Impeachment: Tactics vs. Strategy

Nancy Pelosi has mumbled (again) through an announcement that the House will not send the impeachment resolution to the Senate for trial until Mitch McConnell tells her how the trial will be structured. Welcome to Tactics 091. This isn't even a freshman level class. This is remedial instruction for the "master of political tactics."

Anyone who watches the news knows that the rabid Democrats in the House voted in favor of two Articles of Impeachment. But those low information partisans may not realize that President Trump has not been impeached until the House appoints managers who then present the articles to the Senate. We all know that the odds of the Senate convicting and removing the President are Slim and None, and Slim has left town. So as long as Princess Pelosi attempts to get some sort of a quid pro quo from Senator Mitch McConnell before appointing managers, she's in denial, and that's not a river in Egypt.

The Speaker of the House is playing tactics, while the Majority Leader in the Senate is playing strategy. He knows he will win this war. She's trying to gain a partisan advantage on the way to defeat, ignoring the fact that every stunt she pulls raises President Trump's approval with the public. And she's ignoring the fact that when playing tactics against McConnell, he's holding aces to her deuce-7 off-suit. She can't win. All he has to do is wait. He knows she has no cards, because in this game, they're all face-up.

The Senate is under no obligation to do anything at all until the House sends its managers over with the articles. And that's just what Mitch will do publicly. Privately, he'll be strategizing. The Senate will adopt the rules for the trial by majority vote. No filibuster will be allowed. So as long as the rules are not manifestly unfair, the Republicans should accept them with their 53 votes to the Dems' 47.

Here is my modest proposal for Senators McConnell and Graham. Since the House thought they had a compelling case with the handful of witnesses they called, no further witnesses will be allowed. The managers will be allowed to "prove their case" with those same witnesses, plus the "whistleblower." Thus, there will be a real trial. The managers won't be able to hold up a 600-page report and declare their case proved. They'll get to do it in open court. With a twist.

The Senate should require that the rules for testimony under the Federal Rules of Criminal Procedure be followed to the letter. Since the presiding judge will be Chief Justice John Roberts, he'll know those procedures cold. Consider the following:

Manager: "Ambassador Yovanovitch. How did you feel when Rudy Giuliani pushed for your dismissal?"

Senate Counsel: "Objection! Relevance!"

Justice Roberts: "Objection sustained."

Manager: "Lieutenant Colonel Vindman. What were your thoughts when you heard of the delay in aid to the Ukraine?"

Senate Counsel: "Objection! Hearsay! Relevance! Also, it calls for a conclusion from the witness."

Justice Roberts: "Objection sustained."

All testimony that calls for hearsay, conclusions, or is irrelevant would instantly be excluded. If Ambassador Yovanovich or Sondland is asked about their opinion regarding Rudy Giuliani operating outside of Foggy Bottom's procedures, that should be allowed. It will prepare the way to cross-examination regarding the fact that every President has used personal emissaries who did not answer to the State Department.

When all the prosecution witnesses have been heard, we will know one incontrovertible fact. Ambassador Gordon Sondland, the only witness with direct knowledge of the President's intentions, received a direct order from Donald Trump that he was not to ask for anything. There was no deal-making to be considered. Further, all the testimony from all the other witnesses will have been ruled out of order.

This will be great theater. The Dems will parade witnesses who will basically be muzzled because they have no direct testimony about anything. Instead of the stage-managed House hearings where the Republicans were handcuffed, this time the Dems will be shown to be completely vacuous in their arguments.

If the direct examination is properly managed by the Republicans, cross examination will show that no Ukrainian officer ever knew about the holdup in aid or any demands by President Trump. The Abuse of Power Article will vanish, and the public will see it for what it is: a case of the vapors by the Democrats.

Because the "whistleblower" is not protected from exposure in this arena, Republicans can call him as a hostile witness in their case. They can develop the fact that he conspired with Adam Schiff. They can show that everything in his "complaint" was hearsay. His complaint had nothing to do with the Intelligence Community inspector general's jurisdiction, and was only allowed by a retroactive rules change created just to attack the President. The whistleblower will have to either admit those facts or claim his Fifth Amendment privilege, which will look even worse.

At this point, the Republicans will have proved a conspiracy by Democrats to unlawfully remove the President. They won't need to discuss the fact that under Article II, section 3 of the Constitution, the President is the chief law enforcement officer of the U.S., and he would have been derelict in his duties if he did not pursue an investigation into the Ukraine, since there is ample evidence that major U.S. figures have committed multiple U.S. crimes there. That wouldn't prevent them from using it in their opening statement.

Since the Dems will have been completely stymied in their abuse of power article case, the obstruction of Congress article remains. And here the Republicans should move for summary dismissal of the charge.

The House has alleged that Donald Trump "obstructed Congress" by refusing to turn over documents and witnesses. In short, the House is asserting that it is superior to the Executive branch. But the House only subpoenaed a handful of witnesses, and dropped the subpoenas when the President resisted. Further, in the case of Trump vs. Deutsche Bank, the House has subpoenaed his financial records for multiple years. The Supreme Court accepted the case, affirmatively declaring that such disputes belong in the Courts, not in impeachment. In this it is following multiple precedents, most famously going back to Richard Nixon's tape recordings in the Watergate affair.

The fact that the House wanted to "hurry up" the process to throw Trump out before the 2020 election is irrelevant. The Legislative and Executive branches are "co-equal" under the Constitution. Disputes between them are resolved by the courts.

Strategically, Trump cannot lose. Tactically, there can be great theater that shows that the Democrat charges are the result of a childish temper tantrum, executed through illegal conspiratorial channels.

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