What Trump’s Acquittal Means for the Rule of Law

(Leah Millis/Reuters)
It will go on. Meanwhile, Congress ought to get back to its business.

In Wednesday’s final impeachment vote in the Senate, only one Senate Republican, Mitt Romney, crossed party lines to vote to remove Donald Trump from office. No Senate Democrat bucked party-line discipline to vote for Trump’s acquittal. This followed last Friday’s 51–49 vote to conclude the trial on the basis of the evidence heard in the House, without live witness testimony. Only two Republicans (Romney and Susan Collins), and no Democrats, crossed party lines in that vote.

There has been a great deal of hand-wringing about what it means that Senate Republicans kept enough of a united front to dispose of the charges against Trump without even a full trial. In fact, acquittal is a reasonable political judgment by Republican senators that reflects the preexisting standards for presidential impeachments, rather than a change to them.

Impeachment for abuse of power is political. A great deal of the commentary and political argument on impeachment takes a wrong turn from the very start. The mistake is treating presidential impeachment as a purely legal question in which it is somehow inappropriate to consider politics. Taking this view, Democrats argue that if any impeachable “high Crimes and Misdemeanors” are proven, there is a solemn duty to remove the president, and it is a violation of the senators’ oaths and an offense against the rule of law to acquit. The president’s defenders, for their part, argue that no impeachable “high Crimes and Misdemeanors” are even alleged, and therefore the entire process amounts to an assault by the House on the rule of law and something like a coup. Both views are wrong.

The Constitution says that a president or other federal officer “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Every prior successful impeachment and removal under this standard has involved a federal judge, and almost all involved treason, bribery, or some criminal offense closely related to bribery. In such cases, where a serious crime is proven that is both illegal and related to the duties of public office, there is a stronger argument for expecting the Senate to carry out removal without regard to politics.

Trump’s defense team, in particular Professor Alan Dershowitz, have argued that this is all there is to impeachment: proof of a serious crime or “quasi-crime,” or nothing. Dershowitz is, however, misreading the history of the impeachment clause. As I have explained at greater length, the Framers also intended to create a remedy for official abuses of power that did not involve an enumerated crime. The Constitutional Convention started with treason and bribery and initially considered adding “maladministration,” a term used in multiple state constitutions at the time, but that would have licensed too many impeachments for simply being negligent about some presidential duty. The Convention thus instead chose the term “high Crimes and Misdemeanors against the United States,” adapted from Edmund Burke’s then-ongoing bill of impeachment in Parliament against the Governor-General of India for abuses of power. Gouverneur Morris’s final draft dropped “against the United States,” arguably broadening the types of offenses covered by impeachment. Alexander Hamilton, in Federalist No. 65, described impeachment as a remedy for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL.”

The central charge against Trump falls within this third and most ambiguous category: abuse of public trust. For all the rhetoric thrown around by House Democrats, there is no criminal conduct charged. Trump is principally accused of using the foreign policy powers of the presidency — including delaying congressionally authorized military aid, arguably without legal authority to do so — in order to get Ukraine to announce a criminal investigation against Joe Biden’s son, Hunter, and possibly Biden himself. The accusation is that Trump did so purely for his own political benefit against Biden, and without obtaining any legitimate public benefit to the United States.

This would be an abuse of public trust because Trump leveraged presidential power and the public’s money to gain something of political benefit to himself, and nothing of any benefit to the nation or the taxpayers. The way this was done departs from the proper methods for investigating public corruption in three ways:

  1. siccing the dubious institutions of a foreign government on American citizens, one of them a former vice president, rather than simply asking foreign cooperation in an American Justice Department investigation;
  2. asking that foreign government to publicly announce the investigation from the outset, for the apparent purpose of using that announcement as a club in the American presidential election; and
  3. pressuring Ukraine to give information directly to Rudy Giuliani in his capacity as the president’s personal attorney, rather than to the proper American authorities who answer to Trump in his capacity as head of the executive branch and who have the power to convene grand juries, issue subpoenas, and prosecute crimes.

There remain some important facts in dispute about these charges, such as precisely what was communicated to Ukraine and when (other than Trump’s call with President Zelensky). The Trump defense has other arguments for why an investigation was warranted. But many of the key facts are not really in serious doubt. Nor is the fact that Trump ultimately relented and released the aid.

If you see impeachment purely as a legal question, then the debate is about whether this could be an impeachable offense, and if it is, then it must lead to conviction. But abuse of power is an inherently political charge, as Hamilton recognized, and its disposition is given to a body of elected officials with the understanding that they will have to make political judgments. Those judgments are not just about the elements of the offense (e.g., whether the United States had any public interest in Ukraine investigating Hunter Biden), but also about whether the punishment fits the offense. A great many uses of presidential power could be, and have been, argued as bases for impeachment. It is a political decision for the House to choose which to charge, and a political decision for the Senate to decide when to remove.

In this case, there are entirely legitimate political considerations that weigh in favor of acquittal. None of these should be considered bright-line rules; each requires precisely the sort of political prudence we expect of senators:

  1. The president is duly elected to head a coordinate branch of the federal government, and so should not be removed lightly in a borderline case. This is not a complete bar to removal — it is present in every impeachment — but it separates presidential impeachments from impeachments of judges or Cabinet secretaries.
  2. There is no clear, bipartisan public support for removing Trump. Richard Nixon’s impeachment did not pass the House Judiciary Committee until there was clear, majority support: by late July 1974, Gallup showed the public 57–24 behind removing Nixon, and an August 5 Harris poll taken after the Judiciary Committee vote showed 66–27 support. Nixon resigned four days later. The polling averages at this writing, by contrast, show 48.1 percent opposed to removing Trump compared to 47.8 percent in favor, with Republicans overwhelmingly opposed and independent voters opposing removal 46.8 percent to 45.3 percent. Those numbers have fluctuated, but when the country is roughly evenly divided and only the opposing party’s voters are clearly in favor of removal, the public legitimacy of removing the president for the first time in American history is shaky.
  3. Republican voters in particular would regard Trump’s removal as a double standard, after Bill Clinton was not removed for committing felonies in office. Every single Democrat in the Senate in 1999 voted to acquit Clinton. The case for not removing Clinton was explicitly based on his popularity and the argument that it was imprudent to remove a president over felonies aimed at covering up a political liability.
  4. Trump is running for reelection and will face the voters in nine months, so if the Senate errs on the side of acquittal, the voters can always reverse that outcome. This distinguishes the situation from those of all the previous presidents facing impeachments. Ben Franklin’s argument for allowing impeachments of presidents was that without one, the people’s only remedy would be assassination — but an impending election lets the voters decide.
  5. Removing Trump would reward the ongoing efforts of civil servants within the Executive Branch to shift power over foreign and national-security policy from the elected commander in chief to the permanent civil service, by means of generating investigations, surveillance, and legal and media campaigns against elected leaders.
  6. Trump was not even successful in his attempt; he ultimately released the funds to Ukraine without a major delay and without conditions. (I regard this last as the least persuasive of these arguments, but it is a mitigating factor.)

There are, of course, also some reasonable arguments in favor of conviction, which helps explain why Romney crossed the aisle:

  1. Trump’s misconduct was aimed at the upcoming election, and there is really no assurance that an unrepentant Trump will not try something similar, especially if he draws a different opponent than Biden.
  2. The failure to ever remove a president has contributed to the accumulation of power in the presidency at the expense of Congress. We are a long way from the great fear of 1868 that removing the president would fatally weaken the presidency and lead to congressional hegemony.
  3. The House has always treated oversight of the president as a purely partisan matter. While no Senator has ever voted to remove a president from his or her own party, the devolution of Senate oversight into the same dynamics as the House is unhealthy.
  4. The Clinton-acquittal standard had ripple effects in corroding our politics over the past two decades, leading to the cynicism about elite unaccountability that gave rise to Trump in the first place; removal would act as an admission that we went down the wrong path in 1999.
  5. Trump has shown a worrisome tendency to regard his Article II powers over foreign affairs, national security, and law enforcement as inseparable from his personal interests.

For Republican senators, of course, there is also the more elemental fact of political survival: Because Republican voters overwhelmingly see this as a partisan test of strength and independent voters are divided, there is a great political downside in voting to convict, and very little political price to be paid in voting to acquit. Voters who are single-issue anti-Trump in 2020 are unlikely supporters anyway, and senators up for reelection in 2022 or 2024 may find memories shorter in general elections than they are in partisan primaries. Also, a handful of Republican senators voting to convict accomplishes nothing; only 20 yes votes would actually remove Trump.

Given the political nature of Trump’s abuse of power, there are more than enough legitimate reasons for Senate Republicans to vote to acquit.

Democrats killed censure. In a sane world, Trump should have been censured instead of impeached. Democrats knew from the outset of this process that they were going to lose the impeachment fight. They also knew that some Republican senators would have liked a way to acknowledge that Trump overstepped his bounds, without being accused of a “coup.” Up to the point of the House impeachment vote, Democrats had the leverage to try to work something out along those lines. But just as happened with the Clinton impeachment, once the House voted on the articles and forced the Senate to hear the case, the chance for a middle ground vanished. And once the Senate voted to proceed without live witnesses, all of the Democrats’ political leverage was lost. Republicans now are right to be concerned that Democrats would use a censure not as a way to close the book on this sordid chapter, but rather as justification to restart the process.

It doesn’t matter that there was no real trial. The Constitution provides for a trial presided over by the chief justice, but it does not say anything about the nature of that trial. That leaves the Senate in charge of its own procedures, as it normally is.

Much of the hue and cry against Republicans for deciding to proceed to a vote without witnesses is either just political spin or treats a trial as a political exercise in informing the voters. It is true that all prior impeachment trials have called witnesses, but witnesses are there for two reasons: to help the senators decide how to vote, and to allow the accused to present a defense that may not have been possible in the House. Neither of those reasons matters once a sufficient number of senators have decided, as a matter of political judgment, to acquit. Just as was true in the House, “due process of law” is an important value, but not one that Congress is required to follow within its own walls. Even in courts of law, judges throw out cases where the allegations in an indictment or civil complaint do not make out a case worth trying, or where the known and undisputed facts fail to prove some element of a charge.

Proceeding without witnesses is a political risk for pro-acquittal Republicans: There is still no way for any Senator to know if there are other shoes to drop. But if the sole point of witnesses is to provide oversight and sunlight to the public, that is something the House should have considered before voting to impeach on an inadequate record, and it is also something the House and/or Senate could still do later. Congressman Jerry Nadler has already said he is likely to subpoena John Bolton and continue the House’s investigation. And the politics of the issue simply mirror the House’s often high-handed management of its own side of the process. The House managers’ crocodile tears over not getting to put on a case they should have put on in their own chamber are simply political theater.

The rule of law will go on. The rule of law in America will not be significantly worse off for the acquittal of Trump. The decision to acquit him was a natural and expected outcome of a process that charged him only with political offenses and failed to move a clear majority of the public against him. The result was exactly what anyone would have predicted simply from a reading of the history of the impeachment proceedings against Andrew Johnson, Richard Nixon, and Bill Clinton. If our standards for impeaching presidents are too high, all this vote did was reiterate what we already knew.

Future Congresses should not fear to impeach presidents — even this one, again — if they really have the goods and can get the public behind them. In the meantime, both parties in Congress ought to get back to the less glamorous but important work of reviving the other tools given by Article I to Congress to rein in the executive branch.

If Democrats are worried that an acquittal will embolden Trump, they should have considered that before they began down a road that was always going to end with one. They will have a second chance to make their case directly to the American people in November.

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