President Trump won’t be convicted in the impeachment case, and the Democrats know that, even if their supporters do not. Shortly after his inauguration, I wrote of the War on Trump. It was prophetic. That political war continues. For the Democrats, the goal has always been to destroy his re-election chances. They may accomplish that, but they will never get an impeachment conviction. Here’s all you need to know.
First, the Democrats have no path to 67 votes for impeachment in a trial in the Senate. So why bring the case? It’s about motivating their base, which they believe is bigger than the GOP’s. It’s about feeding their media to inflict more damage on the President. It is, and always has been, about the 2020 election and control of the Supreme Court.
Second, the reason the Democrats have no path to impeachment is that to prove their case, they must demonstrate to the Senate jury’s satisfaction that the President’s sole, exclusive, and only motivation in requesting an investigation into the Bidens was for his personal political gain.
Let me explain this further. It’s not good enough for impeachment that the President would benefit politically from the investigation. To impeach him and show a high crime and misdemeanor … an abuse of public office for personal gain … they have to show that the request had no factual basis … none. Good luck with that.
Politicians don’t do anything without a political calculus as to how it may help them. Indeed, every ribbon-cutting, bill signing, military intervention, policy decision, and speech, include in the action the political advantage to the politician. This can’t be news to people. The only question is, does the action also have a legitimate governing interest, of any size and scope. I mean any size. If so, it is not an abuse of the office and you will never get the political death penalty of impeachment for it. If you don’t understand that, politics and law are not for you.
Let’s look at some inconvenient truths surrounding this impeachment effort:
Hunter Biden was unqualified to work at the job at which he was hired and for the salary he received.
Indeed he’s an idiot. He was drummed out of the military for cocaine just months before being hired. He has no language skills for the region, no experience in the industry, and no knowledge of the subject matter. If his name were Hunter Fiden, he couldn’t have gotten an internship with the foreign company.
Hunter Biden’s took the job for which he was unqualified while his father was the Vice President and specifically in charge of policy in Ukraine.
Can you imagine if Donald Trump Jr. took a 50K a month gig with a Russian oil and gas company right now? The left would demand Trump’s impeachment for that alone. The company that hired Biden hired him to gain access to the executive office as a foreign company looking to gain influence. They are entitled to try. It is the job of the Vice President to prevent that, and he failed, spectacularly.
While Hunter Biden was making 50K a month for a job for which he had no qualifications, Vice President Biden flew to Ukraine and demanded that it fire the chief prosecutor, who had previously been investigating corruption at Hunter Biden’s employer.
Once you start trying to explain this away by suggesting that the company was or wasn’t under investigation at that time, or that the investigator himself was corrupt, you are losing. Fact: The company had been investigated by that guy. Fact: The Vice President demanded his firing and told the Ukrainians the US would cancel 1 billion in aid if he wasn’t fired. Mind you, Ukraine had been invaded by Russia during the VP’s tenure, and the VP and President though the priority was to fire the Ukrainian prosecutor and withhold aid unless they did so. So, combating corruption was a valid US policy and reason for withholding aid then, but it is not now, says the impeachment chargers.
A quid pro quo is not, by itself, a crime.
I know, heads just exploded. Do this or I will not do that … is not a crime. It’s a crime when the quid pro quo involves prohibited activities, and its motivation and intent are to further those prohibited activities. There is a huge difference between the two. As we know, it is not a crime to demand that a country comply with our requests to receive our aid. The crime comes in if the request is baseless, and the purpose of the request is solely, exclusively, and purposely only to benefit the person in power in the government who makes it. As noted above, on the public record alone, the President had every basis to ask the Ukrainians to investigate the nature of the Biden relationship to Ukraine and the connection back to the VP. And, speaking of the public record …
The Public Record demonstrates ample Presidential Justification to request or demand an inquiry into alleged election interference, bribery, and fraud.
So, now the Democrats don’t want to investigate alleged 2016 election interference? How nuts is this all? In April of 2019, more than five months before the so-called whistle-blower blew his whistle by giving his opinion of the President’s call, a major US publication published a story citing Ukrainian law enforcement officials, by name. The story alleged fraud, bribery, and election interference in Ukraine, by Democrats, in the 2016 election. That sure seems relevant to whether the President was justified in asking for or even demanding an investigation. That public information alone would exonerate the President from any alleged allegation that his sole motivation in this instance was political and to dig up dirt by soliciting a foreign power to investigate one of his potential opponents in the 2020 election.
In fact, in the April 2019 story, the Ukrainians claim that the DOJ seemed uninterested in even receiving their evidence and that the US embassy in Ukraine was actively blocking them from traveling to the US to present it. The US ambassador at that time in Ukraine was … a democratic impeachment star witness, Marie Yovanovitch. Ambassador Yovanovitch testified under oath that she did not witness and was not aware of any criminal act or wrongdoing by the President. Mind you, she was the star witness.
Hating the President and his party is not proof of ill-intent and criminality.
Everyone knows the President only did this to get a foreign government to interfere in our elections. Really? No, actually, not everyone knows that. And, as set out above, the President had a good faith basis to demand an inquiry into the appearance of impropriety by a prior administration at or near the highest level of government. His hunch doesn’t have to be right or proven, it only needs to have a facially valid basis, and the unqualified and overpaid Hunter Biden, and his fire the prosecutor father give him that basis. Of course, as it turns out, the President was being told even more damning facts behind the scenes that suggested interference in our elections and fraud involving the former VP and our own Embassy.
Yes, it might be that Trump thought, wow, this will really help me. He’s allowed to think that. He’s not allowed to have that be his only motivation and basis for the action. The mere fact that you hate the president, find his character appalling, and wish her were not elected, doesn’t vitiate the objective truth that his request had some lawful and legitimate factual basis.
A partisan impeachment has no chance of success.
The Democrats got no bipartisan support on their formal impeachment vote. None. In fact, they lost two votes. As impeachments go, that’s a first. Moreover, the Clinton impeachment had innumerable democrats who supported the impeachment inquiry resolution and that impeachment ultimately failed. The impeachment doesn’t merely appear to be a partisan political witch hunt, it is by its vote, exactly that.
An impeachment process that is not fair and transparent, is doomed to failure.
Even if the impeachment inquiry received bipartisan support, the American people are going to want the impeachment process to be fair and transparent. If it is not, they will reject it. Moreover, if you have a partisan impeachment vote, the expectation is that the process itself will bend over backward to be fair and transparent. After all, if the purpose is to get to 67 votes, the process should be designed to pick up votes and shield the process from criticism. The process puts all the power in the hand of one party, and one man. That was a horrible decision by the democrats if what they wanted was a conviction.
Yes, a formal House vote was required.
The Constitution is silent on how to run the impeachment proceeding, leaving issues of fairness at the discretion of politicians, who will then be judged by the people. The Constitution is not silent on who may impeach. It says the “House.” That means impeachment does not and cannot start by one party, one committee, or one man. It is a process that starts with a vote of the “House.” The House represents all of the people, and thus to remove a person elected nationally, by an electoral college that relies on representative districts, the vote to begin must be by the House in its entirety. There is no other way to read that. In fact, the Constitution doesn’t consider parties at all. Accordingly, this process started incorrectly, and at odds with the prior impeachment proceedings, one by a Democratic majority house and one by the Republican majority House, both of which took a formal vote before starting. The Democrats finally recognized their error and decided to fix it. But that error already undercut faith in the process.
The Government Employee who filed the complaint against the President is not entitled to Anonymity by the President, or anyone else. And, the President may both out his name and fire him.
This one won’t be popular inside the beltway or among various law professors and legal eagles trained to think, defend, and elevate the administrative state over the US Constitution.
Let’s start with a law primer, particularly for law professors and lawyers who never learned it. The United States Constitution is the Supreme Law of the land. Any law that conflicts with it is inferior. That is true unless and until the Supreme Court rules otherwise, thus essentially amending the Constitution, or its meaning. Article II, Section 1 of the Constitution starts with this simple declaration.
“The executive Power shall be vested in a President of the United States.”
That’s it. Congress can make any federal law it wants, even signed by a President into law, but that law cannot supersede the Constitution. That means every law, every statute, every regulation … all of them … that deal with the power of the President over the executive branch cannot change his authority and the power granted him over the executive branch by the Constitution. Put simply, from custodian to special prosecutor, to attorney general, and every single civil servant in the employ of the executive branch and any agency thereunder is subject to the power of the president. While an agency head may or may not have the authority to fire such a person, disclose his or her identity, or otherwise, the President may. Who says so? The Constitution. In fact, a simple reading of the so-called Whistleblower statute shows the President may exempt people, agencies, and information from its applicability … unilaterally. Do you know why? Because of Article II, Section 1 of the Constitution.
The law doesn’t apply to him. He must enforce it as it applies to others, that’s true. But it has no application to him. If the Whistleblower worked outside the executive branch, then he would be beyond these powers. He does not, and therefore is not. (It would take way too many words to dissect why it is that the so-called whistleblower probably is not covered by this statute for the protection it gives within an agency, as that’s completely irrelevant to the President’s power on this anyway.)
Impeachment is the right of the House.
This impeachment has been described as an attempted coup. I think that is hyperbole as it applies to the House. However, I think a fair, valid, investigation into the Ukrainian events and the role of people like the so-called whistle-blower will show that from within the government, there were and are people like John Brennan who have been actively engaged in trying to undermine the President for the purpose of driving him from office. It has all been part of the War on Trump about which I wrote 12 days into his presidency. The plan, hatched before he ever took the oath of office was to undermine and destroy him, and if possible take him down. If not possible, the goal was and remains to ensure he is so politically damaged, he can’t win re-election. Is that a coup? It sure seems like it.
The constitutional process of impeachment, baseless and flawed as this one appears to be, is not a coup. By definition, it is a political process grounded in the law and previously reserved as a tool of last resort because it does, in fact, overturn an election. It is now nothing more than a mainstream political strategy to help win an election. The House is entitled to investigate impeachable acts if it thinks it has the basic evidence of high crimes and misdemeanors. It doesn’t. But taking this precarious action is the right of the people’s House, and with that right could come the wrath of the people.
What the Democrats are banking on in this process is you. They believe, with strong evidence to support them, that American political tribalism is all that matters any more. Facts don’t matter. Law doesn’t matter. They believe they have more voters in this country, and that those voters have a blind party allegiance. They believe they have so wounded this President, a deeply flawed character prone to regularly making his problems worse, that their abuse of the impeachment process will help them, or at least not hurt them.
Democrats reach this conclusion based on the same principle that many trial lawyers understand when working to get a case before a jury. In this instance, the case isn’t impeachment, it is the political case to be put before the jury of the American electorate. The democratic belief is Americans dislike Trump, they think him untrustworthy, sullied by unclean hands, and deserving of what he gets. Thus, they think impeachment won’t backfire on them. Even if not impeached, they believe the jury of voters will simply think, Trump was guilty of something, and this can’t continue.
Democrats have flipped the proverbial political coin with this impeachment. They believe: heads they win, tails he loses.
We get that answer in November of 2020.
Author: Richard Kelsey
Richard Kelsey is the Editor-in-Chief of Committed Conservative.
He is a trial Attorney and author of a #11 best-selling book on Amazon written on higher education, “Of Serfs and Lords: Why College Tuition is Creating a Debtor Class”
Rich is also the author of the new Murder-Mystery series, “The ABC’s of Murder,” book one is titled, “Adultery.”
Rich is a former Assistant Law School Dean and Law Professor. At Mason Law Kelsey conceived of, planned, and brought to fruition Mason’s Center for the Protection of Intellectual Property, known as CPIP, drawing on his expertise as a former CEO of a technology company specializing in combating cyber-fraud.
In 2014 he was elected by the graduating class as the faculty speaker at their graduation.
He is a regular commentator on legal and political issues in print, radio and on TV. Rich has appeared on hundreds of stations as a legal expert or political commentator. He provided the legal analysis for all stages of the Bob McDonnell trial and appeal for numerous outlets including NPR and WMAL.
Rich also writes on occasion for the American Spectator and CNSNews.com.
In his free time, Rich is part of the baseball mafia of Northern Virginia, serving on numerous boards and as a little league and travel baseball coach.
His Twitter handle is @richkelsey.