Should the Senate even hold an impeachment trial if Republicans have resolved in advance to acquit?


My question is inspired by this strange op-ed from the unlikely duo of Anthony Scaramucci and Lanny Davis. You know all about Mooch; Davis, as you probably know, was a longtime Clinton crony who ended up representing Michael Cohen during his Trump-fueled legal troubles last year.

Not a pair of guys whom you’d expect to go looking for reasons to let Trump avoid the spectacle of a Senate trial and to let the Senate GOP off the hook on holding a formal vote as to his guilt or innocence.

Yet here we are.

[W]e believe the Senate should proceed to a trial only if at least 20 Republican senators announce beforehand that they are open-minded about removing Trump from office

The disadvantage to such a move might seem unfair to Trump, as it would not present him with an opportunity to answer the charges leveled against him by the House. For this reason, we would propose that the president be given the option of having a full Senate trial if he wants one.

But our instinct is that, if given a choice, Trump would say, “Thanks, but no thanks.” He will know that second presentation (and the larger TV audience that goes with it) of the undeniable evidence that he asked a foreign government leader to intervene to help him in the 2020 presidential election won’t help him politically.

Our hunch is that most Americans would prefer to avoid wasting time during a crucial presidential election. They would rather focus on the important issues facing the country.

Most anti-Trumpers would tell you hell yes, a trial should be held. For one thing, Senate rules require that it be held. Even Mitch McConnell admits that. For another, as a matter of simple justice the evidence against the president should be formally presented. Just because the jury in this case is rigged doesn’t mean it’s pointless to show the evidence to the public. To the contrary, the Senate jury might at least be shamed for their prejudice by confronting them with the evidence. And since the electorate has the power to remove Trump next fall at the polls, they might be convinced to oust the president eventually based on the evidence they see even if the Senate refuses to oust him immediately.

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But here are Davis and Mooch shrugging and saying, “Why bother?” I could understand that if the testimony given to House Democrats so far looked thin, in which case the “skip the trial” ploy here might just be a sly way of sparing Dems the humiliation of presenting a weak case at trial. If impeachment is destined to backfire politically on them, go figure that Scaramucci and Davis might be looking for a way to end the process early.

But the testimony doesn’t look thin so far (at least as far as we can tell from opening statements and leaks). If anything, it seems likely that the vote to remove Trump after a Senate trial will be bipartisan — Romney, Murkowski, maybe a few more will cross the aisle. The Mooch/Davis plan would spare Trump and the GOP from that embarrassment and from any lingering political damage that the evidence might do their election chances if only Trump can convince 34 cronies in the Senate to step forward and say, “My mind’s made up.”

Which wouldn’t be very hard. As I’ve been saying, Republicans could always dispense with the facts entirely and claim that what Trump is accused of simply isn’t a “high crime or misdemeanor” sufficient to justify removal. We stipulate that Trump is guilty as sin of everything he’s been accused of, they might declare, but he’s still going to be acquitted because that just isn’t an impeachable offense. If Pelosi agreed to the Mooch/Davis plan, McConnell would leap at the opportunity to spare Susan Collins, Cory Gardner, and other vulnerable purple-staters from a wrenching removal vote by convincing 34 cronies to go out there and say, “No impeachable offense!”

So yes, of course Trump and McConnell would select the “skip the trial” option offered in the Mooch/Davis plan even though it would mean Trump’s lawyers don’t get to put on a defense. Trump would just tweet that “another witch hunt is over!” 50 times and would be content with that. It’s so obvious that their plan would be helpful to POTUS, in fact, that I’m left wondering whether I’m missing some clever anti-Trump trap that’s being set. Scaramucci and Davis stress that the House should follow through by impeaching him, that they hope 20 open-minded Senate Republicans can be found, and that if worse comes to worst Trump should suffer a crushing landslide loss next fall. They’re just … not eager to have House Democrats show their cards after six weeks of impeachment fee-vah over Ukraine. Why?

Are they worried about the polling, maybe? It’s been pretty good for Democrats so far, but Byron York notes that appearances can be deceiving:

The Suffolk pollsters gave 1,000 registered voters an opportunity to choose among three options regarding impeachment. Which did respondents personally prefer?

A) The House of Representatives should vote to impeach President Trump.
B) The House should continue investigating Trump, but not vote to impeach him.
C) Congress should drop its investigations into President Trump and administration.

Thirty-six percent of those polled said the House should vote to impeach; 22 percent said the House should continue investigation but not impeach; and 37 percent said the House should drop its investigations. The last five percent did not have an answer or refused to give one.

Most impeachment polls are yes/no affairs: Impeach Trump or not? This one, York notes, provided a middle option of “investigate but not impeach” that drew a surprising amount of support. A separate question in the poll found 52 percent believe Trump’s phone call with Zelensky was either fine or, although wrong, not so wrong as to constitute an impeachable offense. That’s not the same as asking whether the entire months-long effort to work a quid pro quo with Ukraine was impeachable but it’s further evidence that the public may be less gung ho to see Trump impeached than other polling suggests. Or, alternately, that a “bad but not impeachable” defense by the Senate GOP might prove more persuasive than Democrats believe.

Is that what Mooch and Davis are worried about, then, a major political backfire that no one else is seeing yet? Or are they worried that a prolonged trial will force Warren, Sanders, Harris, Booker, and Klobuchar to be stuck in D.C. for weeks on end while other Dem presidential candidates are on the trail, campaigning during crunch time before Iowa? That would … also be strange since Davis and Mooch are both centrists and it’s the far-left members of the Democrats’ 2020 top tier who’d be chained to their desks in the Senate during Trump’s impeachment trial. If you prefer Biden (or Buttigieg) as nominee to a progressive, you should want a lengthy trial for Trump in order to give them an advantage on the stump. Yet here are Scaramucci and Davis arguing against it.

What’s the game that I’m missing? Presumably they think there’s little to be gained for Democrats by going through a trial in the Senate after the House has already held its own public hearings on the evidence against Trump, which it will do soon. They can humiliate him by voting to impeach and then, with the president’s own blessing, the process could stop cold at that point before his lawyers get to cross-examine anyone and poke holes in their testimony. If that’s the idea, I think they’re wrong: There’ll be vastly more public attention paid to a Senate trial, with Trump technically on the cusp of removal, then there will to a series of scattered hearings in the House before he’s even been impeached yet. But that’s the best I can do to explain why an anti-Trumper would embrace this idea.

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