SPONSORED:

Impeachment is over — or is it?

If you think the Senate’s vote on Wednesday to acquit President TrumpDonald John TrumpBiden to nominate Linda Thomas-Greenfield for UN ambassador: reports Scranton dedicates 'Joe Biden Way' to honor president-elect Kasich: Republicans 'either in complete lockstep' or 'afraid' of Trump MORE ends the impeachment saga, you haven’t been paying attention.

Congressional Democrats never believed they could actually remove Trump from power over anything as specious as the Ukraine kerfuffle. No more than they expected that the collusion caper — which was already known to be an investigative dry hole by the time of Bob Mueller’s May 2017 special counsel appointment — was a viable vehicle for ousting the president.

Impeachment has always been a partisan pretext. A third-order pretext, as I explained in “Ball of Collusion”: (1) The counterintelligence investigation launched by the Obama administration was a pretext to monitor Trump’s campaign while conducting a criminal investigation without the necessary criminal predicate; (2) the criminal investigation, formally launched on the ludicrous fiction that Trump’s constitutionally appropriate firing of FBI director James ComeyJames Brien ComeyThe new marshmallow media in the Biden era McCabe defends investigation of Trump before Senate committee: We had 'many reasons' The Memo: Trump retains narrow path to victory MORE could be an obstruction crime, was a pretext for packaging an impeachment inquiry for House Democrats (since the bureau didn’t have a crime but knew that impeachment does not require a crime); and (3) the impeachment drama has been a pretext for what all along has been the goal — to tumble out enough unsavory information over a long enough time that Trump is rendered unelectable by the time we get to the stretch-run of the 2020 campaign.

ADVERTISEMENT

This is not to say, of course, that congressional Democrats would not remove the president if they could. The fact that House Democrats hauled out and formally voted two articles of impeachment, rather than contenting themselves with a long-running impeachment inquiry spiced up by the occasional, damning public hearing, shows that if they thought there was any shot at defenestrating Trump, even a remote one, they would take it.

Nevertheless, the principal objective has always been to ensure that the president would get no more than one term, a term that Democrats would endeavor to steep in scandal, hamstringing the administration’s capacity to govern and to pursue the agenda on which Trump ran in 2016.  

Obviously, the end of the impeachment trial does not mean the end of that strategy. For Democrats, the aim has not changed: End the Trump presidency as soon as possible.

The tactics will need rethinking, though.

The president’s polls have improved over these weeks of skewed, unabashedly partisan impeachment proceedings. He is at his highest standing ever, one that may edge higher after the impressive showmanship and cataloguing of accomplishments in Tuesday night’s State of the Union address, complementing boffo economic metrics. Democrats have to be concerned that impeaching Trump on weak charges has improved his reelection prospects.

ADVERTISEMENT

So does that mean the Senate’s acquittal is the end of the impeachment gambit?

That question itself strikes many people oddly. Acquittal long has been a foregone conclusion, given that there was never a chance that House Democrats would corral the two-thirds supermajority needed to convict in the GOP-controlled Senate. “Acquittal” is a term most familiar to us from the criminal law. After an acquittal (or, for that matter, a conviction), Fifth Amendment double-jeopardy principles forbid a successive prosecution for the same charge.

Impeachment, however, is not a criminal prosecution. Indeed, it is not a judicial proceeding at all. It is strictly a political determination — on the question of whether political power should be stripped — by the Article I political branch. Therefore, the Senate’s impeachment verdict of acquittal carries no double-jeopardy protection for the president. Nothing in the Constitution would bar the House from re-voting the same impeachment articles on which the president has been acquitted, in addition to any new articles.

That is especially worth noting here, given that the president’s lawyers and congressional Republicans devoted so much energy to castigating House Intelligence Committee Chairman Adam SchiffAdam Bennett SchiffMedia and Hollywood should stop their marching-to-Georgia talk Top cybersecurity official ousted by Trump Devin Nunes fends off Democratic opponent in California MORE (D-Calif.) and other House leaders for their shoddy investigation — the failure to make a concerted effort to obtain relevant documentary evidence and to interview key witnesses (former national security adviser John BoltonJohn BoltonPressure grows from GOP for Trump to recognize Biden election win Sunday shows - Virus surge dominates ahead of fraught Thanksgiving holiday Bolton calls on GOP leadership to label Trump's behavior 'inexcusable' MORE, White House chief of staff Mick MulvaneyMick MulvaneyMick Mulvaney 'concerned' by Giuliani role in Trump election case On The Money: Senate releases spending bills, setting up talks for December deal | McConnell pushing for 'highly targeted' COVID deal | CFPB vet who battled Trump will lead Biden plans to overhaul agency Consumer bureau vet who battled Trump will lead Biden plans to overhaul agency MORE, et. al.); the lack of due process afforded to the president; the prioritizing of the 2020 political calendar over the demands of a competent, thorough investigation. Those are the kinds of failures that can be cured by time and effort.

The scathing media-Democratic rebukes of the Senate for purportedly failing to subpoena witnesses and documents have been misplaced. The Senate’s job is to try the case; the House’s job is to investigate and prove that case. The remedy for a shoddy investigation is for the investigators to do the work they previously failed to complete. 

ADVERTISEMENT

I do not expect Schiff et. al. to give up on Ukraine. And if they were to persist in investigating that episode — e.g., to subpoena Bolton for the testimony for which many senators clamored — they could rationalize it by saying they were simply addressing the Senate’s concerns.

Notice that Democrats have never abandoned the impeachment inquiry they belatedly voted to conduct in late October, months after they started probing the Ukraine scandal. They continue, moreover, to pursue other lines of investigation — the obstruction aspect of Mueller’s probe, Trump’s tax returns, etc. 

To be sure, I do not believe House Democrats will vote articles of impeachment again — at least, they will not do it again unless they stumble on some previously unknown misconduct that is truly egregious. But I have every expectation that they will continue the impeachment inquiry. They will keep touting the threat of new impeachment articles, and keep railing that the White House is obstructing them.

Remember, the point has never really been to remove the president. Impeachment has been, and remains, an artifice for congressional Democrats to acquire and incrementally disclose unsavory information, with an eye toward Nov. 3, 2020. For Democrats, the main goal is still to defeat Donald Trump. Impeaching him has been a means, not an end.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.