The U.S. House of Representatives has opened an investigation to consider whether or not to impeach the president of the United States for high crimes and misdemeanors. No matter how you view it, the action is historic and has only occurred a few times in American history. The House impeached Andrew Johnson after the Civil War and he was acquitted in the U.S. Senate by one vote. The House impeached Bill Clinton and he was acquitted in the Senate. The House impeached Richard Nixon and he resigned before the trial in the Senate. That is it to date. The entire impeachment proceeding is a political action, and the process is laid out in the Constitution of the United States. It involves a lot of people, has a lot of moving parts and the outcome is far from certain in many ways.

The consensus of seasoned political opinion in the Democratic Party and in the country as a whole was that impeachment was not a good idea since a presidential election is coming up in November 2020, only 13 months away. The Republicans thought the Democrats would be making a big political mistake and, looking back at what happened to the Republicans after they impeached Clinton, they were, I suspect, kind of hoping that the Democrats would fall into the trap. But all that conventional wisdom disappeared when the whistleblower story broke, because it changed everything and swung over the undecideds in the Democratic Party and maybe also the body politic.

Like I did in the old days when I was still a trial lawyer, I’ll try to play out each side’s cards as I see them, being as objective as I possibly can be. In preparing for a trial, it’s dangerous to lie to yourself or to underestimate the enemy. Besides, no matter how well you plan, it never breaks quite as you expect it to happen.

The overview

The president’s team has to assume the House will have no choice but to impeach since it has already started down that path. If it doesn’t, the president will treat it as a victory for himself and an exoneration, and the Democrats will be on the defensive and probably lose in 2020. The audience for the impeachment is really the American swing voter, who will have to be convinced that the process is solemn, fair and played out by leaders who are more concerned with the country than just themselves. They’ll also have to be convinced that Trump has become a danger to their country. House Speaker Nancy Pelosi, who has very good political instincts, knows this, and has warned the House that this has to be conducted with solemnity. The message was direct—we must keep our pit bulls under control. In the final analysis, this impeachment fight is the battle for the presidency in the next election. 

The president’s case

He charges this is nothing more than a coup to try and reverse the election results of 2016, because they can’t forgive him for winning. The president’s team consists of Secretary of State Mike Pompeo, Attorney General Bill Barr and his personal attorney Rudy Giuliani, all very smart and very experienced, but they have some serious operational problems. Pompeo and Barr are very disciplined, but Giuliani is a loose cannon and loves being in the center of the spotlight and tends to run off at the mouth. But, worst of all, they have a client, Donald Trump, whom they absolutely cannot control and they have to factor that into their defense. It’s really a two-sided defense: First, divert everyone’s attention into side issues and then say, “True, he may have done whatever they charge, but every president does it, because this is a tough world and the president has to play hard ball to protect us. It may not always be pretty, but it’s necessary.”

The diversion game has already begun: Congressman Adam Schiff is a traitor, the whistleblower is nothing more than a spy who should be hanged, the Mueller investigation started in Australia under suspicious circumstances, former secretary of state Hillary Clinton’s emails are still front and center or hidden in a server somewhere in Ukraine, and former vice president and current presidential candidate Joe Biden and his son are corrupt and used the vice president’s office to feather their own nests. Then they send their surrogates out to every talk show on the planet and just keep repeating the mantra. It’s worked before in 2016 with Hillary and the Benghazi charges so why wouldn’t it work again? The facts don’t matter. It’s what people perceive to be the facts that matter. Put so much out there that America can’t keep up and, even if they impeach him, the voters will be disgusted and turned off.

The Democrats’ case

This is not business as usual in political Washington. Donald Trump is different. He perverts everything he touches. He’s turning the State Department and the Justice Department into arms of the “Trump Re-election Committee.” He operates like a mafia don by leaning on people, withholding money illegally, not giving a damn about our Constitution and making a lot of money by being president and misusing his office. This investigation has to move quickly even though the Republicans try to stall it, and no single piece of evidence is worth slowing down the process. It’s not the facts but how people perceive the facts that counts. The Democratic candidates should stay as far away from the impeachment process as possible, just in case it turns south. Let Schiff carry the brunt of the attack and let him be the prosecutor but, at the same time, let Trump put on his case. Unless something unexpected comes out, or Trump goes nuts, the Senate will never convict, so keep focused. The goal is not to impeach the president. The goal is to convince the American public that this man should not continue on as president of the United States. Trump and his people are going to throw a lot of crap against the wall and some of it is going to stick, as it always does. There will be great temptation to answer every charge but that would only serve to divert attention. So, the Dems have to keep focused with their goal in mind: getting rid of Trump in November 2020.

I suspect the most disciplined team will win this one. 

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