3-D Chess? We Just Want Nancy Pelosi to Connect the Dots.
So, we’re having a bit of a thing in the Democratic Party right now. The party is engaging in a spirited debate between those who want to start an impeachment inquiry into the president and those who think House Speaker Nancy Pelosi is playing a long game of three-dimensional chess.
I’m on team #ImpeachThe[Bleep]. Over the weekend, I heard every conceivable theory for Pelosi’s resistance to starting impeachment hearings, including: She’s trying to protect red-state House Democrats; she doesn’t want Trump to be “exonerated” in the Senate; she’s actually doing impeachment hearings without using “the i word”; she’s building a case for impeachment; she’s waiting for a “smoking gun” evidence of Trump’s obstruction; something, something Bill Clinton; she’s holding off on impeachment in case Trump wins in 2020; and Trump has already been impeached, we’re just all dead and trapped on the Lost Island.
I’m making that last one up, but you get the point. People need to believe that Nancy Pelosi has a good reason for not starting an impeachment inquiry, because otherwise her refusal to hold the president accountable for his crimes with only tool she has looks like ethical and moral malpractice.
If you are in favor of impeachment, the “Nancy Pelosi knows what she’s doing” argument is exasperating. It’s an argumentum ad verecundiam, an “appeal to authority” logical fallacy. It’s a trick that makes you argue against the authority, instead of the argument. In this case, nobody on the left really wants to suggest that the powerful and righteous speaker of the House doesn’t know what she’s doing. Maybe she really is doing some kind of multivariable alchemy and in the end this gelatinous goop that the Democratic Party leadership keeps serving will be transubstantiated into a spine? I don’t know. I’m just a mere mortal who has read both the Mueller report and the US Constitution within the past month.
My faith in Pelosi as Bobby Fischer is tested, however, when I actually listen to the arguments she makes on behalf of her own position. Last Thursday, Pelosi went on Jimmy Kimmel Live and explained why she hasn’t started impeachment hearings already. Arguably this appearance was done so that we small folk could appreciate her brilliant strategy. But I’ve puzzled over her remarks for five days now and cannot figure out what the plan is. Here’s the money quote from Kimmel:
He [Trump] knows it’s not a good idea to be impeached, but the silver lining for him is then he believes he would be exonerated by the United States Senate, and there’s a school of thought that says, “If the Senate acquits you, why bring charges against him in the private sector when he’s no longer president?” When we go through with our case, it’s got to be ironclad.
The “Trump exoneration” argument doesn’t make sense to me on any level. First of all, Trump is already stomping around the country (and the world) claiming the Mueller report “exonerated” him. His supporters already believe this. If impeachment hearings did nothing else than bring the details of the Mueller report into the land of the spoken word, it would do more to move public opinion against him. The kinds of people who think that a Senate acquittal is an “exoneration” are already the kinds of people who think that Mueller’s decision not to indict the president means he’s “innocent.” There’s no evidence that a Senate acquittal would mind-wipe all of the evidence brought out during an impeachment hearing, and to the extent that it does, those people were lost anyway.
I also don’t think it’s a foregone conclusion that the Senate would acquit him. Yes, it’s very likely the Republican-controlled Senate would, but you never know for sure until you ask them. In the meantime, I would like to see a few of these vulnerable Republican Senators run for reelection with a Trump acquittal hanging around their necks.
In her second clause, Pelosi uses a straight-up “Trumpian” turn of phrase: “There’s a school of thought that says if the Senate acquits you, why bring charges against him in the private sector?” What school is that? It must not be a school of thought for lawyers, because lawyers will sue your ass in the “private sector” after you’ve been acquitted on criminal charges without a second thought.
Giving Pelosi every benefit of the doubt, she probably just misspoke here. There’s no way she meant that the president could not be charged in the civil sphere (what people usually mean when they say “private”), say, for defrauding banks, just because he survives impeachment, because that is simply not true. She might have been worrying that the president could not be charged criminally, maybe by the Southern District of New York, after he’s done being president for allegations first brought against him in impeachment hearings. But even that would be a deep mischaracterization of how “double jeopardy” (the right against between charged twice for the same crime) works. Assuming the president is impeached for “obstruction of justice,” and is acquitted, he can still be charged for any financial crime anybody can come up with that isn’t barred by the statute of limitations. Double jeopardy attaches to a criminal “act,” not a criminal “person.”
Finally, Pelosi tells Kimmel that the case against Trump must be “ironclad.” Everybody agrees with her there. The issue is that impeachment hearings are how you make a case against Trump “ironclad.”
Pelosi seems to think that endless congressional investigations, under the House’s oversight authority, are the way to build a case against Donald Trump. I might have agreed with her, until Trump and his administration started ignoring congressional subpoenas and requests for testimony. Given the way the Trump administration wants to play this, empowering Congress under its impeachment authority might be the only way to strengthen Congress’s hand in its battles to get Trump to respect its authority and to get courts to expedite rulings. It’s not a sure thing, but it’s the only card Congress has left to play. Pelosi is setting up a straw man: Nobody argues against Congress conducting thorough investigations; the issue is that impeachment is the most thorough investigation. What Congress is doing now is trying to appear thorough, without using every constitutional power available to seek the truth.
Now, I cannot believe that I’m saying anything here that Nancy freaking Pelosi doesn’t already know. She knows “exoneration” is just a word, she knows Trump can and probably will be sued into the ground if he ever leaves office, and she knows that impeachment is her ace card to compel testimony. Is she making bad arguments on purpose as part of some diabolical scheme to lull Trump into complacency? Or is she making bad arguments because those are the best she has for the indefensible position that Donald Trump isn’t “worth” impeaching?
I’m sorry, but when Pelosi goes on Jimmy Kimmel and gives him and the American people reasons for her position that are incredibly weak, I cannot just wave it all away as “Nancy Pelosi has a plan and I’m too stupid to understand it.” If she has a plan, I can’t see it. If she has a strategy, she’s not explaining it very well. What I’m hearing and seeing are weak arguments made to gaslight late-night viewers into thinking that everything is under control, even as more and more members of her own caucus manifestly break with her position on impeachment in public.
I’m not good at taking it “on faith” that a higher power has an unknowable plan. As I once said in Sunday School: “Just tell me how the dinosaurs fit on the boat and we’re good.”
Elie Mystal is the executive editor of Above the Law and a contributing writer for The Nation, as well as the legal editor of WNYC’s More Perfect. He can be followed @ElieNYC.
Please support progressive journalism. Get a digital subscription to The Nation for just $9.50!