Reforming the Impeachment Process for the 21st Century
It’s now almost three weeks since President Trump was acquitted by the United States Senate on two articles of impeachment.
Yes, you read that right. Just 19 days ago a majority of senators beat back an attempt to unseat the elected president of the United States. It seems more like centuries ago when you consider its relevance to life as we know it. Historian Victor Davis Hanson could make a strong case for the Peloponnesian War being more significant to the lives of everyday Americans than this exercise in political vanity.
When the last vote was counted and the chief justice was relieved of his duty of presiding over the asylum, Donald Trump might well have quoted President Gerald Ford’s words upon ascending to the presidency: “My fellow Americans, our long national nightmare is over. ... Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule.”
He might have said those words except for one thing — they are not true this time, and this president knows they are not true. In 1974, the nightmare of Watergate ended with the resignation of Richard Nixon, but in 2020 the nightmare would not, could not, end with the resignation of a president, nor with his removal from office by impeachment and conviction.
That’s because, while President Nixon was indeed guilty of abusing his power by using the government as a weapon against his political enemies, in this case it was Trump who was the victim of a massive abuse of power by Democrats in Congress who had vowed to finish the act of regicide left uncompleted by the Deep State incompetents who had initiated the Russian Hoax. And there is no sign that the crusade to crucify Trump will end anytime soon.
But impeachment was really only ever of interest to CNN, MSNBC and a small band of true believers in the House of Representatives. The cable news ratings during impeachment prove that given a choice between watching Intelligence Committee Chairman Adam Schiff pontificate and getting a root canal, most people would call the dentist. At least that visit comes with a painkiller, but what could put daily viewers of the congressional soap opera “As the World Turns Left” out of their misery?
If calling the president of Ukraine was the crime of the century, why wasn’t O.J. Simpson on the line? OK, wrong century, but you get the point. The relatively small galleries in the Senate were hard to fill. People were bored. So that raises the question: Why weren’t more Americans paying attention to an impeachment trial of an incumbent U.S. president?
I think one reason is because the country is so divided that most minds can't be persuaded. If you already knew that Trump was guilty or innocent, what was the point of watching the Senate trial that would decide his fate?
Despite protestations (and a solemn oath) of impartiality, every senator knew exactly how he or she wanted to vote long before the Senate trial got underway. In part, that is a testament to the power of partisan politics, but in much greater part it is a predictable result of the 24/7 saturation coverage of controversy on cable, social media and the internet.
So is there a better way to run an impeachment?
Maybe there is. The Constitution provides only a general framework for impeachment — the House has the sole power to impeach; the Senate has the sole power to try impeachment; the chief justice presides. That, plus a two-thirds majority to convict. That’s about it.
That gives broad discretion to the two congressional bodies to run impeachments any way they want. After living through two of them, I hope the House and Senate vow never to follow precedent again, but to learn from their mistakes and provide us an impeachment process that makes sense for the 21st century. Is there justification for using precedent from the 1868 trial of Andrew Johnson to determine the process used today? I submit that based on the recent evidence, there is not.
Either the House investigators are the equivalent of the grand jury, as they proclaim, or they are the triers of fact, as the president’s counsel essentially asserted. If the House probe led by Rep. Schiff was a grand jury, with no rights granted to the accused (other than the right to remain silent), then surely the hearing should have been held behind closed doors like all other grand jury proceedings.
With the president’s counsel denied the right to participate in cross-examination or to call witnesses, the public proceeding resulted in an impossibility that anyone could hear the evidence as presented to the Senate with an open mind. We had all been bombarded with rhetorical kill shots and one-sided testimony for weeks before the Senate ever took up the case.
Ideally, the House and Senate will at some point collaborate on procedures that ensure a fair result in future impeachments. It was certainly not fair of the House to smear the president in day-long hearings for weeks on end, and then head over to the Senate to ask for new witnesses.
Having the House investigate in secret could preserve the integrity of the process. Just as a prosecutor announces that a grand jury working in secret has returned an indictment, the speaker of the House could announce upon culmination of the secret investigation whether or not articles of impeachment will be voted on by the full House. At that point, the House managers could give a presentation of their evidence, and the House as a whole could vote whether or not the evidence warrants being sent to the Senate for trial.
It would be entirely appropriate and necessary then for the Senate to hear from witnesses, who would be testifying in public for the first time! As we all know, there was no point in hearing from witnesses in the Trump trial because by that time, America (and, yes, the Senate) had already been inundated with evidence and spin.
But in a reformed impeachment process, senators would be in a better position to render impartial justice. They would allow the House managers to call their witnesses (previously deposed in secret) to testify publicly about their knowledge (not their opinions) of wrongdoing, and they would allow the president’s counsel to cross-examine those witnesses.
Then would come the ability of the president’s team to call its own witnesses to establish a fact pattern that justifies or disproves the allegedly impeachable behavior of the president. This is an opportunity that was never afforded to President Trump.
After hearing from both sides, the senators could render — if not impartial justice — at least a closer approximation of justice than what we saw in the recently concluded trial, which left almost no one satisfied even if you approved of the verdict.
That bad taste left in our mouths is all the evidence you should require that the next impeachment needs to be something completely different.