A Brief History Of Time: A Response To Chairman Schiff On The Need To Impeach By Christmas

The House Judiciary Committee is about to approve two articles of impeachment as member after member last night declared that time is of the essence. The House is now set to fulfill its pledge to impeach President Donald Trump by Christmas. For some us, the mad rush toward impeachment by the Democrats has been utterly incomprehensible.  It is difficult enough to go to the Senate in a presidential impeachment without an accepted crime and on the narrowest basis in history.  However, the Democrats know that they have combined those liabilities with the thinnest record of any modern impeachment – a record filled with gaps and conflicts.  The Democrats know that this record is guaranteed to fail and could easily justify the Senate holding a trial as cursory as its hearings.  Yet, they would prefer guaranteed failure rather than build a credible case for removal.  Why? The reasons put forward by House Intelligence Committee Chair Adam Schiff (D-Calif.) and others are not credible and, given the paucity of examination given these claims, it is worth closer scrutiny.

So, to use Stephen Hawkings’ famous construct, here is a brief history of time for impeachment.

So why? The answer to that question will likely occupy historians for decades after this slipshod impeachment is summarily rejected.  In the impeachment hearing, I testified that President Donald Trump could be impeached for abuse of power but that the record was facially inadequate and incomplete. I encouraged the Committee to just take a few more months to subpoena roughly ten witnesses with direct evidence and secure judicial orders that I believe would support the Committee on its obstruction article.  While I was relieved to see the Committee drop the allegations of bribery, extortion, and other crimes that I testified against, it refused to simply take a little more time to develop a more complete case.

None of the excuses for the pledge to impeach by Christmas are even remotely plausible.  They can be divided into two basic groupings: court challenges would take too much time and there is a crime in progress that must be stopped.

No Time To Wait

First, there is the argument by Chairman Schiff in response to the criticism over the short investigation (which even the New York Times has challenged). Schiff insisted that waiting will mean a guarantee of that there will be no impeachment while also guaranteeing that there will be foreign meddling in the 2020 election:  “People should understand what that argument really means. It has taken us eight months to get a lower court ruling that Don McGahn has no absolute right to defy Congress. Eight months for one court decision.” As has consistently been the case, no major media outfit seemed interested to fact check that statement.  It happens to be untrue.

The House waited until August 7th to go to court to compel McGahn’s appearance.  That was roughly four months ago, not eight.  It was also filed before the House voted to start the impeachment inquiry on October 31st.  Back in January, I testified in the House Judiciary Committee and pushed the Committee to hold such a vote to allow for expedited cases over testimony like McGahn’s.  At the time, I warned that the House was running out of runway to get an impeachment off the ground.  With such a vote, these cases could have moved at the accelerated pace of an impeachment.

So not only has the House gone two years without opening an impeachment inquiry, it burned over three months without going to court to enforce a subpoena in the Ukrainian controversy.  Indeed, a court was close to ruling on such a subpoena in the case of Charles Kupperman, a former deputy national security adviser. Kupperman was ready to testify but simply wanted judicial guidance. The House withdrew the subpoena before the court could rule and this week Kupperman is still trying to keep the case in court to get a ruling against the determined efforts of the House.

In the Nixon case, the White House moved to quash a subpoena for the Watergate tapes on May 1st. Judge John Sirica denied St. Clair’s motion on 19 days later.  On May 24th, an appeal was taken to the D.C. Circuit but the case was taken directly to the Supreme Court.  Oral arguments were heard on July 8th and a ruling issued only three weeks later.  That is three months. That is what can happen when you expedite a matter as an impeachment matter.

The question is why would the House not only refuse to try to secure these witnesses but actually withdraw a subpoena before a ruling in the Kupperman.  The December deadline is more logically tied to the Iowa caucuses than any litigation schedule. It is not the judicial but political calendar that appears the pressing concern in this schedule.

This Is An Ongoing Crime Spree

The second argument is that there must be action now because President Trump is actively seeking to undermine the 2020 elections. Chairman Schiff declared “The argument, ‘why don’t you just wait’ amounts to this: ‘why don’t you just let him cheat in one more election? Why not let him cheat just one more time?'”

Rep. Eric Swalwell further declared that the House must act because this is a “crime spree in progress.”  Rep. David Cicilline similarly declared that time was of the essence because this is a “crime in progress.” Likewise, Rep. Cedric Richmond (D, La) explained that they cannot wait because “this is a crime in process” and this is a 911 moment.  It makes for riveting rhetoric but it is detached from any objective view of the facts, even if you object to to the call and request for an investigation. What is the ongoing crime in Ukraine?  The aid has been paid. Moreover, how does rushing an incomplete impeachment case to certain failure stop an ongoing crime?  These members are pushing forward a half-formed case that will be easily to dismiss – and calling it “tough on crime.” Finally, the Johnson, Clinton, and Nixon cases all had recognized crimes, not metaphorical crimes.  Yet, those cases were based on long investigative periods that produced massive and comprehensive records.  

What is equally concerning is that this claim of a “crime spree” is based not just on the request for investigations in Ukraine, but earlier public statements made by President Trump, including during the campaign. Chairman Jerry Nadler last night said the pattern includes then candidate Donald Trump calling for the Russians to hand over the Clinton emails. That was before Trump took office and it is now being somehow used as part of an impeachment. It is also a comment that Trump and his supporters maintained was a joke. It did seem like a public statement on a campaign trail that was mockery. Now it has been cited as part of this pattern of a conspiracy to invite foreign interference with our elections — a conspiracy that was expressly rejected by the FBI, the Inspector General, and the Special Counsel. This is an example of how this incomplete record quickly breaks down under scrutiny and why the House needs to build an actual not aspirational case for impeachment.

Let’s be clear.  Many of us have criticized the references to the Bidens. However, there was no invitation to intervene in the election.  It certainly was not akin to the Russian hacking operation in 2016. Many presidents ask for actions that would benefit them politically in an election year.  Any request that might benefit a president is not an invitation for intervention or rigging of an election. To portray that as rigging the 2020 election (and to suggest that it is an ongoing crime) is not just hyperbolic but highly misleading. Moreover, this line of argument does not address why a delay of two months would somehow magnify this danger.  As noted, the Democrats allowed months to pass without seeking subpoenas for witnesses like John Bolton and withdrew other subpoenas.  How would sending an impeachment guaranteed to fail help in any way to stop such intervention? Indeed, what the Democrats are doing would seem to encourage such alleged misconduct by all but forcing an acquittal in the Senate. If you really want to combat such misconduct, you would build this case and seek a vote in the early Spring with a full record.

There is no question that impeachment by Christmas is the ultimate stocking stuffer for many voters. However, this is marketing a known defective product that will not last long outside of the box.

134 thoughts on “A Brief History Of Time: A Response To Chairman Schiff On The Need To Impeach By Christmas”

  1. “It certainly was not akin to the Russian hacking operation in 2016.” I’m pretty sure the jury is still out on the extent “Russian influence” impacted the 2016 election. I’ve searched high & low to find proof they did more than run some FB ads to sow discord in our system. The DNC saying, “The Russians hacked our emails”, doesn’t convince me they did. Assange states they weren’t his source.

    Is it possible at all that the Dem committees don’t want to gather more evidence because there is no more evidence to gather? It doesn’t stretch my imagination to imagine the phone call was just another phone call. So what if he asked Ukraine to cooperate in a corruption investigation with AG Barr. That the Bidens happen to be caught in the middle is just gravy. That Joe Biden is a “rival” should not place him off-limits. Otherwise, we’re gonna see 100 Presidential candidates from both sides every election, for protection.

  2. Excellent analysis, however, I still don’t understand what you mean by ‘the Russian hacking operation in 2016’ in the last full paragraph of your article. If you mean by it, the alleged ‘hack’ of the DNC emails in 2016, please follow up with the forensics conducted by former NSA Technical Bill Binney and his team, and reports of it by the Veteran Intelligence Professionals for Sanity (at ConsortiumNews.com), Larry Johnson & Bill Binney (at Pat Lang’s site), Patrick Lawrence (at The Nation and ConsortiumNews.com), etc., otherwise you will be perpetuating the Crowdstrike fraud which appears to have been cited by the OIG as a predicate to the FBI counter intelligence investigation of the Trump campaign

    1. Predicate? The IG wants us to believe Crossfire Hurricane didn’t begin because of the bs Steele dossier. You know, the one the FBI claims they didn’t know about until September. Yet in the IG report, checkout footnote #461. It would certainly appear that the FBI had the dossier in mid July, before Crossfire Hurricane’s 31st start date.

      1. OLLY – the date they talk about an insurance policy is the same day the learned they were not going to get a FISA warrant on Page.

      2. The footnote is found on page 310.

        461 The only express direction we found that McCabe gave regarding the use of a CHS concerned a former FBI CHS, who contacted an FBI agent in an FBI field office in late July 2016 to report information from “a colleague who runs an investigative firm … hired by two entities (the Democratic National Committee [DNC] as well as another individual…[who was] not name[d]) to explore Donald Trump’s longstanding ties to Russian entities.” The former CHS also gave the FBI agent a list of “individuals and entities who have surfaced in [the investigative firm’s] examination,” which the former CHS described as “mostly public source material.” In mid-September 2016, McCabe
        told SSA 1 to instruct the FBI agent from the field office not to have any further contact with the former CHS, and not to accept any information regarding the Crossfire Hurricane investigation. McCabe told the OIG he did not remember giving those instructions, and could not tell us why he might have done so. We found no evidence that the FBI reopened the former CHS for the Crossfire Hurricane investigation, or tasked the former CHS in connection with the Crossfire Hurricane investigation.

  3. Joe Biden should be investigated by the US Senate
    Obstruction of Congress waits for Thee!

    https://reason.com/2019/12/13/all-drug-offenders-should-be-treated-like-hunter-biden-leniently/

    All Drug Offenders Should Be Treated Like Hunter Biden: Leniently

    When the vice president’s son was caught using illegal drugs, he escaped legal problems. We should all be so lucky.

    If Hunter Biden, the son of leading Democratic presidential candidate Joe Biden, used his father’s connections to get rich without working that hard, he has also almost certainly benefited from his dad’s status to escape exactly the sort of punishments the former vice president has long advocated for illegal drug users. Critics will use new revelations about Hunter’s drug past to mock the candidate as a hypocrite, but they also present a teachable moment in the war on drugs: All nonviolent users should be accorded the leniency normally reserved for the children of senators and vice presidents.

    The Washington Examiner reports that as an 18-year-old, Biden “was arrested on Jersey Shore drug charges in 1988 and had his record expunged.” In 2013, Biden received a special waiver about his drug past to join the U.S. Navy Reserve. (He was ultimately mustered out after testing positive for cocaine.) And in 2016, he returned a rental car in which police found his credit cards, ID, and a crack pipe; authorities declined to bring charges. In divorce papers, his ex-wife testified that he spent “extravagantly” on illegal drugs. He has been in and out of rehab and has publicly admitted that he has substance-abuse issues.

    The Examiner notes, correctly, that Joe Biden is one of the chief architects of the war on drugs. The elder Biden once said that the feds should “hold every drug user accountable” because “if there were no drug users, there would be no appetite for drugs, there would be no market for them.”

    Between 1984 and 1990, Biden introduced dozens of pieces of legislation related to drug enforcement.

    In 1984, he helped usher in the Comprehensive Control Act, which allowed law enforcement officials to seize property suspected of being used to carry out drug-related crimes. The Anti-Drug Abuse Act of 1986 imposed a 100-to-1 sentencing disparity for possession of crack cocaine as opposed to powder cocaine.

    In 1987, he introduced the National Narcotics Leadership Act to establish “a Cabinet-level Office of the Director of National Drug Control Policy to coordinate Federal operations and policy on drug control and abuse.” In 1989, Biden sponsored legislation to ban the sale of firearms to individuals with “serious misdemeanor drug or narcotic offenses.”

    In 1990, Biden introduced a bill to make prior drug convictions “grounds for denying employment or for dismissal of an employee engaged in specified child care services” and for federal jobs. The bill also restricted bail for convicted drug offenders awaiting sentencing if their crime carried a maximum of a 10-year prison sentence. It required individuals to pass a mandatory drug test before being sentenced to parole, probation, or supervised release, and it established federal “military-style boot camp-style prisons” for prisoners under 25 years old who were found guilty of possession of controlled substances.

    During the early 1990s, Biden spoke out publicly in support of the drug crackdown led by President George H.W. Bush.

    Biden remains such a drug warrior that he opposes an end to federal prohibition of marijuana until he is convinced that it’s not “a gateway drug.” As Jacob Sullum writes, “that means Biden…will never support marijuana legalization.”

    The Examiner doesn’t demonstrate that Joe Biden directly intervened to keep his son out of serious legal problems, but it doesn’t have to. Everyone knows that when it comes to drug-related offenses, there is a two-tier system of justice, one for the powerful and wealthy and one for everyone else. Throwing Hunter Biden, who publicly struggles with substance-abuse problems, into prison wouldn’t have accomplished anything other than wasting more tax dollars on the carceral state. Yet not everyone enjoys such freedom in a country where “1 in 5 incarcerated people is locked up for a drug offense” and more than a million arrests for drug possession are made every year.

    Over the course of Joe Biden’s political career—he was first elected to the U.S. Senate in 1972—the country has undergone a sea change in its attitudes toward illegal drugs, especially marijuana. In the early 1970s, says Gallup, less than 15 percent of Americans favored legalizing weed. That figure is now 66 percent and still climbing. State and federal criminal-justice reforms show that we are rethinking the war on drugs and how best to help people with abuse problems.

    The scandal isn’t that Hunter Biden escaped the prison time his father sought for other drug users. It’s that it has taken us so long to start reversing the damage that Joe Biden has inflicted on America.

  4. They may know more about Justice Ginsberg’s health than they are letting on and hope any impeachment will disqualify Trump from filling her seat ‘while he is under a cloud.’

    Meanwhile, their atrocious antics make it more believable they will engage in vote fraud wherever the opportunity arises. They seem like very dishonest people.

      1. linda4298 – there are some significant cases scheduled for 2020 and the court would need a full roster to deal with them.

  5. Prof. Turley identifies the curious rush to complete this impeachment. Pelosi, Schiff, and Nadler must realize how weak their case is but have insisted that it proceed at warp speed. These are clever politicians so this action must be part of some plan or designed to deflect attention/perception.

    Since they are well informed in the Trump/Russia/Ukraine matters, including all of the classified info that has been redacted, their plan might be to mitigate potential fallout from the recent FBI/DOJ investigations. The IG’s report has revealed some particularly damning actions by the FBI and has also has illuminated the numerous lies of Schiff and Democrats that attempted to cover up the FBI’s improper (illegal?) and biased actions. And it is probable the Durham report will reveal much more about the DNC and Clinton campaign’s abusive manipulation of the FBI in their efforts to secure the 2016 election. The IG’s report is out already, but they will still attempt to undermine the impact of info that is out and they know will likely come out of Durham’s report, and so they will claim that Trump’s DOJ is the info manipulator and they will use their House impeachment as some sort of proof or support in selling that perception. Sounds a bit conspiratorial, but why else rush this?

    1. I think its a bit too intricate, and the people you have mentioned are not that clever. Lets not pretend that the House has been solely focused on the people’s business, and then got waylaid by something catastrophic the President did and had to divert some of their attention to this solemn matter. Rather, a faction of the party was determined to have an impeachment vote on something ever since the President got into office. And they preferred the vote before the election year of 2020. That’s been pretty clear for some time. And that is what has happened.

      1. ‘Clever’ was probably a generous choice of words, so I’ll amend it to those three being ‘devious.’ As to the plot being intricate, remember that included in that trio is the failed Hollywood script writer who has just recently presented us a few failed scripts: Russian collusion; obstruction of justice; bribery; extortion. I would imagine that Schiff worked up one of his not-ready-for-Hollywood scripts and convinced Pelosi of it’s value or purpose as she abruptly altered her position on impeachment. Something foul is afoot.

    2. DonEstif: it sounds like a movie doesn’t it? But it also reeks of the truth after what the DOJ IG presented this week. I think they’ll use the impeachment label to prevent Trump from executing ANY legal actions that affect their constituencies, like they’re trying to do w/Kavanaugh.

  6. I am curious. After the landslide victory for Boris Johnson, and the ignominious defeat of the far Left socialists in UK, if Democrat Presidential candidates will hurriedly do an about face.

    They have all gone hard Left, appealing to those who want the government to become their robber Barron, stealing from anyone moderately successful and giving it to those less so. They are all in a race to allow in as many immigrants as possible. They oppose BP, ICE, and since they oppose deportations after court orders, their appears to be no situation where they would not allow someone in. That’s open borders. We would be overrun. If anyone could stay here who could get here, we’d have a billion more people. Our economy would collapse. Our existing poor would lose their benefits as our system collapsed. Since Western values, women’s rights, equality, and Judeo Christian values is a rare combination, open borders would dilute our shared values until we had the same problems the rest of the world flees from. It is irresponsible not to impose qualification, limits, and the laws to immigration.

    Now they’ve seen this strategy roundly rejected, will they all do a 180, jettison socialism, and rework their platforms to try to hook those voters? That would be utterly insincere, untrustworthy, and frankly, we’d still end up with the hard Left if they won. No one will trust them now that they went on record with the most socialist, high tax platforms in our history.

      1. The ratio of public revenue collection to domestic product in 1957 was 0.233. That in 2018 was 0.269.

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