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Impeachment

Democrats’ Increasingly Untenable Impeachment Position

In a New York Times op-ed published this past weekend, Rep. Adam Schiff (D-CA), the vice chairman the House intelligence committee and one of the president’s most knowledgeable critics, warned Democrats not to fall into the right-wing trap of advocating for Donald Trump’s impeachment on the campaign trail.

His article did not mention the midterm elections specifically, but the campaign-trail implication was clear enough. Schiff argued: 1) impeachment can not and should not happen unless elected representatives from both parties can “make the case to their constituents that they were obligated to remove” the president; 2) that case must be persuasive, so that it is not “seen by a substantial part of the country as merely an effort to nullify an election by other means”; 3) it can not be made as pertains to Trump unless and until a credible investigation of the president “runs its course” and determines Trump “participated in a conspiracy to defraud the United States during the campaign by colluding with the Russians,” or “committed the offense of obstruction of justice.” Ergo, Democrats “should not take the bait” and demand an impeachment inquiry unless either Special Counsel Robert Mueller breaks his silence or Democrats reclaim one or both Houses of Congress and oversee a thoroughgoing investigation of their own.

Most leading Democrats make a different version of this case in purely political terms: Hyping impeachment is a political loser. As such hyping impeachment makes it less likely that Democrats will win control of either chamber, which in turn increases the odds Trump will retain what my colleague Dan Pfeiffer calls “immunity by congressional majority.” The purpose of Schiff’s exercise is to demonstrate that disclaiming impeachment for now isn’t just politically wise, but also correct on the merits.

To campaign on impeachment really does seem like it would be a political loser for Democrats. If it were a winner, they would do it, and Republicans wouldn’t be so desperate to claim Democrats are running on impeachment, when they quite clearly are not. But I am in the minority among colleagues and peers in finding Schiff’s substantive argument deeply unpersuasive. And the recent revelation that Trump’s fixer Michael Cohen controlled a limited liability corporation through which at least one Russian oligarch and at least two multinational corporations sought to buy influence with and access to Trump makes me wonder if it will be sustainable on its own terms much longer.


At a practical level, the standard Schiff sets for pursuing impeachment is one that will effectively exempt Republicans, because Republican politicians and voters in the Fox News era—lawless, and aswarm in propaganda—will tolerate bottomless criminality from Trump. They have similarly valorized Joe Arpaio, Greg Gianforte, Oliver North, who have distinguished themselves by framing their criminal misconduct as patriotic blows against the liberal elite.

But even if Schiff were to concede that part of his standard, and allow that advocating the impeachment of public officials is the right thing to do when the conduct demands it, his specific argument about Trump’s own impeachment exposure is too conveniently drawn.

Schiff’s piece says literally nothing about the fact that Trump has secret debts—debts he refuses to disclose publicly—propping up private businesses that he continues to own and operate; or about the fact that powerful domestic and foreign interests spend a great deal of money at his properties, ostensibly to buy his favor, and even occasionally to get face time with him.

Litigation may ultimately determine whether this spending amounts to unconstitutional “foreign emoluments,” and an excessively generous interpretation of it would implicate the spenders, but not the beneficiary: Trump is within his legal right to keep his businesses intact for now, he can’t control who tries to use those businesses as conduits for bribes, but there’s no evidence their efforts to bribe him have succeeded.

I personally think this interpretation, while logically plausible, misses the point in a big way. Just the fact that Trump has undisclosed debts—that unknown actors could extort policy concessions from Trump under threat of harming or destroying him businesses—suggests he can’t credibly run the government in the public interest, and the public has no reason whatsoever to take it on faith that he can.

That alone is unacceptable. To overlook this defining facet of Trump’s presidency out of political expediency risks normalizing it going forward.

But even if impeachment skeptics disagree, this week’s Cohen disclosures threaten to leave them in an untenable position. It is indisputable at this point that Cohen approached the Swiss pharmaceutical company Novartis promising access to Trump, that Novartis agreed to pay Cohen $1.2 million, that its representatives had one meeting with him after signing the contract, and that the incoming CEO of Novartis subsequently dined with Trump and other powerbroker in Davos, Switzerland. It has been suggested that money flowing through Essential Consultants, LLC, including from a Russian oligarch, may have served to reimburse Cohen for hush money he paid to Stormy Daniels and other women. Much of the money that came in is unaccounted for at this moment.

What if it went directly to Trump or the Trump organization? What if in the days or weeks ahead, Daniels’ lawyer Michael Avenatti, or some enterprising reporter, substantiates that Trump isn’t just incidentally enriching himself through the presidency, but that he has received cash payments with no commercial purpose—money that didn’t nominally cover the cost of a hotel banquet or a Mar-a-Lago membership, but simply lined his pocket.

The impeachment clause of the Constitution explicitly enumerates bribery as an impeachable offense. Payments from Russian oligarchs, who are agents of Vladimir Putin, at least arguably become a foreign emoluments once they enter Trump’s pocket. Republicans and conservative activists would almost surely excuse such unfathomable corruption, and Trump’s base would just as surely not care. What at that point would the case for further patience be? How at that point would waiting for obstruction and collusion findings not amount to the admission that, between now and November, Democrats will tolerate just as much of Trump’s corruption as Republicans will—not because they like Trump and hope he succeeds, but because they’re scared to take a stand? The scope of Trump’s corruption might soon overtake even the strongest case for impeachment restraint.