Importance of initial public testimony in Trump impeachment inquiry

I’ve written an op-ed in The Sydney Morning Herald on this topic:


If Trump is unfit for office, his impeachers need to convince swinging voters

ByJames Philips

November 15, 2019 — 12.00am

US ambassador to the Ukraine Bill Taylor and Deputy Assistant Secretary of State George Kent gave the first public testimony in the Trump impeachment inquiry this week. Expect Democrat-leaning commentators to write that it was “compelling”, and Republican commentators to say “it does not prove any wrongdoing”. The real test will be how swinging voters react to the testimony.

Who's listening to the bad news ... US President Donald Trump this week.
Who’s listening to the bad news … US President Donald Trump this week. CREDIT:AP

The Democrats need Taylor’s and Kent’s testimony to convince non-partisan voters that President Donald Trump acted corruptly and that his conduct means he is unfit for office. The evidence needs to capture the imagination of swinging voters, not just of partisan insiders.

"Their supply chains are cracking very badly and they're dying to make a deal," President Donald Trump said of China.

Forty-nine percent of Americans are in favour and 46 per cent are against Trump being impeached and removed from office based on what they have heard so far, according to a recent Wall Street Journal/NBC News poll.

Burglary and a cover-up played well against Richard Nixon, indiscretion and perjury less so against Bill Clinton. The Ukraine is not top of mind for many American voters so, to get their attention, the Democrats need another narrative.

They need to turn Trump’s alleged threats to withhold American funding from Ukraine – unless it investigated the conduct of Joe Biden’s son Hunter – into a story about the integrity of the President and about compromising American interests abroad.

Top US diplomat in Ukraine William Taylor, right, and career Foreign Service officer George Kent, left, are sworn in to testify at the first public impeachment hearings into President Donald Trump this week.
Top US diplomat in Ukraine William Taylor, right, and career Foreign Service officer George Kent, left, are sworn in to testify at the first public impeachment hearings into President Donald Trump this week. CREDIT:AP

There are four steps to the impeachment process. Committees of the House of Representatives investigate. The House’s Judiciary Committee then considers whether to recommend impeachment. If it does, the House votes on whether to impeach. If it impeaches, the President will be tried by the Senate. If two-thirds of senators who vote are in favour of conviction, the President will be convicted and removed from office.

The Republicans have a majority in the Senate.

If the House impeaches Trump after finding compelling evidence, some Republican Senators could vote for conviction. Republican Senators will probably only vote to convict if they think they will be punished in the next Senate election if they do not.

The Framers of the American Constitution copied the impeachment process from the British, with some modifications. In Britain, peak impeachment occurred in 1640-42, the beginning of the English revolutionary period. The Commons impeached several of the King’s appointed officials. Later, when Parliament controlled all appointments and removals, the power to impeach became obsolete in Britain.

The political tension in impeachment proceedings in Britain was between the King and Parliament. In America, the political tension is between American voters and the House of Representatives. Not the voters who are stridently partisan, who have already made up their minds, but the moderate and non-partisan voters who have an open mind, and who may be influenced by the testimony and the story as it unfolds.

Trump thrives on conflict and conspiracy theories. It is hard to see him trying to salvage some dignity by resigning if faced with the prospect of impeachment, as Nixon did. He will use the impeachment process to energise his base.

The key question is: how will impeachment play for persuadable or swing voters?

On October 31 the House of Representatives authorised the Trump impeachment inquiry. Speaker Nancy Pelosi and the House Democrats had begun the impeachment investigation

unconventionally, relying on the standing powers of House committees, without a resolution of the House. That allowed the investigative process to build momentum before it was approved by the House.

The impeachment inquiry will energise both partisan Democrats and Republicans. But will it play out for other Americans as cynical politics, or as a necessary defence of the Republic against an unfit President?

The Democrats’ own loathing of the President and his often-egregious behaviour makes it difficult for House Democrats to judge this issue dispassionately. And years of exposure to Trump’s often bizarre behaviour may have inoculated many Americans against more news about his conduct.

When the most important impeachment case in history failed against the Earl of Strafford in 1641, the Parliament executed him anyway, using the political process of a bill of attainder. Bills of attainder are not available to the Democrats: they are prohibited by the American Constitution. Democrats need another Plan B, in case the Senate does not convict.

Their Plan B is presumably that the news produced by the impeachment process will sway voters, even if Trump is not convicted. That plan plays well to Democrat insiders. But it may not play so well among non-partisan voters.

The noise from partisan commentators is not what matters. It is the response of swinging voters to the public testimony that is crucial.

James Philips is a corporate lawyer, a visiting law lecturer at Sydney University, and the author of an upcoming book, The American Constitution: the shortest history of its English and American foundations.

Published by James Philips

When his younger son was four years old, one Saturday afternoon James found himself – for the first time in years – with several hours in which he was not working for his law firm or doing things with his young family. He picked up a book of his choosing. It was a history book. James was born in 1960 in Sydney, Australia. His late elder sister, Petrina (known in the family as ‘Beans’) taught him to read before he went to school. He was sick with asthma and bronchitis for much of his childhood, and spent a lot of time reading – especially historical stories. He liked to argue for his views, too. His father, Peter, had studied law after returning from service in World War II, and many of Peter’s and his mother Sue’s friends were lawyers. James decided early on that he wanted to be a barrister (a type of attorney who represents clients in Court). His uncle Bill spent many hours restoring a rotting sailing dingy, in which James taught himself to sail while on the family’s annual beach vacations. At school he did well in math and science subjects, but also in English and history (which is where his heart was). He was captain of his high school debating team, and acted in several plays. He also produced and directed a play, and assisted in the production of others. One of his actors only suffered mild rope-burn when the harness that James had made for a hanging scene slipped… James won a scholarship to Oxford University straight after school. He was not as motivated in his studies there as he had been at school, and did not feel any connection to England. Those factors, and two people, had a big role in his decision to leave Oxford after four of the nine terms of his course in Politics, Philosophy and Economics. The first person was a wonderful woman whom he fell in love with, but who dumped him. The second was Margaret Thatcher, whose government put up fees for overseas students to a level which James could not afford. James then studied for a liberal arts and a law degree at Sydney University. He made his first investments in the share market while at university, using money that he borrowed on a credit card. After graduating, he worked at a law firm with some outstanding lawyers, who were passionate about excellence, about their clients, and about building the firm. He stayed at that firm for thirty years, becoming a partner, then head of Mergers and Acquisitions in Sydney, then co-head of Corporate, and a Board member for eight years. He loved being a solicitor (a type of attorney who rarely represents clients in Court), and never switched to becoming a barrister. More importantly, he met Julie Claridge there. James was smitten, and they became engaged after James’s eighth proposal. They were married and then blessed with two wonderful sons. Like many Australians, James and Julie love to travel. They resumed travelling when their younger son was three. Both boys were – mostly – fine with the twenty-four hour flights that Australians take. James and Julie encouraged intellectual curiosity in their sons, and helped to teach them how to participate in fact-based discussions and debates. Family discussions have been wide ranging since the boys were young. While at his first law firm, James was able to advise many local and offshore clients. He also helped the firm to grow its offshore business. He made a trip to Myanmar to test a recommendation that the firm should open an office there: he recommended that it should not. He advised the first company from the People’s Republic of China to list on the Australian Stock Exchange. He later made many business visits to the PRC. For more than twenty years he has been a visiting lecturer at the law school of the University of Sydney (currently ranked 12th in the world), teaching two topics on equity capital markets law. He wrote a long chapter for a leading subscription publication, on public merger and acquisition law in Australia. He has convened and spoken on many panels, and at many seminars and conferences. When he became head of Mergers and Acquisitions, to encourage some of his partners to take oral communication training, he took the training himself. He learnt a lot about the importance of preparation before every meeting and every presentation. His law firm was an innovator in teaching its lawyers to present complex advice concisely and with clarity. He is a director of a leading Australian think tank, and Chair of two real estate investment trusts. James and Julie have always lived on a pre-agreed amount, paid their taxes, made donations and used the rest of their income to invest. James sees investment as trying to apply knowledge about a range of topics to predict the future, and to pick future winners. At the end of the Great Recession, James and Julie sold their family home to take advantage of depressed investment asset values. After coming second in an election for Chair of his law firm, James moved to a global law firm where he became head of Corporate in Australia. There he sat in open plan, with a team of very capable and motivated young lawyers. He discovered that they did not know much about history or literature. In 2018 James decided to embark on a new project – to write a book about an important historical topic, in the hope that he could help to spread knowledge about what made the world as it is. He resigned as a partner from his law firm, and began work on his new mission.

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