On Wednesday, the U.S. Senate will vote on whether or not to convict President Donald Trump in the impeachment trial. Last week, Senate Republicans voted against calling new witnesses in the trial, saying they had enough information to rule on the merits of the House Democrats’ charges. Democrats had fought for more witnesses, angling to prolong the trial after the House of Representatives rushed the initial vote on articles of impeachment. The vote against new witnesses marked a victory for Trump, who wants to put the process behind him. In fact, the impeachment might bolster Trump’s re-election.
From the beginning, it was extremely unlikely the Senate would vote to remove Trump from office. Yet Democrats made five monumental errors that essentially guaranteed that outcome.
1. A bad case
House Democrats made a tremendous tactical error in seizing on Trump’s call with Ukraine President Volodymyr Zelensky for the impeachment push. Following the years-long investigation into supposed collusion between the Trump campaign and Russia — and the Mueller report’s finding that there was no outright collusion — Democrats seized on a similar argument for impeachment: Trump cheated in the 2020 election by encouraging a foreign power (Ukraine) to investigate a potential rival (Joe Biden), holding up Congressionally-allocated military funding from Ukraine in a quid pro quo.
This case was murky from the beginning and the Democrats’ investigation only made it murkier. Ukrainian officials said there was “no pressure” from Trump. The president could have had a different motive in holding back the funding temporarily. The kind of investigation the president wanted concerns Burisma, a notoriously corrupt Ukraine gas company that hired Joe Biden’s son Hunter to the board despite Hunter’s lack of experience. Joe Biden actually did pressure Ukraine to fire a prosecutor who was investigating Burisma — and the investigation was dropped after the prosecutor was fired.
Not only does the Ukraine issue echo the Trump-Russia hysteria, but it also proves rather confusing for Americans to follow. If Democrats were intent on impeaching Trump, they should have waited for a worse and more clear-cut scandal — and they should have avoided Ukraine since it highlighted the skeletons in Biden’s closet, weakening their own candidate.
Some Republicans have argued that Trump’s Ukraine actions are a scandal, but not one that rises to the level of impeachment. If Democrats had sought a vote to censure the president, they may have convinced many Republicans to jump on board. Instead, they sought the political death penalty for what might have been a minor misdemeanor.
2. Due process
After seizing on an issue Americans would struggle to understand, Democrats denied the president key facets of due process. Many have argued that the Constitution does not extend due process rights to a president during impeachment, but if impeachment is a political process, noting the denial of due process rights is a legitimate political argument against the Democrats’ impeachment process. Democrats may not have violated the law, but they did show Trump a disgusting disrespect.
Patrick Philbin, deputy counsel to the president, laid out three key due process violations. House Speaker Nancy Pelosi announced an impeachment inquiry a month before finally having a vote to open a formal inquiry. Democrats did not allow Trump’s legal staff to present evidence or present or cross-examine witnesses. Finally, the impeachment push began with a “whistleblower” report filed by a CIA operative who had coordinated with the office of Rep. Adam Schiff (D-Calif.). When the president’s legal team demanded this accuser show himself, Democrats insisted on protecting his anonymity.
As Philbin noted, the “whistleblower” could himself be implicated in the Biden-Burisma caper — but America does not know, because Schiff insists on keeping his identity secret.
Pelosi and her caucus rushed the impeachment vote. When Congress subpoenaed witnesses and the administration suggested it would challenge those subpoenas in court, Congress dropped the subpoenas and accused Trump of “obstruction of Congress.” The executive branch routinely challenges Congress’s demands for documents and witnesses on the grounds of executive privilege, so this rush was particularly noteworthy.
Pelosi even rushed to begin the process. Only 11 days passed from the whistleblower complaint to Pelosi’s announcement of an impeachment inquiry. By contrast, the Nixon impeachment inquiry began 599 days after the Watergate break-in, while the Clinton impeachment inquiry only came 260 days after the first news report of his affair with Monica Lewinsky.
The House voted to impeach Trump on December 18, after Pelosi and other Democrats argued Trump was an imminent threat to the 2020 election so they could not delay. Yet after all this rushing, Pelosi refused to hand the articles of impeachment over to the Senate, insisting that the trial would not be fair.
This hypocrisy made the Democrats’ rush to impeachment a farce.
4. Impeached over executive privilege
Law professor Jonathan Turley, one of the Democrats’ key witnesses in the impeachment inquiry, later warned Democrats against impeaching Trump for threatening to go to the courts on the issue of executive privilege. “I can’t emphasize this enough…if you impeach a president — if you make a high crime and misdemeanor of going to the courts, it is an abuse of power. It’s your abuse of power. You’re doing precisely what you’re criticizing the president for doing,” Turley said.
The second article of impeachment, “obstruction of Congress,” did exactly that.
Jay Sekulow, a lawyer who represented the president in the impeachment trial, condemned the Democrats’ hypocrisy by quoting Schiff, Rep. Jerry Nadler (D-N.Y.), and Pelosi on executive privilege.
“On June 28, 2012, Eric Holder became the first attorney general to be held in both civil and criminal contempt. Why? Because President Obama asserted executive privilege,” Sekulow noted.
Citing a 2012 op-ed Schiff wrote in Politico, Trump’s lawyer said, “With respect to the Holder contempt proceedings, Mr. [impeachment] Manager Schiff wrote, ‘the White House assertion [of privilege] is backed by decades of precedent that has recognized the need for the president and his senior advisors to receive candid advice and information from their top aides.”
“Indeed that’s correct, not because manager Schiff said it, but because the Constitution requires it,” Sekulow added. “Mr. Manager Nadler said that the effort to hold Attorney General Eric Holder in contempt for refusing to comply with various subpoenas was ‘politically motivated,’ and Speaker Pelosi called the Holder matter ‘little more than a witch hunt.'”
5. Partisanship and business as usual
Between May 2018 and March 2019, Pelosi repeatedly insisted that impeachment must be bipartisan.
“I’m not for impeachment. This is news. I’m going to give you some news right now because I haven’t said this to any press person before,” Pelosi told The Washington Post in March 2019. “But since you asked, and I’ve been thinking about this: Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”
Yet not a single Republican voted to impeach Trump or to open the impeachment inquiry. In fact, some Democrats voted against both measures.
While Pelosi was leading this partisan effort to oust Donald Trump from office, she also acted as though Congress was trying to do business as usual. She brought up the U.S.-Mexico-Canada (USMCA) trade agreement and invited Trump — the president she said needed to be booted from office — to deliver the State of the Union this coming Tuesday.
Democrats wanted to impeach Trump ever since he got elected, and the Senate was always likely to acquit the president. Yet these five key missteps helped the Democrats lose their case and may boost Trump’s re-election in November.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.