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Trump’s acquittal strips impeachment of all meaning

Erwin Chemerinsky, Berkeley Law dean | February 6, 2020
President Trump and Nancy Pelosi in the Oval Office

President Donald Trump speaks with House Speaker Nancy Pelosi in the Oval Office.

The impeachment process in the House and the Senate has come to a totally predictable conclusion and President Trump has not been removed from office. My great fear is that the wrong lessons will be drawn from this and will have dire consequences for the future:

Trump did nothing wrong. Trump continues to claim that his shakedown call with Ukrainian President Volodymyr Zelensky was “perfect” and he sees the Senate’s decision as full exoneration.

But the president used the powers of his office to his personal political advantage. As acting White House Chief of Staff Mick Mulvaney said, and as many confirmed, it was a quid pro quo. It is wrong for presidents to use their powers in this way. The Senate vote should not be taken as an acquittal, exoneration or as approval of this conduct; it is a partisan choice by the Republican Party to stick with their president.

A president should not be impeached in the last year of a term. Trump’s supporters repeatedly criticized the impeachment effort as an attempt to undo the 2016 election and said that it is wrong to impeach a president facing reelection.

Of course, any impeachment is removing a president who has been elected. The Framers could have written into the Constitution that a president could be removed from office for “treason, bribery, and other high crimes and misdemeanors except in an election year.” But they did not.

A president can ignore congressional subpoenas with impunity. Trump refused to comply in any way with all congressional subpoenas and directed his aides to ignore them. This was the basis for the second article of impeachment.

Every past president facing an impeachment inquiry — Andrew Johnson, Richard Nixon and Bill Clinton — complied with subpoenas, although they also fought narrower battles over executive privilege. Supreme Court precedents establish broad authority for Congress to issue subpoenas as part of its checks and balances oversight duty. In the future, Congress will need to consider using its now-dormant inherent contempt power, which involves Congress directly imposing sanctions on the failure to comply with subpoenas.

Meeting the “high crimes and misdemeanors” standard requires a criminal act. This was the central argument made by Trump’s defenders in the Senate. The claim was that absent a crime, a president cannot be removed from office.

This argument is ahistorical and indefensible as a matter of constitutional law. The phrase “high crimes and misdemeanors” comes from English law, where it was used to remove officials for abuses of power. The Framers, including Alexander Hamilton in Federalist No. 65, was clear that this phrase referred to and allowed for impeachments when there were serious abuses of power. Supreme Court Justice Joseph Story in his “Commentaries on the U.S. Constitution” in 1833 said this explicitly. Andrew Johnson was impeached for an abuse of power that was not a crime. But most important, there must be a way to remove a president who seriously abuses the power of the office.

The Senate trial does not need to be a real trial and senators don’t need to be impartial jurors. The Senate refused to call witnesses in Trump’s impeachment, even when there was potentially important new evidence such as national security advisor John Bolton’s book manuscript. Senators told the world how they would vote before the trial even began, despite their oath to be “impartial.”

Oaths matter. Every prior impeachment trial of a president involved witnesses. The refusal to call them should not be seen as a matter of constitutional principle, but a political choice by Republicans to not risk public disclosure of evidence that would be harmful to their president.

Whatever the president thinks is in the public interest cannot be an impeachable offense. This is what lawyer Alan Dershowitz said in Trump’s defense: “Every public official that I know believes that his election is in the public interest, and mostly you’re right. Your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

This is akin to Nixon saying that if the president does it, it cannot be illegal. It is a frightening proposition that would allow a president to do virtually anything to help his reelection bid while asserting that his staying in office is in the public interest. Although Dershowitz later said he did not mean to imply that presidents have unlimited powers, in the future his words will be quoted to support exactly that view.

The Trump impeachment reflects a country that is deeply polarized and it has exacerbated these divisions. Democrats overwhelmingly favored impeachment and removal; Republicans with equal fervor opposed it. The lesson we should draw from it is that this deep partisan divide must be healed or the nation may not survive.

I fear, however, that the impeachment’s strongest message for future presidents, especially those whose party holds a majority in the Senate, is almost the opposite: They need not fear impeachment and removal, almost no matter what they do.

A crucial constitutional check on the president has been rendered largely meaningless by the Trump impeachment. And this should be a frightening lesson for all of us.

 

This op-ed is crossposted from the Los Angeles Times

Comments to “Trump’s acquittal strips impeachment of all meaning

  1. What Justice Department? Do you mean Trump’s Henchman? Perhaps we need to change the name of the department OR at least change the head of the department.

  2. As a foreigner, I have long wondered if the American experiment with an elected head of state is immune to subversion by an authoritarian. Unfortunately, looks like it is not, so I fearfully await the advent of the Democratic Republic of Unconcerned American States (DRUSA). I wonder if Donald Trump might try to make himself perpetual president, & whether Senate Republicans would even think that might be a bad thing considering their behaviour of late. I think they no longer comprehend their grand experiment.

  3. Trump keeps proving that all three branches of our government and our Constitution have failed to protect us.

    Also, we are failing to learn from and act upon Lessons of History once again (maybe for the last time since we are failing to protect the planet from Global Warming that is destroying our environment in this century).

    A most important lesson was researched and documented by historians Will and Ariel Durant and their paramount conclusion was “When a civilization declines, it is through no mystic limitation of a corporate life, but through the failure of its political or intellectual leaders to meet the challenges of change.”

    Thus both politicians and intellectuals are enabling Trump to produce an oligarchy as well as destroy our civilization today.

  4. The Democratic Party must first ask for investigation of Biden’s son and Biden, not Trump.
    Democrats should clean their party from corrupt politicians and not condemn Trump for work that they must do themselves.

    • Oh please. What is this apologist junk?? An outrageously tawdry —if not outright corrupt— charlatan is now in the White House and striding around as the blustering blowhard voice of America. It’s appalling, dangerous and very destructive to the fabric of our country. And yet some people think it’s all just fine. Absolutely amazing and very scary. Maybe people like this Tom person here are delighted as they laugh all the way to the bank. God help us !!!

  5. My only problem with the whole impeachment thing was that it hinged on an unknowable whistleblower.
    The President didn’t get to face his accuser. In my opinion that is a problem.

    • What is really scary is that the person who wrote this article, Erwin Chemerinsky, is a Law School Dean who should know that a defendant should not be found guilty of “abuse of power” simply because you dislike their politics. And while the framers of the constitution did not make an exception for impeachment in an election year, neither did they envision that impeachment would be used as a vehicle to circumvent an election.

  6. The Democrat Impeachment of President Trump was a hoax just as Mueller’s “Russia Investigation” was hoax.

    In the case of impeachment, we know the following:
    – President Trump never impounded One Dollar from Ukraine Aid.
    – The statute authorizing security assistance requires Ukraine to crack down on corruption, so our money doesn’t end up in the pockets of oligarchs. It mandates:
    https://www.congress.gov/114/crpt/hrpt840/CRPT-114hrpt840.pdf
    – The Trump Administration has increased Military Aid to Ukraine significantly.
    See: “Security Assistance in Focus: Ukraine”
    http://www.securityassistance.org/fact_sheet/security-assistance-focus-ukraine

    In the case of the Russian Investigation we know:
    – The investigation was ginned-up by the outgoing Obama Administration/Clinton Campaign!
    – The Obama administration put the law enforcement and intelligence arms of the administration in the service of the Clinton campaign.
    – Many of the Mueller lawyers come from the top levels of the Obama Justice Department.

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