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The Strategic Underpinning—and the Limits—of the Republican ‘Due Process’ Defense of Donald Trump

Bob Bauer
Wednesday, October 30, 2019, 9:04 AM

Impeachment is both a political and a legal process. It is not unconstrained by precedent, nor is it controlled by it. In the course of impeachment, legislators may be guided by a sense of constitutional responsibility, but they also keep their eye on public opinion polls. They are sensitive to the constitutional history they are writing. Lawmakers also prefer reelection to defeat. Nothing they say in one moment about process or substance may hold under the pressure of events or swings in public sentiment.

President Donald Trump Speaks with Members of the Press, Oct. 28, 2019 (Source: Flickr/Official White House Photo by Shealah Craighead)

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Impeachment is both a political and a legal process. It is not unconstrained by precedent, nor is it controlled by it. In the course of impeachment, legislators may be guided by a sense of constitutional responsibility, but they also keep their eye on public opinion polls. They are sensitive to the constitutional history they are writing. Lawmakers also prefer reelection to defeat. Nothing they say in one moment about process or substance may hold under the pressure of events or swings in public sentiment.

This does not mean that the politics of impeachment take no account of the merits of a charge against the president. Every major development in a presidency under siege reverberates through the political system and causes constitutional actors to adjust their positions. As we have seen with the pace of developments since the revelation of President Trump’s call with the president of Ukraine and subsequent disclosures, it is all in flux.

These cross-cutting and complex pressures are worth keeping in mind in understanding the positions the two political parties and their leaderships have taken in the early round of the Trump impeachment process. They are especially evident in the Republican embrace, for the moment, of a “due process” defense of the president in response to the now-central allegations in the impeachment process: President Trump pressured foreign governments to intervene in the 2020 presidential election.

The transcript of Trump’s call to the president of Ukraine, together with other evidence of his abuse of official authority to undermine a political opponent, resulted in a freshly focused and accelerated move toward impeachment. It also contributed to fissures in the president’s support in the Senate. For example, eight Republican senators initially declined to support a resolution from Senate Judiciary Chair Lindsey Graham demanding that the House formally authorize an impeachment inquiry and afford the president a panoply of due process protections. Now the number who have withheld their support is down to three, but not all those willing to put their names to Graham’s demand for due process seem eager at this time to expand their defense to the merits of the case. The press reports a wariness within the Senate Republican caucus about the, as the Washington Post described it, “troublesome picture that has been painted, with neither convincing arguments from the White House nor confidence that something worse won’t soon be discovered.”

This deep unease about what they have learned about the president’s conduct, coupled with uncertainty about what they don’t yet know, is likely a driving force behind the Republican congressional leadership’s adoption of a due process argument. By falling back on complaints about procedures, they can avoid, for the moment, a fully or primarily substantive defense. A fight over process buys time, puts them on the side of “the law,” and gives some cover to Republicans who want to appear to defend the president without having to go all-out on his behalf. It is an argument about fairness and not what is right and wrong in Trump’s conduct.

The objective of the argument is to press for a case for “due process” that would seem reasonable—who, after all, opposes “due process”?—while potentially prolonging the impeachment debate and making it harder for the House to hold a vote before Thanksgiving. The longer the fight goes on, the deeper the case moves into the presidential election cycle, and, then, the stronger is a Republican case that the “people should decide.” The House Democrats have denied any irregularity in the process to date and are now poised to vote Thursday on a formal authorizing resolution that sets out procedures for impeachment.

It is telling, and entirely predictable, that senior House Republicans immediately ruled out any possibility that these steps would be adequate to meet their due process demands. Republican House leader Kevin McCarthy promptly tweeted that the Democrats’ move would not “legitimize” a “sham impeachment.” Ranking Judiciary Committee member Jim Jordan joined him on Twitter to repeat the “sham” charge and to stress that “codifying [it] halfway through doesn’t make it any less of a sham[.]” Then, late Tuesday, when the House had released text of the resolution, the White House instantly sounded the same note. White House press Secretary Stephannie Grisham declared that the resolution did “nothing to change the fundamental fact that House Democrats refuse to provide basic due process rights to the administration.” She did not fail to echo the McCarthy and Jordan charges that the impeachment process “has been an illegitimate sham from the start.”

By Wednesday morning, Trump was back on Twitter, this time insisting that the Republicans should go with “Substance.” On this question of whether process or “Substance” is the winning strategy, Trump seems divided. He has also run with the congressional Republican theme that he has been denied due process: he recently retweeted Freedom Caucus Chair Mark Meadow’s attack on the impeachment process as a “secretive, free for all, no rules, impeachment process” that “blows up precedent. Another of his retweets endorsed the view that “Serial killers” are afforded more rights than the Democrats are prepared to provide him. It is not hard to imagine that Trump is very much on edge about suggesting that he cannot be defended on the merits, and he is communicating to the base, in his way, that he did nothing wrong and congressional Republicans can prove it. He imagines that the transcript of the call with the president of Ukraine settles the matter. Congressional Republicans, aware of problems with the accuracy of the transcript, may have less confidence that it can carry the case. The parade of witnesses offering additional evidence, such as National Security Director for European Affairs, Lieutenant Colonel Alexander Vindman, are further reason for them to stick for the moment with process.

While this procedural argument serves the interest in diverting attention from substance, and pushing this conflict as deeply as possible into the election cycle, Republicans may looking to seize another opportunity that buying time might open up:: the pending Department of Justice inquiries into alleged intelligence community and law enforcement misconduct in 2016 motivated by bias against the Trump candidacy. The Justice Department inspector general is reportedly readying one such inquiry into the investigation of the conduct of Trump foreign policy campaign adviser Carter Page, and Attorney General William Barr is conducting the other with the help of former U.S. Attorney John Durham. Trump and his allies are undoubtedly hoping that these inquiries produce material that, either fairly construed or energetically “spun,” feeds into their narrative that Democrats and “deep state” civil servants employed any means they thought necessary to keep Trump out of the White House—or, once there, to dislodge him. This would inject fresh energy into their core defense that the impeachment process is a partisan “sham” and Trump is a victim.

Should this happen, the narrow fairness argument could merge into more of a defense on the merits. The president’s allies could explain the Democrats’ so-called denial of due process as the latest move in a long-standing plot against Trump, in violation perhaps of law but certainly of norms, and therefore a reason to reject the good faith and accuracy across-the-board of the case for impeachment. This will be their chance to contain damage from Ukraine revelations, while lumping it together with many other House investigations, such as those into the Emoluments Clause and other issues raised by the president’s personal finances or the campaign legal questions arising from his payments to women alleging affairs with him and schemes to cover them up. On this Trump theory of the case, the Democratic quest for impeachment was inevitable: nothing less than a refusal to accept the results of the election and, as Trump has said, “a takedown of the Republican Party.” The president and his allies might hope in this way to rally support among Republicans and some share of Republican-leaning independents, and, by inflaming the base, hold anxious or vulnerable Senate Republicans in line.

This sets the conditions in which Senate Majority Leader Mitch McConnell will guide his caucus. He has said that the Senate must try a House impeachment. As I have written here previously, he might have decided otherwise but only if he had the full support of his caucus, which he doesn’t. Given the small margin of Republican control in the Senate, McConnell cannot afford to provoke the senators who have not supported the Graham petition and still others who might not support a Senate refusal to hold a trial. Likely for this same reason, he also expressed doubt about a motion to dismiss, though there is precedent for it in the Clinton impeachment case. It is best to treat the positions he has taken to date as entirely provisional, subject to adjustment as circumstances change.

As circumstances change, to the advantage or disadvantage of this president, McConnell has plenty of room to maneuver. His professed fidelity to the rules may well yield to other imperatives. For example, he has made it clear that he will not commit to a long trial, and he is on safe ground with that assurance: Very few on his caucus want a long trial. They will want to get it over with, go home, campaign in advance of the 2020 election and have it all behind them. Republicans understand the risks of an extensive discussion of the behavior of Donald Trump. Just as the Republicans are arguing about procedures to extend the impeachment process in the House, they may well decide that an abbreviated “process” works just fine in the Senate. They may reasonably believe that they are better off with a quick trial that is largely about “due process” rather than an extended debate about the president’s conduct and the facts supporting the articles of impeachment.

Should “process” become the central Republican defense—not just about the House impeachment process but about impeachment as the culmination of an alleged multipronged coup that was launched against Trump before November 2016McConnell could make quick work of the Senate consideration of articles of impeachment. He has reason to say now that the Republicans will not file a motion to dismiss. He can switch this position later and point to changed circumstances. There is a distinct allure to a motion to dismiss: It can prevail on a simple majority vote.

Even if the Republican senators do not move for dismissal, the Trump lawyers are not prevented from doing so. Will McConnell lead his caucus in a vote against dismissal? This is hard to imagine. Of course, McConnell still has to hold his caucus, staving off defections, and the process argument and the time it is intended to buy is his best bet.

In key respects, the Republican strategy of alleging a corrupted constitutional process bears remarkable similarities to the Democratic Clinton impeachment defense. It is often said that the Republican impeachment drive failed because it was substantively about sex or private matters, which are not constitutional bases for removing a president from office. There is some truth to this, and it shows that constitutional precedent—a key part of the law of impeachment—has some bearing on perceptions of what would be the right outcome. But there was an equally powerful process element.

The Clinton lawyers argued effectively that Ken Starr’s aggressive investigation was part of a wider right-wing conspiracy to “get” Bill Clinton. One book-length defense of the president characterized it as a “ten-year campaign to destroy Bill and Hillary Clinton” that threatened to undermine American democracy. The authors made the case, widely accepted by Democrats, that the investigation and impeachment of Clinton were partisan through-and-through: from the surprising decision by conservative judges on the U.S. Court of Appeals for the D.C. Circuit to replace then-Independent Counsel Robert Fiske with Starr, to the collaboration of the Starr legal team with a successful Republican attempt to catch Clinton in a lie about his relationship with White House intern Monica Lewinsky.

What followed was an impeachment process in which Starr was the House majority’s only “fact” witness in the impeachment hearings: It relied entirely on the record he compiled in his investigation, and Congress conducted no depositions or other fact-finding of its own. In the successful defense against ouster from office, Clinton and his allies contended that impeachment had been infected with—and could not be considered apart from—this 10-year campaign in which Clinton was “portrayed … as unworthy to occupy the office of president of the United States.”

The structure of this defense may well have contributed to the wide public support that Clinton enjoyed by the time the Senate took up the articles. It certainly helped mobilize and energize the Democratic Party’s base and keep congressional Democrats firmly lined up behind the president. Today, the Republicans are rolling out the same kind of argument, which is in essence a claim that the abuse of power at issue in this impeachment process is the one Democrats are committing in their quest to remove this president from office.

The Republicans face significant obstacles in pursuing this same strategy. One is that the Clinton case was at the core about personal, not official, behavior, and there was no serious contention that his relationship with Lewinsky corruptly influenced his official conduct. The merits still matter. Another is the positive public perception of how Clinton was performing. The politics also matter.

And, finally, the president’s supporters must reckon with an impulsive and poorly organized defense by a president who has relied, among other counsel, on the likes of Rudy Giuliani. In the Clinton case, the president’s defense was in the hands of first-class lawyers who executed it exceedingly well. There are reports that Trump and his staff are coming to look to Jared Kushner to lead the political and public communications components of the impeachment defense. According to one account, he will “provide perspective on reacting to the news cycle and a high-level approach to problem-solving.” Of course, Kushner has no experience in matters like this, and his one notable contribution to White House damage control was his ill-fated advice that his father-in-law fire FBI Director James Comey.

Moreover, Kushner and the president seem to share the view that the best defense should focus on the facts and not process. That Trump and the Republican congressional leadership are apparently pulling in different directions—lawmakers reluctant to engage with the facts and the president and Kushner pushing them to do so—does not bode well for the coherence of the defense.

Now both the Democrats and the Trump Republicans are watching the clock and awaiting developments. The calendar calls for Democrats to proceed apace in the House, and for the Republicans to slow things down there and speed them up again in the Senate. The timing of the Carter Page and Barr-Durham inquiries is a critical factor. What the Republicans are able to make of the results of those inquiries is still unknown. But then also far from clear, and ominous for the Republicans, is the evidence of misconduct emerging from the congressional investigation and from investigative news reporting.

The Republicans have one heavy burden to carry, which may in the end catch up to them: Donald Trump, and all that comes with him—the ignorance about the matters within his official responsibility, his inability to distinguish the legal from the illegal, his habitual disregard for even basic norms and for rudimentary standards of truth-telling, and the obsessional and crudely self-referential tweeting and personal commentary. This is where the politics and law of impeachment may eventually converge. Enough Republican senators may conclude that Trump should not be president and that, in defending him, they are putting themselves and their party at fatal political risk.

For now Trump and his Republican supporters are taking their stand on process and playing for time. But that is just for now. It is all in flux.

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. In 2020, he served as a senior advisor to the Biden campaign.

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