On the menu today: why you keep hearing arguments about whether impeachment is a trial, whether it should be treated like one, and why the Founding Fathers set up the impeachment process the way they did.
When Should Impeachment Be Like a Trial, and When Should It Not Be?
When the rules of the impeachment trial are not what someone wants, you often hear arguments along the lines of: “Could you imagine if a criminal trial operated this way? The grand jurors would become the prosecutors! The judge and jury wouldn’t have to be objective! The jury isn’t sequestered and reads all about the trial from outside sources and can publicly comment on how they think the trial is going! The jurors would decide whether or not to hear from witnesses! Key material witnesses would be ignored! An agreement among two-thirds of the jurors would mean a conviction! Jurors would be able to fall asleep!”
Sometimes people say it directly, as Kamala Harris declared, “it’s not a fair trial.”
And the inevitable response is: “Impeachment is not a criminal trial” or “impeachment is a political process, not a legal one.”
Those statements are accurate . . . but if the impeachment process in the Senate isn’t a trial, what is it? A debate? Dueling PowerPoint presentations? A “battle of the bands” with no melody? The final round of American Idol?
It’s easy to see why so many people think of it as a criminal trial. A bunch of people are sitting in judgment of the accused. The House managers function like prosecutors. The president’s legal team acts as a defense attorney. The Senate is supposed to determine whether to “convict” the accused and punish him with removal from office. There’s a guy in black robes running the whole show and keeping order. There are opening statements, requests for subpoenas, evidence, possibly witnesses, rebuttals, and finally, a vote.
Impeachment functions like a trial, in a lot of ways, but there are also glaring departures from what is acceptable in the legal system. Last time around, the House voted to impeach Bill Clinton in December 1998, and the Senate trial, or whatever we’re calling it, began in January 1999. The previous November, three House members were elected to the Senate. This means three lawmakers voted on the articles of impeachment and then became “jurors” for impeachment articles they had already voted for or against.
One of those three congressmen-turned-senators was Chuck Schumer, who spent January 1999 explaining that impeachment was not a criminal trial, and he wasn’t expected to be an objective juror. “This is not a criminal trial, but this is something that the Founding Fathers decided to put in a body that was susceptible to the whims of politics . . . it’s also not like a jury box in the sense that people will call us and lobby us. You don’t have jurors called and lobbied and things like that. I mean, it’s quite different than a jury. And we’re also the judge.”
In December, Schumer said, “I was disappointed to hear yesterday that Leader McConnell declared that he would not be an impartial juror when it comes to the serious charges against President Trump. He said it proudly. What kind of example does that set to the country, which is looking for fairness and impartiality? In the event of a trial, every Senator will swear an oath, different from our standard oath of office, to “do impartial justice.” But yesterday, Leader McConnell told reporters: ‘I’m not an impartial juror. This is a political process. I’m not impartial about this at all.’”
Everybody’s operating on the high-minded principle that impeachment should resemble a criminal trial when they think it ought to and should be different from a criminal trial when they think it ought to be.
The Founders recognized that a president would inevitably generate an opposition, and the opposition forces would, sooner or later, accuse him of crimes. They further recognized that assessments of guilt or innocence would likely align with previously established political divisions.
The subjects of its jurisdiction are those 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, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
That’s Alexander Hamilton in Federalist 65; shortly after writing this, Aaron Burr sang that Hamilton was “non-stop,” and Angelica Schuyler Church warned that he would never be satisfied, and the intermission began. Or maybe that’s just the musical version.
Elsewhere in Federalist 65, Hamilton laid out why the Supreme Court wasn’t the right institution to sort out accusations of crimes by a president: “It is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives.” Put another way, Supreme Court justices, no matter how wise they are, are not elected by the public, and the public might react quite furiously if unelected judges removed an elected president from office, defying public opinion.
No, the correct branch to sort out these accusations was the legislative one, with the duties split between the two houses. Hamilton again: “In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it . . . Who can so properly be the inquisitors for the nation as the representatives of the nation themselves?” Implicit in this is that if the public finds an impeachment effort to be sufficiently wrongheaded, they can act on their objections in the next legislative election. Whatever you think of the American government’s impeachment process, it allows the public to hold everyone involved accountable at the ballot box.
Why does the Constitution require two-thirds of the Senate, and not a simple majority, to remove? For starters, think back to who breaks a tie in the Senate: The vice president. What’s more, remember that initially in the United States, the vice president was the runner-up in the presidential race. A simple majority for impeachment would allow the vice president to cast the deciding vote to make himself president. The Founders wisely recognized the controversy that scenario would generate, and thus when one of the articles of impeachment against Clinton reached 50 votes for removal and 50 votes for acquittal, there was no tiebreaker.
The vice president also presides over impeachment trials over federal officers; the Founders wisely determined in a presidential impeachment, this was a role better suited for the Chief Justice of the Supreme Court. Finally, the higher bar of two-thirds meant that the argument for removal had to win support of a broad consensus; the routine passions of political division would not be sufficient to replace a president. The extremely consequential decision to remove a president would be difficult to achieve without some past allies of the president concurring that he had committed a “high crime or misdemeanor” that justified his removal.
The end result is a process that regularly includes features that would never be accepted in a U.S. courtroom. In the Clinton impeachment, would it have been fairer to say that Republicans Jim Bunning of Kentucky, Mike Crapo of Idaho, and Schumer couldn’t vote on impeachment in the Senate because they had already voted on impeachment in the House? Should the presidential candidates running against Trump be excluded because they’re trying to get the current president’s job? In a criminal trial, the courts try to find jurors who know nothing about the defendant, and who certainly don’t have a preexisting opinion of him. Every senator always has a preexisting opinion of the president.
Those at the Constitutional convention recognized that impeachment had to be sort of like a trial . . . but that it couldn’t work exactly the way a criminal trial does without triggering far-reaching problems of governance.
ADDENDA: For those who obsessively follow the New York Jets offseason plans, I laid out a lengthy list of recommendations over at TurnOnTheJets.com. I’m getting some probably fair criticism that I’ve underestimated the likely cost of some big-name free agents. But I stand by the general philosophy. Salary cap room is great to have on one day a year — the start of free agency — and then after a few days it becomes just a pile of money where a better player is supposed to be. We’ve seen the Jets have a ton of cap room for several consecutive years now. Cap room doesn’t get you wins; better players do. Bargain hunting at position A is only useful if it frees up funds for a player at position B . . .