15 February 2021 — 0457 mst
Time to amend the Constitution
The Senate’s feckless acquittal of Trump means we need
a better way of choosing our nation’s chief executive
Saturday, 57 senators, seven of them Republicans, voted to convict former president Trump of the high crime of inciting an insurrection intended to overturn the free and fair election he lost. The tally fell 10 votes short of the 67 needed for conviction and the opportunity to disqualify him from ever again holding federal office.
Many were dismayed, none was surprised. At the end of this post is a lengthy excerpt from Boston College historian Heather Cox Richardson’s 13 February Letter from an American that’s the best summary of why witnesses were not called. After briefly discussing the post trial statements of the Senate’s minority and majority leaders, I present the takeaways from the trial and acquittal that concern me most.
That Trump’s second acquittal was a foregone conclusion does not mean the trial should not have been held. Rather it underscores the need for holding the trial to put on record the evidence and arguments for removing Trump from office so that objective citizens and students of history can conclude that his acquittal was an exercise in jury nullification, not a failure of the House’s impeachment managers to prove their case.
As more and more details of Trump’s months long campaign to discredit and overturn any election he lost emerge, the choice of 43 senators to ignore the evidence and to subordinate their oaths of office to their personal loyalty to a person, to an ex-president who had gone rogue, who had committed the highest crime ever committed by a president, will become more and more clear. Their souls never will be washed as white as snow.
Schumer and McConnell
After the Senate acquitted ex-President Trump, the Republican’s leader, Mitch McConnell (transcript) said Trump was guilty as hell, but explained he had to vote to acquit because a post presidency impeachment trial was unconstitutional. That despite the Senate’s having decided on 9 February that the trial was constitutional. He should have voted on the merits, but chose to break his oath and vote on the politics.
McConnell’s cynicism, writes Richardson, is breathtaking:
McConnell tried to address the party’s capitulation immediately after the vote with a speech blaming Trump for the insurrection and saying that his own vote to acquit was because he does not think the Senate can try a former president. This is posturing, of course; McConnell made sure the Senate did not take up the House’s article of impeachment while Trump was still in office, and now says that, because it did not do so, it does not have jurisdiction.
McConnell is trying to have it both ways. He has made it clear he wants to free the Republican Party from its thralldom to Trump, and he needs to do so in order to regain both voters and the major donors who have distanced themselves from party members who support the big lie. But he needs to keep Trump voters in the party. So he has bowed to the Trump wing in the short term, apparently hoping to retain its goodwill, and then, immediately after the vote, gave a speech condemning Trump to reassure donors that he and the party are still sane. He likely hopes that, as the months go by and the Republicans block President Biden’s plans, alienated voters and donors will come back around to the party. From this perspective, the seven Republican votes to convict Trump provide excellent cover.
Senate Majority Leader Chuck Schumer (transcript), who did vote to convict Trump, refuted McConnell’s claim the trial was unconstitutional:
We heard the roundly debunked jurisdictional argument that the Senate cannot try a former official, a position that would mean that any president could simply resign to avoid accountability for an impeachable offense. A position, which, in effect, would render the Senate powerless to ever enforce the disqualification clause in the Constitution. Essentially, the president’s counsel told the Senate that the Constitution was unconstitutional. Thankfully, the Senate took a firm stance and set a firm precedent, with a bipartisan vote, in favor of our power to try former officials for acts they committed while in office.
For a more detailed explanation of why an impeached former president can be tried, see Constitutional Law Scholars on Impeaching Former Officers, published 23 January on medium.com. Here’s an excerpt:
Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires. But nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction. In order to give full effect to both Article I’s and Article II’s language with respect to impeachment, therefore, the correct conclusion is that former officers remain subject to the impeachment power after leaving office, for purposes of permitting imposition of the punishment of disqualification.
If impeachment were only a device for removing officials from office, then perhaps only current officers could be impeached. But disqualification is a consequence that might need to be imposed on prior officeholders as well as current ones. In keeping with that rationale, nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office. Indeed, the ability to try, convict, and disqualify former officials is an important deterrent against future misconduct. If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.
The key takeaway: Serious defects in the Constitution were exposed
The authors of the Constitution recognized the need to deter presidents from seeking to be kings, and to remove from office presidents who committed high crimes against the nation. Their mechanism was impeachment. Almost two centuries later, the 25th Amendment to the Constitution provided a means for swiftly removing a president who had become unable to “take Care that the Laws be faithfully executed” (Constitution, Article II, Section 3):
Twenty-Fifth Amendment, Section 4. Whenever the Vice President and a majority of either the principal officers of the executive department14 or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
After Trump’s impeachment trials and personal loyalty based acquittals, we know for certain that impeachment does not provide a viable means of removing, let alone quickly removing, a president who has become a clear and present danger to our republic. Neither does the 25th Amendment. Our only protection from a president who tries to make himself king is electing a president who is honest, decent, and who abides his oath to uphold the Constitution and to faithfully execute the nation’s laws. In Joe Biden, we just elected such a president.
But four years ago, we elected a sociopath, Donald Trump, a real estate developer and reality television star so ignorant of government he would fail a junior high school civics exam, and so contemptuous of government and democracy that he incited a insurrectionary assault on Congress in a failed attempt to overturn an honest, fair, well conducted, election he lost. The next demagogue who would be king may be smart enough to get away with it.
In 1787, the Constitution’s authors chose a flawed method of choosing the nation’s chief executive. Their fundamental error was not the electoral college, although that has proven to be an error, but their decision to have the voters instead of the lower house of the national legislature choose the president. Rightly fearing demagogues, they invented the electoral college, which they expected to buffer popular passions, and provided for impeachment, which they expected to deter kingly behavior.
In an age when intercity message moved at the speed of a pony’s trot, they had no inkling, and could not have had an inkling, that 233 years later messages would travel coast-to-coast at the speed of light. They had no inkling that the mischiefs of faction against which George Washington warned in his farewell address would become so powerful and toxic.
The only tool they gave us for dealing with the future events they could not imagine was Article V, the limited and difficult to exercise process for amending the Constitution.
The time to amend Article II has come. Directly electing the president is fraught with unacceptable risk. At some point, perhaps in 2024, it will result in the election of a president far worse and far more dangerous than Trump who does become king. We must have the lower house of our national legislature (which should be enlarged to 700–800 members, all chosen from non-gerrymandered districts) choose our nation’s chief executive, and adopt a system in which he can be removed without delay by a simple vote of no confidence. The experiences of western parliamentary democracies prove that this system, although not perfect, is significantly safer than the system our founding fathers, acting in good faith but profound error, chose.
Let’s begin the discussion today, President’s Day.
Richardson on why witnesses were not called
In short, some did not want to be summoned to tell the truth. And allegedly there were Republican threats to filibuster Biden’s nominees and legislation to advance his agenda. Did the House’s impeachment managers chicken out on an opportunity to get important testimony on Trump’s perfidy into the record? No. Live testimony would not have changed the outcome. Jaime Herrera Beutler’s statement was read into the record. The rest of the story will be revealed in the days and months ahead. “What did Trump do during the murderous riot, and when did he do it?” will be answered.
Here’s Richardson:
The only real surprise today was this morning, when five Republicans joined 50 Democrats to vote in favor of calling witnesses.
That vote came after Representative Jaime Herrera Beutler (R-WA) last night released a statement recounting an angry conversation between House Minority Leader Kevin McCarthy (R-CA) and Trump during the violence, in which Trump refused to call off the rioters and appeared to taunt McCarthy by telling him that the rioters were “more upset about the election than you are.” Herrera Beutler’s statement suggested that Trump had deliberately abandoned Vice President Mike Pence and the lawmakers to the insurrectionists, although Trump’s lawyer had definitively declared during the trial that Trump had not been told that Vice President Mike Pence was in danger.
The vote to hear witnesses threw the Senate into confusion as senators were so convinced the trial would end today that many had already booked flights home. The House impeachment managers said they wanted to call Herrera Beutler to testify; Republican supporters of Trump warned they would call more than 300 witnesses, including House Speaker Nancy Pelosi and Vice President Kamala Harris.
After the two sides conferred, the House managers gave up demands for witnesses in exchange for reading Herrera Beutler’s statement into the record as evidence. While there was a widespread outcry at what seemed to be a Democratic capitulation, there were reasons the Democrats cut this deal. Witnesses to Trump’s behavior, like McCarthy, did not want to testify and would have been difficult. The Republicans as a group would have dragged the process on well into the spring, muddying the very clear story the impeachment managers told. They allegedly said that if the Democrats called witnesses, they would use the filibuster to block all Democratic nominees and legislation.