In the United States, the rule of law is in head-on collision with party politics. This has also been the case with previous impeachment cases: Richard Nixon resigned in 1974 before he could be removed, while Andrew Johnson and Bill Clinton were impeached by the House of Representatives in 1868 and 1998, respectively, but not convicted by the Senate. If President Donald Trump used Congress-authorised funds for military purposes in Ukraine for an alternate purpose, in this case for attempting to generate damaging evidence against one of his leading political opponents, it would exceed the severity of alleged illegal actions by any of the past Presidents who faced impeachment investigations.
Task before the Democrats
Going by opinion polls, the current impeachment inquiry launched by the Democratic Party majority in the House of Representatives faces a singular obstacle; nearly four in 10 Americans trust Mr. Trump more than they trust the nation’s public institutions, and 90% of registered Republicans support the President. The Democrats face an uphill battle in the political and perception fields; they have not only to establish that the President committed acts meeting the impeachment requirement, but to convince the public they are not out to subvert the will of the people when 40% view the process, as does Mr. Trump, as a witch-hunt.
In fact, the Republican popular base support Mr. Trump because he disrupts, and his actions challenge long-accepted norms in American public institutions. Mr. Trump represents a profoundly anti-establishment bias which many Americans, embittered from the 2008 financial crisis and prolonged conflicts in Afghanistan and West Asia, share against officialdom, compromise and pragmatic governance. The President’s approach may be a winning domestic political strategy but it also represents a deeply destabilising trend which erodes the effectiveness of institutions and damages American credibility abroad.
Political process
Impeachment is both a legal and a political process. The framers of the U.S. Constitution limited the grounds to treason, bribery or other high crimes and misdemeanours, but rejected maladministration as grounds for removal from office; in other words they wanted Congress to examine cases of treachery and criminality but not bad policy or incompetence. The prescribed standards of culpability are left to the lawmakers and differ substantially from normal courts of law. The process is political because this power is given to politicians and elected officials and not judges. Congressional impeachment power is therefore the essence of the legislature’s primacy, without check or balance, over the executive branch, and differs from the lawmaking power which is subject to executive veto and judicial review.
The specifics
The lower House’s judiciary committee examined a range of charges against Mr. Trump such as bribery, extortion, obstruction of justice and abuse of power. The House will assert that the U.S. President was asking Ukraine’s President Volodymyr Zelensky to advance Mr. Trump’s personal interest, as opposed to the American interest, by investigating Democrat and former U.S. Vice-President Joe Biden for corrupt practices, and that mere solicitation, as opposed to implementation, was severe enough to warrant impeachment. Under U.S. criminal law, soliciting a bribe is as illegal as receiving one, but even if illegal, Congress must still determine if Mr. Trump’s action constitutes a high crime or misdemeanour.
The Republican supporters of Mr. Trump argue that the President wished to combat corruption and was not seeking personal favours, but expressing legitimate public concerns. They also argue that regardless of Mr. Trump’s actions, no linkage was insisted on, Ukraine received the military aid and never launched the investigations. However, the circumstances in which the aid was eventually released are murky; John Bolton, the National Security Adviser at that time, claims to have released the funds without the President’s knowledge. Unfortunately for the President, both his hand-picked Ambassadors to Ukraine and the European Union have admitted to seeking, on Mr. Trump’s behalf, Mr. Zelensky’s authority for investigations into Mr. Biden specifically, an action that would benefit Mr. Trump personally rather than serving any recognised national interest.
Mr. Trump claims in his defence to have exclusive authority to define the national interest in the field of foreign policy. It is true that the President enjoys wide latitude, but in this case Congress has some say due to its appropriations power because it had authorised nearly $400-million to help Ukraine after the Trump administration had certified that Ukraine was combating corruption sufficiently to qualify for the assistance.
Advantage Trump
The Democrats recognise that the longer the hearings drag on, the more it will appear that they are trying to engineer an outcome that they cannot achieve through the ballot box. This is why they wish to resolve the issue before the party caucuses start in February 2020, or as early as possible in the presidential nomination process. However, moving so rapidly inevitably involves skipping some of the careful due process consistent with the rule of law. They may be objectively convinced that multiple actions on the President’s part warrant impeachment, but proof of motive and explicit culpability are required for a trial by the Senate presided over by the Supreme Court Chief Justice.
The Republicans hold 53 of the 100 seats in the Senate, which means they will prevail in any judgment against Mr. Trump, which requires a two-thirds majority of those present to remove him from office. It cannot be assumed that no Republican Senator will care about the evidence presented, but the fact remains that the President can inflict substantial damage on Republican legislators who break ranks. This makes the semblance of any bipartisan inquiry impossible, and the President will almost certainly be acquitted.
Having initially opposed impeachment, House Speaker Nancy Pelosi is now racing to conclude the impeachment process and articles of impeachment have been drafted. The charges are twofold and narrowly focused: abuse of authority in regard to Ukraine and obstruction of the investigation. The Senate trial will distract from the Democratic presidential primary contest with the Senator candidates having to cease campaigning to sit as jurors.
In short, the impeachment process looks like being politically wasteful for the Democratic Party, both now and its bid to seize power from Mr. Trump in the presidential elections next November.
Krishnan Srinivasan is a former Foreign Secretary
