Mark Penn: Pelosi, Dems wrong to hound Trump with continuing investigations

Impeach him! He has disobeyed Congress!

Those words rang out both this week and in 1868. While the themes then and now are the same, hopefully the outcome will be different.

The impeachment of President Andrew Johnson is widely recognized as one of the most embarrassing moments in American history, in which unrestrained partisanship almost won the day. But it was also a day in which one senator, as recounted by President John F. Kennedy in his book “Profiles in Courage,” stopped us from becoming just another banana republic.


House Speaker Nancy Pelosi, D-Calif., missed her “Profiles in Courage” moment Thursday, adding “villainous” to her laundry list of accusations against President Trump. Rather than stand firm against her caucus and move the country forward, she caved and started to call the assertion of executive privilege a “cover-up.”

Pelosi might oppose it and might fight it in the courts, but it’s no cover-up. It’s a clear and legally appropriate message that enough is enough.

Remember that there were already multiple all-out congressional investigations over the last two years in addition to Special Counsel Robert Mueller issuing 2,800 subpoenas, interviewing 500 witnesses and ordering 280 interceptions of communications while employing 40 FBI agents and 19 lawyers.

America cannot operate this way. Hounding presidents with investigations cannot become a substitute for elections. I did not believe it in 1998 when President Bill Clinton was impeached and I don’t believe it now.

Americans routinely vote for a divided government and so if this is not stopped it will grind down our ability to govern at all, which is precisely the goal of many pushing this approach.

Hounding presidents with investigations cannot become a substitute for elections. I did not believe it in 1998 when President Bill Clinton was impeached and I don’t believe it now.

We are a nation based on orderly elections and transfer of power. We are based on the equal application of our laws and not allowing legislatures to single out individuals and families for persecution.

Those in Congress who are continuing this effort may score some points with a frenzied base. But I believe those who are engaged on a one-sided, unrestrained effort to violate the rights of political opponents will, as in 1998 when Republicans lost seats after their impeachment battle against Clinton, pay a price in 2020.

They will pay an even heavier price to history when Americans look back on this period and say that our intelligence operations and media deliberately whipped up the public over Russia collusion crimes that never existed. And Congress, it seems, has not learned the lessons of 1868 or even 1998.

Rather than a thin majority in one house of Congress that the Democrats have today, the Republicans in 1868 had super majorities that were veto-proof. They manufactured an issue alleging that the president had fired the secretary of war in violation of a congressional act that required Congress to approve removing Cabinet officials. Sound familiar?

As recounted in Kennedy’s book “Profiles in Courage,” one Republican senator blocked the vote in the Senate. Even after the Senate was adjourned 10 days to pressure him, he stood firm and prevented President Johnson’s removal from office.

The Tenure Act on which the impeachment was based was later declared unconstitutional by the Supreme Court as violating the separation of powers.

The Constitution survived even the presidency of Andrew Johnson. The Constitution is once again being put to a test. No, not by President Trump, but by those who gained a majority in Congress and are once again misusing their authority.

The impeachment clause was put in the Constitution in the event of treason and other high crimes, not to be used as a weapon of political rage by those who lost an election.

President Trump, it is now confirmed, was under investigation from before he was even elected. He cooperated in unprecedented ways with the Mueller investigation that was by any measure a scorched-earth review of virtually every connection that anyone in the Trump orbit had with anything Russian.

There is not a single account of an inappropriate contact by Trump with anyone or anything Russian. Indeed, had he done something like leaning over to the Russian president, as President Barack Obama did in 2012, and whispered that he would have more “flexibility” after the election to negotiate on missile defense, Democrats would be shouting collusion and treason.

But it didn’t happen. The $40 million Mueller report is unambiguous that despite attempts by Russians, Trump and his campaign did not take the bait. According to George Papadopoulos and other sources, we are now learning that some of those approaches may have been from the FBI or CIA itself.

Without a doubt, the president was frustrated at being investigated to the ends of the Earth for something he didn’t do and that put a cloud over his entire presidency.

Trump did not, as Nixon did, pay hush money to witnesses. He did not, as Hillary Clinton did, destroy emails under subpoena. He did not, as President Bill Clinton did, lie under oath.

Trump considered firing the special counsel and had a fight with his own counsel over it. He tried to get messages through to his own attorney general that he was innocent.

Remember that the investigators had targeted Trump’s son and that the president’s friends, like Roger Stone, were being arrested by armed armadas for allegedly lying to Congress about inconsequential matters that would never be prosecuted except as a tactic to put extreme pressure on them.

In America, people have a constitutional right to protect themselves. They have that right when attacked in their homes and when unfairly investigated by the government. They have a panoply of rights to due process, equal treatment under the law, protection from unfair searches and seizures, and indictment by a grand jury.

Innocence is not a corrupt motive. It is an honest motive, and while even innocent people still could violate the law, a violation takes more than possibly exercising constitutional authority to fire an independent counsel.

That same issue – firing administration officials – was itself litigated in the embarrassing impeachment of Andrew Johnson. Unlike Johnson, who fired his war secretary, Trump backed down and didn’t even remove the special counsel, letting him complete his report.

While the Mueller investigation was ongoing, the former heads of national intelligence, the FBI and the CIA were on cable TV almost daily acting far more like political hacks than intelligence professionals. Their post-administration actions strongly suggest they had harbored that same animus during the campaign and transition.

Indicted alleged conmen like Michael Avenatti were allowed to use the president and his family like punching bags with impunity. They were all riding a celebrity gravy train of books, speeches and TV appearances created by the popularity of pushing the false Russia conspiracy theories.

Trump’s attitude today is simple. He endured this crazy, even unjustified investigation, so now let him govern and in 18 months we will have an election.

Instead, too many House Democrats, without any Republican support on their committees, have launched unrestrained and unprecedented new investigations of not only the president, but also his family and his businesses – falsely using their limited powers of subpoena in broad and unprecedented ways. New York state is even passing constitutionally prohibited bills of attainder to help them.


The Democrats have a choice – learn the lessons of history and walk back from endless investigations, or push forward and face the likely wrath of the voters for being no better than the last group the public fired from their job.

There’s a reason congressional approval is in the 20s in polls, while the president, the Supreme Court and almost every other institution of our government scores higher. It’s all about making the right choices for our country, not for a party.