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The case for censuring, and not impeaching, Donald Trump

The  Trump-Ukraine Impeachment Inquiry Report, issued on Monday by the House Permanent Select Committee on Intelligence, makes a damning case for impeachment. It does so by amply documenting how President Donald TrumpDonald John TrumpBiden team wants to understand Trump effort to 'hollow out government agencies' Trump's remaking of the judicial system Overnight Defense: Trump transgender ban 'inflicts concrete harms,' study says | China objects to US admiral's Taiwan visit MORE sought to use the office of the presidency for personal political benefit at the expense of America’s national interests in tendering U.S. military aid to Ukraine on the condition that its president announce it would investigate former vice president Joe BidenJoe BidenBiden team wants to understand Trump effort to 'hollow out government agencies' Overnight Defense: Trump transgender ban 'inflicts concrete harms,' study says | China objects to US admiral's Taiwan visit Protect our world: How the Biden administration can save lives and economies worldwide MORE and alleged Ukrainian involvement into the 2016 U.S. elections. The report also notes efforts by the president to impede congressional investigations into this matter.

Both are serious matters.

Yet even taking all of the facts alleged here as truthful, they alone should not be grounds for impeachment. Additionally, if the House Judiciary Committee now expands the impeachment inquiry into additional matters that prove to be incriminating, they, too, should not warrant a presidential impeachment — even if the House concludes that they rise to the constitutional level of “treason, bribery, or high crimes and misdemeanors.” It is not that these acts are not serious. It is that impeachment is a losing strategy for House Democrats.

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Speaker Nancy PelosiNancy PelosiVoters want a strong economy and leadership, Democrats should listen On The Money: Biden to nominate Yellen for Treasury secretary | 'COVID cliff' looms | Democrats face pressure to back smaller stimulus Democrats face increasing pressure to back smaller COVID-19 stimulus MORE (D-Calif.) was correct months ago when she said that Trump was “not worth” impeaching. She correctly resisted the demand to impeach, only giving in when the content of the president’s phone call with Ukrainian President Volodymyr Zelensky was revealed. As the Zelensky telephone saga has unfolded, there is little to suggest what the Democrats get by impeaching; instead, they stand to lose a lot.

Consider, first, that after several weeks of hearings, public opinion about impeachment mostly has frozen. Polls suggest about half of Americans think the president should be impeached and removed from office. Trump’s base has rallied behind him, and congressional Republicans show no sign of defecting. It is skeptical that coming hearings will change anyone’s mind.

Part of the problem has been how the Democrats framed the Ukraine issue, as a “quid pro quo.” Describing the Zelensky call in terms of a narrow conception of bribery, they missed the ability to paint a larger picture of Trump’s abuse of power and alleged corruption. The quid pro quo description forced the debate into whether the president broke federal bribery law. This allowed him and the Republicans to claim denial of due process, use of hearsay evidence, and other claims that are appropriate to raise in a criminal inquiry but do not fit into an impeachment process, which Alexander Hamilton declared in Federalist 65 as a political inquiry.  

The Democrats’ framing boxed them in, and Republicans took advantage, allowing them to declare there is reasonable doubt about what Trump said or did.

The impeachment process is broken much in the same way that American government in general is. The Framers of our Constitution did not anticipate or envision such polarization of political parties. And the Senate was designed to be appointed, not elected. Then, checks and balances and separation of powers were meant to counteract presidential abuses of power. Now, 230 years later, there has never been a successful impeachment and conviction of a president and the partisanship that exists in America means that party loyalty is more powerful than checks and balances.

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No one seriously thinks that, were the House to impeach the president, the Senate, with a 53-47 Republican-dominated split, will convict him. It would require 20 Republicans to join with the Democrats. At best, one can hope for that Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellFeinstein to step down as top Democrat on Judiciary Committee Voters want a strong economy and leadership, Democrats should listen On The Money: Biden to nominate Yellen for Treasury secretary | 'COVID cliff' looms | Democrats face pressure to back smaller stimulus MORE (R-Ky.) will give Sen. Susan Collins (R-Maine) and perhaps a couple of other endangered Republicans permission to vote to remove the president, thereby ensuring their reelection and giving the party an opportunity to claim they were bipartisan.

At worst, think of what happens to impeachment when it leaves the House and the Republican Senate controls the process. For one, even though the Constitution implies that the Senate has to hold a trial, McConnell could refuse to do so — and no one can force them. In Nixon v. United States, 506 U.S. 224 (1993), the Supreme Court said issues of impeachment are not reviewable by the federal courts, suggesting that if the Senate does not hold a trial, what then?

Let’s assume that a trial is held. Imagine how the Republicans will put Biden on trial, perhaps calling him or his son, Hunter, to testify about their activities in Ukraine. This is not simply an acquittal that Trump could use to motivate his base. And even if a trial were held, nothing really requires when the Senate must do so. Maybe McConnell declares the trial will not occur until after the 2020 elections, so that the people can decide, reprising the logic of delaying confirmation hearings in 2016 for Supreme Court nominee Merrick Garland.

Or, consider a different scenario. Let’s say one of the Democratic senators running for president secures the party’s nomination. Hold an impeachment trial in the Senate in October, during the weeks remaining before the general election, and you could lock down that senator for weeks from campaigning. Other political manipulations with a trial are possible. The point is, Democrats are not going to get a conviction and they stand to lose big time with impeachment.    

Here is where House censure is a viable alternative. Continue to hold hearings, gather evidence, make the strongest case possible for impeachment. But then declare that conviction in the Senate is not possible, because of partisanship or because the elections should resolve the issue, and then vote to censure.

Censure may be a potent tool, especially given that the president has said he will not let his staff participate in the House proceedings. The Democrats would get the final word on Trump’s behavior, lacking his side of the story in the proceedings. Trump would lose the ability to gain the benefit of Senate acquittal, and voters in the critical swing states would get the opportunity to render final judgment in November.

David Schultz is a professor of political science at Hamline University in St. Paul, Minn. Follow him on Twitter @ProfDSchultz.