Conviction of Trump in Senate might be more likely outcome

The conventional wisdom in Washington, DC, holds that convincing 20 Republican senators to vote to remove Donald Trump from the presidency will be impossible. Mitch McConnell has built his Senate majority leadership around the idea of uniform obstruction of Democratic initiatives. But, both have much to worry about, when it comes to a vote on impeachment.

First: Trump is not well-liked by Republicans in the Senate. Most never publicly defend him, and none have argued that he did not ask for favors on the July 25 phone call at the heart of the impeachment inquiry. The President himself is known to routinely fume at Republicans that they refuse to defend him on the substance.

Worse still for Trump, Republican senators’ allegiance to him seems to be entirely transactional—based only on the idea that it would help them to be aligned with him. Trump is the most unpopular president in the history of polling. He has never had 50% approval from the public, and even among his own most ardent supporters, 1/4 tell pollsters they don’t trust him.

Second: The Constitution explicitly prohibits receiving anything of value, including personal or political favors, from foreign heads of state (Article 1, Section 9, Clause 8). The Constitution also explicitly prohibits bribery and lists it as cause for removal from office (Article 2, Section 4). Federal law makes clear solicitation of a bribe is bribery, and the use of pressure to force payment of a bribe is extortion—a more serious crime which could trigger anti-racketeering investigations.

Third: Impeachment is not a political exercise, where partisan allegiance is an acceptable reason for a vote; it is a judicial process—deliberately conceived as such by the founders, explained explicitly to be so in the Federalist Papers, and found to be so by a recent federal court ruling. That means United States Senators have binding legal obligations to consider the evidence and the law, and no other allegiance, in deciding their vote.

Fourth: President Trump’s menacing threats against witnesses and investigators are federal crimes.

• Given the judicial nature of the Senate trial, the need to protect witnesses in order to safeguard the independence of the judiciary, and the fact that the Chief Justice will preside over the Senate trial, Trump’s threat to the rule of law will be front-page news throughout any Senate trial.
• All senators will have to choose, far more concretely than the conventional wisdom imagines, between Trump and the Constitution.

Fifth, and not least: House Speaker Nancy Pelosi is a far more effective legislator than Senate Majority Leader Mitch McConnell. She does not act recklessly, she does not obstruct, she does not cave, and she does not lose votes. She is the only House Speaker who has never lost a vote. McConnell will not even technically control the Senate trial.

Sixth: The pressure on Republican senators to side with the Constitution over Trump will be far more severe than is now understood.

1. The American people overwhelmingly reject Trump’s criminal corruption of the Presidency.
2. The 2020 election will see more than 60% of voters coming from the three generations younger than Baby Boomers. (That number was 52% in 2018.)
3. Younger Republicans in both houses are actively planning for a “post-Trump” reinvention of the Republican Party.
4. Any senator in a swing state will likely be unelectable if they vote to protect Trump.
5. Trump’s ability to deliver any transactional value to any senator will collapse, and they will have little reason to stand with him.

Seventh: Republican senators who have been defending Trump by citing White House talking points now find themselves in hot water, as the Ukraine-Crowdstrike conspiracy theory has been revealed to be Kremlin propaganda, and part of an ongoing military cyber-attack on American democracy.

Finally, this: 67 votes are not required to convict and remove Trump. The Constitution specifies that conviction and removal from office requires “the Concurrence of two thirds of the Members present” (Article 1, Section 3, Clause 6).

Privately, there has been discussion for some time that the Republican Senate Conference will split three ways on conviction:

1. Vote to Acquit
2. Vote to Convict
3. Boycott / Abstain / Recuse

The fact that Donald Trump’s relationships are at best transactional means all Republican senators will have to choose from the following list of motivations:

1. Legal obligation and personal loyalty to the Constitution
2. Trump’s unprecedented unpopularity
3. Mounting evidence Trump is supporting Russian interference in 2020
4. Public evidence of criminal witness intimidation by the President
5. The long and focused gaze of history judging them for their judgment
6. Peer pressure — Jeff Flake estimates “at least” 35 Republican senators may be ready to convict

If 10 Republican senators abstain from the vote—either because they believe they have not heard enough evidence to support a vote either way, or because they want to “boycott” the process—only 13 Republicans might be needed to convict. If 20 Republicans abstain, only 7 Republicans might be needed to convict.

This is not a far-fetched possibility; issues of war and peace are decided in part by the abstention of major powers in UN Security Council votes. Abstention is a choice, and may be the most defensible choice for more than a few Republican senators.

The fact is: The question of whether Donald Trump can or will be convicted and removed will not be decided by White House talking points or the supposed existential terror of Trump tweets. We are, in fact, in the midst of a Constitutionally defined process to examine the question of whether the President committed high crimes against the people of the United States and their laws.

The news of the day is this: Trump will not have the uniform support of Republicans in the Senate. Forces far more powerful than Trump’s flimsy political support will influence Senators’ decisions. There very well may be a pre-existing bipartisan majority in the Senate to support Trump’s Constitutional removal from office.