Before Sunday evening, the odds of the Senate voting to remove President Trump from office were between slim and none. But news that John Bolton’s draft book directly ties the president’s intent to withhold aid to Ukraine in exchange for an investigation of the Bidens has moved those odds up just a bit. How much is difficult to tell at this point. But it certainly makes it more of a challenge now for senators to reject the idea of hearing from key White House witnesses.
To be clear, however, should Bolton and others testify, it is not as though they will be revealing something the senators don’t already privately know: that the president used the prospect of a meeting with the newly-elected president of Ukraine and U.S. aid to Ukraine as leverage to investigate a political rival in advance of the 2020 election. Similarly, most of them believe that the president’s sweeping claims of executive privilege to withhold papers and prevent the testimony of key witnesses have less to do with preserving an executive prerogative as a constitutional matter than blocking evidence that might be more damaging—something the Bolton news just reaffirms.
If the Senate vote ultimately falls short of the two-thirds majority required to oust President Trump from the White House it will reflect public opinion as of now. A slim majority currently thinks the president should have been impeached and removed. But polls also indicate that, while most Americans think that the president’s actions were wrong, they do not rise to the level of seriousness that the Senate should remove the President from office. In short, at this moment, the Senate seems to be in lock-step with the public.
We’ve seen this before. In the Clinton impeachment, most Americans believed the President committed perjury by lying under oath about the Monica Lewinsky affair and then acting to cover it up. And while a majority was willing to see him officially censured for his behavior, and hence obviously believed he had misbehaved, public support for removal was too weak to have moved the Senate to vote otherwise.
Given the level of partisanship involved in both cases, it could be argued that the two impeachments will have ended about where one would have expected—and even correctly so. In Clinton’s case, the argument was: Yes, his actions were wrong, but they were the product of a kind of human frailty that is common and often forgiven. Indeed, if there were true victims, it was Hillary and their daughter Chelsea.
As for Trump, the more sophisticated of his supporters will say: Of course he used the office for political purposes, but that’s no different than any president seeking reelection from time immemorial. Administrations will pick (or not) this or that policy, chose to enforce (or not) this or that law because it might play well (or not) in some key state. Why be holier than thou now, particularly with an election less than a year way?
The Senate tries impeachments because the Constitution’s framers believed it would bring, among other things, a political sensibility to bear on these matters. And the requirement that it be a Senate supermajority to remove the President implies that such a decision be unequivocally compelling.
Nevertheless, the precedents set by the “acquittal” for Clinton and, possibly, for Trump can’t help but have knotty implications.
Although the Clinton “war room” was able to publicly frame the House GOP’s and Ken Starr’s impeachment effort as some perverse obsession with sex, the President had in fact committed perjury and tried to obstruct a legally constituted investigation. Both actions were in violation of his constitutional duty to “faithfully execute the laws.”
As for President Trump, it’s true that other presidents have played politics while sitting in the Oval Office. But what president has gone so far as to essentially bribe a foreign government to assist him in taking down a possible domestic opponent with promises of a meeting and already promised aid? This is, one would think, an affront to the president’s oath to “preserve, protect and defend the Constitution,” which among other things surely includes protecting the integrity of the electoral system.
As a pair, Clinton’s acquittal and Trump’s will set a bar for removal that suggests “a little” wrongdoing by a president will be judged okay. Whether this low bar is what the framers had in mind is an entirely different question.
In the debate in the First Congress over whether the president has an implied constitutional power to remove senior executive officials from their posts, James Madison beat back attempts to say that the removal power was the Senate’s and the President’s combined, or that it was a matter for Congress to write into legislation whatever mechanism for removal it saw fit. Thus Madison, the very “Father of the Constitution,” in one of the most important first inter-branch debates, defended the unitary character of the presidency as essential for the President to be able to carry out his duty to see that the laws are faithfully executed. Yet in this very same debate, Madison also notes that an impeachable offense and grounds for removal would include “the improper continuance of bad men in office” and “the wanton removal of meritorious officers.” Neither of these offenses, as described by Madison, involve bribery or treason. They must have fallen in his mind under the category of “high Crimes and Misdemeanors.” It’s not difficult to conclude that our contemporary tolerance for “a little” wrongdoing by presidents is difficult to square with the delegates’ intentions when they adopted the phrase “high Crimes and Misdemeanors” in the waning days of the Constitutional Convention.
It’s arguable that keeping the bar for removal higher is prudent, if not strictly speaking constitutionally accurate. Given current levels of partisanship and polarization in the body politic, to do otherwise might result in open season on every new chief executive. But given how presidents of both parties have come to view the discretionary authorities of the Oval Office, it’s also possible that the result of Clinton’s impeachment and the likely result of the Trump impeachment are licensing further problematic behavior. Certainly in the immediate case of President Trump, how probable is it that he will be chastened by his impeachment? Rather, he may well turn a favorable vote in the Senate into a mandate to be even more aggressive in the use of his powers, and become even less likely to countenance congressional oversight of any note.
Finally, a Senate vote that falls short of the two-thirds majority will likely cement what most Americans will accept as tolerable behavior on the part of presidents. At a time when both left and right are bemoaning the decline in America’s civic culture, are the lessons learned from both the Clinton and Trump impeachments salutary? If the split in the population on these matters weren’t so strongly along party lines, it might be possible to have a forthright conversation about what to expect (or not) from modern politics and today’s politicians. But that is nowhere to be seen in the Senate trial so far. Perhaps witnesses will change that dynamic. But, in the meantime, what we are left with, to paraphrase the late Senator Daniel Patrick Moynihan, is two impeachment cases defining presidential deviancy down.
