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Trump and the Schrodinger Impeachment

President Trump is both impeached and not impeached until House managers announce it on the floor of the Senate.

House Democrats have been working for years on impeaching Trump, introducing four separate impeachment resolutions starting in May of 2017.  Midterm Democratic candidates ran and won on the promise of impeachment and millions of taxpayer funds are being diverted for these investigations and the salaries of staff and lawyers consumed with impeachment duties.  All of that, and Nancy Pelosi has screwed it up in a moment.

This is now Schrodinger’s impeachment.  ‘Is Trump even impeached or not’ is the thought experiment of the week. According to Harvard Law Professor Noah Feldman, (who also testified in the impeachment hearings) declared in this Bloomberg article that President Trump will not be officially impeached until the House holds a vote on the managers and those managers announce the impeachment on the Senate floor.  He writes:

 “If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.”

Holding an impeachment vote and then not sending it to the Senate is like saying that you applied for a job because you filled out the application, even though you never sent it to the employer.

If the House of Representatives has expended this much energy on impeachment, why would they take a knee in the last minute of the game? Or as Rep. Jim Jordan (R-Ohio) asks, why wait?

Four reasons for the delay in officially declaring impeachment present themselves.  With note, regardless of the reason or reasons, one thing we do know is that this is unprecedented.

The Impeachment Articles Are Not Valid

House counsel may have warned Pelosi of a potential validity issue with impeachment articles. Or perhaps  Rep. Adam Schiff’s secret whistleblower doesn’t exist.

Or the memo penned by Schiff that the entire impeachment inquiry was based on contained too much misinformation that was recently discredited by Inspector General Michael Horowitz’s December report on FISA abuses.  Specifically, the third line of Schiff’s memo reads:

“FBI and DOJ officials did not abuse the [FISA] process, omit material information, or subvert this vital tool to spy on the Trump campaign.”

In truth, IG Horowitz’s report lists over a dozen incidents where the FBI’s misconduct contradicts Schiff’s statements. According to this WSJ article:

The Schiff memo also claimed that “DOJ cited multiple sources to support the case for surveilling Page—but made only narrow use of information from Steele’s sources about Page’s specific activities in 2016 . . .” again.

The Horowitz report says the FBI considered surveilling Mr. Page in August 2016 but decided it lacked probable cause. The bureau moved ahead with its FISA application after it received the Steele dossier on September 19, and the report says the dossier “played a central and essential role” in that decision. Mr. Horowitz says the part of the application detailing Mr. Page’s 2016 activities “relied entirely” on “information from Steele Reports.”

Finally, was President Donald Trump’s constitutional right to due process violated? The kangaroo courts held in secret basement meetings were often lambasted by Republican House members who claimed they were not allowed to call their own witnesses or ask questions not approved by the Democrat chairman in advance.  

Impeachment Was Always Intended To Be A Consolation Prize

House Democrats like Speaker Pelosi have been playing politics for a long time and know how to appear to be working in order to influence voters.  Has the entire impeachment process been planned from the beginning for the Senate to snuff out, so that they can primary GOP rivals for not passing impeachment and potentially get both the House and Senate?  Only then will impeachment pass without any obstacles.

In that sense, these impeachment articles are nothing more than a trophy to wave around at campaign stops like the Stanley Cup – but eventually if they want to keep showing it off, the impeachment articles will have to be sent to the Senate.  While parading impeachment this way may help down-ballot candidates, ultimately it hurts the Democratic 2020 Presidential Candidates as they could be forced to be in the Capitol for the Senate trial during peak primary season, as six of the top runners are sitting U.S. Senators.

Pelosi’s Excuse: Quid Pro Quo

Speaker Nancy Pelosi claims they are ready to send the impeachment articles to the Senate but by delaying, she believes she can get a more favorable outcome.  According to the New York Times, “By withholding the articles, Ms. Pelosi is hoping that Mr. Trump — who is eager for a trial to present his defense and clear his name — will put pressure on Senator Mitch McConnell, Republican of Kentucky and the majority leader, to commit to Democratic demands, including the ability to call witnesses during the trial.”

In short, Pelosi is withholding sending impeachment articles to the Senate until they give her what she’s requesting, in order to damage her political opponent. I don’t understand much Latin but that sounds a little bit like quid pro quo. Check out the video below to watch her stammering out a defense to this unprecedented behavior.

The Speaker of the House believes she’s entitled to know what Senator McConnell will do first.  In the meantime, Democrats will put pressure on RINO’s like Senator Mitt Romney to support their campaign of removal of the sitting President which would require at least 20 GOP senators to turn on President Trump.

Once impeachment is formally announced, McConnell has the option to call for a vote to throw out the impeachment before a trial, or he can move it to a trial, both of which will be equally devastating to the Democrats.  Preventing that as long as possible becomes a prideful and surprisingly intelligent act.

Possibly being entertained by Democrat think-tanks: if by some rare luck that the President is not only impeached but removed by 2/3rds of the Senate, the time-wasting done now will drastically reduce the capacity that the RNC will be able to find a new candidate for 2020 elections less than a year away.

Defeat By Technicality Rather Than Merit

If impeachment is found null and void by some small detail like a formal announcement not being made, Democrats can blame their loss on some “unfair” technicality rather than because the content of their impeachment is weak and unable to withstand scrutiny.

The worst thing that can happen to the House’s impeachment is an actual trial in the Senate.  What is off limits in the House wjll be front and center in the Senate.  President Trump’s council will be free to issue actual subpoenas, as opposed to the one’s without judicial authority sent by Adam Schiff (which when ignored became the grounds for the second impeachment article, Obstruction of Congress). 

President Trump and GOP senators can also call any witnesses to testify under oath like Schiff himself or his potentially fictitious whistleblower, and ask questions previously denied – opening Schiff and co. to perjury charges.  An investigation could be launched in the Democratic presidential front-runner Joe Biden and his son Hunter, ironically, the exact concept the President finds himself impeached.

What now?

The White House attorneys are currently considering an argument based on United States Constitution, Article I, Section 3, Clause 6:

The Senate shall have the sole Power to try all Impeachments.  When sitting for that Purpose, they shall be on Oath or Affirmation.  When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.

Under the “sole power to try” section of the clause, if the articles of impeachment are not actually presented to the Senate, then it could be argued that the president has not actually been impeached.  In that case, the House resolution could skip the Senate and the Judicial branch can step in and hear the resolution and possibly toss it out. Even further, the Court can find the impeachment articles unconstitutional and those that voted for it to be in violation of the Oaths of Office. The Supreme Court would be the final arbitrator and this impeachment would be a real test of our government’s checks and balances.

President Trump seems to be in a win/win situation. And the voters are paying attention. Over 600,000 new contributors helped Trump raise $5 million on the day of the impeachment vote and then doubled that the next day. This follows an astonishing November fundraising month of over $20 million dollars after Speaker Pelosi announced the impeachment inquiry.  

Now the rest of us observers wait for Schrodinger’s impeachment to either live or die on Capitol Hill.

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1 comment

Court Anderson
Court Anderson December 22, 2019 at 3:43 am

So you’re saying there’s an *asterisk* next to Pelosi’s “impeachment,” eh?

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