Opinions Live with Eugene Robinson: What counts as an impeachable offense?

Jan 28, 2020

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Hello, everybody, and welcome to the Impeachment Trial Edition of our chat. Or maybe it's the Iowa Caucuses Edition. We're all dealing with whatever lies beyond total overload, at this point. We haven't chatted in a couple of weeks, so here's where we are (with the caveat that things will probably change before I finish typing this intro). The House managers spent three days meticulously laying out their case that President Donald John Trump should be removed from office for abuse of power and obstruction of Congress. The president's defense team has just begun its third and final day of throwing spaghetti against the wall and hoping something sticks. Trump's lawyers have argued that there was no aid-for-investigations quid pro quo; that of course there was an aid-for-investigations quid pro quo, because the Bidens are (in Trump's fevered imagination) so corrupt; and that even if there had been an aid-for-investigations quid pro quo, Trump couldn't be impeached and removed for it. Dancing on the grave of poor dead Irony, none other than Kenneth Starr took to the lectern yesterday to call for an end to the "age of impeachment," which none other than Kenneth Starr launched with his obsessive pursuit of Bill Clinton. You cannot make this stuff up. And meanwhile, it was revealed that in his new book, to be published next month, former national security adviser John Bolton says that Trump told him directly to keep withholding the military aid from Ukraine until officials there announced investigations into the Bidens and a conspiracy theory about the 2016 election. What on Saturday looked like a guaranteed quick acquittal with no fuss, no muss -- and no witnesses -- now looks maybe like something else entirely. But we'll see. Bolton wants to testify, and Republicans might have to let him do so. Who knows? What time is it? Oh, and back at the ranch, the Iowa caucuses are on Monday, meaning the presidential campaign is pretty much in full swing.

Lastly, if you missed it, here's my latest column. Let's get started.

If the GOP are so confident that their boy is innocent, why wouldn’t they want first hand witnesses to come forward to prove his innocence? Why can’t we drive this point through? Why are we not calling the GOP out for this? Why not call out the GOP for claiming‘NOTHING NEW HERE?’ What has happened to honor, integrity, decency, truth and justice for all? Is there a courtroom today that would allow this abuse of power??

Lordy, the GOP is being called out constantly for this very hypocrisy. If calling Republicans out changed their behavior -- especially Mitch McConnell's -- things would be very different. If you know of some magic words that will do the trick, please share them with everyone. If not, the solution will be for voters to give Democrats control of the Senate this fall.

How effective was the case made by Trump's attorneys in response to the House Managers?

I think it's safe to say that beauty, in this case, is very much in the eye of the beholder. I thought the defense was incoherent. Trump's lawyers are accomplished professionals, but he hasn't given them much to work with.

If they do agree to witnesses, doesn't that allow the Senate to subpoena both Biden's as well?

Of course, but the Senate has had that power all along. The Senate Judiciary Committee could have subpoenaed both Bidens whenever Chairman Lindsey Graham chose to do so. At any point during the trial, 51 Republican senators could vote to subpoena whomever they want. If I were the Democrats I would call the Republicans' bluff.

Please define what would count as an impeachable offense, and give examples. thank you.

The framers of the Constitution wisely left that vague. It is clear, however, that Alan Dershowitz's theory -- only a statutory crime, or "crime-like behavior," is impeachable -- is wrong. Some of the legal analysts on MSNBC, where I've been doing commentary, have offered a thought experiment. Imagine a president who decided after a month in office that being president was just too much hard work, and he would spend the entire remainder of his term bowling in the little White House bowling alley. Bowling is obviously not a crime. But refusing to fulfill any of the responsibilities of his office would clearly be impeachable. I give Dershowitz props for at least making a legal argument, but it wasn't a very sound one.

I've seen/heard her remarks about Biden and the upcoming Iowa Caucuses. However... was she answering a reporter's question about Biden or Iowa? If not, that statement, to me, underscores the point about abusing power to gain an advantage in the same realm that the President is accused of.

Joni Ernst said the quiet part out loud, gleefully wondering how Monday's trashing of Joe and Hunter Biden would affect Joe Biden's chances in the Iowa caucuses. From the beginning, this was all about damaging Biden, whom Trump fears as a potential general election opponent.

I am floored at the lengths the Senate Republicans will go to in their effort to protect Trump who they must know is guilty as all sin. If Bolton testifies to a link between the effort to discredit the Bidens to Trump for his own benefit, seems to me they have a tough choice. Believe the guy that has always been a neocon, or continue to protect Trump who is a recent convert with no real dedication to their cause. Any guesses as to what they pick?

Based on what we know so far about Bolton's likely testimony, I still don't see any way that 20 Republican senators will vote to remove Trump from office. But we don't know all of what Bolton might say. And yes, he presents a real dilemma for the GOP hawks, like Lindsey Graham, Tom Cotton and Marco Rubio. They idolize Bolton, consider him a fellow-traveler and a friend, and won't call him a liar. But Trump still controls the Republican base, and while a few senators (like Romney) might cross him, I don't see that number reaching double digits. Then again, I never thought I'd hear Ken Starr wailing about the "age of impeachment," so maybe I'm not so good at predicting.

Do you think that Bloomberg can win if his VP candidate is a person of color? In other words, can he overcome stop and frisk? His video interview in the Times on Sunday was impressive. (I prefer Biden but that's a different issue.)

The most recent national poll I saw had Bloomberg at 12 percent, which is remarkable given his late start. Money, it turns out, can buy you love. His theory of how to win the nomination seemed ridiculous, but he's doing better than I expected. If the first four primary results are a mishmash, and if he does unexpectedly well on Super Tuesday, who knows? Who knows anything about politics anymore? I do think he would have to choose a running mate who inspires the progressive wing of the Democratic Party, and I do think he would struggle to raise minority turnout to the necessary levels, but have stranger things happened? Yes. Donald Trump is president. So I don't rule anything out.

Why would Biden not want to testify before the Senate? Given that there was nothing untoward in his own conduct (although his son ought to learn how to make a living on his own), he would be a sympathetic witness. Further, it would focus all national attention on him at a key point in the primary process and allow him to refute the GOP smears personally before the largest audience he is going to get until election night. Him volunteering to testify would also ensure Bolton would testify, making the case against Trump ironclad (though I still don't expect conviction). Why is Biden adamantly opposed to appearing?

I tend to agree with you. If Biden asked my advice, I'd tell him he should demand to testify. He'd be putting himself at center stage of a riveting national drama, he'd have no problem dismissing the wacky conspiracy theories, and I think he'd be good in that setting. Remember that the Senate was his home for decades. It would be a risk, but I'd advise him to take it.

Hi Gene -- thanks for taking questions today and for your most recent column. We've heard for a long time that if senators in swing states were endangered, McConnell would give them his blessing to go their own way regarding impeachment...not to vote to remove, of course, but at least to hear from witnesses. Given that there's still resistance to hearing from Bolton despite his damning allegations, is it your sense that we aren't there yet? In other words, how endangered do Gardner and Collins, for instance, have to be before they get permission from the boss to do the right thing? I'm not including Ernst in that group because it's clear from her very strident and caustic comments, which gave away the goods re: the true intent of Trump's lawyers (smear Biden at all costs), that she apparently isn't worried. McSally, with her "liberal hack" comment, likewise seems to be going all in despite the fact she's underwater in AZ.

Bolton really does look like a game-changer. Even loyal Trump defenders like Lindsey Graham seem nervous about voting for acquittal without hearing his testimony. We'll see.

I admittedly can't follow all of the threads with this national disgrace, so apologies if this has been made clear previously. What does calling the Bidens to testify have to do with the impeachment trial itself? No matter what the Bidens did or did not do doesn't change the fact that Trump withheld aid. Is it just a smear tactic in preparation of the upcoming election?

Yes, the whole aid-for-investigations shakedown was a smear tactic, as is the threat to call the Bidens to testify. They are not relevant witnesses to Trump's behavior.

If Bolton provides the damning and corroborating testimony, what would you say are the odds that 20 GOP would actually be moved to vote to convict?

Somewhere between slim and none.

Why isn’t anyone challenging the defense’s assertion that a meeting between Trump and Zelensky happened? Zelensky said at the UN that Trump has offered a meeting but hasn’t given a date???????

The defense is counting that brief UN encounter as a meeting. Your question illustrates a big problem McConnell's rules impose on the House managers -- the fact that they get no time for rebuttal. Adam Schiff had to be a "prebuttal," using his final remarks to anticipate the defense's arguments and to refute them in advance. But in a normal trial, the prosecution gets an opportunity at the end for rebuttal, and that would be more powerful.

... and no witnesses testify, does it really change anything? The Senate votes not to remove the President along party lines. Both the GOP and President claim and tout his innocence. The Democrats tout impeachment as a fixed coverup. The country moves on to Iowa and the 2020 campaign, whose chief question is: Do you want four more years of a Trump presidency? I'm not saying impeachment should not have happened, but it seems to me this result remains the most likely. 

I'm tempted to agree. But the knowledge of what Bolton wants to say under oath does change things somewhat. It raises the cost for Republicans of ramming through an acquittal without hearing from a first-hand witness who wants to tell what he knows.

If the impeachment trial has witnesses, will the trial still wind up before Trump's State of the Union address? If not, will be postpone it? Or will he use it as a campaign-rally to get supporters to pressure Republican Senators to vote not guilty?

If there are witnesses, it is almost impossible to imagine the trial could end before the Feb. 4 State of the Union address. That's just one week from now. And the rules specify that any witnesses would have to be deposed before they testify. I have no idea what Trump would say or do at SOTU if he were still on trial, but we may find out.

I'm confused about the role of Justice Roberts. I've read articles that say he has the final word on whether subpoenaed witnesses must appear and others that say that this is determined by a Senate vote. Please kindly explain since, even though I don't expect the Senate to convict, it would be great to have Bolton and others testify.

I'm not a lawyer, and don't even play one on television, but I know that some legal scholars say Roberts has the power to issue subpoenas -- but could be overruled by a simple majority of the Senate. In any event, he seems to want to take a minimalist role. My question is whether he might be able to rule on issues of executive privilege, in the event that Bolton is subpoenaed and Trump tries to block his testimony. It would seem ridiculous to send that question to a U.S. District Court judge when the Chief Justice of the United States is right there.

Yet I'd believe him over Donald Trump any day. Do you think my view is typical of Democrats? What about of Republicans?

Within the past hour, John Kelly, Trump's onetime chief of staff, said in public remarks that he believes Bolton. If you gave truth serum to the Republicans in the Senate chamber right now, I'll bet a huge majority would say they believe Bolton over Trump.

What are your thoughts on this?

As always, I hope and pray for peace. But from my quick reading of news reports, I don't think this plan is going anywhere.

I'm wondering if the Dems should have included all of the seemingly impeachable conduct, like all the evidence of obstruction in the Mueller Report, violations of the emoluments clause, campaign finance violations, and the list goes on and on.

My opinion is that it wouldn't have made any difference. Others might disagree.

WaPo hed "Trump announces Israeli-Palestinian peace plan amid doubts it will lead to progress." Seriously, this won't distract many of the folks following the impeachment trial, will it?

No, not really.

What the heck happened to Mike Pompeo? Was he always a hair-trigger bully, or is Trump rubbing off on him? Or maybe he's a bit tense given all the news that's inevitably going to come out...

Beats me. It's one thing to have a temper. It's another thing for an experienced politician to behave that way toward a respected journalist and then kick a major news organization off his plane. Two theories make sense: He's going all-out to become the heir who inherits the Trump base. Or he's super-tense about something having to do with the impeachment trial.

A what if scenario: Bolton is subpoenaed to testify. President Trump invokes executive privilege. Bolton testifies anyway. What would be the outcome of Bolton’s defiance?

Nothing, unless Trump were able to get a federal court to issue an injunction blocking Bolton's testimony. In that case, there would be a delay. But precedent suggests he would almost surely get to testify eventually.

Whew! That's all for today, folks. Our time is up. Thanks for participating on a busy, busy day, and I'll see you again next week!

In This Chat
Eugene Robinson
Eugene Robinson is an Associate Editor and twice-weekly columnist for The Washington Post. His column appears on Tuesdays and Fridays. In a 25-year career at The Post, Robinson has been city hall reporter, city editor, foreign correspondent in Buenos Aires and London, foreign editor, and assistant managing editor in charge of the paper's award-winning Style section. In 2009, he received the Pulitzer Prize for Commentary for his columns on the 2008 presidential campaign that focus on the election of the first African-American president. In 2005, he started writing a column for the Op-Ed page. He is the author of "Disintegration: The Splintering of Black America" (2010), "Coal to Cream: A Black Man's Journey Beyond Color to an Affirmation of Race" (1999) and "Last Dance in Havana" (2004). Robinson lives with his wife and two sons in Arlington.
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