John Coates🤔 @jciv father, professor, law, finance, M&A, governance Dec. 08, 2018 4 min read

I know a widespread view among many Dem leaders is that impeachment by the Dem-controlled House would be a mistake if the GOP-controlled Senate won't convict. 1/n

This view is now the standard wisdom of how the popular Dem desire for impeachment is misguided, naive, uninformed, reactive. 2/n

It has a basis: the Clinton impeachment by the GOP is viewed correctly as having backfired against the GOP in part because the Senate refused to convict. 3/n

Or, more generally, if you aim at the king you need to kill him. 4/n

But increasingly I think Dem leaders, and voters, and indeed voters generally need to move beyond this analysis. 5/n

It seems increasingly likely that we will get evidence from more than one investigation - Mueller, SDNY investigating Cohen and the Trump Org, private litigation under Anti-Corruption Clauses + House committees - that will support a belief in multiple convictable offenses. 6/n

The litany could well include:

-- bribery of foreign officials
-- money laundering
-- bank fraud
-- intentional campaign finance violations
-- perjury
-- obstruction
-- witness tampering
-- conspiracy to commit larceny [email hacking]
-- conspiracy to commit espionage


In addition, there will likely be evidence to support conduct that does not violate any specific crime but which would support impeachment +conviction:

-- collusion with foreigners bent on harming the US
-- aiding + comforting same
-- etc.

[Not "treason" but close to it.]


So here's the dilemma;

Despite all of that, the GOP Senate will still be led by a man who spent the last 8 years with the sole announced goal of opposing Obama in every way - in other words, someone not ever interested in doing something because it's right, for that sake.


Moreover, to convict, the vote to remove a president is two-thirds.

So 34 GOP Senators could block it.
So even if 19 GOP Senators voted to convict, and all Dems, it would still fail.


In sum, it's very possible that any neutral observer would say the investigations have shown that Individual-1 should be removed from office, and yet it may remain politically impossible until 2020.


So what then should the Dem House leaders do?

It's not as simple as saying -- if we can't convict, we shouldn't impeach.

At some point, the evidence may require impeachment even if conviction is uncertain or even unlikely.


By "require impeachment" I mean both the demands of justice and the demands of the people.


Or in sharper tones, at some point Dems risk undermining their own personal chances of remaining in office -- or even of defeating the GOP for president -- in 2020 if they do not impeach -- regardless of whether they can convict.


The conventional wisdom should thus be more complex. Dems -- and responsible GOP leaders - need to present a compelling political case for conviction as part of the lead up to impeachment - so that even if conviction does not follow, they will have done their job.


Another piece of conventional wisdom is that if it's clear enough for the Dems to move on impeachment, it will be clear enough for the GOP to convict. So my scenario won't come true.


But that presumes full information and/or similar beliefs about what the information means.

Neither is likely here.


On the information: it's likely that some of the evidence will be witness evidence - from, on the one side, people like Cohen and Weisselberg, and, on the other side, people like Kushner and Stone. In other words, dualing liars.


Further, some of the evidence will be indirect. E.g., if DJTJr made a call to a blocked number before and after the meeting in Trump Tower, and he has no good explanation of who he called, do we infer he called Individual-1?


Social science - see, e.g., the work of Dan Kahan - tells us that people can often see the same evidence through very different lenses, and end up with even more opposed views than before seeing the evidence.


Thus, the country may well we polarized even further after the reports start to come in. 21/n

We may well end up in a place where 2/3 of the population thinks it's obvious Individual-1 should be removed from office, but 1/3 thinks it's obvious the whole thing is equivalent to Clinton's impeachment -- a nearly-nothing burger.


The result may well be (a) an impeachment, (b) no conviction, and (c) the record for both being the primary focus of elections in 2020, with some voters rewarding some pols for doing opposite things.


In sum, dedicated teams in the House and Senate should gear up for a very carefully written and promote-able tract to best make the case for removal to the largest number of voters in swing districts and states, and stop hoping that we will get to 2020 before it is needed.


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