The House Should Consider Breaking Impeachment Into Three Parallel Tracks

I have a new essay on up on GEN, a Medium affiliate, which makes the case that the House should break the Impeachment process into three parallel tracks: the crimes, the co-conspirators, a security review.  You can read it on GEN, link above, or below. 

The House Should Consider Breaking Impeachment Intro Three Parallel Tracks

Given Republicans’ stated intent to turn the Senate impeachment trial into a wildly partisan Sean Hannity-inspired circus, it is critical the House keep the inquiry into the Trump-Ukraine affair open past the trial — it must be far more challenging for the president to corruptly claim exoneration, as he did, malevolently, in the Mueller process.

The more we have come to understand about President Donald Trump’s months-long effort to illegally pressure two Ukrainian governments into doing political favors for him, the more difficult it has become for the House to move swiftly and to keep the process “narrow.”

Consider what we’ve learned: We know now the scandal involves many more people than just the president — dozens perhaps. A parallel federal criminal investigation into the scandal is currently underway. Already, two Trump associates have been arrested, implicating the president, Rep. Devin Nunes, Rudy Giuliani, and others. And once again, the scandal raises the spectacle of Russia’s influence over the president and his team — an issue so serious it cannot be wished away.

Breaking impeachment into three tracks will allow the House to make an initial set of time-sensitive criminal charges for the Senate to consider.

The Mueller investigation took almost two years. Ken Starr looked into Bill Clinton for more than four. The House has been scrutinizing Trump’s interactions with Ukraine for only a few months, and while some brave administration officials have come forward to testify, access to critical witnesses and documents has been illicitly withheld by the president. There is a real chance that a swift and narrowly focused process that ends in a few weeks with the president’s “exoneration” by the Senate will prevent the American people from seeing the complete picture of what has happened. This would allow senior government officials who have committed crimes to walk away without being held accountable.

So, to best serve the American people and fulfill its constitutional obligations, Congress should consider breaking down the impeachment process into three separate tracks: focusing on the criminal, the co-conspirators, and a national security review. Let’s look at each in turn.

Track one: Clearly establish the president’s crimes

In the coming weeks, and in preparation for an early 2020 Senate trial, the House should develop its core argument for why President Trump’s removal is required and why it should happen now, before the 2020 elections. Congress can establish that the president broke election laws in 2016 and illegally obstructed a legitimate investigation into his campaign throughout 2017 and 2018. In the Ukraine affair he has done it again — broken election laws and illegally obstructed. If he is not removed, it is reasonable to assume that he will attempt to break laws again next year. As sworn guardians of the Constitution, the House just cannot let that happen.

While the House can establish the gravity of the president bribing and extorting a foreign ally, Democrats must also bear down on the repeated election law violations and work to explain just how serious a crime “cheating” is in a system like ours. It speaks to a profound contempt for democracy, a disregard for what at the end of the day has been the central source of American greatness. It is the very definition of a “high crime” — a crime not against a person but the very idea of America itself.

In the recent press conference announcing the arrest and indictment of two of Trump’s associates in the Ukraine affair, Lev Parnas and Igor Fruman, law enforcement officials went out of their way to explain the gravity of election law violations. FBI Assistant Director William Sweeney declared, “These allegations aren’t about some technicality, a civil violation, or an error on a form. This investigation is about corrupt behavior and deliberate lawbreaking.”

The Justice Department has a decades-long policy of declining to prosecute a sitting president, but former federal prosecutor Glenn Kirschner has a compelling argument for why election law violations should be exempt from this policy. “If a president can act unlawfully to influence an election, he does not deserve the protections of his ill-gotten office,” Kirschner wrote. “This incongruity encourages lawlessness in the quest for the presidency and then rewards that lawlessness by inoculating the criminal president against prosecution. Such a construct is dangerous.” In other words, unless Congress and the Department of Justice aggressively punish election law violations, we will be creating huge incentives for Trump and future candidates to make cheating a core part of their electoral strategy.

What ethical leader has had so many around him fall under investigation, or get indicted or jailed? Michael Cohen, Michael Flynn, Igor Fruman, Rick Gates, Rudy Giuliani, Paul Manafort, Devin Nunes, George Papadopoulous, Lev Parnas, Richard Pinedo, Roger Stone, and Alex van der Zwaan. Or so many Cabinet officials resign due to scandal? Rampant criminal activity and lawlessness around Trump is something that will also need to be firmly established in the months ahead.

It is evident that the president is a serial criminal and should be removed from office. That he has repeatedly violated U.S. election laws and cheated and committed crimes against our democracy itself makes his removal before the 2020 general election an urgent and patriotic endeavor.

Track two: Prosecute the co-conspirators

In order to allow Congress to focus on the case against the president, the House should create a process where his co-conspirators in the crimes of bribery, extortion, election law violations, and obstruction of Congress are allowed to face the evidence against them and defend themselves in public. This should be separate from the parallel federal criminal investigation that’s currently ongoing. Perhaps Congress can focus on one conspirator per day, and at the end of each proceeding, the House Committee overseeing this process can vote on whether the evidence available and testimony warrants a criminal referral to the Department of Justice.

Fortunately, the DOJ has already established a team overseeing the criminal prosecution of those in the Ukraine affair. The House-led criminal referrals can be made directly to that established team. In theory, the whole process can be completed in a few weeks, and executed shortly after the Senate trial ends for expediency’s sake.

Among those who should be compelled to defend their actions are Vice President Mike Pence, Secretary of State Mike Pompeo, acting chief of staff Mick Mulvaney, Attorney General William Barr, and others the House has reason to believe committed crimes in service of the president’s illegal scheme.

Track three: Review how the president has damaged our national security

In the Ukraine affair, the evidence suggests the president put his own interests above those of the United States; he not only betrayed the nation, but also, in the process, damaged our standing in the world and national security. Even more evidence suggests this is not the only time the president has done this, and Congress must investigate his dealings with Russia and all other nations. The awful possibility that the president has serially betrayed the nation, leaving us far weaker on the global stage, is such a grave matter that it must undergo a thorough review that is separate from the more rapid consideration of his recent lawbreaking.

At the very core of this security review should be a comprehensive assessment of the president’s repeated actions to benefit our most significant historic adversary, Russia. Wherever one looks in the world, one sees the American president taking steps to align our policies with Russia’s foreign policy aims, weakening America and elevating Vladimir Putin: the years-long refusal to condemn Putin’s repeated attacks our democracy, his decision to abandon Syria and the Kurds, his reversal in Venezuela, his efforts to undermine Volodymyr Zelenskiy and Ukraine, his embrace of Brexit and denigration of Europe and NATO, his recent easing up on Iran, and his withdrawal from the Paris climate accords. Just in the past few days, new worries have emerged about his ultimate aims in Afghanistan and Lebanon. The cumulative record is astonishing.

Trump’s lawlessness and his repeated willingness to dangerously sacrifice our national interests leaves Congress no choice but to proceed.

That a week ago the president repeated a false and frankly ridiculous story, which originated in Russia about the 2016 attack on America’s democracy, adds fresh urgency to this vital task.

A security review would be the most serious of all the steps Congress could take in the coming months, and should not have any timetable associated with it. While the review could be led by the Intelligence Committee and look and feel a lot like what we’ve experienced over the past month or so, the Foreign Affairs and Armed Services committees should be expected to proceed with concurrent public hearings and investigations to help ensure a thorough and complete review. Efforts should be made to allow those members with significant national security experience to play leading roles in the proceedings.

In order to conduct these investigations with the kind of thoroughness that the American public would expect, Congress should work to aggressively compel the Department of Justice to turn over all materials gathered by Robert Mueller in his two-year-long look at Russia’s efforts to penetrate and influence domestic U.S. politics. That the full Mueller report has still never been turned over to Congress remains among the significant outrages of the Trump era.

There is a powerful logic for Congress to move swiftly to remove the president. He has shown a dramatic disregard for U.S. election law; that cannot stand. Breaking impeachment into three tracks will allow the House to make an initial set of time-sensitive criminal charges for the Senate to consider, keep the criminal inquiry open in case more matters arise, hold those who have been involved in the president’s vast Ukraine conspiracy accountable, and conduct a thorough review of the damage done to U.S. national security by the president’s illicit foreign dealings.

Congress was reluctant to go down this path. But the president’s lawlessness and his repeated willingness to dangerously sacrifice our national interests leaves Congress no choice but to proceed, and to do so in a way which reminds the American people and the world that this great democracy is something very much worth fighting for.