The impeachment and trial of Trump – in three acts; Search for the 'smoking gun'

Gordon L. Weil

Americans are not great theater-goers. But the theater is now coming to us.

It is a major national show: "The impeachment and trial of Donald J. Trump – in three acts."

We already have a pretty good idea of the plot, but we remain fascinated by the leading character.

Act 1 is the impeachment inquiry. Democrats seek to build a case that President Trump improperly asked a foreign leader, the Ukraine president, to announce a review of the false claim that former Vice President Joe Biden undermined a Ukraine investigation of his son Hunter. An earlier investigation there had turned up nothing.

The Democrats also want to show that Trump withheld vital military aid to Ukraine to force an announcement about the Biden case and the discredited claim that it had meddled in the 2016 campaign to help Hillary Clinton. This trade-off would be the famous "quid pro quo."

In the now famous July 25 call, Ukraine President Volodymyr Zelensky thanked Trump for military aid and promised even more military purchases from the U.S.

Trump immediately responded, "I would like you to do us a favor though...." Does the use of "though" mean that aid depended on that favor?

Republicans claim there's no direct evidence that Trump took any such improper actions, though Trump tries to block his staff from testifying and withholds documents. And nothing really happened, because the aid flowed, though only after a whistleblower revealed the call, and there were no new Ukraine investigations.

Democrats on the House Intelligence Committee are drafting a list of charges and will recommend impeaching Trump. The House Judiciary Committee could add obstruction of justice and other charges.

Act 2 will be the House debate. A united GOP will argue that Trump's requested "favor" and efforts to block the investigation fall short of impeachable offenses. The Democrats, without Republican votes or hope of removal by the Senate, will vote to impeach.

Why would they impeach Trump, if they can't win?

Though impeachment will look partisan, Democratic leaders believe it is important to act if they find Trump abused his powers.

This case will be only the fourth time the House has considered impeachment. If a president is ever again charged, House action now would help define the broad offenses in the Constitution that could one day influence that case. Of course, it would also strike a political blow at Trump in an election year.

Act 3 will be the trial in the Senate. It would take 67 senators to remove Trump from office. At least 20 Republicans would have to decide Trump is guilty. That seems virtually impossible.

Why won't Republican senators vote against Trump? The GOP has become Trump's party and is now so closely tied to him that his defeat could threaten Republican senators in the 2020 elections and the future of the party itself.

Presidents Andrew Johnson, Richard Nixon and Bill Clinton all left obvious fingerprints on their offenses, so the charges were easily pinned on them. Republicans stress that proof of Trump's responsibility comes mainly from others, even though some reports come from multiple witnesses.

The Republicans charge witnesses are biased. For the GOP, not only must there be a "smoking gun," but there must be a picture of it in Trump's hand. The Democrats keep looking for it.

The only remaining question is if Trump's actions rose to a sufficiently high level that he should be removed. The two previously impeached presidents were not removed. Nixon would have been forced from office, so he became the only president to resign.

The GOP will continue to argue that, even if Trump had threatened a "quid pro quo," he caused no harm. His mere attempt is not an impeachable offense. The Democrats will say lives were lost because of the aid freeze.

The Republican position is bolstered by Zelensky's failure to claim that he felt any pressure from Trump. Obviously, he is mindful of his country's dependence on the U.S., which may influence his attitude. He wants to stay out of American politics.

Though the plot of this drama seems easy to forecast, the show will go on. We want to see the actors perform, and we hope for surprises.

There is at least a slight possibility that, even though not removed from office, Trump would fail to gain the majority support of the Senate. That might take the opposition of only three Republicans. And that could influence the 2020 elections.

Whatever happens, this play won't be a comedy; it could well be a tragedy.

Supreme Court "umpires" face historic challenge in Trump cases

Gordon L. Weil

"Judges are like umpires," said John Roberts, the Chief Justice of the U.S. Supreme Court.

"Umpires don't make the rules; they apply them," he continued. "It's my job to call balls and strikes and not to pitch or bat."

An academic study showed that home plate umpires make an average of 14 bad calls in each game. The best umpires miss more than seven percent of calls. Supposed to simply apply the rules, they determine just what the rules mean.

Members of the Court express their opinions of what the law is and make some bad calls. A Supreme Court decision is officially called an "opinion," a reminder there's no objective method of determining the law, just as umpires' calls are a matter of their judgment.

Roberts and the rest of the Court are now taking the playing field in one of the most important "games" ever played in American history. They will be faced with deciding how much power the Constitution gives to the president. The opposing teams are the Democrats and the Republicans.

The Democrats believe President Trump has gone beyond the bounds of his office. The Republicans, who might share that view if the president were a Democrat, somewhat nervously defend their president and his use of power.

Roberts tries to convince people that the Court is neither Republican nor Democratic. He points to unanimous decisions or ones in which party lines don't matter. That's true, but it ignores cases where the Court has the last word on what the Constitution means.

Recent GOP presidents have asserted they have virtually unlimited power to meet the challenging needs of the times. The courts, not Congress, are the only check on the president. By trying to stack federal courts with his appointees, the president may hope for supportive rulings.

The country is now about to see if the judges are good umpires or if they reveal bias one way or the other. They proceed carefully, but sometimes delay to help one side, taking months to decide. Unlike umpires, who must make snap decisions, the judges set their own rules on how long to take.

There are at least the types of cases on presidential power that may force the Supreme Court to show if they are big league umpires.

While they hold office, are presidents immune from the law on matters outside of the government? Previously, the Court concluded unanimously that Presidents Nixon and Clinton did not have such immunity.

A few cases concern whether Trump must turn his income tax returns over to legitimate investigations at the state and federal levels. In one such case, Trump's lawyer claimed in court that the president could not even be investigated for murder as long as he was in office.

Does the president have a privilege allowing him to prevent people in his administration from testifying or turning documents over to a legitimate investigation? While courts have ruled that communications directly with him may enjoy "executive privilege" is there a "presidential privilege" that goes further?

Courts will have to determine if "checks and balances" applies or if the president can completely block executive branch officials from testifying in a congressional proceeding.

Are presidential powers unlimited? This year, Trump said: "I have an Article 2 [of the Constitution] where I have the right to do whatever I want as president." Is that true? If so, there would be no basis for impeaching any president ever.

The Court will have to decide the extent of the power given to the president by the Constitution or acts of Congress. Definitely, this is more than calling balls and strikes.

The American people are about to get a current events lesson on checks and balances among the three branches of the federal government. Roberts and his Court will teach it.

Beyond all that, Roberts will really get to be something of an umpire. It's almost assured that Trump will be impeached and there would be a trial in the Senate. The sole judge will be Roberts, while the Senate will be the jury, rendering its verdict.

This is not a criminal trial, but only to decide if Trump should be removed from office. The decision will be mostly political, not legal. The Republicans say the Democrats seek to reverse the 2016 election at any price. The GOP obviously wants to preserve it, apparently at any price.

The trial will work only if Roberts can ensure it's fair. He'll be like an umpire, surrounded by angry players, in the last inning of the World Series.

Trump created current GOP; impeachment forces it to fight for survival

Gordon L. Weil

There's more at stake in the Trump impeachment process than the fate of the president.

For the Republicans, saving Trump, like him or not, is a matter of saving today's Republican Party, the party that Trump has made.

Contrast President George H.W. Bush with President Trump. Contrast Maine Gov. John McKernan with Gov. Paul LePage.

All of them ran as Republicans. But the second in each pair would likely label the first a RINO, a Republican in Name Only. And, considering today's Trump Republicans, they would be right.

The GOP has historically been the party of business, using government to promote free enterprise in the belief that growth would benefit the entire population. It paid attention to broader social problems, creating the EPA and supporting aid to the poor.

It sought compromises with the Democrats. Differences focused more on the extent and timing of federal policies than on the need for some sort of action. A so-called moderate Republican, if any survives, is a vestige of that party.

Republican voters were generally conservative and fought new spending that led to government deficits. After President Johnson's civil rights laws passed, the party's base came to include anti-civil rights, former Democrats.

Extreme right-wing people had rejected politics on the grounds that the parties cared too much about being "politically correct" on issues of equality among Americans.

Uninhibited by the belief that he would actually win the 2016 election, Donald Trump appealed to untapped extreme anti-government voters that rejected not only the Democrats but also the traditional Republican Party.

The GOP was ripe for a Trumpian takeover. His supporters took control of state parties. Well-organized and sharply focused, they challenged long-term GOP office holders in party primaries. If successful, they might lose to Democrats, but they could flip seats to pure Trump policies.

In a party that was already becoming more conservative, Trump loyalists moved it to the right further and faster. Susan Collins' decision not to run for governor of Maine in 2018 was likely influenced by the possibility that, as a moderate, she could lose in the new GOP's primary.

Even in her Senate re-election, she may be caught in the middle. Not a Trump supporter, she voted to confirm Kavanaugh to the Supreme Court, blunting possible GOP opposition. But that same vote cost her support among independents and Democrats on whom she has relied.

To continue on its course, the Trump Republican Party needs Trump. Admittedly that's a short-term view, but each two-year election cycle is a world unto itself.

The Republican Party is the party of Trump. Susan Collins' party is just a memory. If Trump were removed from office, the party could lose all control over the federal government and probably some state governments. In gambling terms, they have put all their chips on Trump.

The Democratic House may impeach Trump, but that may be passed off as mere partisanship. The votes of at least 20 GOP senators would be needed to remove him from office and, unless the "smoking gun" is found right in the president's hand, those votes will be lacking.

If Trump cannot win in 2020, the last GOP bastion is the Senate. To keep his control and the ability to block a Democratic president, Majority Leader Mitch McConnell may be ready to accept a possible dissenter like Collins, if she can hold onto her seat.

The GOP leadership believes they can win even if they lose. The rural-state weighted electoral vote and Senate representation plus their gerrymandering of congressional districts could allow them run the government with only minority support.

Democratic Speaker Nancy Pelosi seeks a big Democratic margin to overcome the possibility of a minority winner. She also wants to counter any GOP attempt to claim that the Democrats only won because of election tampering.

The Republican reluctance to oust Trump has everything to do with their political survival and, more importantly, with the survival of the Republican Party.

The Democrats seem to ignore this situation and are slipping back into their 2016 attitude: people couldn't possibly take Trump seriously, so they will win simply by not being Trump.

Since any Democrat can win, they think, they mistakenly waste their advantage by attacking or outbidding one another. Trump is politically vulnerable, but not eliminated. The Democrats all oppose Trump policies, but they need to build big-tent unity, not simply assume it. 

Just like the Republicans, the Democrats should grasp the real meaning of the impeachment process. It's not only about who wins the impeachment battle, but who wins in November 2020.

'Medicare for All' policy overkill; universal health care works without it

Gordon L. Weil

When it comes to health care, Democrats may try to do the right thing, but they may be doing it the wrong way.

The party's presidential candidates support a health insurance system for all Americans. They believe health care is a right.

President Obama's Affordable Care Act is the closest the country has come to that system, but it has fallen short. Many people are still not covered and savings have been disappointing if not sometimes invisible. Republicans jeopardize the ACA by trimming it back and challenging it in court.

Meanwhile, the U.S. government operates Medicare, a tax-financed health insurance program for senior citizens. It is costly, but it insures all seniors and has displaced private insurance for their basic coverage. Most seniors buy added insurance to cover costs the system leaves to them.

Sen. Bernie Sanders asserts that the time has come to replace profit-driven private insurance with government, non-profit coverage. Because Medicare is so well-known, Sanders proposes expanding it to cover everybody – "Medicare for All."

Under Sanders' plan, government would be the "single payer" for insurance covering hospitals and doctors. Its buying power would allow it to control costs, higher in the U.S. than in any other developed country.

Financing "Medicare for All" would require massive federal funding. Sanders would raise taxes on wealthy taxpayers and big business. This transfer of funds would also reduce the growing income gap between average people and the rich.

Employers and individuals would no longer buy health insurance. While they would pay higher taxes, these costs would be offset by the elimination of insurance premiums. Government could lower total health care costs by supporting preventive care and controlling runaway costs.

That's the theory, but the proposal worries many people. Theories tend not to work out as planned. The added taxes would be enormous. If you like your current insurance plan, often provided by your employer, why be forced to give it up? "Medicare for All" would bring big changes.

To promote her candidacy and appeal to Sanders supporters and others on the left side of the political spectrum, Sen. Elizabeth Warren adopted "Medicare for All." As she gained credibility as a potential Democratic nominee, she faced demands to go beyond promises and come up with a cost estimate.

Warren's attempt to be specific may have harmed her candidacy more than it helped. Her proposal involves a major change in American politics, allowing a bigger role for government in helping people, financed by higher taxes.

Massive taxes, even offset by insurance and cost savings, increase the role of government and raise, incorrectly, charges that the Democrats favor "socialism." Though the GOP has no plan, it exploits the cost of Democratic proposals. Even if people want universal coverage, they dislike higher taxes.

What Warren really seems to favor is a national health insurance system that covers everybody. But she may have wrapped that appealing idea in the wrong package. If that is her party's goal, other ways exist to achieve it that are less politically vulnerable.

There's the so-called "public option," which Obama failed to win. It would be a non-profit insurer, available alongside traditional insurers. Everybody would be required to have insurance or pay a heavy tax penalty. A non-profit providing better preventive care, the public option would offer lower premiums.

The public option would attract consumers, putting competitive pressure on other insurers and driving premiums down. It could drive out high cost insurers.

This is not pure theory. Maine had the highest worker's comp rates in the country until the state created a mutual insurance company, a non-profit competitor owned by employers and workers. It now insures 60 percent of the market, insurance rates have fallen sharply, and worker safety has improved.

Or, the government could follow the example of Switzerland, a country with a conservative economic tradition similar to the U.S., unlike Scandinavia. Swiss are required to buy health insurance, whose costs are subject to some regulation. For those who cannot afford premiums, the government provides a premium subsidy.

The Democrats could also propose utility-style regulation of drug prices, allowing manufacturers only their costs (without advertising) and a reasonable profit. Drug prices are regulated in many countries. In Europe this year, I bought the same med, produced by the same drug company, for less than 10 percent of its U.S. price.

Even with today's reform fervor, before candidates espouse "Medicare for All," they should combine innovation with caution. After all, it's still true that "politics is the art of the possible."

In impeaching presidents, some in Congress have opposed their party

Gordon L. Weil

Before President Trump, three of the previous 44 presidents faced impeachment and possible removal from office. Mainers played key roles in all three cases.

When the U.S. was still a century and a half in the future, a classic case of impeachment occurred in England. It is similar to what is done now, though the outcome today would be less harsh.

Charles I was the king of England in the 1600s and believed he reigned because God chose him to rule – "divine right." He shut down Parliament for years, levied unauthorized taxes and kept much of the money to support his lifestyle. He was above the law, he claimed.

Parliament insisted on its rights based on Magna Carta, an agreement with an earlier king. In the end, the two sides fought each other, not in London, but on the battlefield.

Documents were uncovered, showing that Charles had sought support from Ireland and countries on the European continent. Even some of his supporters thought he had gone too far. He was taken into custody. Parliament created a judicial commission, and Charles went on trial.

King Charles was charged with having tried to use foreign help for his personal purposes, enabling him to hold onto power. The commission found the king had abused his powers, and, in 1649, Charles was beheaded.

At the Constitutional Convention in 1787, Benjamin Franklin told that story. He insisted that the American Constitution should provide for a president's removal from office, less drastic than execution.

Impeachment by the House and conviction by the Senate would not be a criminal trial, but only a way to remove presidents who abused the broad, but limited, powers that they alone were given under the Constitution.

When authorized, the House procedure starts with its Judiciary Committee. It may propose charges, called Articles of Impeachment. In 1974, Maine Rep. Bill Cohen, a committee member, voted for charges against Richard Nixon, the president of his own Republican Party.

Presidents may object to an impeachment inquiry, but their real defense comes later. They must provide documents and executive branch witnesses. They probably cannot claim the benefits of "executive privilege" – the protection of confidential communications with the president.

President Washington first used executive privilege. But he declared it did not apply in case of impeachment, which is the House's exclusive power under the Constitution.

The next step is a full House vote on the Committee's proposed charges. Representatives Pingree and Golden may vote for some or all of the Articles. If Articles are adopted, the president is impeached, much like a grand jury indictment. The president would be charged, not found guilty.

If a president is impeached, the Senate decides on removal from office, the only possible penalty. The House selects prosecutors, called "managers," from among its members, and presidents provide their own defense lawyers. The Chief Justice presides, and senators act as jurors, saying nothing.

To achieve the overwhelming two-thirds vote required for removal, some of the president's own party would have to vote for conviction.

In the 1868 trial of President Andrew Johnson, the Republicans wanted him removed. Johnson, a Democrat who succeeded the assassinated Republican Abraham Lincoln, was saved by one vote. The first Republican to vote against his removal was Maine's William Pitt Fessenden. .

In 1974, Nixon, a Republican, resigned when he learned that many GOP senators would vote with the Democrats for his removal, achieving the required two-thirds vote. Both Maine senators were Democrats.

In the 1999 trial of President Bill Clinton, whose removal was sought by the Republicans, Olympia Snowe and Susan Collins, Maine's two GOP senators, voted against the charges and the result did not come close to a two-thirds vote for removal.

If Trump is impeached, the charges would likely include his seeking support from Ukraine for his political campaign, his business receiving money, called "emoluments," from foreign governments while he is president, and his attempts to obstruct the impeachment inquiry and other investigations.

The Constitution says that removal may result from conviction for undefined "high crimes and misdemeanors." Ultimately, the Senate would decide if Trump has abused his powers.

This is an unusual historical moment – the formal attempt to remove a president. Removal, though not impeachment by itself, would partly reverse the previous election's result, as Trump claims. But Vice President Mike Pence, elected with Trump, would become president.

Congress is populated by politicians, and its decisions will be both political and patriotic. A few, like Fessenden, Cohen, Snowe and Collins, all Maine Republicans, might not simply follow the party line.