The intersection of political and legal issues involved in President Trump’s impeachment have become a complex chess game. Speaker Nancy Pelosi has been at the game a long time. By comparison, Trump is like the novice player at the table asking, “What does the horsey do again?” The odd, rambling missive the president sent to the speaker in reaction to his impending impeachment is true to form.
One move that was on the chess table would have been delaying the impeachment vote to further develop the public messaging about impeachment or further develop facts, a move Pelosi and her caucus declined. Her decision to call the vote at this time was likely the best strategy available.
The facts of the impeachment drama are little contested. There is a consistent narrative across the witness testimonies. We have the president’s public statements affirmatively calling for China and Russia to aid his election in digging up dirt on his likely chief rival. What remains for the president’s defense are arguments splitting hairs about how the aid was ultimately released after he got caught or urging that holding up foreign aid in exchange for personal political help is not an impeachable offense.
Pelosi also essentially chose to focus the articles of impeachment on the president’s actions in Ukraine. The legal case for impeachment with respect to his multiple instances of obstruction of justice is likely stronger in the case for impeachment laid out in the Mueller report.
Keeping the articles simple was nevertheless likely optimal from the standpoint of public messaging. The biting conclusions in the Mueller report, showing a president dangling pardons in front of witnesses, was an ugly look. Unfortunately, Attorney General William Barr got ahead of the message in true Washington fashion. In the Ukraine investigation, by contrast, the whistleblower got ahead of the story, and the public was more receptive to its implications.
An explicit reference contained in the articles of impeachment to the Mueller report as a past pattern of misconduct may buy Senate Democrats an opportunity to raise the Mueller report issues during the Senate trial. In the event of a new development in the Mueller drama, such as a controversial pardon by the president for convicted adviser Roger Stone, the House could renew its investigation of issues contained in the Mueller report for what could become another impeachment proceeding.
One masterful move on the board that Pelosi could yet make would be to name conservative constitutional expert Rep. Justin Amash to the impeachment managers arguing the House’s case for impeachment in the Senate. Amash, now an independent, has been a vocal supporter of impeachment despite being a founding member of the Republican’s House Freedom Caucus. He would be an effective advocate in the Senate.
The various committees continue to press forward their investigations of the president, which could open up new avenues in the future. If the House pursues interviews of top White House staffers such as Mick Mulvaney, Eric Ueland, and former national security adviser John Bolton through court fights over subpoenas, it could yield new information that could aid a second impeachment proceeding.
The House continues to seek the president’s tax returns, and the Supreme Court will rule on that matter during the summer of 2020. If the tax returns are consistent with other publicly available information and testimony by Michael Cohen that Trump underrepresented his assets on his tax returns but inflated them on bank loan applications, it could open up the president to liability for tax or bank fraud. This would open up an avenue for a second impeachment trial if the president is reelected.
Once the vote is concluded, the Senate trial will open up a wealth of new players and moves on this ongoing chessboard. Some of them are gifted players. Whether the Senate trial will be a meaningful exercise or a waste of time will depend entirely on whether four Republicans are willing to join with the Democrats to adopt rules for the trial similar to the Senate’s approach to the Clinton trial. Or, at a minimum, whether the threat of those defections leads to a reasonable deal between the majority and minority leader. Another move on the board for Pelosi would be to delay transmission of the articles of impeachment until the Senate agrees to the rules of a fair trial.
Getting from “check” to checkmate will be difficult for Democrats. First, they need to ensure their opponents are following the rules of the game.
J.W. Verret (@JWVerret) is an associate professor at the George Mason University Antonin Scalia Law School.
