Postpone the Impeachment Trial until the House Finishes Investigating

Postpone the Impeachment Trial until the House Finishes InvestigatingTwo things happened simultaneously on Wednesday: (a) The House of Representatives transmitted to the Senate two articles of impeachment approved on straight partisan lines a month ago, and (b) the House’s impeachment inquiry — yes, it’s still very much alive — highlighted new, relevant evidence it has turned up about the activities in Ukraine of President Trump’s personal lawyer, Rudy Giuliani, and Giuliani’s associates.The Democrats’ strategy is coming clear.The House provided the Senate with two half-baked impeachment articles. House Democrats rushed through the investigation, forgoing salient witnesses and evidence, because of the political calendar. The charges are weak and the inquiry was needlessly short-circuited, so Democrats have continued investigating the premature allegations. Now they are publicly disclosing newly acquired evidence, with the promise of more to come. Transparently, their goal is to pressure the Senate not merely to conduct a trial but to complete the investigation that the House failed to complete — calling witnesses and gathering evidence, as if a trial were nothing more than an extension of an open-ended grand-jury probe.Senate majority leader Mitch McConnell and Senate Republicans should not let them get away with it. No trial court would allow itself to be whipsawed this way. A federal judge would tell prosecutors to go back to the grand jury, finish the investigation, and come back to the trial court when they have a case ready to be tried, not investigated.That is not to say new evidence may not be serious. It may be very serious. It could make the case worse for President Trump. But in any event, there should be just one trial, and it should occur when the investigation is complete. This is not supposed to be a non-stop grand jury, with an ever-hovering prospect of new articles of impeachment, in addition to an endless stream of newly emerging materials that the Senate is expected to sort out rather than judge.Leader McConnell and Senate Republicans should hold the two pending articles in abeyance, or vote to dismiss them without prejudice to the House’s revoting them when its impeachment inquiry is finally concluded.The new information that has emerged underscores a strategic error by the president and House Republicans, which I have outlined several times since the Ukraine controversy emerged. They have insisted on fighting the Ukraine allegations on the impossible theory that the president’s communication with his Ukrainian counterpart, President Volodymyr Zelensky, was “perfect,” and that there was no quid pro quo — i.e., no indication that the president was withholding official acts sought by Kyiv ($ 400 million in defense aid and a White House visit) until its government met his demands (the public announcement that Ukraine would conduct an investigation of the Bidens and into Ukraine’s role in the Trump-Russia investigation).I have contended, to the contrary, that the president’s best defense is that nothing of consequence happened. I have been prepared to assume that the president pressured Ukraine, as alleged. But it was much ado about nothing: Ukraine got the defense aid (and barely knew it had been briefly delayed); Zelensky did not have to make any commitment about investigations; and he got his high-profile audience with President Trump (albeit at the United Nations in New York City, not at the White House). The president’s defense should be that, while there may have been improprieties, nothing here approaches the egregious misconduct required to trigger impeachment.This would be the best strategy in any event. It is an imperative strategy, however, in a situation such as this one, where the investigation is continuing and new information is coming out continuously. Under my approach, if new evidence emerged about the president’s knowledge of or complicity in the pressure campaign on Zelensky, it could be dismissed as mere confirmation of what was already obvious. But because the president and Republicans have taken the tack that nothing inappropriate happened and no pressure was asserted, any evidence of impropriety and pressure can be framed as a bombshell — even though it doesn’t actually change the bottom line.Giuliani associate Lev Parnas is under indictment in the Southern District of New York (SDNY), in a case that has factual overlap with events that were the focus of the House impeachment inquiry. Parnas wants to use his potential value as a witness in the impeachment inquiry as leverage against his SDNY prosecution. So he has begun sharing information from the SDNY case with House investigators. They, in turn, are releasing the information to the media, which are reporting it as ground-shaking revelations.That information (texts, notes, and the like) indicates that Giuliani, representing that he was acting with the president’s knowledge and approval, and in his official capacity as Trump’s private lawyer, sought a meeting with Zelensky in mid May 2019. The implication is that this was part of a then-ongoing plan to push Ukraine for an investigation of the Bidens.Moreover, there are communications between Parnas and Yuriy Lutsenko, a Ukrainian prosecutor who was helping Giuliani investigate possible Biden corruption, about their desire for the ouster of Marie Yovanovitch — the U.S. ambassador to Ukraine, who was eventually removed by the president at the urging of Giuliani (among others). There is enough detail in Parnas’s correspondence about Yovanovitch’s activities that it raises the disturbing specter that he was monitoring an American ambassador.The allegedly unjustified removal of Yovanovitch was extensively covered in the House hearings, which included the ambassador’s testimony. It was mainly atmospheric, rather than substantive. The president does not need a reason to dismiss an ambassador. And while it was vaguely suggested that Yovanovitch was removed because she was seen as an obstacle to pressuring Ukraine for an investigation of the Bidens, that was not established. There are no impeachment articles tied to her removal.If I am right, and Parnas is trying to use his potential value as an impeachment witness as a chip in plea negotiations with the SDNY, that could take time to work out. (The SDNY, whose job is prosecution, not impeachment, would want a guilty plea and full cooperation; Parnas would want immunity.) Meanwhile, the other major storyline is that John Bolton, formerly the president’s national-security adviser, has indicated that he is willing to testify if called. He is patently a relevant witness to the internal administration discussions over delayed defense aid to Ukraine. So is acting chief of staff and budget director Mick Mulvaney. So may be Secretary of State Mike Pompeo, if the House’s continuing investigation is focusing on Ambassador Yovanovitch’s dismissal.Plainly, there are loose ends here that the House should have tied up and that, importantly, the House is continuing to investigate. Note that Democrats have been caterwauling that the impeachment trial will not be fair because Senate Republicans are too in-the-tank for Trump to do their duty as impartial decision-makers (as if Democrats were not rabid anti-Trump partisans). But what could more undermine the fairness of a trial than a continuing, very public investigation of the same defendant while that trial is proceeding?No trial judge would put up with that. Prosecutors would not be permitted to present the case before a trial jury while, outside the courtroom, they were prejudicing the trial by continuing to investigate and publicize their findings.There is a very simple solution, one that judges in federal court deal with all the time in cases that are still under investigation when an indictment is initially filed: Don’t schedule the trial until the prosecutors acknowledge to the court that the investigation is over and no further charges are anticipated.It is worth bearing in mind: Impeachment is not just any trial. It stops the legislative business of the United States cold. There will be no movement of bills, no consideration of appointments, no hearings on vital issues such as Iran and the use of force. The impeachment trial will impede the work of the Supreme Court, since the chief justice must preside. In this instance, the impeachment trial will even wreak havoc on the Democratic nomination campaign, as senators — including top-tier contenders Elizabeth Warren and Bernie Sanders — must sit as jurors for six days a week.These are costs that must be borne. There has been an impeachment, so the Constitution calls on the Senate to act. But for the sake of our governance, that should mean a single trial, and it should represent the Democrats’ best, most complete case for the president’s removal. That trial should not happen until the investigation is done and the charges are fully ripe. By contrast, if Republicans allow Democrats to engage in the ongoing gamesmanship — in which the Senate trial would open, but House Democrats plan to throw new evidence into the mix every few days or weeks, demanding that the Senate trial be expanded to investigate what it all means — we would be looking at weeks, maybe months, of governmental paralysis. There is, moreover, basic fairness: The accused is supposed to know what the allegations are before the trial starts — the charges are not supposed to evolve as the trial proceeds.The importance of preserving impeachment as a viable constitutional remedy for presidential misconduct transcends the current administration and Congress. If impeachment must be done, it should be done right. It should not be done as a partisan game of investigative ping-pong between congressional chambers.



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