How Trump survived impeachment
WASHINGTON — Nothing has united the modern Democratic Party like the desire to remove Donald Trump from the Oval Office. It is a desire shared by moderates and progressives alike, from a California that never quite managed to secede from the union to a New York that has had to grapple with the fact that Trump is one of its own.
Briefly, after the results from Nov. 8, 2016, came in, there was some flickering hope that “faithless electors” would keep the Electoral College from certifying his victory. But that effort came to naught. Instead, the anti-Trump resistance began planning on how to make the Trump’s stay in Washington as brief as possible.
“The campaign to impeach President Trump has begun,” ran the Washington Post headline. It was attached to an article published around noon on Jan. 20, 2017, before Trump had spent a single night in the Lincoln Bedroom.
That effort finally began in earnest last fall, after more than two years of steadily building progressive rage. And it ended on Wednesday afternoon, with the Senate voting to acquit Trump on two articles of impeachment that had been ratified by the House of Representatives in December of last year.
Trump is hardly in the clear. Even before the predictable verdict came, House Speaker Nancy Pelosi said the lack of a meaningful impeachment trial meant Trump could not rightly claim exculpation. Democrats continue to investigate him on many fronts, like spending by foreign governments at his Washington, D.C., hotel. And they still want to subpoena John Bolton, the former national security adviser who has signaled that he has derogatory information about the president.
But this afternoon, Trump is a man who has escaped impeachment. How did he do it? How did he duck the blow of a Democratic Party that has been waiting for this moment for nearly three years?
By doing more or less exactly what he has done for decades, whether faced with bankruptcies or sexual assault allegations. Deploying a lesson learned from his mentor, the legendary defense attorney Roy Cohn, Trump steadfastly refused to admit he did anything wrong in attempting to pressure Ukraine to announce investigations that could help him politically. To the contrary, he positively celebrated the allegations, insisting that his phone call on July 25, 2019, with Ukrainian President Volodymyr Zelensky — the basis for impeachment — was “perfect,” when even some Republicans have acknowledged it was very far from that.
Such acknowledgements, however, never became as frequent as Democrats hoped they would be. With many members of the Republican Party facing reelection in November, there was ultimately little zeal to publicly confront Trump.
Of the 250 Republicans in both chambers of Congress, the total number who openly criticized Trump for his actions at the center of impeachment, or endorsed the impeachment inquiry against him, was all of 14.
Some of those criticisms were exceptionally meek, as when Sen. Ted Cruz of Texas told MSNBC’s Chris Hayes at the Texas Tribune Festival that he “wished the president [had] not gone down that road,” or when Rep. Mac Thornberry of Texas told Martha Raddatz of ABC’s “This Week” that Trump’s call with Zelensky was “inappropriate” but not “impeachable.”
In early February, a few senators would arrive where Thornberry had in November 2019. But they voiced their concerns only after the Senate rejected the call to hear new witnesses, when Trump’s acquittal was all but assured.
And even as he remained unrestrained in his own statements on impeachment, Trump brought on a combative team of experienced lawyers who relentlessly shielded him from Democratic attacks. Without admitting anything or yielding much, they pushed toward the goal they achieved Wednesday night.
Pressure to impeach Trump had been building ever since Democrats retook the House of Representatives in the 2018 midterm elections. Upon arriving in Washington the following January, Rep. Rashida Tlaib, D-Mich., vowed that her mission would be to “impeach the motherf***er.”
But by the summer of 2019, that mission had largely faltered. The investigation by special counsel Robert Mueller into Russian electoral interference may have made a convincing case for concluding that Trump had obstructed that investigation, but Mueller did not recommend bringing any new charges, and U.S. Attorney General William Barr seemed more interested in investigating the origins of the FBI probe into the Trump campaign than by that campaign’s own alleged malfeasance.
By late summer, aides to Pelosi were privately admitting that impeachment had become the occupation of a progressive House fringe. As lawmakers prepared to return for the fall session, the New York Times reported that there was “lackluster public support for impeachment,” and that Democrats were desperately trying to find a case against Trump that might stick.
That was Sept. 8, 2019. The following day, Michael Atkinson, the intelligence community’s inspector general, notified Congress that the previous month, a whistleblower had made a complaint of “urgent concern” to the watchdog office. It would be another several days before the details of that complaint were made public, with the complaint itself finally released on Sept. 26.
Suddenly, the notion of impeaching Trump was revived. For one, the whistleblower’s vivid account of Trump’s alleged attempt to extort Zelensky into launching an investigation of the Biden family and the Democratic National Committee proved too troubling to ignore. It was also a much simpler narrative than the one having to do with Russian electoral interference. There were no shadowy Maltese professors to keep track of, no debates about wiretapping warrants. There was just a president, in the Democrats’ telling, willing to subordinate American foreign policy to achieve his own political ends.
Dispensing with her earlier reluctance, Pelosi announced the formal impeachment inquiry on Oct. 31, 2019, finally giving progressives what they had wanted for three years. She named House Intelligence Committee Chairman Adam Schiff as head of that inquiry.
And as that inquiry opened, those hopes were running high. “Yes I believe Trump will be impeached,” the progressive activist Bryce Tache tweeted when the impeachment inquiry was formalized. “And removed. And imprisoned. Yes I believe the GOP is imploding.”
More than a few Republicans were coming to the same conclusion. At the very least, they decried what appeared to be the lack of a centralized White House response. “GOP lawmakers and operatives are concerned at what appears to be a lack of urgency from the Trump administration in forming an organized, unified response engine to the Democratic impeachment threat,” a Republican operative told Politico Playbook in early October 2019.
Slow though it may have been to arrive, a White House response was underway. On Oct. 8, 2019, White House counsel Pat Cipollone sent a withering, eight-page letter to Pelosi, accusing her of wanting to “overturn the results of the 2016 election.” He said that impeaching Trump was a “highly partisan and unconstitutional effort” that “threatens grave and lasting damage to our democratic institutions.”
Naturally, the president would have nothing to do with it. “President Trump and his Administration cannot participate in your partisan and unconstitutional inquiry under these circumstances,” Cipollone wrote, adding that the inquiry lacked a “legitimate constitutional foundation.”
This would, in the weeks and months to come, become the central argument of the Trump administration. The impeachment process was tainted by politics and therefore invalid. And because it was invalid, the White House could not possibly turn over key documents or make officials available to testify before Congress.
Cipollone’s argument was predicated on a reading of congressional rules at odds with how most legal experts interpreted them. Still, it was the best argument Cipollone appeared to have, since the knotted parliamentary rules of a congressional impeachment inquiry are both obscure and, in some cases, open to genuine debate. The White House and its allies in Congress exploited those vagaries to their advantage and repeatedly portrayed the proceedings as secretive and unfair, taking their cue from the Cipollone letter.
So, when Marie Yovanovitch, the former U.S. ambassador to Ukraine, began to testify on Oct. 11, 2019, Rep. Lee Zeldin, R-N.Y., argued that the House Intelligence Committee was “outside of its jurisdictional lane,” because as a State Department official, Yovanovitch would have to testify before the House Foreign Affairs Committee.
No such lanes exist; Zeldin was plainly banking on the fact that the complexity of impeachment would redound to their benefit. Schiff dismissed the complaint as a “mischaracterization,” but that same complaint was promptly taken up by Rep. Mark Meadows, R-N.C. “There are no rules that would give the authority of you to actually depose this witness,” Meadows said. “I would say you’re out of order.”
Days later on Oct. 23, as depositions were intended to continue, Republicans attempted to enter the room where witnesses were being interviewed, halting the testimony of Pentagon official Laura Cooper. Those Republicans were not on the three investigative committees partaking in those depositions and were therefore not allowed to enter.
The entirely expected expulsion had been the very purpose of the ploy, as both sides perfectly understood. “All they basically did here was to storm a castle that they already occupied,” complained Rep. Tom Malinowksi, D-N.J.
Such theatrics could not ultimately obscure the fact that witness after witness testified that Trump’s personal attorney Rudy Giuliani suborned the diplomatic corps to pressure Zelensky into announcing investigations into Democrats; that they believed Trump had known about the effort and had, in fact, endorsed it; and that political appointees at the State Department and the White House budget office urged career public officials to pressure Ukraine to announce investigations into the Democratic National Committee and the Bidens.
And yet the witness testimony made throughout the fall of 2019 never produced direct, incontrovertible evidence that Trump ordered military aid to Ukraine withheld until Zelensky announced those investigations.
When the impeachment inquiry began on Oct. 31 of last year, 47.8 percent of Americans supported impeaching Trump. Nearly six weeks later, the full House of Representatives endorsed two articles of impeachment against Trump, one on abusing power and another on obstructing Congress.
On that day, public support for impeachment had fallen to 46.4 percent. It was a small but critical drop, one that dispiritingly suggested that weeks of testimony had not convinced the American public. The percentage of Americans who thought President Richard Nixon should resign during his impeachment proceedings had risen sharply once he started releasing transcripts of his White House tapes, climbing from 38 percent to 57 percent in a matter of months.
Democrats kept waiting for a similar validation, only to encounter the exact opposite phenomenon. Impeachment is not, of course, a polling exercise. But if the public was losing faith in their case, there would be little chance that that same public would put pressure on Republicans during the impeachment trial. That, in turn, would provide those Republicans with little incentive — outside personal conviction — to vote for Trump’s conviction.
Democrats knew that they needed something new, something that would bolster their case with both the American public and Republicans in the Senate, 20 of whom would have to vote with Democrats in order for Trump to be removed from office.
Their best hope was in calling new witnesses, like Bolton, who had bitterly departed the White House in September 2019. A notorious score-settler, Bolton had a book coming out in early 2020 about his time in the Trump administration. Democrats needed his first publicity interview, as it were, to take place during the impeachment trial.
Mick Mulvaney was not writing a book. But back in October of last year, the acting White House chief of staff had given a disastrous press conference in which he seemed to admit to every charge Democrats had made about the Ukraine pressure campaign.
Few people beyond Bolton and Mulvaney could have tied Trump directly to an extortion campaign targeting Zelensky. If only Democrats could get them to testify — and to do so forthrightly, without citing “executive privilege” — they would significantly bolster their own case, perhaps managing to convince even skeptical Republicans.
But that would prove a challenge they would never surmount.
Before going after Bolton, Democrats decided to go after Charles Kupperman, who had briefly served as the acting national security adviser after Bolton’s ouster. Kupperman had been among the administration officials who had listened in on the July 25 phone call between Zelensky and Trump. Democrats subpoenaed him in October.
Kupperman promptly filed a suit of his own, asking the U.S. District Court for the District of Columbia to rescue him from the dispute between House Democrats and the White House. He portrayed himself as a public official caught between the competing dictates of a Congress that wanted him to testify and a White House that told him not to. The original filing said that Kupperman could not be “forced to adjudicate the Constitutional dispute himself” because, as his attorney Charles Cooper argued, “if he judges wrongly, he will inflict grave Constitutional injury on either the House or the President.”
Cooper had another client, Bolton, who almost certainly would follow the guidance given to Kupperman by the court.
The judge in Kupperman’s case was Richard Leon, who had been appointed by George W. Bush. In a hearing on Nov. 1, 2019, he recognized that speed was of the essence, chiding an administration attorney for pointing out that winter vacations loomed. “When it’s a matter of this consequence to this country, you roll your sleeves up and get the job done,” Leon said.
Even though Leon was prepared to hear the case on an expedited timeline, Democrats concluded that no decision regarding Kupperman’s testimony could come quickly enough. On Nov. 6, just days after the first hearing, Democrats withdrew the Kupperman subpoena.
“We are not willing to go the months and months and months of rope-a-dope in the courts,” Schiff said. He acknowledged Democrats badly wanted to hear from witnesses, and to review documents, but at same time, he said that Democrats had “accumulated quite overwhelming evidence” that Trump had acted improperly.
On Dec. 30 of last year, Leon dismissed Kupperman’s original complaint about having to comply with the House Democrats’ subpoena. Since that subpoena had already been withdrawn, Leon’s dismissal was a mere formality.
Still, it was a formality that underscored the fact that the Democrats’ most sustained effort to have new witnesses testify in the impeachment inquiry had been unsuccessful. What’s more, Leon’s dismissal took place at the exact moment when Democrats desperately needed new witnesses in order to avoid a Senate trial that was merely a repetition of the House case.
“It is a fundamental principle of our Constitutional system that the federal judicial power is not without limits,” Leon wrote in an opinion that was a subtly ominous sign for Democrats.
The need for new witnesses became especially acute after House Democrats voted to approve two articles of impeachment against Trump on Dec. 18, 2019. Pelosi announced that those articles would not be making their way to the Senate until she had assurances from Senate Majority Leader Mitch McConnell that the trial would be fair. But McConnell held fast, making no such concessions.
Always a reluctant supporter of impeachment, Pelosi had done all she could to make the process more favorable to the Democrats. But her arsenal was limited, and the Iowa caucuses that would signal the beginning of the 2020 presidential election were only a month away.
On Jan. 15, she released the articles of impeachment, allowing the Senate trial to begin.
Democrats did see their prospects brighten with the release of a Government Accountability Office ruling that determined Trump had no legal authority to withhold the aid from Ukraine. But the illegality of that hold had been known for months. So had other details that seemed to give credence to the Democrats’ charge that Trump had abused the power of his office.
And yet, paradoxically, despite what impeachment manager Rep. Hakeem Jeffries would call a “mountain of evidence,” Democrats knew they needed more to convince Republicans.
Their best bet remained Bolton, but as the trial began, that bet became a desperate one. That remained true even after leaked details from Bolton’s forthcoming book suggested that he was in possession of the very evidentiary goods Democrats had been searching for.
The trial had its share of theatrical, memorable moments: Trump attorney Jay Sekulow criticizing Pelosi for handing out ceremonial pens at the signing of the articles of impeachment in December; another Trump attorney, Ken Starr, criticizing the practice of presidential impeachment, apparently having forgotten his own role in the impeachment of President Bill Clinton; impeachment manager Rep. Jason Crow quoting “Harry Potter” to rouse Republicans’ moral courage.
At its legalistic core, however, the trial was a duel between the two most capable attorneys on each side: deputy White House counsel Patrick Philbin and Intelligence Committee Chairman Schiff. Both came to the trial with impeccable credentials, each having graduated from Harvard Law School, Schiff in 1985 and Philbin in 1992. Schiff had been a federal prosecutor in Los Angeles. Philbin had worked for the prestigious law firm Kirkland & Ellis, as well as for the Department of Justice.
Each also engaged in what would amount to the most sophisticated arguments among their peers, almost entirely shunning theatrics. Those arguments revolved largely — though by no means exclusively — around the question of witnesses. As the two lawyers sparred over witnesses, largely unnoticed legal wranglings in a federal D.C. courthouse intruded on the impeachment inquiry in full force, decisively tilting the case in Trump’s favor.
At one point, Sen. Tom Cotton, R-Ark., asked if Democrats “bother to seek testimony” from witnesses. Philbin responded that “they filed no lawsuits” to compel witnesses like Kupperman to testify.
“The House managers withdrew the subpoena,” Philbin said. “The House has not pursued litigation to get any of these issues resolved.”
Schiff had said that the Kupperman subpoena was dropped because the judicial proceedings would take too long. “It was very clear that John Bolton would tie us up in court for months or years, and his lawyer made that crystal clear,” he said in a press conference the previous day.
But that now allowed Philbin to say that Democrats were never serious about calling new witnesses. Had they been serious, he could say, they would have continued to litigate the Kupperman case. And since Kupperman and Bolton shared the same attorney, that was their best option for getting the latter to testify as well.
“House Democrats were just in a hurry,” Philbin concluded.
Schiff had admitted as much. But the notion that the White House would have complied, if only Democrats had gone to court, was difficult to believe. In both the impeachment inquiry and ongoing court cases related to the Russia investigation, the Trump administration asserted that the power of Congress to check the White House was highly circumscribed, so much so that one could conclude it was effectively nonexistent.
This was a vision of the executive branch that had come to be known as the imperial presidency. Trump’s predecessor, Barack Obama, had enjoyed the benefits of quasi-imperial powers, which had been greatly expanded by George W. Bush.
Trump took the understanding of those powers to their extreme. “The President is the executive branch,” impeachment attorney Alan Dershowitz said during the trial. “He is irreplaceable.” Congress could refuse to confirm Trump’s nominees. It could reject his budgetary priorities. What it could not do, in this view, is treat him like an ordinary scofflaw.
Democrats were boxed in. Trump attorneys lambasted them for not seeing their subpoenas through in court. At the same time, other Trump administration attorneys were arguing in court that the president was above precisely such legal challenges.
Democrats’ plight was driven home in a D.C. federal court hearing on Jan. 30 unrelated to impeachment. In arguments related to administration of the upcoming census, Trump administration attorneys asserted that if the executive branch did not want to abide by congressional subpoenas, it was free to do so.
“It seems to be kind of remarkable to suggest that Congress as an institution can’t enforce its subpoenas,” the presiding judge said.
An administration attorney suggested that instead of going to court, Democrats should consider impeachment. He said so as, on Capitol Hill, the White House defense was telling Democrats that they couldn’t expect Bolton and Kupperman to testify in the impeachment inquiry unless they went to court.
It was a legal vise from which there was no easy escape. “You can’t make this up,” an obviously frustrated Schiff said, with some Democrats laughing as he described the matter. “What more evidence do we need of the bad faith of this effort to cover up?”
But the game was up, and he knew it. The Trump administration had used the courts, the conservative media and the realities of electoral politics to keep crucial documents from being made public, key witnesses from testifying and Republicans from straying.
In the end, only two Republicans voted for witnesses, and only one — Sen. Mitt Romney — voted Wednesday to convict Trump of abuse of power. And so on his 1,111th day in the Oval Office, Donald Trump was a president acquitted.
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