized their phony-baloney jobs were actually on the line. The urgency of an impeachment was suddenly critical, the threat level was raised to DEFCON ONE, and Eric Ciaramella the “alleged” Whistleblower was promoted to Defender of the Faith.

There’s a problem with last-minute plans: they tend to be half-baked. First, the “whistleblower” turned out to have a very odd story, and suddenly instead of being Defensor Fidei he had to be demoted to unimportance — it was too clear that he had been in on a conspiracy from the first. The impeachment investigation began to look more and more like a circus act, with a clown-car of testimony that sounded great in opening statements but fell apart on cross-examination. A succession of silly legal theories were proposed: that Trump had violated the law by asking Ukraine to investigate corruption, or at least it was clearly illegal to investigate Democrat corruption when the prima facie example of apparent corruption was the likely Democrat nominee for the 2020 election; that Ukraine provided an illegal in-kind contribution by taking Trump’s phone call; that Trump conditioning aid on Ukraine cooperating with U.S. policy (established by treaty) was bribery.

Finally, it was clear that this wasn’t withstanding the laugh test, and the Head Clown, Adam Schiff, along with Jerry Nadler (D-Nasty Little Men) came up with two Articles of Impeachment:

  1. Trump was abusing his power by pursuing a foreign policy not approved by the clerisy, and risking exposing corruption in the opposing party.
  2. Trump was obstructing Congress by insisting they present actual subpoenas that could be adjudicated.

The Horns of a Dilemma

In traditional rhetoric, someone is on the “horns of a dilemma” when a situation presents two equally unappealing options. Pelosi and the Democrats have been on the horns of a dilemma for a while: their years-long dedication to removing Trump before getting caught in pretty glaringly illegal actions, destroying the (already mythical) “scandal-free” reputation of the Obama administration, and their realization that Mueller’s refutation of “RUSSIA RUSSIA RUSSIA” had destroyed their basic argument for impeachment.

On the other horn, the realization that they’d ended up with Articles of Impeachment that had less and less support among the American public, so much so that were they presented to the Senate, they might be dismissed outright as unconstitutionally vague and not proposing any “high crime” or “misdemeanor” that doesn’t apply to the previous administration at least as strongly. Their Articles of Impeachment are like the Christmas joke present, a big pretty box with pretty wrapping containing a Pink Pearl eraser.

What’s worse, it appears to risk revealing that the Obama administration did commit real high crimes and misdemeanors, of perjury, suborning perjury, violating the FISA protections — and remember, that is now to the point that the FISA court has had to officially take notice. These are real crimes, with real consequences, and real potential jail time.

Rudy Giuliani has already done some brush-back pitches, announcing that he has major evidence of crimes and corruption in Ukraine, Latvia, and elsewhere. The Democrats have got to be thinking that if there were a trial, Giuliani’s potential evidence might be very damaging.

So the Democrats have opted to try to go “between the horns” by presenting a sort of “impeachment lite”: they think they’ll be able to both claim “well, we did impeach Trump. It’s the fault of the Senate and that bastard McConnell that we didn’t go through with it” while at the same time claiming they didn’t impeach Trump so there’s no need of a trial.

It seems clear that the Democrats’ calculation must be that they can’t risk a Senate trial.

Prediction is Hard, Especially About the Future

So then what? Let’s game this out. There are really four options:

  • Trump wins, GOP takes full control of Congress
  • Trump loses, GOP takes the House
  • Trump wins, GOP loses the Senate
  • Trump loses, GOP loses the Senate

Only one of those works out well for the Democrats: Trump loses and the GOP loses control of either chamber. Trump loses and the GOP takes the House, on the other hand, would be catastrophic: a GOP-controlled House would undoubtedly start impeachment proceedings on the same schedule as the Democrats did, 20 minutes after the inauguration.

If Trump wins and the GOP loses the Senate, maybe the Democrats will try to go to trial — but it seems incredible to assume they’ll take 2/3 of the Senate and I doubt there’ll be much of a spirit of bipartisanship. Conclusion: more chaos.

But considering the current polling at least, the opinion of the Congress is pretty damn low. What are the chances the Democrats lose the House? What are the canes they lose the House after a laughable trial? And what are the chances they see some major party figures defending themselves, or at least unindicted co-conspirators, in high-profile criminal trials?

I think the Democrats have put themselves in a very hard place.