Mitch McConnell Is Trying to Free Trump From the Rule of Law

Speaker Nancy Pelosi has, for nearly a month now, held off on sending through to the Senate the articles of impeachment that the House passed against President Trump in December.

Before handing the articles over, Pelosi wants guarantees from Senate Majority Leader Mitch McConnell regarding the calling of witnesses. But McConnell, who wants to avoid calling any new witnesses at all costs — especially insiders such as John Bolton, who might further impugn Trump’s already shredded credibility vis-à-vis the Ukraine quid pro quo — has publicly averred that he has the votes to set trial rules that won’t mandate up front the ability to bring in additional witnesses to testify. Even Mitt Romney, who has long voiced his unease with Trump’s methods, has reluctantly come aboard and publicly backed McConnell’s approach. So, too, have Alaska Sen. Lisa Murkowski and Maine’s Susan Collins — though all three have reserved the right to call for witnesses once the trial gets underway.

And thus, the standoff between a Democratic-controlled House and the GOP-controlled Senate.

It’s a risky game: On the one hand, as constitutional scholars such as Harvard’s Laurence Tribe have advocated, there’s no point in allowing the Senate to hold what will clearly be a charade of a trial, coordinated from the start between Mitch McConnell and the White House. It would only further empower an already out-of-control executive branch and would further shred any notion that Trump’s presidency is bound by the rule of law. Given the gravity of the impeachment charges against Trump, a trial with a pre-ordained outcome would signal not just to Trump but also to future presidents that partisanship will always prove more powerful than fealty to Constitution. As a result, the last, fragile restraints on an imperial presidency will have been permanently broken.

It would be far better, according to this line of reasoning, to postpone sending the Senate the articles of impeachment, to keep them as something to hold over Trump and, hopefully, at least slightly constrain his lawlessness as this election year progresses.

On the other hand, the longer Pelosi withholds these articles, the more the risk that the public — which, since September, has not only narrowly supported impeaching Trump, but also removing him from office — will sour on the whole thing and come to view it as just yet another inside-the-ballpark political game in D.C.

Recently, a number of senior Democratic senators began publicly questioning Pelosi’s strategy of delay. Diane Feinstein and others argued that if, as the House majority believes, Trump represents a clear and present danger to the democratic structures of the republic, the Speaker of the House has an obligation to send the articles over to the Senate so that the upper chamber can put the president on trial.

Even though Pelosi refused to immediately buckle to the pressure, on Friday, she indicated that she will, indeed, be sending the articles of impeachment to the Senate within a matter of days. And then, assuming that McConnell’s control over his GOP senate colleagues holds, in all likelihood, the Senate will rush through a sham trial involving few-to-no additional witnesses.

McConnell and Senate Judiciary Committee Chair Lindsey Graham have publicly declared that neither wants to actually look at the evidence, and both have clearly already decided that they will acquit the president at all costs.

This strategy makes political sense if the calculus is simply how best to appease the Republican Party’s pro-Trump base. After all, support for Trump among self-proclaimed Republicans — the people who vote in primaries and who can thus make or break Congress members and senators — has remained at near-historic highs. That’s why the longer the impeachment process lasted in the House, the more fanatical Trump’s loyalists, such as Jim Jordan, Devin Nunes and Doug Collins, became.

In November and December, as the hearings ramped up, the GOP went from tepidly defending Trump’s phone call to an all-out embrace of his asking the Ukrainian government to investigate the Bidens. They went from saying the pressure campaign against the Ukrainians was problematic but not impeachable, to concluding, like Trump, that the call was “perfect” and that efforts to investigate it showed a penchant for persecution on a par with Pontius Pilate’s lethal efforts against Jesus Christ. They accused witnesses such as Army Lt. Col. Alexander Vindman of treachery and dual loyalties; branded career diplomats as venomous representatives of the “Deep State”; and flouted the law on a near-daily basis in their efforts to publicly out the whistleblower who first reported the contents of Trump’s July 25, 2019, phone call.

Again, these burn-it-all-down, defend-the-great-leader-at-all-costs tactics might work in the narrowest, most opportunistic of political senses, in that they keep the base happy. But they utterly fail the smell test as a grand historical strategy. In fact, they reek. For if impeachment and the realistic threat of removal from office by the Senate is to be preserved as the ultimate democratic safeguard to rein in potentially lawless, dictatorial presidents, GOP members of Congress had an obligation to look at the evidence before them instead of attempting to obfuscate; and, over the coming weeks, the Senate has a moral duty to conduct a fair and meaningful trial rather than to sweep the indictments against Trump under the rug.

Make no mistake: In reality, Trump is the quintessential poster child for why impeachment is such an important constitutional provision. From his first day in office, he has used the presidency to personally enrich himself and his family. He has issued one illegal executive order, edict or even “proclamation” after the next, including orders to separate immigrant families at the border and to cage children. He has eviscerated Congress’s power over federal purse strings by appropriating money for his border wall in the face of congressional opposition. He has whipped up violence at his rallies. He has sided with white supremacists and nationalists. He has used his bully pulpit to attack private citizens and to undermine the free press. He has, time and again, defended dictators and mocked democratically elected leaders. He has, with his latest Iran misadventure, waged illegal war. He has repeatedly advocated that U.S. forces commit war crimes. He has flouted subpoenas, ridiculed judges who issue hostile rulings, boasted that he could murder people in plain sight and not lose votes. He has been accused by dozens of women of sexual assault. And so on, and so on.

McConnell and his opportunistic colleagues know exactly what sort of a man Trump is, and just how destructive his presidency is of the constitutional order and the behavioral norms underpinning it. In 2016, Ted Cruz called him a “sniveling coward.” Marco Rubio called him a “con man.” Lindsey Graham, these days Trump’s most sycophantic of enablers, in 2016 said, “I don’t believe that Donald Trump has the temperament and judgment to be commander in chief. I think Donald Trump is going to places where very few people have gone and I’m not going with him.” And, before having his own opportunistic Road to Damascus moment in the face of GOP voters’ cult-like support for the real estate tycoon, McConnell himself repeatedly broke with Trump during the election campaign and in the chaotic months following.

Yet, so long as he continues to channel conservative judicial nominations the Senate’s way, so long as he rolls back environmental regulations long loathed by big business, so long as he continues to spew anti-abortion platitudes that the GOP base laps up, they have all decided to abandon their previous reservations and to cast their lot with his vicious vision of governance.

In the long run, the damage to the United States’s democratic infrastructure, to its pluralist culture and to the rule of law will at a minimum be immense and could end up being entirely catastrophic. Trump has been, from the get-go, a Category 5 hurricane obliterating any and every political norm and legal restraint that stands in his path. If he entirely bends the Senate to his will in the impeachment trial, he will have vanquished the one body that had the potential to corral him and his lawless, extra-constitutional administration.

McConnell fancies himself a student of institutional history. He would do well to remember John F. Kennedy’s famous inauguration speech quote: “Those who foolishly sought power by riding the back of the tiger ended up inside.”