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The Swamp

How The Democrats Think They Will Impeach Trump

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Andrew McCarthy says that the Southern District of New York (SDNY) will indict Donald Trump on a campaign finance violation. Don’t forget, this same crowd put Dinesh D’Souza in jail on such a charge.

While there is an assumption that no one can indict a president, the point of this is not to indict Trump but to offer a flimsy grounds for impeachment that the rabid House Democrats can run with. Keep in mind that impeachment is not a criminal trial but entirely a political trial. If Trump is an “unindicted co-conspirator,” I think the House will move to impeach him at their earliest opportunity.

It is useful to look at the two previous impeachments in American history to appreciate this. In 1868 the House impeached President Andrew Johnson on eleven articles, but most notably his violation of the Tenure of Office Act. This was key, because Johnson not only violated the act, he did so enthusiastically and openly. Johnson viewed it as unconstitutional, but rather than go through the court system, he provoked an impeachment trial. The House impeached him on 11 articles, but the Senate failed to convict him on the first two articles they advanced, and the trial was adjourned.

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With Bill Clinton in 1998, the House again passed articles of impeachment (two) and the Senate again could not get a conviction on either (55 voted not guilty on the perjury charge, 50 on the obstruction of justice charge, or well short of the 67 needed for removal).

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In both impeachments, the Senate acted well outside its authority by determining in its “not guilty” arguments not that neither Johnson or Clinton had committed the act (the Senate’s only constitutional charge), but that in neither case did the acts reach the level of “high crimes.”

This was not within the Senate’s constitutional authority.

The Senate was to be limited to determining if the president had committed the act, not whether the act rose to the level of impeachment—the House’s job.

For Donald Trump, the likelihood is that if matters get that far, the Senate will behave as it always has, taking unto itself powers the Constitution does not allow. The reason is simple: Senators are power-hungry, and cannot resist going beyond their mandate when they can get away with it. This works strongly to Trump’s benefit.

If the impeachment charges were campaign finance violations, and if the House said those rose to the level of an impeachable offense, then according the Constitution the Senate’s only question would be “Did Trump or did he not make the payoffs through Cohen to Stormy Daniels and/or her attorney?”

What is much more likely is that, as before, the U.S. Senate will debate whether or not such payoffs rose to the level of an impeachable offense. If that’s the argument, Trump will be acquitted.

By my calculations, Trump has about 39-40 solid votes in the Senate—already enough to defeat the 67 vote threshold. In addition to these stalwarts (bolstered in January by the addition of Blackburn, Braun, Cramer, Hyde-Smith, and Scott). This significantly buttresses the Trump coalition and greatly dilutes the RINO contingent. In addition to the 39-40, there are another six or seven “squishes” that include Senators such as Marco Rubio, Jodi Ernst, Deb Fischer, and others. Finally, there are the “Sinister Six” of neverTrumpers whom Trump cannot count on in almost any circumstance. These include Ben Sasse, Mitt Romney, Lisa Murkowski, Susan Collins, Thom Tillis, and Richard Burr.

While Trump should be safe, it is crucial that he not alienate any of the squishes, and one of the key areas that would influence their thinking is the nature of the charges. It is my contention that if the charges are on campaign finance and payoffs, the “squishy seven” will acquit. But if Trump declassifies the FISA information, most—if not all—of the “squishy seven” would have a (in their minds) “real issue of concern.”

I have thought for some time Trump has delayed declassifying the FISA information for this very reason: he may need those seven votes for margin. Those calling for him to “burn it all down” need to realize that Trump knows his room for error in alienating Senators is small. He will have their support on a goofball charge like campaign finance violation. But on something people like Rubio or Sasse would see as an element of “national security,” all seven would most likely take that opportunity to bail. That would put Trump’s acquittal margin at three or four, and at that point, anything can happen.

The Swamp

What Happens If John Roberts Decides Not to Preside Over Trump’s Post-Presidency Impeachment Trial?

Trying to make sense of a messy situation.

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Several Republicans and Democrats familiar with the negotiations over Donald Trump’s second impeachment trial have said that Supreme Court Chief Justice John Roberts does not want to preside.

A Politico report that broke the news reads as follows: “We’re hearing that Roberts, who for years has sought to keep the courts apolitical, was not happy he became a top target of the left during Trump’s first impeachment trial. ‘He wants no further part of this,’ one of our Hill sources says. A spokesperson for the chief justice declined to comment.”

As if it weren’t unprecedented enough for a president to have been impeached twice, Democratic lawmakers are hell-bent on holding an impeachment trial for a man who is no longer president. And it sounds like they’re going to get their wish: Senate leaders agreed Friday that the trial would begin Tuesday, February 9. It does not appear that Roberts’ decision is a factor either way.

This clown show needs some unpacking. First off, Roberts has very good reason to reject presiding over Trump’s impeachment trial. The Constitution states that the chief justice will preside when the president is tried. Not the ex-president, the current president. That alone should be sufficient.

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Despite this, there may not be anything that expressly forbids Congress from impeaching and convicting former officials. Some legal experts have pointed out that “nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office.”

In light of all this, the radio silence of the Founders on this matter allows both sides to justify their support or opposition. Those in opposition say that because there’s nothing in the Constitution about trying a former president, there are no grounds to hold the trial. Those in support say that because there’s nothing in the Constitution about trying a former president, there is no legal reason to oppose the trial.

Furthermore, law professor Frank Bowman, speaking to the Washington Examiner, argued that if a trial is going to be held, it might be prudent for Roberts to preside.

“The vice president does have a personal interest in the outcome, insofar as conviction would eliminate Trump as a future political rival, either to President Biden or to Harris herself,” Bowman said. “I think the constitutionally safer call is that he should preside. That way, there can never be a later objection on the ground that the tribunal was not properly constituted.”

If Chief Justice Roberts decides to extricate himself from this mess, Democrats are said to be discussing the possibility of having Vice President Kamala Harris, who is also the president of the Senate, preside. Also being floated is president pro tempore and longest-serving senator Patrick Leahy.

Harris has a conflict of interest if she were to preside, however. And indeed that is why the Founders wanted the chief justice of a (theoretically) non-political entity of government to do so. Harris is not only of the opposite party and was on the ticket that defeated the Trump/Pence ticket, she might very well have aspirations for the presidency if Biden decides not to seek reelection. Trump himself may have his eye on the presidency once again as well, meaning that Harris would be presiding over the impeachment trial of a potential political opponent.

So if the legality of convicting an ex-president is gray, then it becomes a question of prudence. And prudence dictates that the impeachment trial should not proceed. The side that’s calling for “unity” is engaging in something fundamentally disunifying. Any attempt to convict a former president with no clear legal grounds is most definitely not a recipe for “unity” and “healing.” Our senators should just move on and worry about governing. Enough with the political shams and shenanigans.

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