Let’s not dismiss the Senate impeachment trial as a “kangaroo court.” That’s an insult to kangaroos, who lately have been suffering enough.
President Donald Trump and Senate Republican leaders seem to be planning a rushed, sham trial with no witnesses and limited evidence. This reminds me of a trial I once monitored of a Chinese journalist in Beijing: The proceedings were held in a majestic court building with high ceilings, plush courtrooms, crisp microphones and attentive security officers, all overseen by solemn judges — everything a justice system might want, except justice.
What’s at stake in this trial is the basic idea that America’s leader is accountable for misconduct. Without that concept, we may have a grand Senate chamber and eloquent speeches, but our democracy rings hollow. Without that principle of equality before the law, our grand Senate under Mitch McConnell simply becomes an American analogue of China’s rubber-stamp National People’s Congress.
McConnell’s grim determination to see no evidence and hear no witnesses is particularly hypocritical because in 1999, during the impeachment trial of President Bill Clinton, he did favor allowing witnesses. “It’s certainly not unusual to have a witness in an impeachment trial,” he said then.
Lindsey Graham, a member of the House and an impeachment manager at the time, was even more blunt. “If there’s any doubt, call witnesses,” he urged.
“In every trial that there has ever been in the Senate regarding impeachment, witnesses were called,” Graham noted then. By the count of House Democrats, the average number of witnesses is now 33 for each of the past impeachment trials.
Knowing that John Bolton as national security adviser referred to the Ukraine mess as a “drug deal,” why would senators not want to clarify what he meant? Why risk covering up a cover-up?
There are less strained arguments that McConnell and others could make against removing Trump from office. They could say that the president’s conduct, while improper, did not rise to the level requiring removal.
Instead, Trump and his defenders are pursuing a line of defense that would create an imperial, unchecked presidency, because it’s not clear what would ever merit impeachment and removal by their standards.
Trump’s team even suggests that “abuse of power” itself cannot be grounds for impeachment, calling it the “House Democrats’ newly invented ‘abuse of power’ theory.”
Newly invented? Abuse of power was central to the discussions of impeachment at the Constitutional Convention. Alexander Hamilton said that impeachment was the remedy for “the abuse or violation of some public trust.” It was also the basis for articles of impeachment approved by the House Judiciary Committee against both Clinton and Richard Nixon (the full House rejected that article against Clinton, and Nixon resigned before a full House vote).
Frank O. Bowman III, a constitutional law scholar who is cited in the president’s legal brief, called that same brief “a well-crafted piece of sophistry.”
Trump and his supporters simply make assertions without regard to reality. This is an echo in the impeachment domain of the 16,241 false or misleading statements Trump made in his first three years in office, by the count of The Washington Post.
For example, Trump’s backers insist that impeachment and conviction require a violation of a particular criminal statute, even though most scholars agree that that is not the case. Indeed, one early impeachment was of a judge who presided while drunk, which was not a violation of criminal law.
Trump’s lawyers argue that removal from office would amount to “nullifying an election and subverting the will of the American people.” Under that reasoning, despite the Constitution, a president could never be removed — and in that case, a president is untouchable.
We all recognize that a president has the right to pardon criminals, but suppose he pardoned hackers in exchange for “investigating” the Bidens? Or what if Trump announced that he would pardon every Republican bank robber?
Or suppose Trump fawned over Vladimir Putin to the point of returning Alaska to Russia?
As it happens, Alaska isn’t my example, but that of Alan Dershowitz, the president’s lawyer. “Assume Putin decides to ‘retake’ Alaska, the way he ‘retook’ Crimea,” Dershowitz wrote in a 2018 book. “Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to ‘its’ original territory.” Even that would not merit impeachment and removal by Dershowitz’s standards.
Note to Alaska senators Lisa Murkowski and Dan Sullivan: Your thoughts, comrades?
Do we really think that there should be no checks on a rogue president as he handed Alaska over to Putin — or Florida to Spain, while we’re at it — or even as he pardoned streams of Republican bank robbers? Must we tolerate an out-of control ruler who engages, in the words of the Declaration of Independence, in “a long train of abuses and usurpations”?
That’s the kind of system that we rebelled against in 1776, no?