US ambassador to 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.
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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.
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. 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.
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 the 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.
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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 Stafford 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 an upcoming book, The American Constitution: the Shortest History of its English and American Foundations.
- SMH/The Age
