As President Donald Trump continues to counterpunch his way into an impeachment, many Republicans appear conspicuously and ominously silent about the Ukrainian scandal. That would normally spell growing danger for an increasingly isolated president looking at a Senate trial.
Trump, however, may have a curious ally in House Speaker Nancy Pelosi. When she held a press conference to announce the impeachment inquiry, some of us expressed doubt that she had dropped her opposition to it. Since then, every move she has made strongly supports suspicions that Pelosi is less of a convert than a collaborator in the House impeachment effort. While Trump aides such as Rudy Giuliani have now caused untold damage to the White House position, Pelosi repeatedly has intervened to steer impeachment efforts into either a wall or, more recently, over a cliff.
For three years, Pelosi has been widely credited with slowing down the impeachment efforts despite many of her fellow Democrats campaigning on an impeachment pledge in 2018. Pelosi has struggled to maintain the appearance of wanting to impeach the president while preventing any meaningful steps toward actual impeachment. She wants Trump mortally wounded but still alive in 2020. Moreover, she understood the Russia investigation was not producing clear criminal or impeachable conduct.
Indeed, earlier this year, I wrote a column exploring whether the real scandal was not likely Russian but Ukrainian in its origins. I noted that various Trump figures, along with Democrats including Hunter Biden, were involved in suspect dealings in Ukraine. The investigation by former special counsel Robert Mueller found no conspiracy or collusion with the Russians. The Justice Department correctly rejected obstruction. Pelosi moved to put impeachment to bed, saying she would not accept one that was not based on articles with “overwhelming and bipartisan” support.
Everything was going according to plan, until Trump called the Ukrainian president. The danger of pretending that you want to impeach Trump is that you may accidentally stumble over a potentially impeachable offense. Moreover, with a whistleblower complaint, Pelosi lost all her control. The Democratic base was simply not going to accept another bait and switch.
So Pelosi was forced to hold her bizarre press conference to announce that an impeachment inquiry would begin in the House, despite other Democrats declaring for weeks that they already were conducting such an inquiry. Despite her recent pledge, she pushed through an impeachment vote with no support from Republicans, and the country divided right down the middle on the issue. Pelosi then took two unexpected steps.
She reportedly said she wanted to limit any impeachment investigation to Ukraine, not the stuff that she and others claimed was clearly criminal and impeachable for three years. She also removed the investigation from the House Judiciary Committee, which was looking more broadly at Russian matters with special impeachment counsel, and then gave it to the House Intelligence Committee to hold hearings behind closed doors. After single handedly slowing down impeachment efforts for years, Pelosi now is pushing for a quick impeachment vote by the end of the year. Why?
The day this story broke, I stated on air that the greatest threat to Trump would be White House national security adviser John Bolton, a disgruntled former aide who was the most likely witness to have damaging evidence of any quid pro quo. Yet Democrats have done relatively little to get his testimony. Bolton seemed willing to testify but he wanted to be legally compelled to do so. On Friday, his attorney even dangled a promise of “relevant” undisclosed evidence. Democrats have subpoenaed various officials but refused to do so with Bolton. They shrugged off his refusal to testify and said they simply had no time to go to court for an order. Why?
The reason appears to be Pelosi. While she reluctantly agreed to allow members to impeach, she wants to submit an anemic impeachment to the Senate by the start of 2020. After moving for years at a glacial pace, she now wants an abbreviated and expedited impeachment process with just a few weeks of evidentiary preparation. Such an impeachment would go forward with a significantly undeveloped record with a couple of slapdash articles, along with ample room to acquit Trump in the Senate.
The term for all of this is planned, or programmed, obsolescence. The term was created by former General Motors head Alfred Sloan Jr. to refer to products that suddenly stop functioning and have to be replaced. This was the basis of a huge class action lawsuit against Hewlett Packard over inkjet printers and cartridges allegedly designed to shut down at some undisclosed date. The company settled the case for millions of dollars.
Similarly, this impeachment is looking like something designed to fail, to suddenly stop functioning in the Senate so Trump survives and Democrats can once run again on a “lesser of two evils” campaign. The design flaw is found in the artificially narrow foundation of articles on abuse of power. It is not true, as was suggested by former acting Attorney General Matthew Whitaker, that abuse of power cannot be the sole basis for impeachment because abuse of power is not a crime. Not only can abuse of power be impeachable, but a proven quid pro quo can qualify as such an abuse.
However, there is a reason why members of Congress have never sought the impeachment of a president on such a narrow ground. The Clinton impeachment was relatively narrow but involved the president lying under oath, which is a clearly defined criminal act. Abuse of power is stronger in the context of other offenses. The reason is that it is often very difficult to distinguish between the problematic statements or conduct of presidents. All politicians deal in their self interests, including members of Congress.
To focus on this narrow abuse of power claim as the foundation for this impeachment, Pelosi maximizes the chances of acquittal for Trump. By pushing for an impeachment by December, with limited hearings and no compelled testimony by key witnesses, she would achieve her original goal to guarantee that Trump will stay in office at the start of primaries. That is indeed the perfect planned obsolescence product, one designed to fail just in time for the voters to be offered a product “upgrade” in the form of the Democratic presidential candidate and a Senate majority.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He also served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings. You can follow him on Twitter @JonathanTurley.