IMPEACHABLE OFFENCES, wrote Alexander Hamilton in Federalist Paper 65, are by nature political. They flow from an abuse or violation of public trust, which need not be a criminal act. The impeachment process is thus also inherently political, despite its legalistic structure. The prosecutors and jurors are elected officials, not lawyers and ordinary citizens; nobody has ever spelled out precisely what constitutes an impeachable offence.
For that reason, Hamilton warned that impeachment “will seldom fail to agitate the passions of the whole community…In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
That is what has happened so far in Donald Trump’s impeachment process. For weeks, Republicans have complained about the impeachment process, while Democrats have lined up to support it. A vote to formalise rules for public hearings passed with no Republicans in favour of adopting the rules, and just two Democrats—both from conservative districts—opposed to them.
This is unsurprising. Hamilton feared that impeachment would factionalise the public, but partisanship and polarisation have done that already. Some on the left began pushing for Mr Trump’s impeachment as soon as he was inaugurated, whereas some on the right have assiduously shifted the goalposts, and their defence of Mr Trump, with each new damning revelation. But the start of public hearings on November 13th will require changes from both sides.
Start with Republicans. Complaints about process have comprised the bulk of their arguments so far. The White House called the impeachment process a “scam,” and refused to co-operate. Republicans barged en masse into a secure hearing-room to highlight their objection to holding hearings behind closed doors, though that has long been a mainstay of congressional oversight. Making the hearings public neuters that particular objection, just as allowing a full House vote on impeachment rendered moot their protest that Democrats were ploughing ahead without one.
Mr Trump has tweeted that he gets “NO LAWYER & NO DUE PROCESS,” but that comes during the trial phase in the Senate. The House merely determines whether grounds exist for an impeachment, much as a grand jury decides on an indictment. The Fifth Amendment states that “no person shall be…deprived of life, liberty or property without due process of law”; the House hearings into whether Mr Trump’s conduct is impeachable deprive him of none of those three things.
Public hearings will begin with testimony from William Taylor, America’s top diplomat in Ukraine; George Kent, a deputy assistant secretary for European and Eurasian affairs; and Marie Yovanovitch, America’s former ambassador to Ukraine. They will put pressure on Republicans to decide whether to defend Mr Trump’s actions rather than attack the impeachment process.
The three witnesses have already testified in private; their public testimony is unlikely to surprise anybody. They contend that the Trump administration, allegedly at the president’s behest, withheld military aid to Ukraine and made a White House visit for the country’s president, Volodymyr Zelensky, conditional on Mr Zelensky publicly announcing an investigation into Hunter Biden, the son of a Democratic presidential frontrunner. Despite scant experience in the industry, Mr Biden served on the board of Burisma, a Ukrainian energy firm. On a phone call, Mr Trump also urged Mr Zelensky to look into a debunked theory that his country had meddled in the 2016 election in favour of Hillary Clinton.
Mr Kent accused Rudy Giuliani, Mr Trump’s personal lawyer, of “carrying on a campaign…of lies” to get Ms Yovanovitch removed. He also testified that Gordon Sondland, America’s ambassador to the European Union, said that Mr Trump himself told him that he “wanted nothing less than Zelensky to go to [a] microphone and say investigations, Biden and Clinton”.
Mr Taylor also came down hard on Mr Giuliani, fingering him as the “origin of the idea” to have Mr Zelensky publicly announce an investigation into Mr Biden. He also testified to an explicit quid pro quo. “It was becoming clear to me,” he testified, “that the meeting President Zelensky wanted [at the White House, with Mr Trump] was conditioned on the investigation of Burisma and alleged Ukrainian interference in the 2016 US elections.” Ms Yovanovitch said that she was ousted from her post, returning to Washington at short notice, because the State Department worried that Mr Trump would start publicly attacking her if she remained in her post.
These are serious charges from credible witnesses, and the closed-door hearings produced more, too. For instance, they prompted Mr Sondland to amend his testimony and confirm that he too understood that a quid pro quo existed. Republicans will have to rebut or explain these charges.
One way to do that is to pin all the blame on Messrs Sondland, Giuliani and others eager to please Mr Trump, but not on the president himself. In this version of the story, Mr Trump would be the naïve, trusting president on whose behalf—but without whose consent—subordinates cooked up morally dubious plans. That argument would be more effective had Mr Trump himself not made a phone call asking Mr Zelensky to investigate Mr Biden and co-ordinate with Mr Giuliani, and had he not made a plea from the White House lawn for China and Ukraine to investigate the Bidens.
A more plausible line of defence is that presidents have wide latitude to guide foreign policy, and that quid pro quos happen all the time; foreign policy is always transactional. Mr Trump’s pressuring of Mr Zelensky may have been unusual and perhaps even regrettable, but it is not impeachable, and impeaching him for it will restrain future presidents’ ability to conduct foreign policy.
That argument elides the crucial distinction between foreign-policy decisions made in the national interest—the definition of which is of course open to debate—and those made for the president’s personal political benefit. It tacitly accepts the legitimacy of asking a foreign power for help in discrediting a political rival, and subverting American foreign policy in the process. Still, it may prove persuasive to voters indifferent to, or confused by, the intricacies of foreign policy (ie, most of them).
Democrats will have to counter this argument. It is not enough to show that Mr Trump behaved badly. They have to persuade a critical mass of independents and non-Trumpist Republicans to hold him to account for it.
Democrats have struggled with this task throughout Mr Trump’s political life. In 2016, Hillary Clinton ran multiple ads focused on Mr Trump’s character; that failed to defeat him. In 2018 the Democrats from moderate districts who gave the party their House majority did not mention Mr Trump, focusing instead on kitchen-table concerns. That option is not available here.
As things now stand, Democrats probably have enough votes to impeach Mr Trump along party lines in the House, and then see him acquitted—also along party lines, with perhaps a stray Republican or three joining the Democrats—in the Senate. That will not change unless public opinion does. Right now the public is roughly evenly split on impeachment. A recent poll on behalf of Vox by Ipsos showed how Republicans are processing Mr Trump’s actions: though most believe that abuse of presidential power constitutes an impeachable offence, most also believe that presidents routinely pressure other countries’ leaders to investigate political rivals.
Changing their minds will not be easy. Mr Trump remains overwhelmingly popular among Republicans, and most Republican legislators remain more vulnerable to a primary challenge from the right than to a general-election loss. Still, House Democrats have no alternative but to build a public case, centering, most probably, on Mr Trump’s efforts to pressure Mr Zelensky. They may also try to show that he obstructed justice by blocking witnesses and refusing to co-operate with congressional oversight.
Initially, Democrats said they wanted to finish the impeachment process by the end of November. That now looks unlikely, but they probably want the House role wrapped up by year’s end. With the Thanksgiving recess later this month and the Christmas recess beginning in mid-December, that gives them four weeks—and a lot more passions to agitate.