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Former federal prosecutor identifies major 'hole' in the impeachment case against President Trump

Democrats do not have an impeachable offense

Olivier Douliery/Pool via Bloomberg

Former U.S. Attorney Andrew McCarthy says there is a major "hole" in the Democrats' impeachment case against President Donald Trump.

McCarthy wrote in National Review that it's obvious that the Democrats obviously "do not have an offense sufficiently grave for invocation of the Constitution's nuclear option." If they had one, McCarthy said, their "machinations and the posturing would be unnecessary — even ridiculous."

The former Assistant United Stated Attorney for the Southern District of New York then asked, "Why are we talking about how Chairman Schiff, Speaker Pelosi, and House Democrats rushed through the impeachment inquiry without making a real effort to interview key witnesses?"

Tough questions for Democrats

McCarthy, who led the prosecution of 12 terrorists involved in the 1993 World Trade Center bombing and other plots against New York City, laid out a series of questions that demonstrate the tenuous nature of the Democrats' impeachment case against President Trump.

Why was the Democrats' impeachment gambit driven by the election calendar rather than the nature of the president's offense? Why were the timing of hearings and the unreasonable limits imposed on Republicans' ability to call witnesses dictated by the frantic rush to get done before Christmas recess — to the point that Democrats cynically vacated a subpoena they'd served on a relevant administration witness, fearing a few weeks of court battles that they might lose?

Why did Democrats grope from week to week in a struggle over what to call the misconduct they accused the president of committing – campaign finance, extortion, quid pro quo, bribery? How did they end up with an amorphous "abuse of power" case? How did they conclude that an administration that goes to court rather than instantly surrendering potentially privileged information commits obstruction?

Why such tedious recriminations over adoption of Senate procedures that were approved by a 100–0 vote the last time there was an impeachment trial? Why all the kvetching over whether witnesses will be called when those procedures provide for the calling of witnesses in the likely event that 51 senators — after hearing nearly two weeks of presentation and argument from both sides — want to hear from one or two of them?

"None of this would have happened," he added, "if there had been a truly impeachable offense."

The founders reserved impeachment for 'extraordinary wrongs'

McCarthy argued that if the Democrats suspected Trump of committing truly impeachable offenses, they would have allowed his lawyers to be present during the House hearings.

"Democratic leaders would have worked cooperatively with their GOP counterparts, as was done in prior impeachments," he wrote. "They would have told the president: 'Sure, you can have your lawyers here, and call whatever witnesses you want.'"

The former prosecutor also noted that the framers of the Constitution expected presidents and federal officials to occasionally abuse their powers, but that impeachment and removal from federal offices was only intended to be used for "extraordinary" crimes.

"We don't leap from abuse to expulsion. We don't expect routinely to expel members of Congress or impeach presidents and judges. That is reserved for historically extraordinary wrongs." Instead, McCarthy argued, that lesser abuses of power are to be checked by other branches and elections, not impeachment.

McCarthy concluded by arguing that although Trump's dealings with Ukraine are a legitimate 2020 issue, by exaggerating their severity, the Democrats have underscored that they do not amount to the kinds of "extraordinary wrongs" that merit impeachment.

"If there were real impeachable misconduct, there would be no time or place for games," he wrote.

One last thing…
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