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It is likely that the majority of the U.S. Senate will reject the impeachment charge against President Trump.

While new facets of the Ukraine affair continue to surface, the main outline appears undisputed: Military aid was withheld in order to initiate a Ukrainian investigation into the Bidens.

Apart from Dershowitz' rather extreme view that any official has wide latitude in pursuing his or her reelection, which does not seem to be mainstream: What is the majority's rationale for viewing this not as an impeachable offense?

Which additional element would make this asking for foreign interference into an election, utilizing public funds and the authority of the office, impeachable, if any? What's missing according to the senators who have given public reasons why they plan to acquit?

  • By "according to the Defense" do you mean his other lawyers (Sekulow & Starr), Trump himself, or some kind of survey of GOP senators? – Fizz Jan 31 at 21:16
  • @Fizz Right, I'm a bit fuzzy: Mostly the Senators, being the Jury equivalent here, but I assume that they agree partly with the defense. – Peter - Reinstate Monica Jan 31 at 21:34
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    He has actually already been impeached. It's just a question of him being convicted and removed from office. – CrackpotCrocodile Jan 31 at 21:45
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    @CrackpotCrocodile You are right. But if the Senate acquits him, the impeachment does not hold, akin to a futile charge in a criminal trial. The Senate will be of the opinion that the President's behavior did not constitute an impeachable offense. – Peter - Reinstate Monica Jan 31 at 23:53
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    I am closing this question as speculative. We all know that impeachment is a political process and not a legal one. We can not read the minds of the senators who insist on not convicting Trump. So we do not know what would persuade them. – Philipp Feb 2 at 10:10
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The only "element" missing is a sufficient number of Senators who would vote on the basis of the evidence rather than politics.

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    Technically a sufficient number of senators who believed that supporting Trump would be detriment rather than a benefit to their political career would do as well. – DJClayworth Jan 31 at 21:06
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    This answer is only one sentence long. What is the basis for you concluding that senators are voting on the basis of politics rather than evidence? Also, what is your definition of "evidence"? – Andrew Grimm Feb 2 at 1:55
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    @AndrewGrimm Some of them have literally said that's what they're doing, before the trial even started. Including McConnell. – zibadawa timmy Feb 2 at 2:14
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    @Andrew Grimm: The answer is exactly as long as it needs to be. Evidence was presented in profusion during the House hearings. I can't think of a reason other than politics for the Senators to ignore it. – jamesqf Feb 2 at 17:55
  • @AndrewGrimm In a body of 100 senators, there is a roughly 1 in quadrillion quadrillion chance that senators would vote exactly along party lines, if party membership truly did not matter. It is painfully obvious that party membership is the primary determinant of the vote outcome, not anything that happened in the trial itself. – Nuclear Hoagie Feb 3 at 14:26
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First point: Trump has already been impeached, legally and correctly. That is part of his legacy now, and nothing will erase that unless the US system of governance itself is uprooted and cast aside.

The Senate's job was to hold a trial to see if the impeachment that the House delivered merits more drastic action, like public censure or the removal of the president from office. Given the state of US politics, there was very little chance that the Senate would act to remove Trump. Precious few of the GOP majority were willing to examine Trump's behavior in good faith, and Mitch McConnell — for reasons I have a hard time fathoming — has become such an avid Trump supporter that he is set on sweeping this under the rug as quickly and silently as possible. There is no element of Trump's behavior that GOP senators would find actionable; to paraphrase Trump's own words, if Trump had help a gun to Zelensky's head and demanded an investigation into Biden at pain of death, the GOP-controlled Senate would still quietly and quickly move to acquit him. No actions, however horrendous (short, perhaps, of performing a public abortion with his own hands) would move the GOP to move against him.

Perhaps one needs a background in political science to understand exactly how dangerous this is for the nation, but still...

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  • "No actions, however horrendous (short, perhaps, of performing a public abortion with his own hands) would move the GOP to move against him." Try to keep your editorializing to a minimum. – eyeballfrog Feb 1 at 18:30
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    @eyeballfrog To be fair, a poll showed that 73% of Republican voters were unable to "imagine any information or circumstances... that might change their mind about their position on impeachment". Whatever actions Trump could take to cause the GOP to move against him are literally outside the realm of the imagination. – Nuclear Hoagie Feb 3 at 14:40
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    @eyeballfrog — My statement was accurate; you know that as well as I do. And flagging my replies to you to have them removed is poor form. – Ted Wrigley Feb 3 at 14:53
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Overwhelming bipartisan support for impeachment was the "missing element." This was equally true back in the Clinton impeachment, as has been during the Trump impeachment. To successfully impeach a president it takes a super-majority.

Compare with the scandal that Nixon/Watergate scandal. While Republicans initially defended Nixon as a block, but that changed before the articles of impeachment reached the house floor. Seven of the judiciary committee's seventeen Republican members joined all twenty-one of their Democratic counterparts in voting for at least one of the articles of impeachment.

Experienced politicians from both sides of the aisle have recognized the need for impeachment to be bipartisan. For example, as recently as March of 2019, Nancy Pelosi's and her senior leaders told the press:

Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.

House Oversight Chairman Elijah Cummings, D-Md., agreed, saying:

Everybody knows impeachment has to be a bipartisan thing. I think the speaker sees that.

House Judiciary Chairman Jerrold Nadler, who should have led impeachment proceedings in the lower chamber, also said he’s on the same page as Pelosi:

She’s laid down a number of conditions. She says it has to be bipartisan, the evidence has to be overwhelming, which is what I’ve been saying.

Even Adam Schiff indicated that a partisan impeachment was "doomed to failure", saying:

The only thing worse than putting the country through an impeachment, is putting the country through a failed impeachment.

Yet Adam Schiff went ahead. He led the country into an impeachment doomed to failure. Something still unexplained started in the house "intelligence" committee, and the senior democratic leaders abandoned the conditions they had previously imposed for an impeachment. Here's some evidence that communications between the leaders broke down, for example:

Chairman Schiff mis-quoted the released transcripts to make it sound like Trump had said something he didn't. Appearing to read from a transcript, Schiff claimed the president said:

I’m going to say this only seven times, so you better listen good, I want you to make up dirt on my political opponent, understand, lots of it, on this and on that, I’m going to put you in touch with people.

Adam Schiff's words may have been attempted parody, but it was really inappropriate in the context of the impeachment hearing. To compound the damage, it appeared that the Speaker of the house had believed him. In what appeared to be coordinated misinformation, Pelose told CBS 60 minutes:

"It is wrong for a president to say that he wants you -- another head of state -- to create something negative about his possible political opponent to his own advantage, at the expense of our national security, his oath of office to the Constitution and the integrity of our elections."

Neither was truthful, Trump simply didn't say that, but Trump's opponents would eat it up. Both statements showed the majority leadership in the house had failed to act with political wisdom. Insult turned to injury beyond reason, bi-partisan support was untenable. Republicans knew they didn't have the ability to stop Schiff's excesses in the house, so the only alternative was to let the Senate do it.

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    "lack of bipartisan support" is sort of a chicken vs egg problem, isn't it? Republicans don't support the impeachment ... BECAUSE Republicans don't support the impeachment? – Foo Bar Feb 1 at 19:22
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    +0. This is true, but kind of trivial: a bipartisan event failed because of lack of bipartisan support is a tautology, not an insight. The rest is better as an actual answer, though it feels a bit more politically charged than I feel comfortable upvoting. – zibadawa timmy Feb 2 at 2:20
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    I've downvoted this answer because the source for the claim that Schiff misrepresented transcripts is clearly biased. If Schiff did misrepresent the transcripts, it should be possible to establish that without resorting to biased sources. – phoog Feb 2 at 6:44
  • @phoog, all the sources say Schiff made it up, rating Schiffs comments as false. newsweek.com/… foxnews.com/media/schiff-parody factcheck.org/2019/10/schiffs-parody-and-trumps-response – Burt_Harris Feb 2 at 8:56
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The most common talking points among Republican senators are that either the evidence isn't strong enough, or that the president was pursuing Ukrainian corruption generally and not his own reelection interests.

A few have suggested, though, that the actions the president is accused of aren't illegal or aren't impeachable.

Direct evidence that the president specifically had his own reelection in mind could be enough to garner a vote to remove. It's unlikely that any evidence would produce a unanimous one.

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    Yes, Sen. Alexander's stance is what I'm asking about. What's missing for an impeachment? Did anybody give specific reasons what's missing in order to rise to the level of impeachment? Is it just the argument that only criminally forbidden acts are also impeachable? – Peter - Reinstate Monica Jan 31 at 20:07
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    To my knowledge, no one has specified what would be needed for them to change their vote. It's generally a bad idea for anyone to do that, because they risk embarrassing themselves later on. – PlutoThePlanet Jan 31 at 20:54
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Things may have changed since senators-wise, but this bit should insightful:

McConnell told Republican senators their best bet was to calibrate their own message about the impeachment inquiry to fit their political situation, according to two people familiar with the private meeting who spoke on condition of anonymity to discuss the closed-door session.

With a Power Point presentation, McConnell outlined the process ahead if the investigation moves to a vote in the House and trial in the Senate. But when it came time to broach what Republicans should say about impeachment, McConnell showed a preference for saying as little about it as possible.

McConnell suggested a couple of options. Senators could say they disagreed with the House process, he said, or they could simply say that as potential jurors in an eventual impeachment trial they wouldn’t discuss it, according to the people familiar with the meeting.

But since the "Defense" as was more vaguely phrased in earlier version of this question extended to the House...

GOP leader Kevin McCarthy of California says the president did nothing wrong on the call with Zelenskiy, and Trump’s top allies in the House, including Ohio Rep. Jim Jordan, the top Republican on a committee conducting the impeachment inquiry, are leading the daily arguments against Speaker Nancy Pelosi, D-Calif., and the Democrats.

Jordan is seen as the “chief messenger” for Republicans, said one senior House GOP aide who was not authorized to publicly discuss the strategy and spoke on condition of anonymity.

The House Republican message against impeachment has four distinct parts, according to this aide: The transcript of Trump’s call with Zelenskiy shows the president did nothing wrong; several key witnesses testified that they don’t have firsthand knowledge of what transpired; the Ukrainians didn’t know the military aid was being upheld until it was publicly reported; and eventually the U.S. agreed to send the money to Ukraine.

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  • That last message point always made the least sense to me - it's like saying you did nothing wrong if you shoplift, get caught, and then put the item back on the shelf. The end state of affairs was never the issue. – Nuclear Hoagie Feb 3 at 17:30
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A firm belief that the nation isn't a petulant child

Sen. Lamar Alexander, who had been the focus of a lot of attention over the possibility he would side with Democrats on requesting witnesses, basically said he was too scared of the consequences:

The Senate reflects the country, and the country is as divided as it has been for a long time. For the Senate to tear up the ballots in this election and say President Trump couldn’t be on it, the country probably wouldn’t accept that. It would just pour gasoline on cultural fires that are burning out there.

Several other Senators chimed in to say they share the sentiment and that Sen. Alexander speaks for many in the Republican caucus.

Sen. Alexander has said he believes the House had proven its case, and that President Trump had inappropriately abused his authority to further his own interests. But he's not going to vote to convict because he's afraid the people will throw a hissy-fit, exacerbating existing political divisions to unknown consequence. He's throwing in McConnell's "we can see an election on the horizon, so let's just punt it there (because then we can use it as political leverage to get votes)" strategy as well. It seemed to work pretty well last time.

His argument also deploys a handy false equivalence by conveniently neglecting to note that barring Trump from running for President again would be a separate majority vote, held only if convicted by the necessary two-thirds. It is entirely possible they could have simply voted to convict but not voted to prevent him from running again.

To be fair

It's not necessarily a bad thing for a politician to wiggle out of something by a sincere belief this was better for the nation. Some might argue this is practically the definition of politics. Moreover, this probably isn't even the first time a Senator refused to vote to convict a President, proven (in their opinion) to have committed high crimes and misdemeanors, because he thought the country couldn't handle it like a big kid. It's (probably) happened every time, in fact.

Senators who did (not) vote to convict Clinton used similar reasons to the talking points from both sides we're hearing today. I recall at least one Senator specifying they felt Clinton had committed high crimes and misdemeanors, but still wouldn't vote to convict because it would be bad for the nation (though I can't seem to find this at the moment), which is essentially Sen. Alexander's logic.

And Johnson avoided conviction by a single vote, and it's believed this was a consequence of the political fallout weighing heavily on certain senators—though claims of bribery on both sides and a rigged hearing were also alleged, some with substantive evidence (but no criminal charges). Even then a Presidential impeachment trial was a big public draw, and the Senate was packed to capacity and had to issue admittance passes for the first time in history. The failure of Johnson's impeachment is often considered the point at which (Presidential) impeachment was affirmed as a political act.

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The process of Impeachment and Indictment goes as follows.

First, the Congress investigates. This investigation typically begins in the House Judiciary Committee, but may begin elsewhere. For example, the Nixon impeachment inquiry began in the Senate Judiciary Committee. The facts that led to impeachment of Bill Clinton were first discovered in the course of an investigation by Independent Counsel Kenneth Starr.

Second, the House of Representatives must pass, by a simple majority of those present and voting, articles of impeachment, which constitute the formal allegation or allegations. Upon passage, the defendant has been "impeached".

Third, the Senate tries the accused. In the case of the impeachment of a president, the Chief Justice of the United States presides over the proceedings. For the impeachment of any other official, the Constitution is silent on who shall preside, suggesting that this role falls to the Senate's usual presiding officer, the President of the Senate, who is also the Vice President of the United States. Conviction in the Senate requires the concurrence of a two-thirds supermajority of those present. The result of conviction is removal from office.

-Directly from wikipedia.

The first 2 steps have passed. However, the third step requires a 2/3 majority vote in the senate.

To convict an accused, "the concurrence of two thirds of the [Senators] present" for at least one article is required. If there is no single charge commanding a "guilty" vote from two-thirds of the senators present, the defendant is acquitted and no punishment is imposed.

The senator are not answerable to any higher authorities for this decision. There are, in fact, little rules or precedents for how a senator should vote. Morality suggests that they should vote according to the facts. However, if they want to, they can vote according to the flip of a coin, the result of a poker game, or axinomancy, and there would be no appeal.

In reality, senators tend to vote according to party lines, political benefits/reality, and sometimes public opinion. These things have swayed more than 33% of the senators to vote for Trump, and as such, indictment has failed.

As for the reasons they gave, it goes anywhere from "An indictment will divide the country", to "Trump has done nothing wrong", to "The public doesn't want to do this".

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  • The senate has nothing to do with indicting anyone. Indictments are effected by grand juries, which are organized by the judiciary branch. – phoog Feb 2 at 6:38
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The key thing is the appearance of fairness. While there are some Republicans who might be open to investigating it more, perhaps not enough for an impeachment but enough for a more full investigation, Pelosi's actions made Republican Senators feel that the impeachment was being done more for political points. and so that evidence was hid. As such, it's a lot harder to have good evidence on the issue. Any evidence is not going to be trustworthy if it's gathered in secrecy and in deceptive ways.

A major evidentiary disagreement is over the motives of the president. If he was in good faith pursuing corruption, many don't see that as impeachable. The lack of clarity and bipartisan fairness on the issue helped make them agree.

Republicans say McConnell's job to unite them was also helped by what they say were Democratic missteps: Pelosi's decision to withhold the articles for weeks in an effort to extract concessions from a Republican-controlled Senate and GOP perceptions that Democrats are using impeachment to target vulnerable Republicans.

His strategy of copying the Clinton impeachment articles also helped unify members.

For months, aides and members say McConnell has laid the groundwork for an impeachment process that would somehow shield his vulnerable members from charges of partiality while ultimately leading to Trump's acquittal. McConnell quickly latched onto the idea of using "the Clinton model," a reference to the very first resolution in the Clinton impeachment trial that passed the Senate 100 to 0 and set up a process that allowed both the House managers and the President's defense team to make their cases before lawmakers voted on hearing from witnesses.

This approach convinced key senators that he was being fair while the Republicans were being unfair.

"It's pretty obvious it is not about the President," Sen. John Barrasso, a Republican from Wyoming, told CNN. "It is about Schumer's approach to become the majority leader of the Senate."

"What McConnell did was explain it was a process that had precedent, that was done previously. I saw Trent Lott recently, who was the Republican leader at the time, and he explained it exactly the way McConnell explained it to us," one Republican senator told CNN about how McConnell slowly convinced the conference to adopt his view of how a trial should run.

This lack of fairness has been a continual thing they discussed as important in their decision making.

U.S. Senator John Barrasso (R-WY), chairman of the Senate Republican Conference, issued the following statement after the House of Representatives transmitted articles of impeachment to the Senate.

“Today House Democrats sent to the Senate the most rushed and unfair impeachment articles in modern history. They held secret hearings, released misleading information, and denied the president due process. This was a political stunt. Just one in three Americans say the process in the House was fair. Justice will finally be done – that will be in the Senate.”

So, not rushing impeachment articles, avoiding releasing misleading information, giving the president due process is presumably what they wanted. Adding more evidence wouldn't have necessarily made it better without it being gathered in a fair way.

In terms of persuading McConnel, that's harder. What he wants is a clear lack of partisanship and more effort in making a case.

‘But that’s not what happened this time. House Democrats performed a pale imitation of a real inquiry. They did not pursue their own subpoenas through the courts. They declined to litigate potential questions of privilege. They pulled the plug as soon as Speaker Pelosi realized she had enough Democrat votes to achieve a political outcome.

‘This isn’t really about Ukraine policy or military assistance money. It can’t be. Because, for one thing, prominent Democrats were promising to impeach President Trump years before those events even happened.

So, he would have wanted a longer House trial where they pursued subpoenas through the court and did a more in depth fact finding mission. I have read a lot of his statements. He sees this as a serious issue, the lack of attention to detail. Style over substance. He would also want them to not try to impeach Trump before the supposed impeachment event occurred.

‘And just a few weeks ago, when a reporter asked Speaker Pelosi why the Democrats were in such a hurry, here was her response: “Speed? It’s been going on for 22 months. Two-and-a-half years, actually.”

‘Now, that’s interesting. The events over which Democrats want to impeach happened about six months ago. So how has impeachment been underway for two-and-a-half years?

I haven't seen him comment much on the actual charges- he views them as a political charade, since it was done in a rushed and unfair manner for political gain, and mostly mocks the process. He doesn't believe you should draw conclusions before you have a fair trial because the president and others may have exculpatory evidence they might present if allowed to do so.

There's also a lot of distrust about Schliff not making a parody statement about what the president said, and being deceptive about communication with the whistleblower, [from inside conversations.] which means this distrust of the process is fairly widespread in private as well.

The senators’ opinion of House Intelligence Committee chairman Adam Schiff, one of the impeachment managers, is barely better than that of the president. They simply don’t trust Schiff at all, and feel they have ample reason to not believe anything he says — from his decision to read a parody version of the transcript of Trump’s July 25 phone call with Ukrainian president Volodymyr Zelensky out loud during a hearing, to reports that the whistleblower met with Schiff’s committee before the whistleblower’s complaint was filed, to the chairman’s slippery-at-best description of his interactions with the whistleblower.

There are people more on the fence.

From dozens of interviews with GOP lawmakers, congressional aides and White House staffers over the past month, it’s evident that Rooney is right: There is a sizable number of Republican senators and representatives who believe Trump’s actions are at least theoretically impeachable, who believe a thorough fact-finding mission is necessary, who believe his removal from office is not an altogether radical idea.

But they would need more evidence.

In terms of the evidence that would change the more on the fence people, clear statements of personal interest. More interviews and pursuing of subpoenas of Trump staffers would have helped with this. As noted above though, McConnell's leadership convinced people that finding that evidence was the House's job.

A clear statement of exclusive personal interest would help persuade the more on the fence senators.

Collins: Mr. Chief Justice, I send a question to the desk on behalf of myself, Senator Murkowski, and Senator Romney.

Roberts: This is a question for the counsel for the President. If President Trump had more than one motive for his alleged conduct, such as the pursuit of personal political advantage, rooting out corruption, and the promotion of national interest, how should the Senate consider more than one motive in its assessment of Article I.

Relating to the issue of poor house conduct, the Senate, even those who may believe Trump was wrong, don't want to do the House's job for them. They see it as the House's job to present a case, and don't want to go further than the current evidence.

Republican Sen. Roy Blunt of Missouri, speaking to reporters Friday, was asked if he agreed with Alexander that Trump’s conduct was inappropriate but not impeachable. He responded by saying that he had a “lot of respect for” Alexander and that he opposed hearing from witnesses for what he said were “institutional” reasons.

So, short of some extreme confession from Trump, no additional element is likely to change their mind. That was the House's job.

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