Tuesday, February 4, 2020

SYCOPHANTS


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.