The Blog

2021-

2021-01-30 b
AN IMPRUDENT IMPEACHMENT

The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction

Below is my (expanded) column in the Hill on the prudential (as opposed to the constitutional) concerns raised by the second Trump impeachment trial. Senators will have to resolve these questions before reaching the merits. The prudential concerns may also weigh heavily in the possible rejection of witnesses after the snap impeachment. The House blundered by leaving the record and witnesses entirely to the Senate to develop. The Senate could now chose to rule on the record — or lack thereof. Even a couple days of hearings could have created a record of documents and witness accounts — and an opportunity for a formal response from the President. It could also have allowed for suggested changes on the language of the article to allow for broader support. I have no objection to removing a president on his final day, but the House should create a minimally sufficient record to support a constitutional determination of a high crime and misdemeanor.

Here is the column:

The second impeachment trial of Donald Trump appeared to effectively end before it even began Tuesday. In a threshold procedural vote on the constitutionality of trying a former president, 45 senators voted in favor of a motion to challenge the trial, and that means almost half of the Senate believes Trump might not be subject to a trial, let alone a conviction, as a former president. It also means House impeachment managers may not be able to secure the Senate votes to convict.

For those members who believe the trial is invalid, the votes would not change based on the merits. In the 1999 impeachment of Bill Clinton, some Senate Democrats argued against a trial due to a lack of votes to convict him. They argued for simple votes without a trial on prudential grounds. But this time the larger prudential issue looms over the upper chamber. With acquittal now likely, members of the Senate may focus on the costs of a “snap impeachment” for the institution.

Before they took the oath for the impeachment trial and voted on the dismissal motion raised by Rand Paul, I met with all Senate Republicans to discuss the historical and constitutional issues. I did the same before the first impeachment trial of Trump. It was an intense and, in many ways, an inspiring discussion. Senators honestly struggled on whether they could vote to “remove” a president who is no longer in office.

The vote on the dismissal motion is not likely to end the debate over the constitutionality of a trial, which has strong arguments on both sides. There are only two cases where a retroactive removal was attempted. In 1789, resigned Senator William Blount refused to appear for what he saw as an unconstitutional trial. The Senate agreed and dismissed the case. A closer parallel involved former Secretary of War William Belknap in 1876. The same threshold vote was taken with the same result as almost half of the Senate voted to dismiss the trial as unconstitutional. The motion failed narrowly and the Senate had the trial then acquitted him.

But now the Senate is faced with the second prudential issue. There are cases which, even if legally brought, contain errors so significant they must be dismissed as unsound on prudential rather than constitutional grounds. This case raises such a fundamental error. The problem is not what was sent to the Senate but what was not. There was no record. For the first time in history, the House of Representatives sent an article of impeachment to the Senate without any hearing, any testimony, any response from the president. Not a word. It just sent a poorly crafted article of impeachment like a conclusion in search of proof.

Witnesses may be essential to establish intent by President Trump, which could be based on his actions before or after the riot. However, there are a myriad of sources for circumstantial or direct evidence. Like many, I have called for an investigation including inquiries on when National Guard troops were offered to Congress and whether Trump in any way delayed or obstructed the use of National Guard troops. That might not have been possible in a couple days. However, there was information available from the congressional side on whether troops were first offered, when they were requested, and any communications with the White House. If Trump refused to give authority for deployment, it would be strong circumstantial evidence of intent.

I am actually surprised that the House did not simply hold hearings after the vote. Weeks have gone by during which the House could be creating an evidentiary records either referenced at trial or made available to senators. Why not? Instead, the House is demanding witnesses at trial but could be creating a post-impeachment record. It is not ideal but it is better than waiting for a trial with limited or no witnesses.

Modern impeachment have uniformly had a record in the form of witness testimony or some other source of evidence. Early impeachments were handled in a very different Congress where evidentiary hearings were not common as they are today. Indeed, the modern committee system did not exist. The Framers left it to the House to establish the basis for an impeachment. The expectation was that the vote of high crimes and misdemeanors would not be a simple conclusory vote but supported in some form to meet the constitutional standard. Witness testimony was not necessarily the expectation. That is why the House is often analogized to a grand jury which is different from a trial in its rules and operation. While the Constitution only requires the articles of impeachment, all impeachments had some record of some kind to serve as the foundation for a presidential impeachment. However, such testimony has been the norm either in House hearings or the incorporation of witness testimony as with the Clinton impeachment.

... The issue is whether the Senate wants to legitimize this radical departure from the traditions of both chambers. Some of us called for the House to hold at least a day of hearings to allow the chance for the president to respond. Yet the House refused to call any witness or hold any hearing on the article of impeachment. House leaders said there was not a day to spare then did nothing. They waited almost two weeks to submit the article to the Senate. It also did not make formal demands from the Administration for responses or create a record of any kind from evidence in control of Congress.

It is a familiar pattern. When I testified in the first impeachment hearing on Trump, I objected that the House was moving in the shortest time and on the thinnest record with any impeachment of a president. I testified that Trump could be impeached on two articles, the two ultimately adopted by the House, but cautioned that such a rush was unnecessary and would fail in the Senate. The House Judiciary Committee did not call a sole witness, which led the Senate to decline to call any witness. House Speaker Nancy Pelosi and Adam Schiff back then also insisted there was no time to waste then waited weeks to submit the articles to the Senate.

After the House destroyed its own rationale for its rushed impeachment, I wrote about a dangerous prudential concern for the Senate in accepting such an insufficient record for the trial. While the Constitution does not specify a record, this was a shocking departure from tradition. (read more)

(bold type mine)

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