Monthly Archives: October 2019

Impeachment and the Supreme Court

As the House of Representatives’ Impeachment Inquiry rolls along, it continuously runs into non-cooperation from the Trump Administration.  Dems could chose to ignore this but if they did they would deprive the investigation of potentially vital information.  On the other hand, fighting this non-cooperation means going through the legal system — and likely appearing before the Supreme court — and that takes time.  The longer the inquiry takes, the more likely that the public will lose interest and the more likely that support for impeachment will diminish.  The House Democratic leadership is engaged in a balancing act between keeping the public informed and wrenching vital information out of the Trump Administration.

It’s unlikely that Trump will ever voluntarily cooperate with the House investigation.  Trump has had a checkered business career and, in the process, engaged in more than four thousand lawsuits.  (In 2016, USA Today ( counted 4095 lawsuits.) Since entering the White House Trump has been as litigious, and over the past 34 months, he has precipitated dozens of additional legal actions.   Some of these — such as those involving sexual misconduct — do not bear directly on the impeachment proceedings.  Many of the others — such as those involving alleged violations of the Constitution — are related.

In all the legal cases, the Trump pattern is the same: Trump unapologetically pushes limits and, when challenged, defies his adversary to prove their case in court.  (Typical is the legal case regarding Trump University that took four years to reach a $25 million settlement in 2017 — Trump’s response was,  “The ONLY bad thing about winning the Presidency is that I did not have the time to go through a long but winning trial on Trump U. Too bad!”)  Trump never acknowledges that he did anything wrong.

The House Impeachment Inquiry alleges three basic offenses, detailed in Speaker Pelosi’s October 20th memorandum ( ) “The Shakedown.  The Pressure Campaign.  The Coverup.”

1.The Shakedown: The key transaction took place on July 25th during a telephone conversation between Trump and Ukrainian President (“Unclassified Memorandum of Telephone Conversation” between Donald Trump and Ukrainian President Zelensky ( ).) In return for the promise of U.S. assistance, Trump requested, “I would like you do us a favor,” and asked Zelensky to investigate Joe and Hunter Biden.

Many constitutional lawyers have stated that Trump’s action is a violation of U.S. Government Code title 18 Section 201(b) (, which states that any public official who “corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for… being influenced in the performance of any official act” is breaking the law.

From the Whistleblower complaint (“Unclassified Whistleblower memo to Senator Richard Burr and Congressman Adam Schiff.”  ( )) we know that “Senior White House officials had intervened to ‘lock down’ all records of the phone call, especially the official word-for-word transcript of the call… the transcript was loaded into a separate electronic system… used to store and handle classified information of an especially sensitive nature.”

Therefore, it is reasonable for the impeachment inquiry to insist upon the “official word-for-word transcript of the call.”  It is also reasonable for the Impeachment Inquiry to subpoena Secretary of State Mike Pompeo who was present during this call — and anyone else in the room.

2. The Pressure Campaign:  During the past several weeks, we’ve learned that the Trump Administration used a variety of means to pressure Ukraine to deliver dirt on Joe and Hunter Biden.  The key person in the effort is Rudy Giuliani — Trump asked Zelensky to work with Giuliani.  Also involved in this pressure campaign were Vice President Pence, Attorney General Barr, acting White House Chief-of-Staff Mulvaney, and Energy Secretary Rick Perry.

It is reasonable for the impeachment inquiry to command the testimony of all these individuals — and to demand that they deliver related materials such as texts, emails, transcripts and notes.

3. The Cover Up: During the past several weeks, we’ve learned that the Trump Administration used the power of the White House “to solicit interference from a foreign country in the 2020 U.S. election.”  They then took extreme steps to hide these actions, such as hiding the official transcript on a highly classified electronic system, or forbidding witnesses to appear before Congress.  This is an abuse of presidential power.

It is reasonable for the impeachment inquiry to command the testimony of the applicable Trump Administration officials — and related materials.  If they fail to do this, that would constitute an additional offense.

Summary: We’re in the middle of the first of three phases of the impeachment process: investigation.  During this phase there will be multiple hearings, some public, some not.

At the conclusion of this phase, Democrats will initiate the second phase and construct the articles of impeachment.  (These will be voted on by the house and, if passed by a majority, the process will move into the third phase: an impeachment trial in the Senate.)

It’s clear there is enough evidence to construct three article of impeachment: bribery, conspiracy, and obstruction of justice.  It would be helpful if some the related lawsuits were settled by the Supreme Court before the trial in the Senate.  (For example, the Supreme Court could rule that Secretary Pompeo must testify and must turnover his related notes and texts.)  However, this is not necessary for construction of the articles of impeachment.

However, there is enough evidence to start the impeachment trial and Trump’s non-cooperation can be litigated during the trial — after all, Supreme Court Chief Justice Roberts will preside over the Senate trial.  In this sense, the Supreme Court will be involved in the final phase of the three-phase process.

Ten Impeachment Realities

Ready or not, the Impeachment of Donald Trump is coming. Before the end of 2019, the House of Representatives may vote on a variety of impeachment charges and the issue will be passed to the Senate. Here’s what we’ve learned so far.

1. During the next 90 days, there will be an impeachment vote in the House of Representatives.  The House Intelligence and Judiciary committees have already assembled enough evidence to call for a House vote.  (It’s not a matter of if, but when the vote will occur.)  Trump appears to be guilty of multiple violations of the U.S. Government code including bribery, extortion, obstruction, and campaign finance misdeeds.  (He’s also guilty of obstruction and, quite possibly, conspiracy.)  The House Dems are going forward, at a deliberate pace, to build the strongest case possible before year end.  Some of the impeachment counts require information that will be provided only if ordered by the Supreme Court.

2. Regardless of what happens in the Senate, once the House votes for impeachment, the Republicans’ fate is sealed.  While there is no doubt that Senate Majority Leader Mitch McConnell will mess with the Senate Impeachment trial — attempt to doctor the proceedings so they favor Trump — the evidence is too damning: Trump has committed a variety of high crimes and misdemeanors.  Trump will lose in the court of public opinion, and he will drag down those Republican Senators that side with him.

There are 100 Senators: 53 Republicans, 45 Democrats, and 2 Independents who vote with the Dems.  Therefore, the two-thirds majority will require 20 Republican Senators to vote with Democrats.  At the moment, it’s difficult to see more than 10 who will shift: Alaska (Murkowski), Arizona (McSally), Colorado (Gardner), Georgia (Perdue), Iowa (Ernst, Grassley), Maine (Collins), Nebraska (Sasse), North Carolina (Tillis), and Utah (Romney).   When the Senate vote occurs, every swing-state Republican Senator will be between the proverbial “rock and a hard place.”  (Trump has already gone after Romney for indicating that he is appalled by Trump’s actions and might vote for impeachment. ( ) )

As long as there is a Senate majority that favors impeachment — and public opinion that favors impeachment — Republicans will lose.

3. The Democrats’ impeachment message must remain simple.   Over the past month, public sentiment has shifted in favor of the Democrats’ impeachment inquiry.  To maintain this momentum, Dems have to move quickly and keep the impeachment charges simple — Trump violated the law by manipulating foreign policy for his own benefit.  If the message gets too complicated, voters’ attention will waver and support for impeachment will diminish.

At the same time that House Democrats go forward with the impeachment inquiry, they must ensure that they are perceived as also doing the people’s business: working on legislation.  So far, Speaker Pelosi has done a good job advertising that the House Dems are working on three paths: “Legislate; Litigate; and Investigate.”

4. Democrats must retain public support.  On September 24th, Nancy Pelosi announced the House had initiated an impeachment inquiry — based upon the Ukraine affair.  Since then there’s been a 17-point swing in favor of the impeachment inquiry.  (And the positive sentiment is growing.)

The majority of Americans support the impeachment inquiry.  Democrats have to build upon this and carefully construct a case to present to the Senate.

Over the next three months there are six other factors that will influence this drama.

5. Count on Trump to “self impeach.”  Speaker of the House Nancy Pelosi predicted that Donald Trump would eventually”self-impeach” — that his behavior is so warped that he cannot resist committing illegal acts.  That’s happening at least once each week: On October 3rd Trump seemingly admitted to reporters that he tried to get Ukraine to investigate the Bidens == Ukraine needs a “major investigation” into the Bidens — and  volunteered that China “[also] should start an investigation into the Bidens.”  On October 17th, Trump announced that in June he will host the G7 Summit at his failing Doral resort  in Miami.  ( )

By the time the Senate votes on the articles of impeachment, there will be overwhelming evidence against Trump — but that may not be enough to produces a two-thirds majority.

6. Trump loyalists will turn.  Even though the Trump White House leaks like the proverbial sieve, during the lengthy Mueller inquiry there weren’t any significant defections from the Trump inner circle — with the exception of Michael Cohen.   With regards to the Ukraine scandal, the opposite is the case — there are major defections.  Numerous members of the Federal government have defied Trump and testified before the House Intelligence Committee.  (For example, former Trump national-security aide, Fiona Hill.)

On October 17th, Trump’s acting Chief-of-Staff, Nick Mulvaney, admitted there was a Ukraine quid pro quo (

There are a variety of theories about what’s different now.  It may be that Trump’s behavior is so egregious — badgering the Ukraine President to dig up dirt on the Bidens — that the vast majority of Administration officials recognized it was wrong.  It may also be that the involvement of Trump’s pal, Rudy Giuliani, has had a catalytic impact — most insiders don’t like Rudy.

7. Trump’s behavior will get more extreme.  Over the past few months we’ve seen many experienced folks leave the White House.  (Most recently, Dan Coats resigned as Director of National Intelligence and was replace by a less-experienced person, Joseph Maguire.)  Like or not, Trump is now operating without training wheels and is making decisions primarily based upon his gut feel.  (Abandoning the Kurds is an example of this.)  Because of the pressure, Trump is decompensating.

8. Trump will do anything to stay in power.  We already know that Trump is a liar.  As the impeachment process plays out, Trump’s lies will become more extreme.  (For example, his claim that the Kurds are worse than ISIS.)

We already know that Trump will insult his opponents.  As the impeachment process plays out, Trump insults will become more extreme.  (For example, calling Speaker Pelosi a “third-grade politician” and saying she favors ISIS “because they are communists.”)

We already know that Trump will use false claims of executive privilege  to keep Administration officials from testifying before Congress and to deny lawful document requests.  What else will Trump do?  At the moment, there seem to be no limits to extreme behavior.

9. Social Media will be an issue.  Facebook is permitting Trump to run blatantly false ads and Twitter is allowing him to promote damaging lies.  Democrats have called upon the social media companies to regulate Trump’s online behavior but they are unwilling to do this.( )

10. The Supreme Court will be involved.  Even though many Trump-Administration insiders have begun to testify before the House Intelligence Committee, there are others that have declined to do so — based upon Trump’s broad assertion of executive privilege.  In addition, House Dems are demanding access to the complete Mueller Report including Grand Jury Testimony.  ( )

Both of these matters are wending their way through the courts and will likely be decided by the Supreme Court.  Therefore, the conclusion of the House impeachment inquiry probably depends upon the Supreme Court schedule.

Impeachment Messaging

With the September 24th initiation of a formal impeachment inquiry, the political battle lines have formed. Democrats will subpoena witnesses and gather material that will be presented before the House Intelligence committee; eventually the House Judiciary Committee will construct the formal impeachment measure and submit it to the entire House of Representatives. Meanwhile, Donald Trump, and his Republican acolytes, will do everything they can to discredit the inquiry. Their obstruction will take (at least) ten forms.

By the way, before you consider what follows, it would be a good idea to read the “Unclassified Memorandum of Telephone Conversation” between Donald Trump and Ukrainian President Zelensky ( ).  It would also be a good idea to read the “Unclassified Whistleblower memo to Senator Richard Burr and Congressman Adam Schiff.”  (

One Trump strategy will be to ignore the allegations of Trump misconduct and to attack.

1.Harassment: Trump loyalists will insist that Democrats have been “hounding” Trump for three years and this impeachment inquiry is the latest example of unfair treatment.  Republicans will assert, “Democrats aren’t interested in governing; they spend all their time attacking Trump.”  Republicans won’t address any of the specific accusations against Trump but rather demean them as “more of the same” and claim that Dems are trying to “steal the election.”  (That’s the theme of the latest Trump campaign ad (

2. Setup: Some Trump supporters will go into more detail and assert that the Trump-Zelensky affair was “a set up.”  These Trump stalwarts will, in essence, be claiming that Democrats fabricated the phone conversation and the related whistleblower information.  (That’s the drift of the claims by Republican stalwart Liz Cheney (

3. Vendetta: Other Trump supporters will claim that the impeachment inquiry is a personal vendetta being lead by House Intelligence Committee chair Adam Schiff.  Republicans will personally attack Schiff — Trump has already called Schiff a traitor and urged him to resign.   (On September 29th, Trump tweeted, “I want Schiff questioned at the highest level for Fraud & Treason.”)

4. Deep State: Many Trump supporters will assert that the inquiry is a conspiracy launched by “the deep state” — that is, by the intelligence community including the CIA and FBI.  Many Trump loyalists have long claimed that elements within the intelligence community have been out to get Trump since he entered the White House.  (Recently, Republican stalwart Newt Gingrich wrote, “[The impeachment inquiry] is a legislative coup d’etat. It is an effort by the hard left, the news media, and the deep state to destroy the president chosen by the American people,” )

5. Biden: Finally, some Trump advocates will take the position that not only is there nothing to the Trump-Zelensky affair but rather the mainstream media is missing the real story: Joe and Hunter Biden’s illegal involvement in Ukraine.  (On September 29th, White House staff member Stephen Miller claimed “Trump is the real whistleblower.” (

For each form of these attacks, the Democrats response is straightforward: they should return to the known facts of this case as detailed in the transcript of the Trump-Zelensky phone call and the whistleblower memo.  The problem Dems face is that Trump is launching a multi-million dollar attack campaign over social media (  Democrats have to make sure that their side of the story is widely publicized.

Another core Trump strategy will be to attempt to undermine the whistleblower report.

6. Hearsay: Republicans will assert that the whistleblower report is based on “hearsay;” that is, it is inaccurate, because the whistleblower was not present during the actual phone call(s).

The Democratic response should be to point out that the Inspector-General has already conducted an investigation and has corroborated the whistleblower assertions.

7. Illegal Act: Another way to demean the whistleblower claim is to assert that he or she broke the law.  That is, regardless of the facts of the matter, Republicans will claim that the information was obtained illegally.   (On September 30th, Trump tweeted: “The Whistleblower knew almost nothing, its 2ND HAND description of the call is a fraud!”)

Again, the Democratic response should be to lean on the report of the Inspector-General, who has determined that the whistleblower acted within the law.

8. Obstruction: The Trump Administration can seek to undermine the whistleblower report by blocking Congressional verification of the elements of the report; that is, keeping congressional committees from recreating the investigation already conducted by the inspector general.  That seems to be the strategy of Secretary of State Mike Pompeo (

9. No Crime: A more sophisticated tactic would be for Republicans to argue that no crime was committed.  That is, Donald Trump may have asked Ukrainian President Zelensky to for a “favor” — to investigate the Bidens — in return for military aid but that is not a violation of the law.  On October 3rd, Trump seemed to take this position when he asked both Ukraine and China to continue to investigate the Bidens.  (

Many legal experts believe that Trump’s action was a violation of Federal campaign finance law and possibly Federal laws related to bribery and extortion.  (Separate from that is consideration of whether, in this action, Trump launched both a conspiracy and a coverup.)

10. Not Impeachable: Finally, Republicans may ultimately argue that even if Trump’s actions technically broke the law they are not of sufficient severity to constitute an impeachable offense.  At the moment, that seems to be the attitude of most Republican Senators.  (That’s the position taken by former Attorney General Michael Mukasey on the October 3rd PBS News Hour ( ).

Again, Democrats should return to the known facts of this case as detailed in the transcript of the Trump-Zelensky phone call and the whistleblower memo.  (They can also use the recent statements of Donald Trump where he appears to be admitting to the accusations; taking the position that he is above the law.)  Democrats have public opinion on their side and should press forward with impeachment proceedings.