Impeachment Shows How Partisan Politics Have Swamped the Constitution
If Nancy Pelosi were serious about garnering bipartisan support for impeachment, there were steps she could have taken.
The debate over whether to hold Donald Trump accountable for his role in the events that led to the siege of the U.S. Capitol has slipped into partisan farce.
Let me say up front I think it’s an open-and-shut case that Trump committed numerous impeachable acts, and in a healthy republic, any self-respecting Congress would have moved within hours of the assault to impeach, try, and convict him.
Over the 63 days between Election Day and the siege, Trump manufactured fraudulent claims that the election was stolen. He was recorded improperly—and almost certainly illegally—pressuring Georgia election officials to “find” the votes he needed to win the state. He invited supporters to come to Washington to pressure the vice president and Congress to commit unconstitutional acts so he could overturn the election he lost and hold power.
Whether Trump intended to incite violence or just negligently incited it is immaterial. The violence makes it worse, of course. But even exhorting the peaceful intimidation of officials conducting their constitutional duties would be a violation of his oath. Moreover, that the president was derelict in his duty to do everything he could to put down the violence once it was unfolding as he watched TV and fielded calls for help is also nakedly impeachable.
That said, it’s becoming clear that the Democrats don’t really care about convicting Trump. The impeachment article the House sent to the Senate was almost perfectly worded to give Republicans an excuse not to vote for it.
Trump “deserves universal condemnation for what was clearly impeachable conduct—pressuring the vice president to violate his oath to the Constitution to count the electors,” Texas Rep. Chip Roy said in his explanation for voting against impeachment.
“Unfortunately,” Roy added, “my Democratic colleagues drafted articles that I believe are flawed and unsupportable, focusing on the legally specific terms of incitement and insurrection.”
One can quibble with Roy’s reasoning—I do—but he has a point. Even in a political trial, incitement and insurrection are far more difficult charges to prove than abuse of power, dereliction of duty and violation of oath.
If House Speaker Nancy Pelosi were serious about garnering bipartisan support for impeachment, she would have consulted pro-impeachment Republicans such as Roy on how best to write the article. She would have lobbied Republicans to be floor managers in the Senate trial. Instead, she pursued a path that not only gave Republicans an excuse to vote against impeachment but also guaranteed that Trump would remain a political albatross for the GOP.
Similarly, the decision to wait until after Trump left office before sending the article gave Republican senators another excuse. It let them claim that trying and convicting a president who has left office is unconstitutional. (Whether a president can be impeached after leaving office is a non-issue; he was already impeached—twice—while in office).
Now, I think that claim is wrong. But after studying it further, I no longer think it’s absurd on its face. And given how desperate most Republican senators are to dodge their duty to hold the president accountable, that argument is a lifeline.
The irony is that it doesn’t matter if they’re right. The Senate will try Trump. And while it almost certainly won’t convict him, if the Senate did, that would make it constitutional because the Supreme Court would never overrule the decision. Think of it this way: The Constitution clearly says Congress must formally declare war for the U.S. to start a war. But there hasn’t been a declaration of war since 1942. We’ve had plenty of wars since then, and the court has never intervened. The impeachment power of Congress is just as nonjusticiable as its power to authorize military force.
But this is all moot because partisan politics has swamped the Constitution. All but a handful of Republican senators have decided that even if the Democrats can prove their case, they won’t care.
And now Democratic senators have decided to not even try to make their case. Senate Majority Leader Chuck Schumer and a slew of other Democrats have declared a quickie trial is all that’s needed.
“This is a pretty straightforward trial,” that doesn’t require messy testimony or witnesses, Democratic Sen. Chris Murphy (D-Conn.) told Politico. “I would hope we could get this done in a week.”
Why not, if the point of the whole thing isn’t to hold Trump accountable but simply to force Republicans to get on the record—one more time— defending the indefensible? It’ll play great in Democratic attack ads but not in the history books.