September 04, 2019

Storming Back to the Impeachment Charade
Elections have consequences. This was a point we tried to make many times in the run-up to the 2018 midterm elections. The Democrats won control of the House fair and square. That means they get to drive the agenda.Their agenda, kinda sorta, is the impeachment of President Trump -- which is to say, the quixotic quest to build political support for it. According to the Washington Post, that effort is about to sink deeper into farce: Hearings on Stormy Daniels and the hush-money payments to conceal trysts that Donald Trump had -- allegedly, of course -- a decade before he ran for president.Such a quest is a two-edged sword, though. If this is how the Democrats choose to spend the public’s time and money, they must be accountable for it. They must be pressured to demonstrate the courage of their anti-Trump convictions. So far, for all the bluster, they’ve gotten away with cowardice.Most of the impeachment quasi-action is in the Judiciary Committee, chaired by Representative Jerrold Nadler (D., N.Y.). We have to qualify the word “action” because, while Nadler claims to be conducting an impeachment inquiry, his committee has never actually voted to have one.This reflects the political needle Democrats cannot thread.Their control of the House hinges on 41 seats that, after the 2018 victory, they hold in Trump-friendly districts. Constituents in those districts do not want Trump impeached. Even most of those opposed to Trump take the sensible position that he should be opposed at the ballot box, and the country spared a rabidly partisan, substantively scant, and inevitably futile removal effort. And because, unlike in 2018, the president will be on the ballot in 2020, the pro-Trump voters will be out in force. An unpopular impeachment push could spell electoral doom.Yet, also because Trump will be on the ballot, the hard-left progressives are making their influence felt. They are the Democratic party’s energetic base, and they punch way above their weight in presidential-primary season. And they want Trump impeached, yesterday, irrespective of whether he can be removed (a prospect made impossible by the constitutional requirement of a two-thirds majority favoring removal in the Senate, now controlled by the GOP). The base knows Democrats have the numbers to get impeachment done in the House, and its members are ballistic that it hasn’t been done yet.So ballistic that the 72-year-old Nadler, an Upper West Side fixture who got to be a powerful committee chairman because he has been in Congress for 27 years, is facing a real primary challenge. So are a number of the old-line lefties. They are finding that years of governing, which requires compromise, have left them out of step with the AOC avant-garde -- such that Speaker Nancy Pelosi, the very model of a 20th-century left-wing Democrat, is now a “moderate.”Nadler needs to push for impeachment, but Pelosi can’t let him put the Trump-district Democrats on the spot. Hard votes could cost control of the House. Nadler is trying to thread the needle by pretending his committee has already established a formal impeachment inquiry, and is now simply following through with consideration of potential high crimes and misdemeanors. He hopes you won’t notice that he left out a step: He has not actually called for an impeachment inquiry. Sure, he probably has the votes. But Pelosi does not want vulnerable Democrats put in the position of casting votes that Republicans and the president will hammer them over next year.Amid all this gamesmanship, an important point is easy to miss: This is only a problem because there is no objectively viable impeachment case against Trump.If Trump had committed some offense that a goodly portion of the country believed was impeachable, then the mere commencement of an impeachment inquiry would not pose a difficult vote for anyone. Virtually all Democrats (and probably more than a smattering of Republicans) would be for it. No person of good will would hold it against any lawmaker who voted in favor of calling for an examination of the relevant facts.But because there is no impeachment case, Democrats have to make one up.The hush-money payments are a perfect example. Omitted from the Post’s coverage is a fundamental flaw: Even if it were clear-cut that Trump had committed a campaign-finance violation -- and it’s not -- it would almost certainly not be an impeachable offense. Election-law violations are sufficiently trivial, relatively speaking, that the Justice Department often declines prosecution and allows them to be disposed of by administrative fine. As we have pointed out, this is what the Obama Justice Department did with 2008 Obama-campaign violations, which, in dollar terms, dwarf the money involved in the Trump situation.Then there is the fictional framing of the Michael Cohen case. It is claimed that Cohen, Trump’s former lawyer and self-described “fixer,” has gone to jail based on crimes in which he has implicated Trump. That’s ridiculous.As his plea agreement with federal prosecutors in the Southern District of New York (SDNY) shows, Cohen’s prison sentence was driven by his guilty pleas to tax- and bank-fraud charges. Trump had nothing to do with those felonies. They involved over $1 million in fraud, and bank fraud carries a possible incarceration sentence of 30 years. If it were not for these serious crimes, Cohen would not have been prosecuted, much less imprisoned.The plea to two campaign-finance violations was an add-on. The charges were inconsequential as far as Cohen’s criminal liability and prison exposure were concerned; they were valuable only to prosecutors, who appear to have been trying to make a case, regardless of how weak, on Trump. Usually, defendants want to avoid additional criminal convictions; here, Cohen readily agreed to plead guilty because being a potential accomplice witness against Trump increased the likelihood that prosecutors would argue for a lenient sentence.It was for naught, however. The SDNY closed the case without additional charges because treating the hush-money payments as campaign-finance crimes was, at best, overkill, and probably wrong as a matter of law.In a nutshell, there is nothing per se illegal about non-disclosure agreements, which are a staple of civil litigation. And as I’ve explained, there is profound legal debate over what constitutes an “in-kind” campaign contribution -- to the point that even the Federal Election Commission and the Justice Department have been at loggerheads. Even if we assume arguendo that the payments to Stormy Daniels and Karen McDougal were unlawful as to Cohen and American Media Inc. (which paid McDougal), they were not necessarily illegal as to Trump. As the candidate, different campaign-finance rules applied to him; and he had reasons unrelated to the campaign (e.g., avoiding both damage to his marriage and family relationships and encouragement of similar lawsuits) to keep the matter quiet.Critics are quite right to observe, as our Jim Geraghty does, that everything relevant about the Stormy episode has already been, er, laid bare. Trump is Trump, and people have already made up their minds about this aspect of his character. That said, though, Democrats have the power, and the privilege that goes with it, to make an issue of the president’s fitness for office. They have the right to call for an impeachment inquiry, and to spend their legislative time pursuing it.But they should have to do it in the light of day.Republicans should be using every means available to them, from procedural motions, floor and hearing speeches, and media outlets, to force Democrats to vote on convening an impeachment inquiry. Nadler, Pelosi, and House Democrats want to avoid the vote because they know impeachment is not what the country wants. They want to put an impeachment show on for their base without being accountable for an actual impeachment effort.Time to call out this sham for what it is.
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