On Friday afternoon, Republican Sen. Lisa Murkowski announced that she would vote against witnesses in Donald Trump’s Senate trial, all but ensuring that the president will be promptly acquitted Friday night. Democrats do not have enough votes to subpoena witnesses, which might have prolonged the trial and forced Republicans to confront even more egregious facts. But the truth is that the Senate was never going to convict Trump. Removal was already near-impossible, and the GOP has manipulated constitutional ambiguities to permanently protect the president from expulsion. The impeachment saga has revealed many unseemly facts about American politics, but perhaps the most important is this: Future presidents may be impeached, but none will ever be removed from office.
Part of the impossibility of removal is the fault of the Framers, who never really agreed on a precise definition of the “high crimes and misdemeanors” that warrant the ouster of a president. Alexander Hamilton tried to flesh out the purpose of impeachment, but his writings have proved just as malleable as the constitutional text. The Framers’ conception of an impeachable offense rested in part on the hope that Congress will know it when it sees it. But they did not anticipate the rise of mass political parties, and so their founding charter failed to accommodate for partisan factionalism. As the New York Times’ Jamelle Bouie has written, the anti-federalists, opponents of the Constitution, correctly predicted that the Senate would never remove a president, in part because too many senators would have an interest in his political survival.
The anti-federalists have now been proved right three times. Impeachment by the House functions as a symbolic vote of no confidence, but there are no immediate repercussions for the president without a Senate conviction. In 1868, the Senate failed to convict President Andrew Johnson—a rabid racist who abused his office—because one senator, Edmund Ross, was probably bribed, or at least provided corrupt favors in exchange for his vote. In 1998, Senate Democrats held off the impeachment of President Bill Clinton, who committed perjury to cover up a grossly inappropriate sexual relationship with a young intern.
We cannot know whether the Framers’ design for impeachment and removal might’ve succeeded in a world without rival political factions. What we do know is that it was extremely vulnerable to partisan debasement. All nine Senate Democrats voted to acquit Johnson and stand by the lawless leader of their party. Presiding officer Chief Justice Salmon P. Chase intended to seek the Democratic presidential nomination, and skewed the trial in Johnson’s favor to avoid alienating Democrats. Johnson himself was able to secure Ross’ vote through a number of quid pro quos, appointing his friends to important and well-paid government positions.
Hamilton wrote that the Senate should try impeachments because it is “dignified” and “independent,” “unawed and uninfluenced,” suffused with “the necessary impartiality” to render a just verdict. He was wrong. The rise of partisan politics ensured that senators of the president’s party would defend him. And because removal requires a two-thirds vote, a president is not at real risk even when the opposing party controls the chamber, unless it somehow seizes 67 seats. The Clinton trial in 1999 confirmed this problem when the GOP-controlled Senate acquitted the president, with every Democrat voting in his favor. Clinton’s crimes were not as severe as Johnson’s, and his acquittal was not secured by unscrupulous means. But the trial had a partisan valence, with nearly half the chamber favoring loyalty to their party leader over the “impartiality” that Hamilton anticipated.
The Johnson and Clinton acquittals undermined impeachment as an effective tool against an unscrupulous president. But both trials got bogged down in technical questions about whether the president actually broke the law, leaving open the possibility that an open-and-shut case of presidential illegality could still warrant removal. Now Senate Republicans have decided that it does not. Trump obviously broke the law, illegally withholding aid allocated by Congress, and did so to pressure a foreign government to swing an election in his favor. Hamilton warned that the “most deadly adversaries” of the government may come “chiefly from the desire in foreign powers to gain an improper ascendant in our councils.” Yet Republicans have decided when a president uses unlawful means to force these “foreign powers” to influence an election, he still does not deserve to be expelled from office.
Of all the rationalizations for acquitting Trump, this one is the most harmful. And in fairness, Republicans did not arrive here lightly. For months, they attempted to deny the reality that Trump illegally withheld military aid to Ukraine in an effort to force Ukraine’s president to announce an investigation into Joe Biden, a potential 2020 opponent. When a mountain of evidence overwhelmingly proved that Trump had done just that, Republicans attacked the whistleblower and witnesses, alleging some illicit “deep state” effort to take down a president they disliked. Trump’s defense team also claimed that the president withheld aid for legitimate reasons, including a broader desire to counter corruption in Ukraine. In due course, each theory of the defense crashed on the shoals of emerging evidence, all of which indicated that Trump wanted an announcement that Biden would be investigated.
At that point, his defenders turned to a final, desperate argument: Even if Trump did precisely what Democrats accuse him of doing, he should not be removed from office. As Alan Dershowitz put it, “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.” It doesn’t matter if a president solicited foreign intervention in a presidential election to secure another term. So long as he believed a second term would benefit “the public interest”—and this belief was one factor in his decision—his actions do not warrant removal. Dershowitz also asserted that abuse of office is simply not a crime, so it cannot be the basis for impeachment or removal.
As my colleague Dahlia Lithwick has explained, these claims are profoundly dangerous. They give the president carte blanche to break the law so long as he can point to some alleged public benefit from his lawbreaking. And they allow the president to wield his power in wildly abusive ways but remain immune from impeachment. A president will always be able to insist that a second term is vital to the national interest; thus, any actions he takes to win the election are not impeachable offenses. By letting Trump off the hook under the most damaging rationale, Republicans are setting a terrible precedent. They are essentially taking impeachment and removal off the table for future presidents who abuse their office. And they are proving that, as the anti-federalists predicted, senators in the president’s own party will stand by their corrupt leader.
There is another reason why Trump’s acquittal demonstrates that no impeachment will ever succeed: The executive branch can, with the aid of the judiciary, prevent Congress from obtaining documents, witnesses, and other evidence to bolster its case against the president. In this age of the monarchal executive, Trump has fought the House of Representatives’ oversight tooth and nail every step of the way. His lawyers have successfully stopped the House from obtaining information that may be relevant to impeachment, including his tax returns and other financial records. They’ve prevented the House from seeing potentially incriminating grand jury materials from Robert Mueller’s probe. And they have stopped executive officials like former White House counsel Don McGahn from testifying before impeachment investigators, asserting a sweeping claim of executive privilege that could gag all witnesses to the president’s crimes.
Federal judges, including Trump appointees, have slow-walked these cases, stymying Democratic efforts to scrutinize the president. Trump judges like Neomi Rao have endorsed the president’s theories; in turn, Trump’s Office of Legal Counsel adopted Rao’s position to justify refusing congressional requests for documents and testimony. The judiciary has abetted the president’s defense strategy, depriving Congress of necessary materials by sitting on these lawsuits and running down the clock.
When the president amasses power at Congress’ expense and the judiciary is not willing to limit his overreach, impeachment becomes an empty exercise. By acquitting Trump, the Senate will effectively announce that it has disclaimed any responsibility to remove a president who committed a clear-cut abuse of power. Instead, as Sen. Lamar Alexander put it, Republican senators will “let the people decide” in the 2020 election. But they have also given Trump permission to steal that election by any means necessary, so long as he can present the fig leaf of acting in the public interest. The Constitution was not designed to withstand such cynical partisanship. Impeachment will remain an option for lawmakers who seek a symbolic condemnation of the president. But Trump’s acquittal will take removal off the table for good.
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