Will We Choose to Heed George Washington’s Warning?

Richard Rubin
Attorney Richard Rubin has taught at the University of San Francisco, Berkeley and Golden Gate University, is a regular columnist for the Marin Independent Journal and was Chair of the California Commonwealth Club Board of Governors, 2017-2019.

With the announcement that the House Judiciary Committee will be filing Articles of Impeachment, the stage is getting set for a historic trial in the U.S. Senate which will determine whether or not Donald Trump is convicted of “high crimes and misdemeanors.”

He would become the 4th president to be impeached and the only one in his first term.

Richard Nixon faced three counts of impeachment and escaped nearly  certain conviction by resigning before the trial could proceed.

Bill Clinton was judged guilty on two counts— lying under oath to a grand jury about the nature of his relationships with Monica Lewinsky and Paula Jones and Obstruction of justice, for encouraging Lewinsky and others to make false statements and concealing gifts he had given her.

It mattered not. He was reelected to a second term and departed office amidst soaring popularity.

The case for impeachment against Trump will be subsumed in two very narrowly constructed Articles: “Abuse of Power” and “Obstruction of Congress.”

House Speaker Nancy Pelosi and Rep. Adam Schiff (Los Angeles) are two of the principal architects behind the strategy to impeach Trump and hasten his removal from office.

First, a few words about prior efforts to drive out very bad actors in the White House:

Likening the Trump impeachment to that of Clinton and to a greater extent that of Nixon is absurd on its face.

Clinton certainly acted in ways deemed incompatible with the discharge of his presidential duties though his sexual dalliances in no way jeopardized national security.

Nixon engaged in a vast conspiracy involving a break-in at the Democratic Campaign headquarters in Washington, D.C. and his  subsequent attempt to cover up the crimes. This constituted a blatant abuse of presidential powers but as with Clinton there was no threat to national security let alone a wholesale assault on the bedrock institutions of government.

There has been vigorous debate over whether to adopt only two articles of impeachment regarding Trump.

However, the intentional corruption of a presidential election by soliciting the help of a foreign nation for personal political gain (the essence of the Ukraine fiasco) and Trump’s deliberate and continuing efforts to obstruct Congress from investigating these illegitimate actions are very specific and easily understood charges.

By all accounts the leading players behind this strategy are the imperturbable Californian, House Speaker Nancy Pelosi who has called all the shots so far as this drama unfolds with sage counsel from her trusted lieutenant, House Intelligence Committee Chair, Adam Schiff.

First to take the microphone, Pelosi left no doubt about her dominant role making some history herself as the first woman Speaker to oversee a presidential impeachment declaring, “Sadly, but with confidence and humility, with allegiance to our founders, and a heart full of love for America, today I am asking our chairmen to proceed with articles of impeachment.”

New Yorker Rep. Gerald Nadler the Chair of the Judiciary Committee who had assumed a more subordinate role summarized the Democrat’s case very aptly: “Our president holds the ultimate public trust. When he betrays that trust and puts himself before country, he endangers the Constitution, he endangers our democracy and he endangers our national security.”

Schiff will very likely be tapped by Pelosi as one of the managers to prosecute the case before the U.S. Senate. Her choice of a co-counsel will be a critical decision. Bill Clinton employed 13 managers in his trial where he was ultimately impeached and went on to reelection anyway.

Joined by other Committee Chairs with Pelosi standing by his side, the normally laid-back Schiff sounded fully girded for the battle ahead:

“To do nothing would be to make ourselves complicit,” Schiff said. “The president’s oath of office appears to mean very little to him, but the articles put forward today will give us a chance to show that we will defend the Constitution and that our oath means something to us.”

Another high profile House Intelligence Committee member, Rep. Eric Swalwell (Contra Costa County) was even more blunt: “This is a crime spree in progress.”

Some Democrats have advocated for additional articles such as bribery and extortion (the “quid pro quo” machinations with the Ukrainian president); violation of the Emoluments Clause which concerns the improper acceptance of gifts; the enlistment of Russian agents to alter the outcome of the 2016 presidential election (a big portion of the Mueller Report); and what has become a pattern of misconduct.

It appears they were purposefully drafted in this fashion to simplify a very complicated set of facts which has doubtless left many voters scratching their heads as the evidence of egregious wrongdoing has continued to mount.

Pelosi and her brain trust weighed the benefits of trying to disentangle this web and concluded a less complicated presentation with fewer articles will be more persuasive with the voters.

Some legal experts who participated in the Watergate hearings that brought down Nixon are counselling otherwise thinking that giving wavering GOP Senators more choices is the preferable option and could provide some political cover in casting yeas and nays.

The Senate will serve as the jurors. But the most important jury will be the voters particularly if enough of those who pulled the lever for Trump the first time around can conclude they have had enough of him.

Still, even the most nuanced formulations of the articles might not matter much.

The betting odds at the moment favor acquittal by a substantial margin and are not likely to change barring further revelations that would have to convince 20 GOP Senators to abandon this president even at the risk of losing their seats in the 2020 election.

That is a tall order!

The testimony elicited from several key “fact” witnesses by Schiff and his highly skilled Counsel, Daniel Goldman, during two months of exhaustive hearings produced incontrovertible evidence that the president personally took or directed actions which the Constitution declares impeachable.

GOP committee members sought in vain to punch holes in the Democrat’s case dismissing it all as just a giant “witch hunt” echoing Trump’s constant meme.

No effort whatsoever was made to defend the president’s conduct since by some of his own admissions certain facts were beyond dispute including Trump’s now infamous July 25th phone call to Ukraine’s President Volodymr Zelensky pushing him to investigate the Bidens according to a transcript of the conversation released by the White House.

Instead they were forced to fall back repeatedly on the tired canard that the Democrat’s failed to produce the anonymous “whistleblower” whose allegations were fully supported by the parade of highly credible former and current State Department officials who offered highly damaging evidence.

No apologies regarding White House aides closest to the president in the best position to refute these allegations though instructed by Trump to take the oath of silence.

This stonewalling will apparently continue as the trial proceedings scheduled to probably commence just after the holidays in which the White House has already announced it has no plans to participate.

As jurors the Senators themselves are not permitted to question witnesses although they can put questions to the attorneys who will be dueling with one another in behalf of their clients—the American people and Donald Trump. This will take place under the watchful eye of the Chief Justice, John Roberts.

If Trump manages to avoid removal from office either by impeachment or through electoral defeat it could obliterate any lingering doubts as to whether or not our democracy remains in good health.

If this president can get away with doing just about anything he wants with near total impunity he will have set a constitutional standard so low that future offenders should have little difficulty meeting it.

In his Farewell Address, our first president, George Washington, warned that a free nation must guard against leaders with despotic ambition who would use parties as “potent engines…to subvert the power of the people and to usurp for themselves the reins of government.”

His warning should not go unheeded.

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