As President Trump’s impeachment trial comes to its predictable conclusion, are there any new institutional or political lessons that can be gleaned from this experience? Yes: Thanks to the President’s brazenness, we are more aware of a few important vulnerabilities that should be fixed or at least clarified. But mostly, this latest impeachment effort reinforces what we should have known from the past.
The first is that the judicial trappings of the impeachment process continue to fool some folks into thinking that it is not a purely political exercise. It is naive to believe that elected officials can be transformed into impartial jurors by swearing an oath. The reason real trials include a voir dire process for determining who is qualified to be a juror is that we know that people can be too deeply conflicted to be impartial. Members of Congress at a minimum are deeply conflicted by their party loyalties, and some of them, such as Rep. Devin Nunes and Sen. Lindsay Graham, may have been a party to Trump’s controversial actions.
It is hard to say who was actually “fooled” by the legal trappings and who was doing the “fooling.” Certainly, some voters, legal commentators, and members of the press fall into the former category. But when a savvy politician such as Senator Chuck Schumer complains that “this trial was not a real trial. It had no witnesses, no documents . . . it is a tragedy on a very large scale,” count me as skeptical as to whether he actually believed for even a moment that it could be a “real trial.” Rather, the trial frame serves as a useful rhetorical device for highlighting the craven Republican effort to cover up a damaging political scandal.
The truth is that the U.S. impeachment process is a legislative action akin to a no confidence vote in a parliamentary system. It may or may not have been originally designed as something different from a legislative vote of confidence, but that is what it is now. If it was truly intended as a hybrid between legislative and judicial functions, it was a design flaw in retrospect given the subsequent evolution of partisanship and the powerful political motivation of full-time professional politicians to stay in office. America’s hybrid political institutions—elected judges on partisan ballots, Fanny Mae/Freddie Mac, public utilities that are meant to serve the public and private stockholders simultaneously—are sources of continuous confusion and trouble.
Better to frame impeachment as our version of the option other democracies provide—the ability of a legislative majority or supermajority to remove a President when it chooses to. Viewed that way, the end result of the Trump impeachment was not abnormal. Votes of no confidence are quite rare in parliamentary democracies and usually involve multiparty governments. They typically succeed at removing leaders when coalitions of parties split from one another, not because a majority party splinters and then removes itself from office unilaterally. American political parties are no longer the widely heterogenous coalitions they once were, which means the odds of defections from their ranks are much lower than they used to be.
As a legal argument intended to persuade a judge, the Republican strategy of moving the goal posts for the impeachment rationale (e.g. he did not do it, he did do it but it is not a crime, it might be a crime but it is not serious enough to warrant removal) seems risibly inconsistent; as a matter of political strategy, it is simply standard operating procedure when you know you have the votes you need in hand. Pretextual arguments (e.g. the President was worried about corruption generally, not Biden specifically) can be disproved in court by a preponderance of evidence to the contrary; in a political setting, they provide “plausible deniability” and justification for those who have already made up their minds.
From a purely legal point of view, the President was exonerated. From a political perspective, the verdict is more mixed. President Trump was in effect censured. That, of course, is not technically true, as there was no formal censure vote, but he was impeached by the House. President Trump, like Bill Clinton, is now stuck with the “permanent asterisk” of impeachment, and both will go down in history as personally flawed leaders. While this is a one-party judgment, it has a broader legitimacy because it accords with the public’s consensus that President Trump inappropriately used his political power for political gain.
This latest impeachment episode has also highlighted the critical role that the unfinished malapportionment revolution continues to play in the Trump Presidency. The Supreme Court’s decisions after Baker v. Carr established the principle of “one person, one vote” at all levels of U.S. representation except the Electoral College and the Senate. The influence that the Electoral College has had on the President’s political strategy has been apparent for some time. But the Senate malapportionment casts the Republican vote against hearing witnesses in a colder light and explains why the Senate decision does not reflect majority public opinion on the matter.
Most importantly, the latest impeachment effort has uncovered a host of issues that are not sufficiently clarified in the U.S. Constitution or by the Senate impeachment rules that originated in the 19th century. Can the President withhold evidence and prevent witnesses from appearing before Congress when being investigated by the House for possible impeachment? And when witnesses do show up, can he block relevant testimony under the doctrines of executive privilege and protecting national security? What about the circular logic that Justice Department doctrine holds that a President cannot be indicted for crimes while in office, but impeachment requires criminal activity? And what exactly is abuse of power if it is not extorting other countries to give false witness on a political opponent? Apparently, the answer to all of the above questions as it stands now is that it depends on what a particular Senate “majority” decides.
I can live with the political uncertainty about many of these questions except the one about withholding evidence and ignoring subpoenas. They strike at the core of checks and balances. I would have preferred it if the Democrats had taken these issues up through the court system rather than rushing to a Senate trial. Apparently for internal political reasons, the Democratic leaders felt that they had to move forward even though they must have known that the odds were overwhelmingly against them prevailing.
The rise in partisan polarization has impacted our checks and balances in a bifurcated way. It solidified the loyalty of the President’s party and the opposition of the other party. It made government controlled by one party more unified than ever and divided government more contentious than ever. Combined with the malapportionment problems, the Democrats have a steeper path to power than seems fair under majoritarian principles, but that is the hand that has been dealt to them by our Constitution and recent demographic trends. This situation will not change in the foreseeable future, let alone in time for the upcoming Presidential election. That may be the most important political lesson from this latest impeachment experience.