Jurisprudence

Three Branches of Government Conspired to Rig Donald Trump’s Impeachment Trial

Roberts bows his head as Black reads from a book.
Senate Chaplain Barry Black reads a prayer beside Chief Justice John Roberts during impeachment proceedings at the U.S. Capitol on Friday. Handout/Getty Images

Last year, I wrote that the United States is suffering from a collective action problem. The full extent of that problem should now be much clearer. One version of the Senate impeachment circus that has transpired these past two weeks holds that the greatest deliberative body in the world has now duly aired and considered the impeachment case against Donald J. Trump, and stands poised to issue a final decision on the merits. The better characterization of this whole sad spectacle is that in the world’s saddest game of constitutional chicken, nearly every single important player failed utterly to show up.

Trump’s former national security adviser John Bolton will say that he offered to testify before the Senate, but the Senate refused to call him. According to leaked details of his book that has been climbing up the Amazon charts, Bolton has material evidence of the conspiracy to withhold aid from Ukraine to bolster the president’s electoral fortunes, information the Republican-controlled Senate is refusing to hear. Bolton will enjoy very much his book tour, royalties, and talk show circuit this spring—if the White House’s efforts to cover up Trump’s high crimes don’t extend to blocking publication of that book, as the administration has suggested it will. Former chief of staff John F. Kelly, who now says he believes Bolton’s account of the conspiracy, will continue to live large off child detention policies he no longer oversees.

Chief Justice John Roberts, who might have inserted himself into the proceedings to chide breaches of truth as opposed to lapses in civil discourse, will have a fun story to tell on the D.C. cocktail party circuit about the time he narrowly avoided having to break a tie or otherwise allow the stink of the political branches to sully his robes. Sen. Lamar Alexander, who was briefly held out to be the last independent-thinking, old guard institutionalist, could have held out for witness testimony, as opposed to proclaiming that nobody needed to hear from witnesses to know that the president had engaged in misconduct that isn’t impeachable. Sen. Lisa Murkowski courageously grounds her refusal to stand up for the proposition that trials ought to have witnesses in the fact that John Roberts should not have to courageously stand up for the proposition that trials ought to have witnesses. All of this chatter for the goal of producing a trial unrecognizable as such, with even Murkowski herself acknowledging “there will be no fair trial in the Senate.”

As Auden put it, “The elderly rubbish they talk/ To an apathetic grave.” The game here was resoundingly similar to the Brett Kavanaugh confirmation hearing: Keep insisting that the only fair process was no process, allowing the rules of the road to produce slow death by neutral bystander.

Trump defense attorney Patrick Philbin blamed House Democrats for both rushing to judgment and also taking too long to get there. Alan Dershowitz blamed House managers for attempting to impeach a president merely for seeking to cheat in his reelection (in fairness, that’s what they were accusing him of). Sen. Rand Paul named a whistleblower for conspiring to oust a president, paid lobbyist Pam Bondi smeared Hunter Biden, Jane Raskin explained away Rudy Giuliani, and everything Trump’s defenders claimed to disagree with about impeachment—absolutely everything—was ultimately laid at the feet of Adam Schiff. At every turn, the GOP functionaries have made it their business to insist that Donald Trump, insofar as he is a problem for the rule of law, is someone else’s problem. In so doing, they have all colluded to ensure that he is above the law. We will pay the price for gifting him that in the coming months, of that we can all be certain.

For those of us who clung to the norms and the forms of neutral legal process over the past three years, it’s sobering to see something that was dressed up as a trial, with rules and robes and speeches, wither and die on the vine, all for a lack of moral courage from an array of individual actors who will just claim someday that they were merely playing their constitutionally designated parts. Nobody expected more from any one of them, but that doesn’t make the damage any less severe. It might have taken just a small act of courage from the chief justice, or Murkowski, or Alexander, or Bolton, to give the country an actual trial. But courage in the face of the juggernaut of bothsidesism is trickier than it looks, because it will be characterized as bias. Three branches of government worked together to obscure, delay, and confound a fair trial. Nothing about this process was neutral.

A friend of mine who is as devoted to the proposition that the courts, the lawyers, and the judges will save America from itself warned me very early on in the Trump era to read all the transcripts from the third Nuremberg* trial, commonly known as the Justice Case. That was the trial for judges, jurists, and prosecutors who—under cover of law—allowed for atrocities during the Third Reich. I don’t read and reread the transcripts and testimony obsessively because we find ourselves in anything close to the Third Reich, or because judges in 21st century America are accused of doing anything close to what the Nuremberg* jurists were accused and largely convicted of. I read and reread the transcripts and conclusions merely to remind myself that just because judges, robes, statutes, and case law are involved in a process does not mean that justice is being done. I also do it to remind myself that sometimes people who live in thrall to the idea that whatever courts and process ultimately produce is an objective thing called “justice” are sometimes too credulous by half—and oftentimes even complicit.

This Senate trial was not a failure of process, but a failure of courage. Historians will laugh at a truth-seeking that elided and avoided truth. But it won’t fault Auden’s “neutral air” or “blind skyscrapers”; it will fault the architects of a trial that never even tried.

Correction, Feb. 3, 2020: This piece originally misspelled Nuremberg.