Posted by Curt on 30 January, 2020 at 6:49 pm. 11 comments already!


Every decision is precedent.

That which gets rewarded gets repeated.

Law students should know these basic rules of the U.S. legal system and any common law system. That which has gone before inevitably is used to argue for or against what comes next.

And that argument or tactic that has successfully persuaded a court in the past is likely to be urged on courts of today as precedent that binds its actions.

Both rules should be uppermost in senators’ minds as they consider the presentations of the House Democrats and President Trump’s legal team. Having reviewed the House managers’ trial brief and that submitted by the president’s legal team, I believe anything other than a rapid acquittal will be deeply damaging to the presidency. It will not injure this president at all to have witnesses and weeks and weeks of proceedings. It will damage the presidency.

If the purely partisan and reckless maneuvering of House Democrats receives more than it deserves — rapid disposition with a strong dose of senatorial scorn — future presidents, at least those who face House majorities from the opposite party, can look forward to the impeachification of all political disputes down the road.

The president’s lawyers know this is the strongest argument even for senators who most dislike Trump, whether Republican or Democrat. If senators care about the Constitution, they have to think not in terms of the next hundred hours or days but of the next hundred years. And they have to consider that it is not only the other party that might be gored but their own. Senate Majority Leader Mitch McConnell (R-Ky.) warned then-Senate Majority Leader Harry M. Reid (D-Nev.) that the latter would rue the day he destroyed the judicial filibuster for nominees to the federal bench. Whether Reid ever admits it, Trump’s two appointees to the Supreme Court, his 50 appointees to the federal circuit courts and 133 to the district courts are stark reminders of the costs of short-term thinking.

Senators must dwell on the “what if’s” that lie down the road. I think everyone in the chamber hopes the republic endures another two centuries at least. Political combat has been continually escalating, long before Trump became president. But the attempt to “flood the zone” with new charges and witnesses follows by less than two years the outrageous, late-in-the-process attacks on Justice Brett M. Kavanaugh in the closing days of his confirmation. Now, in our politics, even “that which almost gets rewarded” is being repeated.

I know the pressures from the left wing weigh very heavily on Democratic senators, but some of them need to find the courage to speak about the dangerous precedents that threaten to be created in the next few days. Certainly every Republican senator should do so. Armed with Footnote 565 of the president’s trial brief, senators can quickly dismiss the idea of the necessity of new witnesses. In that footnote are citations to early press accounts of Ukrainian conduct that was indeed interference in our 2016 election (though nothing on the scale of the Russian attempt to sow discord in our politics). These accounts include stories from Politico, the Financial Times, and the New York Times, and they reveal a predicate for the president’s concern over some Ukrainians’ conduct in 2016. There is therefore no doubt that a responsible president would request, if not demand, an inquiry by Ukrainian President Volodymyr Zelensky.

The second article of impeachment is even more dangerous than the first. It would deprive the executive of its Article II status as a separate but equal branch and would oblige future presidents to yield their rights and privileges no matter how specious the claims against him or her, or how intrusive the inquiries into privileged communications or into matters of national security. Whatever one thinks of the first article of impeachment — and it takes partisan blinders to think much of it at all — it is constitutional ignorance to credit the second article with any merit whatsoever. Both will do damage to the presidency every second they are infused with any sort of credibility.

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