Impeachment inquiry: a Senate trial is likely to backfire on Democrats

Passing the baton to the Republican-controlled Senate would invite a perfunctory trial and acquittal

U.S. President Donald Trump holds a campaign rally in Sunrise, Florida, U.S., November 26, 2019. REUTERS/Yuri Gripas
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For Democrats, these are the best of times and the worst of times.

Two weeks of impeachment inquiry testimony by administration officials have painted a stark picture of a US president who allegedly tried to leverage US foreign policy to smear his political opponents. Few facts in the case are disputed, although Donald Trump denies any wrongdoing.

Yet Republicans remain unmoved. A vote on articles of impeachment is currently anticipated in December in the Democrat-controlled House. That would mandate a trial in the Senate but as things stand, it would receive few, if any, Republican votes.

The president has claimed immunity and directed current and past officials not to testify, congressional subpoenas notwithstanding. He has flatly refused to co-operate with the investigation, despite US district judge Ketanji Brown Jackson ruling that "no one is above the law" and that "presidents are not kings".

Despite White House stonewalling, a series of witnesses have given a detailed account of how Mr Trump empowered his personal lawyer Rudy Giuliani to try to leverage promises of a potential meeting and $400 million in US military aid for political gain

Ms Jackson was ruling in the case of former White House counsel Don McGahn in relation to the inquiry into Russian interference in the 2016 election but it could have implications for those subpoenaed to testify in the impeachment hearing.

Despite White House stonewalling, a series of witnesses have given a detailed account of how Mr Trump empowered his personal lawyer Rudy Giuliani to try to leverage promises of a potential White House meeting and $400 million in US military aid for political gain. The president allegedly threatened to withhold the aid from newly elected Ukrainian president Volodymyr Zelenskiy if he failed to announce an investigation into unsubstantiated corruption claims against Hunter Biden, the son of his leading Democratic rival Joe Biden.

Earlier this month acting Ukrainian ambassador William Taylor and state department official George Kent testified that the Trump administration urged Ukrainian officials to announce such an investigation, as well as another into a long-debunked conspiracy theory that Ukraine had interfered in the 2016 US election on behalf of Democrats. Mr Kent was the first of many witnesses to dismiss that theory.

During the lengthy hearing, Marie Yovanovich, the former US ambassador to Ukraine, described a campaign of personal vilification against her by Mr Giuliani and his Ukrainian associates because of her efforts to combat corruption. As she took the stand, Mr Trump even fired off a tweet in real time that read: "Everywhere Marie Yovanovitch went turned bad,” leading the visibly shaken envoy to admit: "It's very intimidating" when his message was displayed on screens in the hearing room.

Several days later, four witnesses described the July 25 phone call with Mr Zelenskiy, which forms the crux of the case. They said they found it shocking, improper and possibly illegal when Mr Trump demanded the investigations.

And last Wednesday, US ambassador to the EU Gordon Sondland confirmed that there had been a quid pro quo demanded of Ukraine, and that he told Ukrainian officials the aid and White House meeting would not be forthcoming without an investigation announcement. "Everyone was in the loop," he said. "It was no secret."

He said US Secretary of State Mike Pompeo, acting White House chief of staff Mick Mulvaney and US Vice President Mike Pence were all aware of, and party to, this alleged attempted shakedown.

Meanwhile former national security staff expert Fiona Hill has confirmed all senior officials were fully aware of the effort, which she called "a domestic political errand" entirely unrelated to national security. She rebuked Republican committee members and, implicitly, Mr Trump, for promoting the conspiracy theory about Ukrainian interference and advocating "politically driven falsehoods that so clearly advance Russian interests".

There does, however, remain one significant hole in the case against Mr Trump.

No senior official has yet confirmed that the president specifically told them there was a quid pro quo required of Ukraine. Indeed, Mr Sondland testified that Mr Trump had denied there was one.

However, almost all of the witnesses, including Mr Sondland, stated that it was understood by everyone that a quid pro quo was implicit in the demands from the White House.

In this Nov. 20, 2019, photo, U.S. Ambassador to the European Union Gordon Sondland testifies before the House Intelligence Committee on Capitol Hill in Washington, during a public impeachment hearing of President Donald Trump's efforts to tie U.S. aid for Ukraine to investigations of his political opponents. (AP Photo/Susan Walsh)
Gordon Sondland, US Ambassador to the European Union, testifies before the House Intelligence Committee on Capitol Hill in Washington during a public impeachment hearing of US President Donald Trump. Susan Walsh / AP

Republicans emphasise that Ukraine eventually received the aid in September without any investigations being announced. But two days before the aid was released, the whistleblower account that triggered the impeachment inquiry was made public.

The withholding of documents and senior witnesses puts Democrats in a real bind. Do they proceed without so much critical evidence or allow themselves to be dragged into endless court battles?

They appear inclined to press forward with what evidence they have. But for all its heft, it isn't swaying Republicans.

Mr Trump used to boast that if he shot someone on Fifth Avenue, he wouldn't lose supporters. That certainly seems to include Republicans in Congress.

It has been deeply alarming to watch the entire GOP circle the wagons around him and effectively defend the idea that leveraging US foreign policy for personal political advantage is acceptable presidential conduct.

As Senate majority leader Mitch McConnell insists, as things stand, there is little chance Mr Trump would be convicted and removed from office by a Republican-majority Senate.

Democrats need to urgently reconsider options other than rushing headlong towards an impeachment trial. Despite the upcoming election season, Democrats could continue with the impeachment inquiry without a strict deadline to develop the case.

They need to secure sworn testimony from former national security adviser John Bolton, who has asked a court to decide if he should testify, as well as Mr Pompeo, Mr Giuliani, Mr Mulvaney and Mr Pence. With patience, Democrats could probably obtain most key testimonies, as suggested by the ruling in the case involving Mr McGahn.

They could also expand the inquiry into other areas of possible presidential malfeasance.

Expanding the scope and length of the inquiry has downsides but it increases the chance that, at some point, Republican patience with Mr Trump may evaporate, as happened with Richard Nixon during the Watergate scandal in the 1970s.

Or the House could simply censure the president rather than adopting articles of impeachment. That would denounce his conduct but not seek to remove him or hand control of the process to the Senate.

Passing the baton to the Senate would, under current circumstances, invite either a perfunctory trial and acquittal, or a through-the-looking-glass procedure in which Democrats and the Bidens could be placed on trial instead.

Seeking a political death by a thousand cuts for Mr Trump, rather than a take-down in one fell swoop, might be more effective with the public.

As things stand, a Senate trial is likely to backfire on Democrats. Since they have several viable options, it would be far better for Democrats to avoid such a blunder.

Hussein Ibish is a senior resident scholar at the Arab Gulf States ­Institute in Washington