As the Senate sits in the impeachment trial of President Donald Trump, dramatic new revelations outside the chamber contrast with a trial that has so far followed the expected script. While the explosive claims that John Bolton reportedly made in his forthcoming book have reinvigorated the push for witnesses, there is little drama about the expected conclusion—a near party-line acquittal. The ultimate result may seem inevitable, but how and why the Senate arrives there may have significant consequences for our constitutional system going forward.
Throughout the impeachment inquiry and subsequent trial, President Trump’s legal team has deployed reckless rhetoric and advanced shaky legal arguments seeking to not only exonerate him but to delegitimize the impeachment process itself. These claims strike at the heart of essential congressional powers. Distressingly, a number of the president’s allies in Congress have advanced or endorsed positions that, if accepted, will further degrade the power of the body in which they serve.
We’ve heard the impeachment process described as a “sham,” a “coup,” and even “Soviet-style.” (I’m not familiar with Soviet constitutional practices, but I’m fairly certain that Soviet-style impeachment proceedings involved things considerably less pleasant than a deposition in the SCIF, like an ice pick in the head.) We’ve been told that the House may not impeach or and the Senate may not convict in the absence of a chargeable crime, that a partisan impeachment is facially illegitimate, that the Senate should not independently collect evidence during its trial, and that the Founders wanted the voters, not Congress, to decide matters like this. These ahistorical claims are not grounded in the law or constitutional theory. To accept these claims, or even take them seriously, is to further degrade an already dangerously weakened Congress.
Despite what we often hear about “co-equal” branches of government, the Founders never used that term to refer to the separation of powers between the legislature, executive, and judiciary. On the contrary, they quite clearly intended for Congress to be the beating heart of our government. James Madison, writing in the Federalist Papers, reminds us that “In republican government, the legislative authority necessarily predominates” and that the “people are the only legitimate fountain of power.” A simple reading of the Constitution supports this: Article I spells out a rather lengthy list of congressional powers, the far briefer Articles II and III discuss the important but limited powers of the executive and judicial branches respectively.