- - Tuesday, February 9, 2021

Editor’s note: This is one in a series examining the Constitution and Federalist Papers in today’s America. Click HERE to read the series.

 

The Senate is starting a most unusual impeachment trial. For only the second time in its history, it is likely to proceed to trial to consider articles of impeachment against a former government official. Meanwhile, former President Donald Trump seems to be having difficulty keeping a team of defense attorneys or agreeing on a trial strategy.

After a preliminary procedural vote forced by Sen. Rand Paul, Kentucky Republican, it seems to be an all but foregone conclusion that the trial will end with Mr. Trump’s acquittal.



Suddenly, both Democratic and Republican senators are wondering whether an impeachment trial even makes sense. An extended trial threatens the ability of the Democrats to advance their legislative agenda and delay the confirmation of President Biden’s executive appointments.

The benefits of a trial are uncertain and the costs are real.

What is the point of an impeachment trial in these circumstances, or at all? The most obvious purpose for an impeachment trial is to remove a misbehaving individual from office. Section Four of Article II of the Constitution directs, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The only way Congress can remove a judge or executive officer who has become repugnant to it is by way of a conviction in a Senate trial. Such convictions and removals are rare, in part because judges and executive officers have generally preferred to resign rather than face an impeachment, but they have sometimes been necessary in unusually stubborn cases.

But removal is obviously not on the agenda for an impeachment trial of a former president. The automatic removal that would follow from conviction as required by Article II is not relevant in this case. Article I of the Constitution limits the Senate to two punishments upon conviction of an impeached officer. Removal, if applicable, follows automatically.

The Senate also may take an additional vote to disqualify the convicted individual from holding and enjoying “any Office of honor, Trust or Profit under the United States.” That option is still on the table in the case of a former officer, but only if two-thirds of the senators are first willing to find the impeached individual guilty of high crimes and misdemeanors. That possibility seems increasingly unlikely in the case of Mr. Trump.

If conviction is unlikely, and thus disqualification is not a plausible outcome, is there any purpose to continuing with an impeachment trial? It is still possible both for the House to notify the Senate that it does not wish to proceed with a trial (it has done so before) and for the Senate to refuse to hold anything more than a perfunctory proceeding to get quickly to the inevitable conclusion of a not-guilty verdict.

That said, there is still a potential purpose to a Senate impeachment trial even when the outcome is all but assured.

Impeachments are not only mechanisms to remove wayward officers. They are also a formal process for exposing wrongdoing, for allowing the accused to defend themselves against charges of public wrongdoing, and for condemning some kinds of behavior as public wrongs.

Historically, the impeachment power served as the ultimate legislative tool for investigating wrongdoing in the government, particularly in the executive branch. As Mr. Trump demonstrated, it is quite possible for a determined president to stonewall congressional investigations into the activities of executive officials.

Mr. Trump’s blockade of congressional investigations was unusually sweeping and comprehensive, but his was hardly the first administration to attempt to stifle legislative efforts to peer into the workings of the executive branch. The impeachment power has always been the trump card that gave Congress additional leverage to force administrations to compromise and cooperate with investigations.

In an earlier era, before oversight hearings became a regular part of legislative practice in America, the impeachment power was the formal process by which Congress could investigate potential misconduct in the government. An impeachment trial of Mr. Trump could be used to lay bare for the public the facts of what happened in the weeks after the election and on the day of the Capitol riot. Congress might prefer to do that through ordinary hearings or a fact-finding commission, but one purpose of a trial would be to shine a spotlight on the behavior of the Trump administration and campaign.

When the Constitution describes the role of the Senate in the impeachment process, it speaks in the judicial language of a trial.

An important feature of a trial is that it allows the impeached individual to present a defense. When former Secretary of Labor Raymond Donovan was found not guilty of fraud charges by a Bronx, New York, jury during the Reagan administration, he famously asked on the courthouse steps, “Which office do I go to get my reputation back?”

An impeachment trial provides an opportunity for a wrongly accused public officer to get his reputation back by confronting his accusers and mounting a public defense of his actions. Mr. Trump might well welcome the chance to achieve a kind of vindication by beating the impeachment rap a second time.

The impeachment process is also a means by which Congress can formally condemn the conduct of public men as unacceptable and grossly incompatible with the public trust. Mr. Trump was a norm-breaker. Some of those norms should not have been broken. The impeachment process is one means by which Congress can attempt to reestablish those norms.

Through the impeachment process, Congress can send a message to future government officials that they are expected to concede an election that they lose, to refrain from casting baseless aspersions on the legitimacy of American elections, and to avoid fomenting political violence. 

Of course, Congress might wind up doing the opposite. If the impeachment trial becomes an opportunity for Mr. Trump to further advance his theories of massive election fraud and results in his acquittal on a largely partisan vote, then Congress might inadvertently send the message that such behavior is not beyond the pale after all.

• Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He is the author, most recently, of “Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present.

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