The Impeachment Trial and the Assault on American Democracy

If the impeachment trial of Donald Trump for the charges of abuse of power and obstruction of Congress continues on the path set for it on the first day by Senate Republicans and the President’s defense team, it will constitute the greatest assault on American democracy since the Civil War.  More so than the President’s campaign’s efforts to coordinate with the Russians to favor his election.  Even more so than the behavior in the impeachment’s own charges against the president:  that for his personal political benefit he used the power of his presidency to withhold funds mandated by Congress for Ukraine’s military defense against Russian aggression, in order to extort that country to announce an investigation of a political rival (Joe Biden), and that in unprecedented fashion he obstructed the Congress’s investigation of those events.  As such, it will either portend the end of our democracy or so diminish it that it will take generations to repair.

The Founders’ Faith in the Senate

The Constitutional Convention of 1787 concluded that the U.S. Senate was the body best fit to conduct a judicious trial of the impeachment of a president.  Noting the difficulties that attend having any political body judge such a trial, Alexander Hamilton–in The Federalist Papers: No. 65–put the rhetorical question, ‘Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent’ for judging impeachments.  The Constitution gave the House of Representatives the authority to file articles of impeachment, the legal accusations being made against the president.  House members–by dint of their shorter terms of office and smaller constituencies–were more tightly linked to the desires and passions of their districts’ citizens, hence collectively to the nation’s democratic pulse.  Senators, with their longer terms and broader constituencies, were considered to be more judicious, contemplative and impartial, above the fray of narrow partisan politics.  Over the generations the Senate came to be called ‘the greatest deliberative body in the world.’

Unfortunately this aspirational view has little in common with Senate Majority Leader Mitch McConnell’s Senate, and much less with the impeachment trial he and his GOP colleagues are managing.  In Federalist 65 Hamilton asked again, ‘What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?’ (caps in the original).  Before the trial of President Trump began, McConnell roundly rejected the Founders’ vision.  ‘Everything I do during this, I’m coordinating with the White House counsel,’ he said.  ‘There will be no difference between the president’s position and our position as to how to handle this.’  Senate Republican trial planners envisioned a short trial with no witnesses that would produce the predetermined outcome of acquittal, given the GOP’s 53-47 majority.

Rejecting Evidence

And on the trial’s first day, the Republican majority took a long step toward that outcome.  Quickly dispensing with the House managers’ (think ‘prosecutors’) lengthy and detailed arguments for their many proposals calling for the trial to include specific documents and witnesses, Republican senators rejected them all on identical votes of 53-47.  They chose instead to table the proposals for possible further consideration after the House managers and the President’s defense counsel presented their cases.

This set up the unprecedented legal anomaly that the impeachment trial may be held without relevant witnesses or documentary evidence, indicating that its outcome is predetermined.

Fact-Free Defenses of the President

Toward that end House and Senate Republicans and members of Trump’s legal team have raised an array of defenses.  These include that the President did nothing wrong; that even if he did, it did not rise to the level of an impeachable offense; and that abuse of power and obstruction of Congress are not even impeachable offenses.  As conclusions, any of these could be argued to eliminate the need for additional witnesses or evidence at the impeachment trial.  Importantly, none raises any challenge to the facts described in the articles of impeachment.

The first two defenses–that the President did nothing wrong or that what he did does not reach the level of impeachable offenses–are opinions that appear to be completely contradicted by the facts of the case against Trump.  These opinions seem nothing more than conveniently self-serving for Republicans wishing not to impeach him, whether because they fear his political retribution against their own electoral futures, or (much less likely) because they believe that his positive value as president uniquely and clearly outweighs the wrongfulness of his behavior.  They also contradict the views of the majority of Americans polled who say they support the removal of the president from office by the Senate, and of more than 500 legal scholars in the U.S. who asserted in an open letter that the president committed impeachable acts.

And there is this:  Given the president’s wholesale refusal to allow Administration officials to testify or to turn over documents for the House impeachment investigation, these first two defenses virtually require the Senate to subpoena them to ensure that the relevant facts of the case support either of these conclusions.  The defenses themselves contradict the refusal to allow this additional evidence into the trial.

Where’s the Crime?

The last defense–that the offenses charged by the House are not impeachable–is the most radical.  This argument will be asserted at the trial by the noted legal scholar and defense attorney, Alan Dershowitz.  He asserts that abuse of power and obstruction are not crimes or ‘criminal-like’ conduct, hence not impeachable.   He will have some difficulty asserting this, not least because he made a different claim in 1998:  “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime,” he said then, in connection with the impeachment of President Bill Clinton.  Dershowitz’s current position seems little more than sophistry as he leans it on such an amorphous and undefined phrase as ‘criminal-like.’  Not surprisingly, there has been very little support for this view in legal circles.

Nor is there any real support for it in history or in a reading of the nation’s founders.  Past Congressional impeachments have succeeded without asserting criminal acts or including mention of them in describing the charged misconduct.  And here again is Hamilton’s rendering of impeachable acts in Federalist 65, so much more solid than Dershowitz’s inscrutable phrasing:

       (Impeachable acts) are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.  They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.  (Caps in the original)

How completely the president’s Ukraine scandal fits Hamilton’s words.  Trump placed his personal political interests over those in the country’s own national security, then sought to nullify the Constitutional balance of power by thwarting Congress’s investigation of his behavior.

No, all three of these defenses fail.  They are unsubstantiated, contradictory, and fail to engage with the facts of the president’s efforts to extort Ukraine and to escape responsibility for doing so.

Whither Democracy?

By all accounts the Senate will vote to acquit the president of the charges against him, whether or not it votes to admit additional witnesses or documents.  The final tally for acquittal is likely to be 53-47, or have a few votes moving to the other column.  Republican senators will be virtually in lockstep in support of the president against these charges.  There will be few, if any, profiles in courage here.

It was telling that in the trial’s first day, the president’s defense team not only failed to engage with the facts of the case, they also uttered a number of clear falsehoods with the Chief Justice of the Supreme Court sitting just behind them.  In these utterances they simply aped the president’s penchant for misleading or lying without consequence.

It is no small irony that Republicans should back this particular president.  The impeachment charges against him describe episodes in a continuing pattern of obstruction, inviting foreign intervention in our elections, and other conduct in office that has undermined such constitutional requirements as the separation (and balance) of powers, the reviewability of executive action by the Congress, the rule of law, and the protection of American elections against foreign interference.  This pattern leads toward autocracy and tyranny.

If the Senate procedure is little more than a show trial for GOP senators, then they will not only have sold their souls for arguably the most unprincipled and unfit man to have held the nation’s highest office.  They will also have finally abandoned the Framers’ carefully wrought system of government designed to assure individual liberty and the democratic pursuit of a righteous happiness.

Democracies can be killed by war, and they can also be suffocated while they sleep.