Trump Impeachment: The Rule of Law in Retreat

With the adoption by the U.S. House Judiciary Committee of two narrowly-focused articles of impeachment, centered on and limited to the Ukraine affaire, we can observe in motion a major retreat by one of the world’s leading democracies from dedication to Constitutional government and the Rule of Law.

House Democrats, timorous and afraid of taking on Trump head-on, have persuaded themselves that it is too risky to include in the articles of impeachment (roughly equivalent to a charging document or an indictment) matters beyond Trump’s alleged abuse of power in the Ukraine affaire and his obstruction of congress in refusing to cooperate with the impeachment investigation.

The “abuse of power” charge is that Trump conditioned the delivery of military aid approved by Congress and a White House visit by Ukrainian president Volodymyr Zelensky on the latter’s conducting and announcing investigations into Joe Biden and his son Hunter, and into a conspiracy theory involving a company called Cloudstrike.

According to this conspiracy theory, Cloudstrike had computer servers in the Ukraine, which would prove that it had been the Ukraine, not Russia, which interfered in the November 2016 elections. By withholding the aid and the visit, the Democrats charge, Trump engaged in what was essentially extortion or bribery for his own personal benefit, to get dirt on a prominent rival for the presidency in 2020.

The “obstruction of Congress” count, contained in the second article of impeachment, is based on Trump’s refusal to comply with subpoenas for documents and testimony from government officials, even ordering them not to appear bfore Congress.

In so narrowly focusing the impeachment articles, omitting an article on “obstruction of justice” for the many cases detailed in the Mueller Report, the House Democrats have in effect conceded that the abuses of power and obstruction of justice Mueller described did not merit attention in their effort to remove Trump from office.

The omission of the obstruction of justice charge plays into Trump’s narrative that the whole Mueller investigation was a “witch hunt” and a “hoax”, and that he had done nothing wrong.

Even limiting their charges to the two articles, to remove Trump the Democrats need to secure the approval of two-thirds of the members of the Republican-controlled Senate.

Without having made a dent in Trump’s propaganda bubble, they are extremely unlikely to achieve this result.

Barring a miracle, Trump will be acquitted in a Senate trial. He will then claim that he has been vindicated, with good prospects for riding this propaganda horse to victory in the November 2020 presidential election.

This is an extraordinarily sad development for advocates of Constitutional government and the Rule of law.

What it means is that Trump’s attacks on international law and institutions are likely to continue. To cite but one among countless examples, it means that he will probably continue his attack on the World Trade Organization and the practical force of the multilateral rules governing international trade, which have been in force since the General Agreement on Tariffs and Trade (GATT) was adopted in 1947.

To date, Trump has paralyzed the dispute settlement provisions of the WTO by refusing to nominate individuals to the highest panel, depriving it of a quorum and the ability to decide disputes.

By this stratagem, Trump has sought to protect his administration from adverse legal judgments involving, e.g., his wholly specious invocation of a “national security” exception in order to apply tariffs in flagrant disregard of WTO rules.

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