Given the different interpretations offered by the Democrats and the Republicans of what hijinks President Trump had been up to in his dealings with Ukraine President Zelensky, one might assume that any additional witnesses or documents that might clear up the confusion would be welcomed by both sides in the big-tent extravaganza billed as the Impeachment of President Donald J. Trump.
Yes, we jest. The Republicans certainly have no interest in clearing up any confusion in the Senate trial of the President. If they did, they would offer all of the exculpatory witnesses and documents they have. The problem is, they don’t seem to have anything exculpatory to offer that isn’t itself readily impeachable by credible witnesses or documents.
So, of the thirteen federal officers who have been impeached and then tried by the United States Senate, we now have one, for whom no witnesses or documents were allowed to be introduced into evidence in the upper chamber’s deliberations. This has become a national civics lesson that has taught all of the wrong lessons.
Yes, yes, we know President Trump has been hounded and harassed ever since his election. So have many other Presidents. President Harry Truman called the press “worse than prostitutes,” but he also advised high-profile public officials to stay out of the kitchen if they couldn’t stand the heat.
Now, as these essays have opined repeatedly, the decision of the House Democrats to pursue the impeachment of President Trump was highly questionable from the outset—not because the charges were not credible, but because they were destined to fail, assuming their purpose was to remove the President, rather than to simply embarrass him or make his re-election much more difficult. Nonetheless, he was impeached by the House of Representatives, and the Senate had a constitutional duty to try the case fully and impartially. The Constitution, which provides for three co-equal branches of government, is the glue that holds this nation together. It is weakened at our peril.
The Republicans’ contention that it was the House’s sole responsibility to subpoena any witnesses and documents is embarrassingly fatuous, especially given that President Trump ordered that no officials and no documents were to be made available to the House committees considering impeachment.
The position the President’s lawyers advanced turns jurisprudence on its head. What if defendants were allowed to argue that once someone was indicted by a Grand Jury the prosecution could offer no additional witnesses or documents at trial? What a mockery of justice that would be. But that is exactly what the President’s attorneys have argued in the Senate trial, and that is what the majority-Republican Senate has now enshrined as precedent. History will not judge them kindly.
There has never been another federal impeachment in which no witnesses or documents were introduced in the Senate trials that followed—none. In addition to the trials of Presidents Andrew Johnson and Bill Clinton (President Nixon resigned after the House Judiciary Committee passed Articles of Impeachment, but before the full House could vote to impeach), one senator, fourteen judges, a supreme court justice and a secretary of war have been impeached. In thirteen of the impeachments, witnesses and documents were introduced in the Senate trials. In the remaining three cases the judges who were impeached by the House resigned before their trials commenced in the Senate, and in one case, that of Senator William Blount in 1799, the Senate determined that it didn’t have jurisdiction to try one of its own. In other words, witnesses were heard and documents were presented in the Senate trials of every federal official who has ever been tried in the United States Senate. That has been the wise legal precedent of our history to date. Not anymore.
Lawyers and judges like to tell us that precedent in decided cases should be respected. In this impeachment and trial, procedural precedent has been trampled. The shoddy manner in which the Senate majority has dispatched consideration of the charges against President Trump will reverberate down through the years.
We have absolutely no problem with the majority in the Senate voting to acquit, or, for that matter, voting to remove. We are also mindful that in America the President doesn’t serve at the pleasure of the legislature and, therefore, we must set a high bar for impeachment. Suppression of evidence, however, is not the way to keep that bar high. Voting to acquit after hearing all the evidence is the way to maintain a high bar for impeachment. We should all have a huge problem with the majority voting to suppress evidence, and that is exactly what they have voted to do. You can bet this precedent established by the Senate Republicans will come back to haunt us.
The President and his lawyers have made credible Trump’s claim that he has the power to do whatever he wants to do in discharging his duties as President. Such an interpretation of his power is antithetical to the American experiment. The nation will come to regret it.