Two simultaneous conversations are going on during the impeachment trial. One is about the law and trying to frame concepts such as bribery, extortion, or obstruction of justice into the more uncertain text of the Constitution.
Although these concepts are useful in understanding the text of the Constitution, ultimately, the founders left the decision in Congress’s hands. They enumerated two crimes they knew were impeachable, treason and bribery. They added a more general reference to “high crimes and misdemeanors.” They expected that members of Congress should make their own determination of what constitutes an impeachable offense.
The other conversation going on in these proceedings is a political one. This process merges politics and law. That is by design. It is up to the people, watching the hearings, to judge for themselves whether or not the impeachment proceedings are appropriate. That will determine what steps are taken next, as politicians respond to polling about the proceedings.
At times it is frustrating when the political nature of these proceedings overpowers the legal, and the result is a process that is cheaper for it. Unfortunately, most people will recall little more from this week’s hearing than a silly analogy to royal first names or the regrettable choice of a witness who supported impeachment a bit too early in the president’s term.
I imagine the founders understood that voters would be made aware of impeachment proceedings — they enjoyed active newspapers and letters that kept the colonies informed about the goings-on in the capital. They didn’t know the extent to which voters could now watch the proceedings in real time, but I imagine they would have enjoyed C-SPAN heartily and spent many hours watching it with a tall glass of mead in hand.
This week in the House Judiciary Committee, the impeachment proceedings properly began with a hearing about the Constitution. The White House and committee Republicans offered talking points about elitism and the ivory tower, but what better way to approach impeachment proceedings with the sober gravity they deserve?
Is their point that constitutional law professors have political leanings? That’s not really a surprise.
It was a week to be proud that we live in a country where an effort to remove the president doesn’t begin with mobs or the military, or worse, with those dangerous foreign alliances that the founders so feared when they designed the impeachment process in the Constitution.
No, an effort to remove the president began with a hearing aired on TV where Congress heard from professors of constitutional law about the finer points of the Constitution and the historical meaning of phrases like “high crimes and misdemeanors” and “abuse of authority.”
This author personally determined that impeachment and conviction were appropriate, based on a close read of the Mueller report and President Trump’s and White House Chief of Staff Mick Mulvaney’s admissions that they pressured Ukraine to investigate former Vice President Joe Biden’s family’s activities in Ukraine. Voters will have an opportunity to judge for themselves based on the public hearings. In that sense, these hearings have a useful purpose, even if the Senate ultimately votes not to convict.
Further, the House’s determination of impeachment has a historical purpose even if the Senate refuses to convict. It will send a message to future presidents, warning of the consequences of behavior like Trump has displayed in his interactions with Russia and Ukraine, both during the campaign and his presidency. The judgment of history will ring forward to future generations that, however powerful the presidency has become in foreign relations, using the power to aid your election is simply not allowed.
As a Republican who has both testified in Senate hearings as a Republican witness many times and one who has worked for two Republican senators who have run for president, I hold hope for more dignified proceedings during the Senate trial.
If some Republican senators want to make the argument that Trump’s behavior was regrettable judgment but not quite to the level of impeachment, that’s at least a reasonable argument. It’s not one supported by the facts, but it’s better than the obsequious and blindly loyal repetition of White House talking points we’ve seen thus far from Rep. Jim Jordan.
Impeachment is both a legal and a political exercise. We’ve heard from the law professors and the politicians, and House Speaker Nancy Pelosi has determined that the case has been made to proceed with a Senate trial. These are all imperfect vessels for such a message, but it is clear. The faith of the founders and the judgment of history will shortly turn to senators and Chief Justice John Roberts as he presides over the Senate trial.
J.W. Verret (@JWVerret) is an associate professor at the George Mason University Antonin Scalia Law School.
