Is the history of impeachment going to repeat itself? Or Re-Pete itself?
Re-Pete’s Saloon & Grill, I should explain, is located in Black River Falls, Wisc., in a county that voted for Barack Obama over Mitt Romney 57 percent to 42 percent in 2012, but Donald Trump over Hillary Clinton 53 percent to 42 percent four years later. Re-Pete’s is my kind of place, though I’ve yet to visit and owe the recommendation to the journalist Mark Halperin.
The regular menu states: “Water is Free, Too Bad the Beer Isn’t!” (There’s also a “Gluten Friendly Menu.”) The motto above the fish selections is “Catch & Release into the Grease!” Halperin’s high-flying career was derailed by accusations of sexual harassment at the height of the #MeToo campaign. But he’s made his apologies — for past transgressions that were indefensible — and is now back. Early last week, Halperin observed that if the hunting types in Re-Pete’s were glued to the impeachment hearings this week, then “the Democrats have a very strong chance of making their public case to the American people.”
So on Wednesday afternoon he gave Re-Pete’s a call:
MH: Do you have the impeachment hearings on the TVs there?
Guy from Re-Pete’s: The what? No, we do sports stuff.
The point is that the impeachment of President Trump — which is currently consuming at least three quarters of the attention of the coastal elites who watch CNN and read The New York Times — matters only if voters in key swing states such as Wisconsin give a damn.
From the vantage point of speaker of the House Nancy Pelosi this is not the road she wanted to go down, much less the hill she wanted to die on. Throughout the months when Washington lived for the release of special counsel Robert Mueller’s report, she did her best to dampen the ardor of her fellow Democrats.
For younger legislators, as for today’s millennial journalists, impeachment is a magical word, conjuring up memories of All the President’s Men. The veteran Pelosi, by contrast, knows that Trump isn’t Nixon and that Dniepergate isn’t Watergate. But the president left her no choice. No sooner had the Mueller report fizzled out than Trump picked up the phone and tried to get the Ukrainian President Volodymyr Zelensky to gather opposition research on Joe Biden in return for a presidential meeting and (though this was not initially clear to Zelensky) U.S. military assistance.
Only when the quid pro quo was going to be made public — courtesy of a CIA officer who decided to blow the whistle — did the White House release the aid.
The three previous presidential impeachment investigations — of Andrew Johnson, Richard Nixon, and Bill Clinton—lasted 94, 186 and 127 days, respectively. Now, you may want to spend the next three to six months glued to your TV. I don’t, any more than the regulars at Re-Pete’s. There’s no need, anyway, because we know what’s going to happen. First, the House will vote to impeach the president, probably along party lines. The Republican Senate majority will then have to decide if they need to hold a trial.
In theory, the Republicans could simply vote to dismiss the House’s case. But it seems more likely that Senate leader Mitch McConnell will go ahead with a trial (not least for the benefit of Republican senators up for reelection in Democrat-leaning states 2020), but with the intention of acquitting the president at the end of it all.
By the time that verdict is reached, the Democratic primaries will likely be underway (the Iowa caucuses are on February 3). All that will matter for the subsequent nine months will be how much the impeachment process has hurt Trump with voters in battleground states such as Wisconsin.
True, as Philip Bobbitt argues in his indispensable new edition of Charles L. Black’s classic Impeachment, it’s incorrect to think of impeachment as a purely political device. If it were, it would surely have been used much more often. The two-thirds threshold for conviction in the Senate all but requires that a successful impeachment be bipartisan.
The House must base an impeachment bill on the Constitution, which specifies that a president may “be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” It’s another common mistake to think that this requires a president to have committed a criminal act in the ordinary sense. What the framers of the Constitution had in mind, Bobbitt argues, were “the [unique] constitutional crimes that can be committed [only] by a president”—such as seeking foreign assistance in a US presidential election.
The Democrats have dropped “quid pro quo” since the public hearings began, calculating that Latin is not much spoken in places like Black River Falls. Now their case against Trump is all about bribery. But, says Bobbitt, for bribery to be an impeachable offense it must “be an act that actually threatens the constitutional stability and security of the State … one that puts the Constitution in jeopardy.”
In the words of Alexander Hamilton, impeachment is a “National Inquest.” It is concerned with constitutional violations and, Bobbitt argues, “has no particular policy purpose other than protecting the State.” It is not a criminal proceeding, which is why double jeopardy does not forbid the subsequent trial of an impeached official, including a president.
On that basis, is it likely that these hearings will generate enough evidence of constitutional crimes to persuade 20 Republican senators to vote for impeachment? I would doubt it. But might enough voters be turned off Trump to prevent his reelection in November? That’s a more interesting question. After all, reelection would mean four more years of Trump making US foreign policy on the Ukrainian model — and without the constraints that were imposed on him by the bureaucratic and military establishments in his first term.
To judge by the latest opinion polls, registered Democrats are overwhelmingly for impeaching and removing Trump, whereas nine in ten Republicans agree with the president that this is a “Witch Hunt" by the "Deep State” and the “Do-nothing Democrats.” But what about Independent voters, who these days account for more than two fifths of the electorate?
So now they are after the legendary “crime buster” and greatest Mayor in the history of NYC, Rudy Giuliani. He may seem a little rough around the edges sometimes, but he is also a great guy and wonderful lawyer. Such a one sided Witch Hunt going on in USA. Deep State. Shameful!— Donald J. Trump (@realDonaldTrump) October 12, 2019
Fewer than a third of them thought the acts revealed by the Mueller report justified Trump’s impeachment and removal. However, that proportion has risen since the partial transcript of the Trump-Zelensky telephone call was released. The latest polls suggest that between 43 percent and half of Independents now favor impeachment and removal. I detect a realization that, in his dealings with Ukraine this year, the president came much closer to committing a constitutional crime, in Bobbitt’s sense, than in his previous conduct.
They may not be watching the hearings in Re-Pete’s Saloon & Grill. But they can smell something fishy cooking in the Washington grease. And that might turn out to matter more than we now realize in a year’s time when all registered voters get to decide if Trump got caught — and whether he should be released or deep fried.
Niall Ferguson is the Milbank Family Senior Fellow at the Hoover Institution at Stanford University.