As I’ve watched the impeachment drama unfold, I’ve been struck by the universal willingness of Republicans at all levels to dutifully regurgitate their party’s arguments in a unified, concerted, premeditated effort to delegitimize the House’s impeachment proceedings in the minds and hearts of the public.
A fairly large percentage of Alaskans reading that sentence will immediately dismiss my concerns as being just another snowflake liberal mindlessly spouting his own party’s line. But I’m not a Democrat, and I’ve tried my best to view everything that has happened so far through the lens of the Constitution of the United States. The truth revealed by that lens seems clear and self-evident to me. Enough so that I feel a duty to share my personal exploration through the ins and outs of this sad chapter in our nation’s story, in hopes that doing so might help convince Alaskans who are still open-minded about where they stand to remember to look to our constitution for guidance. Maybe I can even to sway our congressional delegation to do likewise.
So I invite you look at exactly what the Constitution of the United States says about the powers of impeachment, and contrast those words with the arguments the President, the Senate Majority Leader, and their congressional minions have used to justify their intensive effort to overthrow this constitutional process. Since they now seem to function as a single-cell organism, from here on I’ll refer to them collectively as simply “the GOP.”
The constitutional clauses that are most directly relevant to analyzing the GOP strategy are the three that specifically divide and assign impeachment authorities between the House and the Senate:
Article I, section 2, clause 5: “The House of Representatives shall chuse [sic] their Speaker and other Officers; and shall have the sole Power of Impeachment.”
Article I, § 3, cl. 6: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present.”
Article I, § 3. cl. 7: “Judgement in cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.”
It’s not all that complicated to filter each of the major GOP arguments against the impeachment of President Trump through those articles. Let’s look at each of them, one by one.
“The impeachment is an illegitimate partisan attack on the President.” The GOP is working hard to convince citizens that a constitutionally mandated power of one-half the legislative branch of our government is invalid simply because its leadership is in the hands of the opposition party. The trouble with this argument is that the clause clearly does not end with “…except in cases where the House’s Officers are members of a party in opposition to the President.” No president has ever been impeached by their own party. The party holding the presidency always has zero vested interest in upsetting their own hold on power by impeaching their most powerful member. It’s inevitable that there will always be, as there has always been, an inherent partisan bias in the instigation of any impeachment.
President Trump is the original author of this “treasonous partisan plot” approach (it’s his primary excuse for refusing to cooperate with the House process) and he continues to dismiss – or is simply ignorant of – the fact that the House was completely and utterly within their constitutional authority to launch the impeachment. It’s their absolute and unquestionable right to do so under the Constitution. “…the sole power of impeachment.” Period. It couldn’t be clearer: no one – no President, no Senator, no political party, no 35% of our population – is authorized by the Constitution to simply declare a House impeachment process invalid. The one and only constitutional remedy for any errors or unfairness on the part of House members when conducting an impeachment is at the polls during the next election. An innocent president and his allies let that outcome take its course by cooperating with the hearings and the trial and proving their innocence through the evidence; not by furiously working to avoid doing that very thing.
“The House’s conduct of the impeachment hearings was procedurally incorrect.” Once again, article I, § 2, cl. 6 holds the true answer, through exclusion: it doesn’t provide a single word of guidance on how a House impeachment is to be conducted. That purposeful omission, when taken in context with “…the sole power…,” clearly means that ultimately only the House gets to determine the methods and procedures for initiating and conducting its impeachment process. That makes any Presidential or Senate complaints about the House’s process constitutionally irrelevant. The President is clearly obliged to cooperate with whatever the House decides their own procedures to be, and the Senate is clearly obliged to conduct a thorough and ethical impeachment trial, regardless of what they think about the House’s procedures for conducting their initial part of the overall process.
“The Senate will negate this illegitimate impeachment by either voting to dismiss it, or rushing through a pro-forma trial with a predetermined innocent verdict.” This is essentially what Mitch McConnell told Fox News’ Sean Hannity during his December 12 interview, when he bluntly stated that he will directly coordinate with the President in planning and conducting the upcoming Senate impeachment trial. He has also repeatedly announced that he won’t agree to call any witnesses.
Article I, § 3, cl. 6 states: “The Senate shall have the sole Power to try all Impeachments.” Well, fair’s fair, right? Doesn’t that mean that the Senate, like the House, can run their part of the impeachment process in any way they wish, even to the point of a speedy show trial with a rigged outcome? No. The inclusion of “…they shall be on Oath or Affirmation” means the answer to that question is an obvious and resounding “no.” The Constitution goes to great pains to clearly and unequivocally require every senator to provide honorable and open-minded duty as impeachment jurors.
Anyone being examined for jury duty for a criminal or civil trial, in any state or federal court, would automatically be excluded from serving if they flatly declared that their mind was already made up and their intention was to simply go through the motions of being an impartial juror. Mitch McConnell, the very person who will organize the Senate impeachment trial and provide his fellow jurors their marching orders, has publically made exactly that declaration.
“The Ukraine call didn’t really rise to the level of criminal bribery; therefore, the entire impeachment is invalid.” The first part of this GOP argument isn’t subject to definitive dismissal. What if they are correct in their relentless contention that the now-infamous Ukraine call that triggered the impeachment was not a quid pro quo in a strict legal sense? If this was a criminal trial, that might well be the case. Apparently, court decisions over the past couple of decades have created a legal situation where practically the only thing that qualifies as the crime of bribery is a clearly-stated and well-witnessed “I will use my power to do exactly this in direct return for you providing me exactly that.” The now well-known “quid pro quo.” Anyone who has ever seen “The Godfather” knows that this is exactly how criminally corrupt agreements are not made; at least not by people practiced in corruption. They’re made with a mumbled “We need you to do us a favor, though.”
But the strict criminal bribery requirements could well leave enough “beyond a reasonable doubt” legal wiggle room for a juror in a criminal trial to deny what is otherwise obvious to any uncalled witnesses. That might be a definitive acquittal if a Senate impeachment trial was in fact a criminal trial, but art. I, § 3. cl. 7 goes out of its way to clearly specify that any legal action to establish criminal guilt is a separate process that occurs after removal from office. An impeachment trial is strictly to determine fitness for office, not to assign criminal penalties for misdeeds. Given that the framers understood that the “misdemeanors” in “high crimes and misdemeanors” could refer to non-criminal actions that simply dishonor an office (look it up), any attempt to demand strict criminal legal standards to impeachment looks a lot like a smokescreen.
At any rate, the GOP’s ability to use a “reasonable doubt” cover would only be viable if the Senate trial doesn’t include any clearly damning testimony from the Secretary of State, Secretary of Defense, the National Security Advisor, or the President’s Chief of Staff about what they know about the call and/or its aftermath. Which is clearly why the GOP is furiously trying to avoid that very possibility. If they can manage to successfully avoid calling those witnesses, they will almost certainly find the leeway to find the President innocent of the initial charges of abusing his powers to advance his own political interests.
Would such an innocent verdict on the bribery charge negate the entire impeachment? No. The President managed to create a completely new impeachable offense against himself when he repeatedly and publicly declared that the House’s constitutionally-mandated “Powers of Impeachment” to be invalid, and ordered his senior staff (and the entire executive branch) not to testify or cooperate with the House impeachment hearings. From the first moment he refused to cooperate with the House or recognize their authority to investigate the allegations against him, Trump was guilty of willfully obstructing a constitutionally assigned power of Congress.
The fact that the entire GOP and more than one-third of our nation’s people have been enthusiastically willing to join Trump in trashing our constitution in order to protect their party is easily the most troubling constitutional development in my lifetime. In stating that he was not beholden to the legitimate power of Congress, Trump was blatantly abandoning his oath of office to “…preserve, protect, and defend the Constitution of the United States;” literally, half of the duties prescribed in his oath. He broke his oath with essentially an imperial decree that the separation of powers that has been enshrined in our Constitution for 232 years is null and void.
“The impeachment is a Democratic plot to overthrow the 2016 election.” This was a relentless GOP talking point during the House vote on the impeachment articles. It’s a baseless and dangerously incendiary accusation that was meant to play to the GOP base and create a manufactured sense of unfairness among the just-kind-of-paying-attention segment of the public. But it just doesn’t stand up to a simple review of the current structure of our national elections:
The President and Vice President are elected on a four-year cycle, by an Electoral College that is largely controlled by the political parties. Our 100 senators are apportioned geographically, with two per state regardless of population. They’re elected by popular vote on a six-year election cycle that ensures that only one-third of them have to run in any given biennial federal election.
Congressional districts, on the other hand, are the only election districts in the federal government that essentially equal each other in voter populations. 100% of the seats are elected every two years, by a simple majority in a direct popular vote. Of all the components of our government, the House is the one that is most directly representative of the current will of a majority of the voters. That’s why they’re called the House of Representatives. It’s the very reason they were given the “Power of Impeachment,” rather than the Senate or the Supreme Court.
In 2018 the voters of the U.S. clearly put the Democratic Party in charge of the House, and opinion polls at the time indicated that the behavior of our president was one of the reasons for that. That newly-elected House then dutifully chose their “Speaker and other Officers” along party lines, since the very nature of a representative democracy gives overall leadership positions to the majority party – just as it does in the Senate. It was subsequently that recently-elected majority in the House and their chosen officers who launched the impeachment inquiry. The GOP, it turns out, is doing their very best to negate the results of the much more recent, and much more representative, 2018 federal election. They’re 100% correct about one thing, though: Attempting to negate the results of a federal election is a very serious assault on our democracy.
I commend Senator Murkowski for cautiously expressing a slight discomfort with Senator McConnell’s declared intention to use his power to rig the impeachment trial; well, at least until he cracked his whip and she ran for cover. It’s shameful that our other senator hasn’t expressed even such a transient concern about it.
Every U.S. Senator and Congressperson who participates in the GOP’s plot to close ranks with a President who has blatantly betrayed his oath of office is also failing – knowingly and premeditatedly – to uphold their own oath, making them all accomplices to Trump’s attack on our democracy. This is not a slippery slope, but a leap off a vertical cliff; one that could even lead us as far astray as one-party rule supporting a mentally unstable dictator.
I have hope that our senators will step up as brave and honorable people and put their nation above their party (and yes, even their own political futures). The only path I see for them to do that is by fulfilling their oath to protect and defend the Constitution of the United States, the same oath that’s solemnly sworn or affirmed by every elected federal official. What would that look like?
Demanding a real trial, with sworn witnesses, rather than the pro forma sham trial that the Majority Leader is actively pushing on the country.
Voting in honest accordance with whatever the witness testimony reveals about the first charge, abuse of powers.
Most importantly, finding President Trump guilty of the second charge, obstruction of Congress.
Why? Because from day one he loudly, publically, and repeatedly dismissed the House’s clear constitutional authority to initiate and conduct the impeachment, even calling it treason, as if he himself is the state. He publically ordered his staff not to participate in the official hearings. He did all this right to our faces, on national television and Twitter. How can any honorable juror in good conscience pretend that isn’t the case?
That’s not a rhetorical question. The answer is, clearly, “they can’t.”
Ken Higgins is a retired Safety and Occupational Health Manager, a veteran, nonpartisan voter, celebrating my 45th Anniversary of coming to Alaska the 15th of this month. He was also the first Alaskan to appear on Jeopardy (1987, won one game); one of the “ten good men” on the classic Tom Sadowski Alaska postcards and lead builder of all but one of the BLM log shelter cabins along the Iditarod Trail.