Posted on February 3, 2020
National Review: Lamar Alexander Gets It Right
By Editorial Board
February 3, 2020
The impeachment saga is drawing to a close.
The Senate is prepared to acquit without hearing from witnesses, after Lamar Alexander, a swing vote, came out against calling them late last week.
In his statement, Alexander expressed the correct view on the underlying matter — one we have been urging Republicans to publicly adopt since impeachment first got off the ground.
The Tennessee Republican said that it has been amply established that Donald Trump used a hold on defense aid to pressure the Ukrainians to undertake the investigations that he wanted, and that this was, as he mildly put it, inappropriate. But this misconduct, he argued, doesn’t rise to the level of the high crimes and misdemeanors required to remove a president from office. If the Senate were to do so anyway, it would further envenom the nation’s partisan divide. Besides, there is a national election looming where the public itself can decide whether Trump should stay in office or not.
Since we already know the core of what happened, Alexander explained, there was no need to hear from additional witnesses in the Senate trial. (On this theory of the case, the Senate is in effect acting like an appellate court, rendering a judgment on a threshold question of law, rather than a trial court sifting through the facts.)
In the wake of Alexander’s statement, other Senate Republicans endorsed his line of analysis, which, it must be noted, is superior to the defense mounted by the White House legal team over the last two weeks.
Because the president refused to acknowledge what he did, his team implausibly denied there was a quid pro quo and argued that one hadn’t been proven since there were no first-hand witnesses. Obviously, this position was at odds with the defense team’s insistence that no further witnesses be called. It also raised the natural question why, if people with firsthand knowledge had exculpatory information, the White House wasn’t eager to let them come forward.
Additionally, the White House maintained that a president can’t be impeached unless he’s guilty of a criminal violation. This is an erroneous interpretation of the Constitution, although it is true that past presidential impeachments have involved violations of the law and that such violations provide a bright line that’s missing if the charge is only abuse of power. Alan Dershowitz argued this position most aggressively for the president’s defense, and made it even worse by briefly seeming — before walking it back — to argue that anything a president does to advance his reelection is properly motivated.
As for the House managers, they were at their strongest making the case that the president had done what they alleged, and their weakest arguing that he should be removed for it.
They tried to inflate the gravity of Trump’s offense by repeatedly calling it “election interference.” At the end of the day, though, what the Trump team sought was not an investigation of Joe or Hunter Biden, but a statement by the Ukrainians that they’d look into Burisma, the Ukrainian company on whose board Hunter Biden sat. The firm has a shady past and has been investigated before. Trump should have steered clear of anything involving his potential opponent, but it’s not obvious that a new Burisma probe would have had any effect on 2020 (the vulnerability for Biden is Hunter’s payments, which are already on the record) and, of course, the announcement of an investigation never happened.
They said that Trump’s seeking this Ukrainian interference was in keeping with his welcoming of Russian meddling, implying that Trump had been found guilty of colluding with the Russians in 2016, rather than exonerated. (Part of the complaint here is that Trump made use of material that emerged via Russian hacking. Then again, so did Bernie Sanders in his fight with the DNC.)
They alleged that the brief delay in aid to Ukraine somehow endangered our national security, a risible claim given that the Ukrainians got the aid and that Trump has provided Ukraine lethal assistance that President Obama never did.
They accused the president of obstruction of justice for asserting privileges invoked by other presidents and not producing documents and witnesses on the House’s accelerated timeline, a charge that White House lawyer Patrick Philbin effectively dismantled.
Finally, they insisted that a trial without witnesses wouldn’t be fair, despite making no real effort to secure the new witnesses during their own rushed impeachment inquiry.
As for the Senate trial being a “cover up,” as Democrats now insist it is, there is nothing stopping the House — or the Senate, for that matter — from seeking testimony from John Bolton and others outside the confines of the trial. This would be entirely reasonable congressional oversight (despite the White House arguing otherwise) and there is still a public interest in knowing as much as possible about this matter, even if Trump isn’t going to be removed.
If nothing else, the last two weeks have been a forum for extensive discussion about the respective powers of the two elected branches of government. We are sympathetic to the view that the executive branch has too much power. If Congress seeks to remedy this imbalance by impeaching and removing presidents, though, it will be sorely disappointed, since the two-thirds requirement for a Senate conviction is an almost insuperable obstacle to removal (as both House Republicans and House Democrats have experienced the last 20 years).
It would be better if Congress undertook a more systematic effort to take back prerogatives it has ceded to the executive branch and the courts. But we aren’t optimistic on this score, since the same Democrats who claim to be sticklers about congressional power on the Ukraine matter won’t say a discouraging word about Elizabeth Warren’s and Bernie Sanders’s promised adventures in unilateral rule as president.
At the end of the day, Nancy Pelosi impeached knowing that the Senate wouldn’t convict, and so here we are — with nine months to go until voters get to make their judgment: not just about Ukraine, but about the last four years and Trump’s eventual opponent.