On Tuesday, the impeachment trial of President Donald J. Trump resumed in the U.S. Senate. The impeachment process that can lead to the removal of the president began in the House of Representatives. By a simple majority vote, the House sent articles of impeachment alleging from the Constitution, “Treason, bribery or high crimes and misdemeanors,” to the Senate. But the Constitution does not define these terms.
The Senate, with all 100 members sits as a jury to determine whether the impeachments charges require removal or acquittal of the president. A two-thirds vote, or 67 senators, is needed to convict. Presiding over the hearing is the Supreme Court’s Chief Justice who also can cast the tie-breaking vote on any motion if there is deadlock. The Leader of the Senate determines the rules. And unlike a criminal case, this trial is entirely political in nature.
In the past, only two impeachment cases have ever been heard by the Senate. Both were acquitted. In 1868, President Andrew Johnson was accused of breaking the Tenure of Office Act by firing a cabinet secretary. Then, only Congress had the power to remove cabinet officials. In fact the reason for the impeachment was over reconstruction of the South after the Civil War ended in April 1865.
A majority of Republicans favoured harsh terms. Johnson did not. He was acquitted by a single vote. And the Tenure of Office Act was later declared unconstitutional.
One hundred and thirty years later, President Bill Clinton was impeached for lying under oath, obstruction of justice and other abuses. The Senate voted acquittal. With a popular opinion approval of about 73%, to most Americans, while what Clinton did was wrong in having an affair with a twenty-one year old intern, it did not warrant removal.
In 1974, President Richard Nixon would have been impeached, convicted and removed from office over Watergate. Nixon broke the law in ordering a cover up of the break-in, a clear violation, in lying and in obstructing the investigation. He of course resigned in disgrace.
Trump’s popularity, unlike Clinton’s, is around 43%. But the president will use acquittal as vindication. Along with the assassination of Qassim Soleimani, this will empower Trump and his campaign for re-election
In December, the House passed on basically a party line vote two articles of impeachment: Abuse of Power and Obstruction of Congress. Abuse of power is predicated on the president withholding essential funds of nearly $400 million vital to Ukraine’s defence in return for Ukraine’s president making a public statement about investigating former Vice President Joe Biden and his son Hunter for corruption. This in turn means using the office of the president for personal political gains against a rival for the office.
Obstruction of Congress pertains to the president’s refusal to allow members of his administration to testify and to send pertinent documents to the investigating Congressional committees. The president claimed “executive privilege” meaning that in the Executive Branch, as client-attorney interactions are privileges, this applies to the office. Had the House gone to court to demand compliance, months could have elapsed before any decision may have been rendered.
The aphorism that “bad cases make for bad law” is very relevant. First, whether or not additional witnesses are called, to an unbiased observer, the evidence that Donald Trump withheld aid to Ukraine for the purpose of using his office to discredit a rival is incontrovertible. That this is an impeachable offense subject to removal from office is debatable and far from clear from the Constitution.
If witnesses are called, the president refuses to allow testimony and the case goes to the courts for resolution, weeks or months could follow suspending the trial. If witnesses are not called, Republicans in the Senate will be blamed for not living up to the oath of “impartiality.” And further incriminating evidence that might turn up could lead to a second impeachment if the president is acquitted.
Trump’s popularity, unlike Clinton’s, is around 43%. But the president will use acquittal as vindication. Along with the assassination of Qassim Soleimani, this will empower Trump and his campaign for re-election. Meanwhile, Democrats will be enraged and even more determined to defeat Trump. The trial will mark the beginning and not the end of even greater political partisanship and disunity.
Democracies are in trouble. In Pakistan, the Supreme Court’s decision to shorten the Army Chief of Staff tenure was reversed by Parliament. Make no mistake: this was a soft coup.
The current government has not lived up to its promises and will not. The Army does not wish to intervene as past generals have and carry the full responsibilities and consequences of reversing democracy and in governing. But it does not wish the country to go further off the rails.
These are not good times here or in America.
The writer is a Senior Advisor at the Atlantic Council. His latest book is Anatomy of Failure: Why America Has Lost Every War It Starts