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Pro bono barrister: It’s risky business defending an impeached president

Former Brooklyn Law School Dean Nick Allard views challenges ahead

November 4, 2019 By Chuck Otey
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(Columnist’s Note: With all kinds of essayists and TV talking heads calling for the impeachment of President Donald Trump for “high crimes and misdemeanors” or worse, we are pleased to bring to the discussion the informed and insightful views of one of our nation’s most respected lawyers, Nick Allard, the former dean of Brooklyn Law School. This piece appeared recently in The Hill.)

“The Republican Party faces substantial political risks standing by President Trump during the impeachment inquiry and whatever may result from it. That is why it is now imaginable that a significant number might eventually break ranks and join Democrats in concluding that he is unfit for office. On the other hand, if the House votes to impeach based on a clear articulation of compelling evidence, but the Republican-controlled Senate along a party line vote then fails to convict, it is likely that there will be serious consequences for Republicans in the 2020 election.

“This prediction is supported by growing nonpartisan concern over cascading new revelations, the behavior of the president and by the already known facts and self-incriminating admissions by the president and his enablers.

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Former Brooklyn Law School Dean Nick Allard.
Photo by Rob Abruzzese

“In other words, for those who believe that impeachment is a matter of constitutional responsibility and the right thing to do, it also can be politically prudent to dispassionately and responsibly advance a strong case for impeachment. House Democrats are now well into their first month proceeding toward impeachment, focusing narrowly on the unprecedented allegations arising from a whistleblower and others emanating from the heart of President Trump’s own administration that he solicited foreign interference in the U.S. election in order to benefit his re-election campaign. A transcript released by the White House and the White House chief of staff’s recent admission make a compelling case for impeachment.”

Republicans could face ‘a very painful choice’

“The unfolding constitutional process will draw widespread public attention to the facts and the applicable laws. If the House votes to impeach, the Senate Republicans will have a very painful choice. It is now not unthinkable that some or enough will vote to convict. When it comes to it, threatening to stonewall conviction of an impeached president, this president, is not the same as actually doing so.

“Heaven knows what else will be learned that strengthens the case that arises from the House impeachment inquiry, then during a Senate trial, which majority leader Mitch McConnell indicates will happen if the House impeaches, not to mention what more is discovered by ongoing investigative journalism. The other tough choice facing Senate Republicans will be whether they should hold their noses and go on record that they excuse and embrace the president’s fitness for office. Whether or not legislators stand by Trump will be on people’s minds at the polls in November 2020 when they will decide which legislators should be rehired for their jobs.

“If this dilemma becomes too painful for Republicans, they can sidestep the impeachment and even seize the patriotic high ground by themselves invoking the 25th Amendment process for replacing a president who is unfit to serve. This is unlikely at this moment. But, even a short while ago, so was the prospect of any Republican senators voting to remove Trump from office. The backlash over the incursion into Syria, Trump’s diatribe against Speaker Nancy Pelosi at the White House meeting and cascading other deeply troubling incidents remind us that almost anything is becoming possible.

“This analysis is supported in an impressive study by Princeton Politics Professor Frances Lee when she was still on the faculty of the University of Maryland. Her book, “Insecure Majorities: Congress and the Perpetual Campaign,” strongly suggests that in the present political circumstances the riskiest course for Democrats would have been to continue in their diffuse, no clear end-in-sight, hearings about alleged wrongdoing by Trump. She analyzes the experience of the past several decades in an era of sharp competition for party control of the White House, Senate and House.

“Professor Lee demonstrates that it can be advantageous to draw clear differences between the parties using partisan messaging and to force the other side to go on record and make tough choices on public votes about subjects that people really care about.

“She offers many examples of well-intentioned, long-established leaders in both parties losing control or failing to gain it by trying to be cooperative and collegial with the other side when the other side refused to reciprocate and share power. In this vein, the other non-Ukraine-related House investigations about an array of alleged abuses of power, self-enrichment, tax evasion, conflicts of interest, illegality and the continuing obstruction in plain view of congressional inquiries, which in itself is impeachable, can later also be used to draw contrasts between the parties and give voters clear choices between those who justify President Trump and those who seek his removal from office.”

Will Democrats be able ‘to make an objective case?’

“However, Congressional Democrats too face risks, primarily in the tenor of how they conduct themselves and their ability to make an objective case understood by the American people.

“To be sure, Professor Lee did not specifically address impeachment in her 2016 book and was not studying the Trump presidency. Nor was she condoning or encouraging the unfortunate shift of our political system toward perpetual cynical bickering that favors partisan messaging over governing. However, her thorough research and groundbreaking insights about political reality since 1980 calls into question the still widely held assumption that a fight over impeachment inevitably puts Democrats in jeopardy.

“A possible counter example is the House impeachment and Senate trial of President Bill Clinton. However, the differences between then and now are illuminating. Impeachment of Clinton was initiated less than a month before the 1998 election in which Democrats picked up five seats in the House despite the prospect of impeachment hanging in the air.

“The House vote to impeach without any hearings was not until December — after the Democrats’ unexpected gains. It was too late to be considered by voters and it was also after the marital infidelities of the House speaker and several pro-impeachment Republican members of Congress became public.

“The Clinton Senate trial took place in January 1999 and each of the four articles of impeachment failed with small but significant Republican votes opposing conviction and some Democrats favoring. These factors somewhat blurred the partisan divide. Then too, at the time, Clinton’s approval rating was 73 percent. Now Trump’s is not an awful lot more than half that.

“In the closing arguments, President Clinton’s defense counsel, the late Charles Ruff, framed what he said was the only question before the assembled Senators: Would it put at risk the liberties of the people to retain the president in office?

“It is an apt and fair question in 2019 to ask the Senate to answer on the record about President Trump. Ultimately, it will be American citizens exercising their right to vote who determine whether and which legislators did their duty. President Trump said he wants to sue Speaker Pelosi and Representative Adam Schiff and that he does not care if he loses. He may think he is being clever, expecting the speaker and the House Intelligence Committee chair to invoke their constitutional speech and debate clause immunity. Then, predictably, he would bellow that they think they are above the law.”

Pelosi, Schiff should waive immunity if Trump sues

“Pelosi and Schiff should indeed give the nation a primer on their constitutional immunity from the type of pressure Trump threatens. But, they should also say they will voluntarily waive their immunity if Trump actually ever sues. They can say they would welcome proving in court that he has no case and would vigorously use their right to subject him and his administration to discovery to obtain evidence.

“In other words, Trump’s threat to sue is either a ridiculous bluster, or, if he follows through, a dangerous tactical legal blunder. It would even be a bigger mistake than if he had struck to his recent bizarre suggestion that he did not know whether Rudy Giuliani was actually his lawyer. He has apparently retreated from his willingness to throw Giuliani under the bus, probably because real lawyers in the White House pointed out that he was not only lying, but also undercutting his claims of attorney-client privilege.

“The number of people who feel that the House is right to pursue impeachment is growing because of mounting evidence of deeply disturbing behavior, because of the likelihood that only through impeachment will the facts be more fully known and salient to the public, and that notwithstanding possible short-term political risk in the 2020 election it is a matter of duty to challenge and prevent any further precedents establishing that a president is above the law. In truth, legislators charged with the heavy and sad responsibility to investigate President Trump can have faith in our Constitutional system and the American people at the polls.”

For the full article, see The Hill.

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