Last week, after Senate Republicans voted unanimously to approve their leader Mitch McConnell’s rules for President Donald Trump’s impeachment trial — fast-tracking the process and putting up barriers to the production of evidence and witnesses, Rep. Jerry Nadler of New York, one of seven impeachment managers, despaired over the strong chance that voters would not get a fair, comprehensive hearing of the case against the president.
“The president is on trial in the Senate, but the Senate is on trial in the eyes of the American people. Will you vote to allow all the relevant evidence to be presented here? Or will you betray your pledge to be an impartial juror?” Nadler said. “So far, I’m sad to say, I see a lot of senators voting for a cover-up, voting to deny witnesses, an absolutely indefensible vote, obviously a treacherous vote.”
Republicans were outraged. Sen. Lisa Murkowski of Alaska said she was “offended,” while Sen. Ron Johnson of Wisconsin called the House Judiciary chairman “out of line.” But Nadler wasn’t wrong. With the White House’s support, McConnell designed a pro forma trial meant to acquit Trump as quickly as possible.
If Senate Republicans wanted witnesses, they would have to vote — with Democrats — to get them. The course of the trial is in their hands, and thus far, they’ve taken the path of least resistance, speeding toward an acquittal for the president. Even John Bolton’s earthquake of an account — the former national security adviser says, among other things, that Trump wanted to freeze security assistance to Ukraine until officials there announced an investigation into Joe Biden — has yet to shake Republican resolve. The extent to which this changes is the extent to which McConnell thinks it hurts the Republican majority to stonewall a real trial.
If, despite new revelations and public pressure, McConnell can end the Senate trial without jeopardizing the president or that majority, then he and his caucus will have successfully conspired to shield the president from accountability. Nadler would be able to say he was vindicated.
So too could the earliest critics of the Constitution. In talking and thinking about impeachment, observers and participants have gone on (and on) about the Founding Fathers: about Hamilton and Madison and the Federalist Papers. But their opponents, the antifederalists, also thought about the process. In their fight against the Constitution, they covered every inch of the new governing document, touching every section, every article and every clause. Looking from the perspective of now — one week into the impeachment trial — it’s striking to see how, without knowledge of political parties or partisan factionalism, they captured the exact dynamic that will keep a corrupt president in office.
The Senate was a sticking point for the antifederalists. With its small membership and fixed terms, they thought it was too aristocratic; with its mix of legislative, executive and judicial powers, they thought it was too powerful. “Is a body so vested with means to soften and seduce — so armed with power to screen or to condemn — so fortified against suspicion and enquiry — so largely trusted with legislative powers — so independent of and removed from the people — so tempted to abuse and extend those powers — is this a body which freeman ought ever to create, or which freeman can ever endure?” the writer “Cincinnatus” asked in reply to James Wilson, a key delegate to the Constitutional Convention.
To the antifederalists, the historian Jack Rakove notes in “Original Meanings: Politics and Ideas in the Making of the Constitution,” the Senate “loomed as a conspiratorial den” that could collude with the executive against the rest of the government. It could use its legislative powers to strike down House legislation and its executive powers — treaty-making and confirmation of presidential nominations — to govern without the direct consent of the people. Here, again, is Cincinnatus: “One thing at least is certain, that by making one branch of the legislature participant in the executive, you not only prevent the legislature from being a check upon the executive, but you inevitably prevent its being checked or controuled by the other branch.”
The antifederalists looked to impeachment as a prime example of everything that was wrong with the Senate. Despite the expectations of the Constitutional Convention, the antifederalists did not think the Senate would ever remove the president, much less any other official it approved of. “Should he, contrary to probability, be impeached, he is afterwards to be tried and adjudged by the Senate, and without the concurrence of two-thirds of the members who shall be present, he cannot be convicted — This Senate being constituted a privy council to the President, it is probable many of its leading and influential members may have advised or concurred in the very measures for which he may be impeached,” Luther Martin, a delegate to the Constitutional Convention, observed in his November 1787 address to the Maryland legislature.
Likewise, the writer known as “Federal Farmer” argued that the high bar to removal and the deep entanglement of the Senate and the executive meant the impeachment power was practically a dead letter. “Under these circumstances the right of impeachment, in the House, can be of but little importance; the House cannot expect often to convict the offender, and, therefore, probably, will but seldom or never exercise the right.” And in an unpublished pamphlet, a young James Monroe levied a similar critique of impeachment. “In the operation of this government,” Monroe wrote, there might be offices “committed against one quarter of the community” that would be “highly beneficial to others.” In such a case, he asked, “could we expect from the representatives of these states a candid or impartial decision against the interests of their constituents?”
If we define the “interests of their constituents” as partisan interests — who wins, who loses — then, to answer Monroe, we cannot actually expect those representatives to make a “candid or impartial decision” against the president when he’s on the same side. It’s what we saw with the Clinton impeachment and it’s what we see now, as Republicans embrace Trump and rally to his defense.
The Senate has not been a cabal in most of the ways antifederalists feared. Senators have not conspired to make themselves a permanent aristocracy or make seditious treaties with foreign powers. But the advent of political parties, the rise of strong partisanship and the growth of hyperpolarization have created something of a “conspiratorial den” among co-partisans in ostensibly rival branches of government. Republican lawmakers have an interest in the political survival of the Republican president, just as Democratic lawmakers have an equivalent interest in the survival of a Democratic president. And for Republicans under Trump specifically, their political survival depends on, in Luther Martin’s words, “the favour of the President.” Just ask Jeff Flake.
The trial against our corrupt chief executive is clearly slanted in his favor. If the antifederalist opponents of the Constitution could see us struggling now, they might just say, “We told you so.”