How a Republican senator thinks about the impeachment trial

Senator Mike Braun, Republican from Indiana, appeared on the Kasie DC show to talk about a breaking revelation about John Bolton's forthcoming book. According to a report in the New York Times Sunday evening, the book's draft manuscript says Trump told Bolton last August that he didn't want to release the held aid to Ukraine until Ukraine delivered on investigations of Democrats and the Bidens. This appears to be the smoking quid pro quo. (See also this analysis by Peter Baker.)

The Braun interview is instructive about how Republicans think about the impeachment trial, the desirability of witness testimony, and constitutional responsibility generally. I claim here that it nicely represents the variety of Republican dodges, red herrings, and non sequiturs that they're employing to avoid their duty to conduct a fair trial and discharge their duty under the Constitution.

The Bolton account appears to be both damning and also a first hand account of the very offenses President Trump is accused of committing. The outstanding question is whether Republican senators have the will and the stomach to properly run these charges to ground. Every indication is that they do not.

The transcriptions below are entirely mine, and I believe they fairly represent the entire thrust of the Braun interview, which was fairly short. I've tried to not omit anything that is relevant.

Early in the interview, Braun said that for Republican senators "it's a tricky combination between using your conscience to get through this and having to decide what the people in your state are wanting ...." Braun suggested there are a lot of Trump supporters in his state.

Kasie Hunt, the show's host, pressed the senator, saying that according to national polling, "witnesses and documents isn't a controversial question, so why is it so controversial in the Senate?" Braun's response is quite revealing:

"So I think it has to do with the fact that, uh, how it originated, and where I'm from people are still riled up that they were after him from the get-go and it kind of came over in a purely partisan way, and that you're this close to an election. And I can tell you they are looking at things like that more than trying to keep track of pros and cons of the information we've been digesting over the last few days, and every state, every Senator, has got to kind of measure all of that and come up with a decision.

When it comes to more information, you know I think leader McConnell has been pretty steadfast on that point; they controlled the dynamic in terms of the case; it was kind of sped through the process when the Mueller report didn't work out, and here we are."

The first thing to ask about this response is, does it come from a senator who appears to be grappling with whether a constitutionally impeachable abuse of power occurred? So far in appears the answer is no. Hold that thought as we continue, because he seems to care about everything but ascertaining guilt or innocence, and doing his duty.

Kasie Hunt then asked: "Do you care that John Bolton is saying that the president had a quid pro quo for money that Congress authorized for this purpose?"

Braun responded:

"I mean I think he's out there saying this is going to be part of his book. When it comes to his saying that then you'd have to go through all the things you'd do for any witness, uh, the integrity of the witness, is there anything that would [interrupted] ...

But I think once that would come into the mix you'd have to take everything else that would come along with it, you'd have to let the defense team pile through all of that, and you'd have to see what you come up with, and my gut tells me, and we're all kind of dealing with what we think is going to happen, that the case so far did not deliver the goods, the information, to where anybody has changed their mind. It'll be interesting to see what happens, since this came hot off the press just a little bit ago."

Again, is this the sound of a senator who's focused substantially on his constitutional duty? Or, rather, is this one (among many) who is primarily looking for ways to not deal, as a matter of political expediency, with questions of the president's conduct?

Nowhere does Senator Braun indicate that he finds Bolton's allegations troubling. Rather, he's grasping from the outset for ways to wave them off or at least diminish them, such as pointing out that they're contained in a book which, of course, Bolton would like to sell. By the way, Bolten emphatically denies having anything to do with the leak, and blames the White House, to whom Bolton provided a copy of the manuscript for review.

The answer to the "book" objection is to get Bolton, and others with first-hand knowledge, under oath. (House Democrats wanted to do that long before anybody knew what was in Bolton's book.) Bolton, who has served as U.N. Ambassador and more recently National Security Adviser, has long been such a respected figure in Republican national security circles that it will be fascinating to see how Republican senators dispose of him. They will no doubt find a way.

Braun also reiterates the Republican complaint, that he conveniently ascribes to his constituents, that Democrats have been out to get Trump all along, as if that allegation bears at all on the merits of the particular impeachment charges against the president. This red herring continues to be indignantly mouthed from the president's legal team and Republican senators alike, and before that from House Republicans. The question before the Senate is neither the Democrats' motivations nor the length of time they've been pursuing them, but instead whether or not the president did what he's accused of doing, and whether that is an impeachable abuse of office.

A related red herring that comes up frequently, and which Senator Braun mentions, is that Democrats only resorted to impeachment when "the Mueller report didn't work out." That's another dodge that attempts with all the others to not address the question of whether the president did the thing he's accused of doing.

Democrats' alleged hopes for the Mueller report is so irrelevant to the current circumstance that we should probably say no more about it, but I do wonder about the logically challenged minds that advance such an argument as if it somehow matters.

We know for certain that the Democratic House leadership, particularly Speaker Nancy Pelosi, consistently opposed calls among some Democrats for impeachment—even after the Mueller report "didn't work out." Democrats certainly could have begun an impeachment inquiry based on the multiple cases of obstruction of justice contained in the report. Indeed, that seems to be the remedy Mueller was after when he said he was unable to indict because of Justice Department policy; that he was unable to exonerate the president; and that "the conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law."

So the reason the Mueller report "didn't work out" is that Democrats chose to not pursue impeachment after its release, even though Mueller seemed to be knocking the ball into their court. (Is that a pun? Maybe?)  Speaker Pelosi only changed her mind, roughly half a year later, after the latest and perhaps most egregious of all of Trump's offenses came to light. Perhaps you could say it was the final straw that compelled Pelosi and Democrats to do what was constitutionally obligatory even though potential political peril lay along that path. It says something about Democrats' sense of duty that they deliberately chose to play what they knew was almost certainly a losing hand.

Senator Braun indicates that his constituents—at least the ones to whom he wants to give voice—care more about these irrelevant and illogical considerations than the "pros and cons of the information we've been digesting over the last few days." But isn't his job, in a proceeding of such solemnity and consequence—to focus on the "pros and cons" and not the "riled up" rabble behind whom he might ultimately choose to hide? Isn't that why the Constitution gives him, and not them, the responsibility he now bears? One fears from both the substance and tone of his remarks that he gives more weight to the froth in his constituency than the Constitution.

Further, Senator Braun seems happy to lean on Mitch McConnell's argument that the Senate isn't bound to augment the House's work. But why not? Senators, first and foremost, should be bound by an obligation to get to the truth—not to make the House a scapegoat for failing to adequately do so. And further, every one of the 15 impeachment trials held in the Senate over the history of the union has had witnesses. Will this one really be the first to not, even as new revelations continue to arise?

Senator Braun implies that the House's case has been weak—itself an astounding suggestion. He said "the case so far did not deliver the goods, the information, to where anybody has changed their mind." Isn't that why the Senate should be hearing from first-hand witnesses such as John Bolton? How is it acceptable to say the case has not been made, and, further, we will not allow the kind of witnesses that might make it—especially when the White House has sought to block all witnesses who could provide first-hand testimony?

The senator is obviously correct that, were Bolton's testimony to be considered, due diligence would have to be performed, and the president's defense team would have to "pile through all of that." Exactly so. This is supposed to be a trial, and in a trial the defense gets to confront witnesses, with all that implies. But senators are looking for ways to not "pile through all of that." Senator Lisa Murkowski has suggested that having witnesses would take too long. Oh dear. Subpoenas would have to be served, and then contested. Oh my. Depositions would have to be conducted. What a dreadful imposition that would all be. (See footnote below for context.)

Nowhere does Senator Braun seem to be overly motivated by any sense of Constitutional duty that's uniquely attached to his office. I have chosen to feature him here because his brief remarks comprise a concise but representative collection of arguments circulating more widely among Republican senators: Case not made; witnesses that might make the case would take too long and would have to be dealt with; Democrats out to get the president all along; Mueller was a bust; House process was unfair and partisan; Senate shouldn't do the House's work; constituents are riled up; too close to an election.

Ah, yes, the election! Democrats want to overturn the last one and obstruct the next one. Never mind that impeachment is by definition the overturning of an election, and yet the Constitution's framers provided for it anyway. Apparently they thought it might be necessary. As for the next election, why is it such an affront that a president convicted of high crimes would be prohibited from participating—especially since his alleged crime involves cheating in that very election? And by the way, presidents cheating in elections was actually discussed by the framers as they were debating the impeachment power. (Alan Dershowitz didn't mention that.) Clearly, the election dodge is just one more way for Republican senators to shirk the duty the Constitution contemplates for them, by dumping the responsibility onto the inflamed sensibilities of poorly informed voters.

Perhaps the only banalities missing from this catalogue provided by Senator Braun is that the House impeachment managers took too long and were too repetitious, and a couple of times were mean or insulting to very sensitive senators. Altogether, these are the reasons Republican senators will fail to do their duty. One would hope that in the end they will justify their acquittal with specific and well reasoned reference to the actual charges being tried, but that is unlikely.

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Footnote: Consider the Clinton impeachment trial for some context on trial duration. The trial began similarly to the current one with arguments by the House managers and then the defense. After two days of questions (that phase is next in the current trial), the Senate took four days to deal with a motion to dismiss, a motion to depose witnesses, and motions to directly vote on the articles. That was followed by three days of videotaped depositions, and two days to vote on the disposition of those depositions and listen to excerpts of them (in lieu of calling live witnesses). Following that was a day of closing arguments, and then three days of closed-door deliberations. On the final day the Senate voted on the articles. In all, the Clinton impeachment ran from the pretrial presentation of charges on January 7, 1999, through the vote on February 9, more than a month later. All this was to adjudicate charges arising from Clinton's lying under oath about a consensual sexual affair.

Copyright (C) 2020 James Michael Brennan, All Rights Reserved

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