The theoretical impartial senator and the very real imperial president: Thoughts on the impeachment trial

January 29, 2020

By Matthew E. Milliken
Jan. 29, 2020

If there were such a thing as a truly impartial senator, then he or she might be in quite a pickle right now.

Before start of the ongoing proceedings against the president, senators took the following oath: “I solemnly swear [or affirm] that in all things appertaining to the trial of the impeachment of Donald John Trump, now pending, I will do impartial justice according to the Constitution and laws: so help me God.”

The House of Representatives’ impeachment managers have presented an impressive case; the president’s defenders have mounted a vigorous defense. There are flaws in each.

Much of the argument for convicting the president is circumstantial. There’s the July 26 cell phone conversation between Trump and his ambassador to the European Union, Gordon Sondland, that foreign service officer David Holmes partially overheard on a restaurant patio in Kiev. On that occasion, the president’s only specific question about Ukraine was whether the nation was going to go ahead with an investigation that would damage Democratic presidential candidate Joe Biden and his son Hunter.

That’s powerful evidence that Trump was withholding diplomatic and military aid to Ukraine with corrupt motives. But the House doesn’t have Trump saying outright that he was doing so.

Former National Security Advisor John Bolton did hear Trump say that, according to the manuscript of his new memoir, as The New York Times reported Sunday night. Bolton declined an invitation to testify before the House, and it’s unclear if the Senate will vote to call witnesses during the current trial. Bolton has said he would obey a subpoena from the Senate, but the president’s lawyers would almost certainly fight to prevent or severely circumscribe his testimony.

The president’s legal team, of course, has argued that manipulating foreign aid with those motivations is within the scope of the chief executive’s powers. “If a president, any president, were to have done what The Times reported about the content of the Bolton manuscript, that would not constitute an impeachable offense,” Harvard law professor Alan Dershowitz told the Senate on Monday evening on behalf of the president. “Let me repeat: Nothing in the Bolton revelations, even if true, would rise to the level of an abuse of power or an impeachable offense.”

“If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz further asserted Wednesday afternoon in response to a question submitted by a senator.

I find myself persuaded by the Democrats’ argument that to allow the president such scope of action would essentially allow him unchecked power without accountability.

The president’s defenders are more convincing with some of their criticisms of the House impeachment process. Calling witnesses who haven’t testified before the House likely would bog down the Senate for weeks if not longer, as the White House team says. They’re also right to call out the start-and-stop nature of the House impeachment effort, which saw a 28-day delay between the House’s approval of two charges against the president and the transmission of the charges to the Senate. (However, as National Public Radio noted, the Senate was only in session for five days during that period.)

Perhaps more importantly, I wonder whether the defense’s contention that subpoenas issued in the impeachment inquiry prior to a vote by the full House. If so, that would entirely negate the second impeachment charge of obstruction of Congress. On the other hand, the Constitution delegates the power of impeachment to the House, so objections by outside parties may in fact be moot. I suspect that constitutional scholars will wrangle over this issue for decades.

What’s crystal clear is that the Trump administration is dead set against any cooperation with Congress on impeachment. As Democrats have noted repeatedly during the trial, the House of Representatives subpoenaed former White House counsel Don McGahn last spring; the matter is still being litigated. This matter isn’t directly related to the current trial, but it’s a fair indication of the resistance the executive branch is putting up and would put up to any oversight that Trump resents.

In the end, if I were in the shoes of our hypothetical impartial senator, I think I’d find myself voting to convict Donald Trump for abuse of power, the first of the pair of charges that the House of Representatives referred to the Senate. If he isn’t held accountable for his behavior, that will have very serious consequences. Not only will Trump feel emboldened to use his powers in any way he sees fit, future presidents will be able to cite his acquittal as justification for soliciting foreign election interference.

During their opening arguments, Democrats urged the senators to consider the character of the man on trial. Donald Trump has rarely if ever shown any compunction about lying and cheating. He openly solicited foreign election interference by Russia in 2016, something he passed off as a joke; he freely told a reporter that he would at least listen to damaging information that a foreign government offered him about a political rival; he openly asked China to investigate the Bidens; he held up foreign aid to Ukraine in exchange for the announcement of an investigation of the Bidens.

If our impartial senator wishes to prevent the president of the United States to have the unbounded reach of a monarch, she or he must convict Donald John Trump of abusing the power of his office.

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