Trump and House Articles of Impeachment: The Rule of Law in Retreat

Reprinted, with permission, from Lawyers for Humanity, December 14, 2019.

With the adoption by the U.S. House Judiciary Committee of two narrowly-focused articles of impeachment, centered on and limited to the Ukraine affaire, we can observe in motion a major retreat by one of the world’s leading democracies from dedication to Constitutional government and the Rule of Law.

House Democrats, timorous and afraid of taking on Trump head-on, have persuaded themselves that it is too risky to include in the articles of impeachment (roughly equivalent to a charging document or an indictment) matters beyond Trump’s alleged abuse of power in the Ukraine affaire and his obstruction of congress in refusing to cooperate with the impeachment investigation.

The “abuse of power” charge is that Trump conditioned the delivery of military aid approved by Congress and a White House visit by Ukrainian president Volodymyr Zelensky on the latter’s conducting and announcing investigations into Joe Biden and his son Hunter, and into a conspiracy theory involving a company called Cloudstrike.

According to this conspiracy theory, Cloudstrike had computer servers in the Ukraine, which would prove that it had been the Ukraine, not Russia, which interfered in the November 2016 elections. By withholding the aid and the visit, the Democrats charge, Trump engaged in what was essentially extortion or bribery for his own personal benefit, to get dirt on a prominent rival for the presidency in 2020.

The “obstruction of Congress” count, contained in the second article of impeachment, is based on Trump’s refusal to comply with subpoenas for documents and testimony from government officials relating to the Ukraine affaire, even ordering them not to appear before Congress.

In so narrowly focusing the impeachment articles, omitting an article on “obstruction of justice” for the many cases detailed in the Mueller Report, the House Democrats have in effect conceded that the abuses of power and obstruction of justice Mueller described did not merit attention in their effort to remove Trump from office.

The omission of the obstruction of justice charge plays into Trump’s narrative that the whole Mueller investigation was a “witch hunt” and a “hoax”, and that he had done nothing wrong.

Even limiting their charges to the two articles, to remove Trump the Democrats need to secure the approval of two-thirds of the members of the Republican-controlled Senate.

Without having made a dent in Trump’s propaganda bubble, they are extremely unlikely to achieve this result.

Barring a miracle, Trump will be acquitted in a Senate trial. He will then claim that he has been vindicated, with good prospects for riding this propaganda horse to victory in the November 2020 presidential election.

This is an extraordinarily sad development for advocates of Constitutional government and the Rule of law.

What it means is that Trump will probably continue his attack on the World Trade Organization and the practical force of the multilateral rules governing international trade in force since the General Agreement on Tariffs and Trade (GATT) was adopted in 1947.

To date, Trump has paralyzed the dispute settlement provisions of the WTO by refusing to nominate individuals to the highest panel, depriving it of a quorum and the ability to decide disputes.

By this stratagem, Trump has sought to protect his administration from adverse legal judgments involving, e.g., his wholly specious invocation of a “national security” exception in order to apply tariffs in flagrant disregard of WTO rules.

With the re-election of Trump, the United States can look forward to another four years of pro-Putin and pro-Russian U.S. foreign policy. Now, Trump is likely to feel increasingly unbound, unconstrained, as evidenced by his two visits with Russian foreign Minister Sergey Lavrov, in the last few days. See photograph of Lavrov in Oval Office here.

After meeting with Trump on December 11, 2019, Lavrov was quoted as saying, “All speculation about our alleged interference in domestic processes of the United States is baseless.” Nick Givas, “Russia’s Sergey Lavrov meets with Trump, Pompeo, dismisses election-interference worries,” Fox News, December 11, 2019.

The House Democrats’ dramatic failure has had a major impact on perceptions, with Roger Cohen, a perceptive leading columnist for the New York Times, speaking of the likelihood of Trump winning the 2020 election.

See

Roger Cohen, “Boris Johnson and the Coming Trump Victory in 2020; In the postindustrial wasteland, the working class embraced an old Etonian mouthing about unleashed British potential,” New York Times, December 13, 2019.

The Trenchant Observer

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The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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