As the impeachment trial of Donald Trump gets underway in earnest, those who are not following the fine points of the process and the roles of the various actors may find the goings-on confusing. On the other hand, those who’ve been following the process, re-reading Article 2 of the Constitution, and watching untold hours of television news may themselves also find the goings-on confusing. One reason is that there is variation in how impeachment and the trial that follows it are carried out even though specifics of the Constitution haven’t changed.
Just to clarify a couple of definitions: The process going on this week is not to determine impeachment. Trump was impeached last month, though he is yet to be tried by the Senate. However, whatever turns out to be the Senate action does not erase the fact and indignity of impeachment. Nothing ever removes an impeachment decision; it stands on its own. Be watchful as spokespersons or journalists on either side sometimes misuse the terms. I’ve heard persons who should know better using impeachment to describe impeachment plus trial. The term “impeachment trial” will also be heard occasionally, seemingly to mean only the trial itself.
The Constitution gives the House of Representatives “the sole Power of Impeachment” (Article I, Section 2) of federal officers and gives the Senate “the sole Power to try all Impeachments” (Article I, Section 3), thus the constitutional sequence is (first) impeachment and (second) a trial followed by exoneration or removal from office. Using terms as they are used in criminal cases, House action is like a grand jury bringing charges and Senate action decides guilt, much like a jury. There are differences, however, in that there is no judge equivalent, though the Chief Justice of the Supreme Court has some similar functions, but not all. (Even the Chief Justice’s decisions can be reversed by the Senate.) The charges by the House must be “Treason, Bribery, or other high Crimes and Misdemeanors” (Article II, Section 4). The Senate, upon conducting a trial, determines a verdict that rules whether the president should be removed from office, that is, has the House made its case about those charges. If so, the president is removed from office forthwith. If not, the process stops and the president remains in office. Nothing, by the way, prohibits the House from launching another impeachment inquiry.
As you can see, the president is not the only officer of the United States who can be impeached; lesser officers can be as well. You likely noted the term federal officers above. Except for those who follow such things in detail, the only person you’ll ever hear about being impeached is the president. Even then, impeachment of a president is a rare event (3 times in history: Donald Trump, Bill Clinton, and Andrew Johnson). If you missed the Clinton impeachment (his subsequent trial did not result in removal), it’s quite possible this is the only one you will ever see. President Nixon would have been impeached, but he saw the writing on the wall in time to resign before the House could pass an impeachment vote. If he had been impeached, on a scale of seriousness his case would have fallen between Clinton’s and Trump’s.
As I’ve pointed out in a number of previous posts, the Constitution was adopted at a time when no political parties existed in the sense they do now. That is relevant to the 2020 trial in that elected officials in the House and Senate identify quite as much with their party as with their chamber. The Constitution describes the role of the House and of the Senate, not the roles of parties. Hence, Republican Senators and House members are more politically linked to the president if he or she is Republican than if not. Of course, Democrats fall into the opposing trench. At this time, party bonds are extremely strong, so much so that the Senate since January 2017 has gone to great lengths to forfeit its constitutional independence in favor of pleasing the Republican president. The American political doctrine of separation of powers is on life support.
So we begin a trial tomorrow morning in which Republican Senate Majority Leader Mitch McConnell has already declared victory for the president. McConnell has applied considerable pressure to Republican Senators not to break ranks, while Democratic Senators are largely ignored (though they do vote). For a naïve observer of this process, it must look quite strange. Trust your gut; it is. Logic seems out the window in a number of ways. For example, Clinton was impeached for lying under oath about Monica Lewinsky, while Trump was impeached for immensely more important behaviors dealing with national security, bribing a foreign power with a delay of almost $400,000,000 to get help in his election later this year, and blocking relevant Executive Branch documents subpoenaed by the House for its impeachment process.
I have strong opinions about this process and about taking the Constitution seriously, as I’ve made clear in previous posts in this blog. I fear that Trump gravely endangers the rule of law, the separation of powers, and other matters of leadership and Constitution. But I also abhor Trump’s non-impeachable yet despicable behaviors and statements in ways that make the country coarser, less democratic, more shameful on the world stage, less committed to truth, and other loathsome elements of his presidency. Republican Senators and Representatives, the Republican Party nationally, and Trump supporters personally bear massive blame for allowing, even inciting, characteristics that destroy any hope for America to a model for the world. That City on a Hill, perhaps wearing a red cap, has passed us by.
We’ve all heard politicians and political commentators arguing that the impeachment itself was not fair (or it was fair). We will hear that the Senate trial is not fair (or it is fair). We may be adult enough to recognize that either judgment is suspect, dependent a great deal on whose ox is gored and who had prior allegiances going in. But the greater issue is not whether the current Senate trial is fair to President Trump.
The greater issue is whether it is fair to America.