Opinion: Investigation Comes Before – Not Instead Of – Impeachment


When I started writing this piece, it was going to be in defense of Nancy Pelosi’s argument against a premature rush to impeachment.  Her reasoning still stands.  I was going to point to the fact that she wants a real investigation (vs. what the Republicans did ) and bi-partisan support – since the Republicans do control the Senate.  Impeachment by the House, followed by acquittal in the Senate would reduce a trial about Trump’s multiple abuses of power, lack of temperament, immaturity, and general incompetence to an exercise in partisanship.

Call me crazy, but if we’re going to go through the process of impeachment, I’d like to know that conviction is, at least possible.  Otherwise, it’s all for nothing and yes, it is divisive.

Anyone still wondering what the big deal is hasn’t been paying attention to Trump’s ongoing effort to divide America between cookie cutter white supremacist nut jobs and everyone else.


The most recent example is his inhumane and unpresidential response to the mass murder in New Zealand before announcing his first veto over Congress’s resolution rejecting Trump’s attempt to grab the purse strings.

Trump expressed similar sentiments to that of white nationalists, including the idea that immigrants are “invaders.

He did it hours after the shooting.

Trum p doesn’t have his creepy eye on the spending power to say, improve education, or healthcare, or even subsidize his “forgotten people”.  He’s doing it to finance a vanity project that no one wants and, dare I say, he promised Mexico would pay for.

The reason for the power grab, however, has nothing to do with the vanity project.  That’s just to keep his base excited.  This is really about reducing Congress from a co-equal branch of government to pathetic lap dogs like Mitch McConnell, Jim Jordan, Ted Cruz and Louis Golmert.

Trump has committed a catalogue of impeachable acts.  Everyone who has been paying attention knows it.  The problem is that a lot of people haven’t been paying attention.  For impeachment to succeed, it means capturing the votes of 20 Republican Senators.  Republicans will only “defy” Trump by supporting impeachment if supporting Trump proves to be a political disadvantage.  That means making a case compelling enough for Republican voters to support.

Such a case means proving to them that Trump is a clear and present danger to national security.  To be honest, until I read Lawrence Tribe and Joshua Matz’s  article in the Daily Beast, I wasn’t 100 percent certain that being a danger to national security would be an impeachable offense.  As much as I thought it ought to be, I’ve been around the law long enough to know it doesn’t always reflect common sense morality.

Yet common sense dictates that our president protect the nation from attacks by hostile foreign powers.  That includes interference in our elections by Russia.  Tribe and Matz opine that Trump’s inaction against Russian interference in the 2016 election is, on its own, an impeachable offense.

It is possible to argue that Trump’s inaction is, by itself, an impeachable offense. On this view, Trump is guilty of nonfeasance: a failure to act when action is required. Yale Law Professor Akhil Amar has written that “gross dereliction of duty imperiling the national security… might well rise to the level of disqualifying misconduct.

The mere fact that Trump has inspired more than one terrorist, within and beyond our borders, designates him a threat to national security.  One may doubt whetherTrump’s rhetoric rises to the level of incitement, but when terrorists themselves say they are inspired by him, there is little room to doubt that Trump’s words matter to people who share his white nationalist ideals.

One notable example is Christopher Paul Hasson, the coast guard lieutenant whose long planned terrorist attack was detected before he could carry it out.

Hasson had a list of targets, including prominent Democrats and journalists who are critical of Trump based on internet searches   that coincide with Trump’s toxic rhetoric.

8:54 a.m.: “what if trump illegally impeached”

8:57 a.m.: “best place in dc to see congress people”

8:58 a.m.: “where in dc to congress live”

10:39 a.m.: “civil war if trump impeached”

11:26 a.m.: “social democrats usa”


The suspect in the massacre of 11 people in a Pittsburgh Synagogue was reportedly inspired by Trump, Like Trump, he described immigrants as “invaders”.

And the New Zealand terrorist said in his manifesto that Trump inspired him.  Per the Washington Post,

 The 74-page manifesto posted online hailed Trump as a symbol “of renewed white identity and common purpose.

The second point, also argued by Tribe and Matz, is the possibility and extent to which Trump violated the law to influence the 2016 election outcome and subsequent to taking his oath of office.

There’s little doubt that Trump’s promise to drain the swamp reeled in a lot of voters.  They need to see that Trump is the biggest swamp creature of them all.  He silenced his mistresses with payoffs.  He was bribed by foreign leaders seeking policies that are detrimental to our national interests – including national security.

Republican voters also need to see whether any of Trump’s actions in this area amount to impeachable offenses – something that can only be determined by a proper congressional investigation. As noted by Tribe and Matz, it isn’t enough to prove that Trump did something unseemly.  It must qualify as a “high crime and Misdemeanor”

As we detail in To End A Presidency, pre-inauguration wrongdoing aimed at the corrupt acquisition of office is impeachable. So Trump’s misconduct can’t be set aside on the ground that it occurred before Election Day. This raises a question: how do we decide when pre-inauguration conduct is properly ranked as a “high Crime and Misdemeanor”?

Building this case can be done through public hearings.  In fact, it must be done, because relying on Trump’s Roy Cohn to protect  our constitutional order is like asking a mouse to protect the cheese.

There is no shortcut to impeachment and there shouldn’t be one.  We have to do the work that Republicans failed to do during the past two years – regardless of whether it provides the basis for impeachment or not.

Congress must re-establish its power and responsibilities as a co-equal branch of government.  Nancy Pelosi knows it.  That is why she insisted on doing the work – which is not, as some have claimed, the  same as opposing impeachment.

Her objection is to avoid giving Trump anything to hang his victim complex on.

So far, Nancy Pelosi has shown an ability to understand and defeat Trump at his own game.  Odds are highly in favor of her being right about this too.