Democrats can lose Trump impeachment battle and still win electoral war

President Trump’s impeachment by the House of Representatives now seems inevitable. Trump’s principal justification for asking Ukrainian President Volodymyr Zelensky in their July 25 telephone call to investigate former Vice President Joe Biden and his son Hunter, is that he was only trying in good faith to stop corruption.

That argument looks a lot less credible now that evidence of corruption appears to be pointing, not at the Bidens, but at Trump’s own Ukraine point men, Trump’s personal attorney Rudy Giuliani and two of his associates with Ukraine ties. The two Giuliani associates were indicted for campaign finance violations and, according to press reports, Giuliani himself is under investigation in connection with his Ukraine activities (he has not been charged).

It’s time to start looking ahead to a Senate trial of the president for “high crimes and misdemeanors.”  

The Constitution provides that the Senate shall have the sole power to “try” all impeachments and that a vote of two-thirds of the Senate is required to convict Trump and remove him from office. Contrary to a widely-held misconception, the Senate is not a jury, but sits as a court of impeachment.

As such the Senate — or rather its Republican majority —would decide issues such as the length of the trial, admissibility of evidence, and the burden of proof. To boot, Trump would be acquitted unless 20 Republican senators vote to convict, which appears unlikely.

The deck is stacked against the Democrats. But there is a pathway for the Democrats to lose the impeachment battle and still win the electoral war. It’s a narrow one and a Senate trial could hurt Democrats unless Republicans give in to their worst instincts and the Democrats control theirs.

The Republican Senate majority could overreach and appear to American voters, who ultimately are the real jury, to be unfair by prejudging the outcome and then failing to give House Democrats a fair opportunity to put on their case.

Some Republican senators, without waiting for all the evidence to emerge or even for the articles of impeachment, have announced their support for Trump in a Senate trial. Sen. Lindsey Graham (R-S.C.) is planning to send a letter to House Speaker Nancy Pelosi (D- Calif.) advising that Republican senators will not vote to convict Trump.

That could backfire because the likely articles of impeachment will be serious and deserve a prompt, full and fair hearing by open-minded senators. Trump may be accused of secretly seeking the assistance of a foreign country in his 2020 re-election campaign. It’s a far more serious charge than the impeachment articles against President Bill Clinton, regarding a married man who had an extramarital affair and then lied about it.

Sen. Lisa Murkowski (R-Alaska) wisely — especially in light of polls suggesting that a majority of Americans support an impeachment inquiry — warned her colleagues against a rush to judgment.

Democrats must avoid looking like partisans, which is a lot easier said than done. They will have to control their firebrands like Rep. Rashida Tlaib (D-Mich.), who memorably said, “let’s impeach the motherf—er,” and present a serious, even sorrowful face to the country. Whether they can do that will heavily depend on the choice of the House “managers,” akin to prosecutors, who will present the case for conviction and removal in the Senate.

Democrats could do worse than appoint Pelosi as the lead manager backed by a team of newly-elected moderate Democrats with military or intelligence backgrounds. Pelosi can bring solemnity and dignity to a Senate trial. House managers who once put their lives on the line for their country can convince voters that Democrats are acting out of a sense of duty and not partisan malice toward Trump.

If Democrats are adroit in presenting their case and Republicans mishandle the Senate trial then, notwithstanding a Senate acquittal of Trump, an American electorate disturbed by his conduct could vote to remove him in 2020. 

Gregory J. Wallance was a federal prosecutor during the Carter and Reagan administrations. He is the author most recently of “The Woman Who Fought An Empire: Sarah Aaronsohn and Her Nili Spy Ring.” Follow him on Twitter at @gregorywallance.