When House Speaker Nancy Pelosi (D-Calif.) re-assumed her position of power, her daughter Alexandra affectionately said of her mother: “She’ll cut your head off and you won’t even know you’re bleeding.” That can literally happen in some third-world “democracies.” America’s rule-of-law culture, however, requires that political assassinations be bloodless. Media-driven criminal investigations and character assassinations are the weapons of choice. Both have failed to take down President Trump.
However reluctantly, Pelosi has acquiesced to the third-world instincts of her socialist-trending party. A master of tactics, but not strategy, Pelosi undoubtedly has been war-gaming different scenarios. Consider the following possibilities.
Negotiating Trump’s resignation: The morning after the late-night impeachment, professor Noah Feldman argued in Bloomberg that a president is not impeached until the Senate receives the articles. Feldman had testified against Trump via invitation from Pelosi’s staff, so why would he construct an ostensibly pro-Trump argument? It was an argument easily deconstructed by professor Jonathan Turley. Feldman was dissembling. Was he floating for Pelosi a negotiated, Nixon-like resignation that would avoid the stain of impeachment? Or, something else?
Pelosi surely did not suppose such a tactic would succeed with Trump. But that doesn’t matter. The point is tactical dissonance designed to knock Trump off balance. As Rep. Emanuel Cleaver (D-Mo.) told an MSNBC interviewer, Pelosi has been deceiving Trump and using principles from Sun Tzu’s “The Art of War” for “complete control of Donald Trump’s mind.”
Negotiating rules for the impeachment trial: Some Republican senators apparently think Pelosi’s delay-tactic really concerns rules for a trial. It’s a serious blunder to believe Democrats actually want a trial. Nevertheless, Pelosi may enjoy repeating the Brett Kavanaugh confirmation script when a few reluctant Republican senators forced Majority Leader Mitch McConnell (R-Ky.) to expand the Supreme Court justice’s hearings to allow Christine Blasey-Ford to testify. Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), and Mitt Romney (R-Utah) may allow Democrats again to undermine McConnell.
Even if McConnell gave Democrats what they claim to want, two-thirds of the senators would not vote to convict. The two articles of impeachment are transparently deficient. Knowing they will not get what they claim to want, Democrats will get what they actually want: an excuse for withholding the articles of impeachment. They will continue through the 2020 election to claim they could not get a fair impeachment trial in the Republican-controlled Senate.
Triggering Trump during the State of the Union address: Last January, Pelosi postponed the invitation she issued to the president for his first State of the Union address during negotiations over the government shutdown. Is it too far-fetched, therefore, to think that Pelosi again will use the State of the Union as a negotiating tactic? Since before issuing this year’s invitation, she likely has pondered the possibility of sending over the articles of impeachment right before the president’s scheduled address, anticipating that maneuver could trigger such rage in Trump that he explodes in anger before the nation and the world. “Trump is unfit, and hiding something,” Pelosi could declare. “Case proved!”
Leaving the articles dangling: If trying to trigger Trump during the State of the Union does not work and he contains himself, a lower-risk tactic is simply withholding the articles of impeachment indefinitely. The uncertainty engendered by this maneuver, coupled with facing his raucous accusers in the House, might trigger Trump to go off script during his State of the Union address and launch a tweet-like attack on the articles of impeachment and the process that produced them. Again, “Case proved!” she could argue.
Adding to the articles of impeachment: Withholding the articles of impeachment opens indefinite possibilities for the House to add to them at any time prior to the November elections. That appears to be the main reason for the Feldman article. If, as Feldman contends, Trump has not been impeached, then Pelosi can argue — as her lawyers have done — that additional articles of impeachment are possible. This particular tactic pushes well beyond the third-world approach of the Philippines, where at least the country’s constitution limits attempts to impeach any official to one per year.
What is the significance of these tactics? The U.S. Constitution has no need for a textual limitation on the frequency of impeachments. Structurally, that would be inappropriate. Impeachments respond to gross malfeasance, not merely policy disagreements. Impeachments differ from votes of “no confidence,” which parliamentary systems use to remove a prime minister. Unlike prime ministers, American presidents are constitutionally independent of the legislative branch.
Presidential impeachments have been rare because of the protection provided them by dividing the impeachment power between the House and Senate. The reasons for this division of power are explained by Alexander Hamilton in Federalist 65 and 66. The speaker clearly is attempting to override the structural restraints against the abuse of power by the House.
Regardless of what happens to this year’s impeachment, it is a virtual certainty that if President Trump is re-elected and the Democrats take the Senate and keep the House, Trump again will be impeached, but also tried, in 2021.
Pelosi’s tactics neither advance policy-negotiating nor embody any strategic vision beyond the pursuit of power for its own sake. The Framers of our Constitution created a governmental structure that controls democratic passions in order to facilitate negotiated policy outcomes. The administrative state, advanced by the Democrats, has greatly distorted that process. Increasingly, we are losing what has differentiated our constitutional democracy from third-world “democracies.”
Trump, author of “The Art of the Deal,” is the ultimate policy negotiator. Agree with his policies or not, Trump has a strategy: restore American greatness — at home through deregulation, tax cuts, border control, tariffs — and abroad by strengthening alliances and military. If Trump can restrain himself during his State of the Union address and stick to his strategic vision, he can rise above the pettiness of an impeachment that is a substitute for policy negotiation.
John S. Baker Jr. is professor emeritus, Paul M. Hebert Law Center, Louisiana State University and chairman of Our Citizenship Counts. He has been a consultant to the Justice Department, the U.S. Senate Judiciary Subcommittee on Separation of Powers, and the White House Office of Planning. Follow him on Twitter @JohnSBakerPHD.
Leonard Hochberg, Ph.D., is the U.S. coordinator of The Mackinder Forum and a senior fellow at the Foreign Policy Research Institute. He has taught at Miami University (Ohio), Stanford University, and Louisiana State University.