February 4,
2020.
We have just
gone through a revealing constitutional process that was televised and recorded
for everyone to see and, because of my retired status, I have been able to
follow it pretty much from A to Z. I say that, even though at this point the
final vote on the impeachment of Donald J. Trump, the President of the United
States, has yet to be taken. But, one of the remarkable aspects of this solemn
process is that the outcome was preordained by the political reality of our
time. Which, immediately, raises the question why the Democrats chose to go the
impeachment route in their legitimate efforts to perform the Congressional
oversight function which is such an important part of the constitutional powers
of the legislative branch of government. Fore sure they must have realized that
no American President has ever been removed from office before.
In spite of
all the contentiousness and disingenuity of the argumentation on both sides of
the impeachment battle, I found it fascinating to watch the actors in this
process putting life into words of a constitution that was written centuries
ago. It was a pity that the TV cameras were not permitted to bring us the
tableaux of what actually happened inside the Senate instead of being blindly
focused on whoever held the floor at any particular moment. What went on in the
heads of the actors on stage, the contestants, the senators, and the chief
justice, remained carefully hidden from us if they were not actually speaking.
We were all
curious to see how Chief Justice John Roberts would interpret his role in the
process of presiding over the impeachment trial in the Senate. And we learned
that he chose not to influence the course of the process, much less the
outcome. He stepped in only three times. Once to remind the contestants to
observe proper Senate decorum, once to block a question that would have exposed
the identity of the whistleblower who triggered the House investigation of the
Ukrainian quid pro quo, and once to declare that he would not be offering a
deciding vote if a Senate resolution would end up in a 50-50 tie (which never
happened).
Ultimately,
it came down to a dispute of what would (or would not) constitute a “high crime
or misdemeanor” as referred to in Article II, Section 4 of the Constitution. If
the President’s actions were found to meet this criterion, the Senate would be
obliged under the Constitution to indict him and remove him from office.
Even though
most of the President’s defenders tried to argue, as he himself did, that the
President did nothing wrong, confronted with the available evidence, the
Republican senators had to retreat to the position that “maybe it was wrong,
inappropriate, what the President did”, but it “did not constitute a high crime
or misdemeanor and therefore it was not impeachable and the President could
(should) not be convicted and removed from office”.
Many words
have been spoken, and written, about the unique features of the Senate
impeachment trial process. The way the Trump impeachment process has developed,
it has become clear to all of us that an impeachment trial is different, in
many aspects, from a trial of persons accused of and indicted for crimes or
misdemeanors under any of the criminal codes of State or Federal statutes. And
these differences largely benefit the President. Maybe rightly so, because it
should not be easy to remove the President from office. If the impeachment
trial had been a criminal trial, no doubt witnesses would have been called,
heard and cross-examined and both the prosecution and the defense would have
been allowed to introduce documentary evidence. The trial judge would have been
calling all the shots, rather than the Senate majority leader, who had already
declared that he was coordinating the process with the White House. In a
criminal trial, jurors would have been screened for existing biases for or
against the defendant. This time, the Senate, sitting in as the jury deciding
guilt or innocence, consisted in majority of members of the President’s party.
I may be
proven wrong, but I submit that the historic significance of Trump’s
impeachment trial will not be in the Senate’s verdict of conviction or
acquittal, but rather in the precedent it sets for Congress’ powers of
oversight of the Executive Branch. At a time that one President after another
(but no one more than President Trump) has been testing the will of the Congress
and the Judiciary to enforce the limits of executive power established in the
Constitution, it is important as ever to maintain the carefully crafted
democratic system of checks and balances between the three branches of
government. This system of checks and balances is at the core of the
Constitution and the democracy is threatened if the checks are not performed or
the balance is not maintained. By these criteria, the impeachment provisions of the Constitution failed the test of time and changing realities.
The degree
to which the GOP Congressional delegation has been surrendering its oversight
authority in deference to President Trump is astonishing. As if they are not
aware that the time may come, sooner than they will want to acknowledge, that
there will be a Democrat in the White House again and they will wish to see
Congress put the guard rails on the powers of the Executive Branch at that
time. Having said that, I realize that we cannot overestimate politicians’
capacity to reverse positions any time the shoe fits a different foot. How
revealing isn’t it that a comparison of the Clinton and the Trump impeachment trials
shows that the spokesmen for the Democrats and Republicans have been reversing
arguments, almost verbatim using each other’s arguments of 22 years ago against
the other.
Hypocrisy
reigns if it comes to political expediency. Most blatantly exhibited by Mitch
McConnell who, as Leader of the Senate, held up the nomination of Merrick
Garland to the Supreme Court on the grounds that we were in a Presidential
election year, but has already declared that he will immediately take up the
filling of another Supreme Court vacancy if it arises in 2020 before November 3.
The outcome
of the Trump impeachment trial demonstrates that we have arrived at the worrisome
reality that the President can get away with abuse of power and obstruction of
Congress as long as his party has a majority in the Senate. Fatefully, this new
reality destroys the ideal of two co-equal branches of government. For now,
this benefits the GOP. It will be different, but equally damaging, once the
shoe fits on the other foot. This is not what the Founders ever envisaged. In
their time, there were factions, but no institutionalized political parties. Madison
and Hamilton were both of the belief that a large number of Congressional
delegates would guarantee that there would always be enough of a diversity of
judgment and opinion to guard against a tyrannical majority imposing its will ad lib against all better judgment. They built
a miraculous structure for republican democracy, but they did not foresee that,
one day, that American democracy would be cheated by a collusion between an
immoral, self-centered, narcissistic President and a bunch of partisan sycophants who care more
for their hold on power than for the interest of the People they are supposed
to represent.
