Now that the impeachment trial is over and the verdict has been rendered, I can’t help but offer a few thoughts on this chapter in our history.
I don’t think anyone believed that the acquittal of Trump was anything but pre-ordained. Mitch McConnell, the Senate majority leader, had announced well in advance that the majority Republicans would be coordinating closely with Trump to insure this outcome. In order to convict and remove Trump, sixty-seven members of the Senate would have had to find him guilty on one of the articles of impeachment and that was simply not going to happen.
Two lessons can be taken away from this outcome.
First, Trump and any president coming after him will bene emboldened to take any action or do any deed that they perceive will insure their re-election. One of Trump’s attorneys, Harvard professor Alan Dershowitz, advanced the dangerous proposition that a president could take any action that he or she believed was in the “public interest,” including inviting foreign interference in our elections, and because they believed that their election was in the “public interest” could not be found guilty of a “High crime and misdemeanor.” Under Dershowitz’s theory there is no reason to draw the line at “foreign interference.” If a president believed that their re-election was “in the public interest,” why can’t they jail an opponent, take unlimited foreign money or assassinate a critic?
Apparently there is no limitation on what a president can do if they claim that the action is “in the public interest.” I would suggest that Harvard revisit this crank’s status as a faculty member there.
The second lesson is that the days of congressional oversight of the Executive branch are over. From the beginning of this administration the Executive branch has ignored virtually every subpoena for information or witnesses it has been served with, whether it related to impeachment or not. It has ignored a request and subpoena for Trump’s tax returns despite a statute that clearly requires their production to the House Chairman of the Ways and Means Committee, the Chairman of the Senate Finance Committee or the Chairman of the Joint Committee on Taxation, It instructed the Executive Branch employees not to cooperate or honor subpoenas during the Mueller investigation. It stone walled every subpoena for testimony or documents during the impeachment inquiry and trial.
The second article of impeachment which charged Obstruction of Congress was also voted by the House Judiciary Committee during the Nixon impeachment proceedings for conduct which was much less obstructive. No verdict was returned in that impeachment because the Republican leadership at that time had the good sense to persuade him to resign.
The acquittal on this article of impeachment all but insures that compliance with any congressional subpoena will not occur.
Perhaps the most disturbing part of this proceeding is the refusal to call witnesses even where it is clear beyond cavil that they have relevant first hand testimony and evidence to offer. The Republican refrain throughout these proceedings is that the accusation are based on hearsay testimony from witnesses with no firsthand knowledge. Yet, when John Bolton and others are identified as having firsthand knowledge any attempt to summon them is rejected on a party line vote.
It is the first impeachment trial in our nation’s history in which no witnesses were called.
Sixty-four years ago, John F. Kennedy published his Pulitzer Prize winning work entitled “Profiles in Courage.” Among those profiled in the book was Edmund D. Ross, a Republican Senator from Kansas, who crossed party lines and cast the vote that led to the acquittal of President Andrew Johnson during the first impeachment of a president.
The fifty-two Republican Senators who voted not to summon witnesses during Trump’s trial will not be viewed kindly in history. They will be lucky if they are not included in a future work titled “Profiles in Cowardice.”
In the twenty-one years that I tried civil and criminal cases in state and federal courts and the nineteen years that I presided over trials as a judge, I can never recall hearing about a trial in which there were no witnesses.
I’m tempted to call the Trump impeachment trial a kangaroo court but that would be a terrible thing to say about kangaroos.
By all accounts, they are nice animals.