How Democrats can avoid fatal flaws of their impeachment inquiry

How Democrats can avoid fatal flaws of their impeachment inquiry
© Greg Nash

With public hearings on the impeachment inquiry under way, both the Democratic and Republican strategies are crystalizing. The Republicans have settled on a ruse, and the Democrats are making two fatal flaws that likely will doom any chance, however small, they have of getting the Senate to convict President TrumpDonald John TrumpTrump says inviting Russia to G7 'a question of common sense' Pentagon chief does not support invoking Insurrection Act Dershowitz: Does President Trump have power to declare martial law? MORE if the House impeaches him, as seems likely.   

There appears to be significant circumstantial evidence that Trump’s fateful July 25 phone call with Ukraine President Volodymyr Zelensky was preceded by a months-long effort by Trump’s personal attorney, Rudy GiulianiRudy GiulianiRudy Giuliani calls on Cuomo to remove Bill de Blasio Sunday shows preview: States begin to reopen even as some areas in US see case counts increase Moussaoui says he now renounces terrorism, bin Laden MORE, Ambassador to the EU Gordon SondlandGordon SondlandTop Democrat slams Trump's new EU envoy: Not 'a political donor's part-time job' Trump names new EU envoy, filling post left vacant by impeachment witness Sondland Ocasio-Cortez: Republicans are prioritizing big chains in coronavirus relief  MORE, and others to put Zelensky in an impossible position: publicly announce an investigation into former vice president Joe BidenJoe BidenPoll: Majority 'sympathetic' to protesters, disapprove of Trump's response In a year like no other, we'll hold the election of our lifetime The Hill's Morning Report - Protesters' defiance met with calls to listen MORE, his son Hunter and tech company CrowdStrike, or risk losing much-needed military aid and never receive a prestigious invitation to visit the White House.  

Conversely, Zelensky could make such an announcement, in which case he would be perceived as a Trump pawn and Ukraine likely would lose bipartisan support in the U.S. Congress. The best sources of proof of whether this actually occurred are critical documents (emails, notes, etc.) within the administration and various firsthand witnesses such as former national security adviser John Bolton, acting White House Chief of Staff Mick Mulvaney, and Giuliani. Yet, the White House refuses to cooperate in any way — no documents, no witnesses.  

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Thus, Rep. Jim JordanJames (Jim) Daniel JordanThe Hill's Morning Report - Presented by Facebook - George Floyd's death sparks protests, National Guard activation Hillicon Valley: Trump signs order targeting social media legal protections | House requests conference with Senate after FISA vote canceled | Minneapolis systems temporarily brought down by hackers House punts on FISA, votes to begin negotiations with Senate MORE (R-Ohio) attacks witnesses such as former Ambassadors William Taylor and Marie YovanovitchMarie YovanovitchJim Jordan requests documents from Pompeo regarding Hunter Biden, Burisma  Trump taps new ambassador to Ukraine America's diplomats deserve our respect MORE for their lack of firsthand communications with the president. Jordan contends they are in no position to assert what the president intended. He argues that the phone call had no explicit quid pro quo, both Presidents Trump and Zelensky deny any quid pro quo understanding existed, and the military aid ultimately flowed to Ukraine. Therefore, Trump committed no wrong.  

This, of course, ignores the circumstantial evidence of a broad conspiracy and the fact that the White House is stonewalling by asserting a blanket executive privilege covering key witnesses and documents. But the Democrats have not been particularly effective in making this rebuttal.  

Perhaps they have better, more direct evidence of the president’s direction in the offing, or perhaps they hope the American public will see through the smokescreen. But in so doing, they are missing a huge opportunity to turn the table against the Republicans.  

The counter-argument is simple: All Americans should want to get to the truth, whatever that may be and regardless of whether it is exculpatory or incriminating for the president. To get to the truth, the Republicans should join in demanding that the administration produce all pertinent documents and firsthand witnesses to testify under oath. If the Republicans refuse to do so, they will have lost any standing to complain about secondhand witnesses (including the demand to question the whistleblower whose complaint also was secondhand). 

Far more importantly, the Republicans will have lost their credibility. They are not interested in the true facts, in defending our democracy and our Constitution; they are interested only in defending Trump. There is no answer to this argument and it turns the fairness argument against the Republicans. 

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The second strategic flaw the Democrats are making is they have made it clear that they do not want the impeachment process to drag on, and they are willing to possibly forego critically important evidence in order to promptly conclude the process. Reportedly, the fear is that the two-year investigation by former special counsel Robert Mueller was its death knell; the roughly 24-month investigation wore down the American public.  

Time is important, but so are other things. The impeachment inquiry has been positioned as Democrats versus Republicans; the House of Representatives versus the White House. That’s not surprising, given our divisive politics.

Rather than just accepting stonewalling by the White House, Democrats should turn to our third branch of government, the judiciary. Yes, it would take time to get a decision by the courts, but there likely would be great reward, and it’s possible the courts would expedite the process. Specifically, the Democrats could seek a court order to compel the production of documents and witnesses with firsthand knowledge, and it is likely the courts would grant such a request, similar to the Supreme Court unanimously ruling that Richard Nixon had to produce the Oval Office tapes to the Watergate special prosecutor.   

Indeed, it is hard to imagine the courts would rule any other way. President Trump has taken the position that he can be neither prosecuted nor criminally investigated while in office. The only remedy for a corrupt president, he has argued, is impeachment. But if executive privilege prevents the Congress from getting critical evidence of potentially corrupt, criminal or abusive acts, that is no remedy at all. The power of impeachment must include the ability to gather evidence from the executive branch, where most evidence is likely to be, of “treason, bribery, or other high crimes and misdemeanors.”  

The Founding Fathers put their lives on the line by waging war against King George III to create a democracy where no person — not even the president — is above the law. It is inconceivable that the courts would agree with Trump’s argument, because that essentially would anoint our president as a dictator limited only by two four-year terms of office.  

Apart from a decision on the merits — that is, ordering the administration to turn over key documents and witnesses — such a ruling would have far greater import. The president and the Republicans have called the impeachment inquiry “a sham” and “unconstitutional.” Such a ruling would undercut those arguments and, to a significant degree, clothe the impeachment inquiry in a blanket of legitimacy. A third party, an independent judiciary, could sanction the viability of the congressional impeachment inquiry. 

If the goal truly is to sell the American public that President Trump should be removed from office, the Democrats need the imprimatur of the judiciary. They should force Republicans to either join them in a search for the truth or acknowledge that they have no interest in the truth.   

Without these two strategies, it is likely the impeachment process will fail along party lines in the Senate. Trump will have dodged a bullet, and the facts will continue to be hidden from the American public.  

Gary A. Garfield is the retired chairman, president and CEO of Bridgestone Americas Inc. He practiced law for 29 years and was the general counsel and chief compliance officer before leading the company.