Opinion

WSJ Editorial Board Argued Trump Shouldn’t Be Impeached for Being ‘Inept,’ and It Didn’t Go Well

There’s moving the goalposts and then there’s this: the editorial board of the one most influential publications in the country and the world has espoused the opinion that President Donald Trump was too “inept” to actually execute a quid pro quo, and therefore should not be removed for mere incompetence.

From the Wall Street Journal on top U.S. diplomat to Ukraine Bill Taylor’s testimony and what it means for the president:

Intriguingly, Mr. Taylor says in his statement that many people in the Administration opposed the Giuliani effort, including some in senior positions at the White House. This matters because it may turn out that while Mr. Trump wanted a quid-pro-quo policy ultimatum toward Ukraine, he was too inept to execute it. Impeachment for incompetence would disqualify most of the government, and most Presidents at some point or another in office.

This argument immediately received a lot of pushback from attorneys who noted that a whistleblower reported suspected criminal activity, and criminal activity attempted but not executed as planned is still criminal.

https://twitter.com/KatiePhang/status/1187341580660813824?s=20

The shots came easy.

This appears to be as far as The Journal would go: “Certainly Mr. Taylor’s statement doesn’t make Mr. Trump’s Ukraine interventions look good.”

But there are other aspects of the editorial that also warrant some attention.

The Journal is taking issue with the impeachment inquiry process on Capitol Hill, stating that it is a problem that what we know about a proven quid pro quo is Taylor’s testimony and what Democrats have “leaked”:

Bombshell. The walls are closing in. Donald Trump’s defense has collapsed. The quid pro quo has been proven, the case for impeachment is obvious, and the only question remaining is whether the lickspittle Republicans will finally do their duty and vote to oust this disgraceful President.

That’s more or less been the unanimous chorus in the impeachment press since Tuesday, when State Department envoy to Ukraine William Taylor testified to the House Intelligence Committee. The problem with this narrative is that all we have to rely on is Mr. Taylor’s opening statement and leaks from Democrats.

This sounds a lot like Rep. Matt Gaetz (R-Fla.) and his band of pizza-eaters, who apparently wanted the public to believe on Wednesday that there were no Republicans in the room where testimony has occurred. This is not the case. The Journal didn’t stop there, though:

House Republicans staged a protest at the House Intelligence hearing room on Wednesday to demand an open process, and it was a PR stunt. But they are right about the disgrace of this closed-door impeachment. This isn’t routine oversight of a bad presidential decision or reckless judgment. The self-described goal of Mr. Schiff’s hearings is to impeach and remove from office a President elected by 63 million Americans.

This requires more transparency and public scrutiny than Mr. Schiff’s unprecedented process of secret testimony, followed by selective leaks to the friendly media to put everything in the most anti-Trump light, in order to sway public opinion. If the evidence against Mr. Trump is so damning, then why not make it all public now so the American people can judge for themselves?

The House Foreign Affairs, Intelligence and Oversight Committees all have Republican members that have been allowed to sit in on those closed-door depositions and ask questions — even Vice President Mike Pence’s brother.

Here’s what’s actually going on behind closed doors, (h/t Los Angeles Times):

At each hearing, at least a dozen lawmakers — often more — sit along a rectangular table, Republicans on the right, Democrats on the left, said Rep. Harley Rouda (D-Laguna Beach). Each side gets equal time to ask questions.

Forty-seven Republican lawmakers from three House committees — Intelligence, Foreign Affairs and Oversight — have been allowed to attend and participate in all of the depositions of the eight diplomats and government officials brought in to testify so far. The 57 Democrats from those three committees also may attend, but no other lawmakers from either party may enter.

Members of three House committees — 47 of them Republicans — have been allowed to participate, but Republicans on other committees (Gaetz et al.) have not. Many people are old enough to remember Trey Gowdy booting fellow Republican Darrell Issa out of a Benghazi-related deposition because he wasn’t a member of a committee involved in the proceeding. Nor should it be forgotten that Gowdy once said the following of private Benghazi hearings: “I can just tell you of the 50-some-odd interviews we have done thus far, the vast majority have been private and you don’t see the bickering among the members of congress in private interviews. The private ones produce better results.”

There are key differences between impeachment now and impeachment then, however, which WSJ appears to touch on. The main difference is that the president’s lawyers are not in the room at private hearings cross-examining witnesses, and calling their own witnesses. Unfortunately, WSJ claimed that closed-door depositions are a “disgrace.” Were Watergate and Whitewater a disgrace? What about WSJ’s reporting from 6 days ago?

Independent counsel Ken Starr conducted his probe of President Clinton using a grand jury, which by law conducts all its business behind closed doors. In Watergate, special counsel Leon Jaworski also used a grand jury to collect evidence that he eventually transmitted to Congress during its impeachment inquiry. Much of the legal work analyzing the evidence collected by Mr. Jaworski’s prosecutors was done behind closed doors by congressional lawyers.

Notice how those impeachments were sparked by grand juries convened by an independent counsel and special counsel. Also notice how this current impeachment inquiry was not the outgrowth of something similar but operating like it.

Even if the closed-door depositions play politically into Republicans’ hands and talking points, prominent legal scholars have noted that Democrats running the inquiry are well within their rights to proceed in this manner.

“The argument was that the president has been denied due process because there’s no cross examination going on in the House,” Harvard Law Prof. Cass Sunstein recently remarked. “The first thing to say is that it’s not a criminal trial and there’s no right in these things to cross examination.”

All of this is to say that while the “rules” may be somewhat different — right now — this idea that everything is a “secret” to which only Democrats are privy is risible and false. If and when Democrats emerge from the grand jury-esque proceedings they are running (i.e. once they’ve gathered evidence) and hold public hearings, they would be wise to simply give Republicans what they’ve asked for:

Republicans say that if Democrats want to compare their inquiry to the legal process, the president should have counsel in the interviews and be able to cross examine witnesses. They say they should be able to call witnesses, as has happened in previous impeachment proceedings. They say the transcripts should be released so the public — and lawmakers not on the three committees leading the inquiry — can see what witnesses said before the House moves to an impeachment vote. And they argue that the full House should vote to formalize the inquiry, a move Pelosi has so far rejected.

[Image via Mark Wilson/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.

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