By Shivaji Sengupta
“Does the impeachment continue?”
“Since the Democrats control the House, there will be an impeachment. Of course, the whole thing is illegal. How can you impeach and try and perhaps remove from office a member of the Cabinet who is no longer in the Cabinet?”
I did not make any contribution to this subtle constitutional question…
Guess where this extract is from? If you answered it is from a discussion of Donald Trump’s second impeachment trial, you would be wrong. It’s from Gore Vidal’s novel, 1876, published 45 years ago. It is a historical novel, covering a history that is full of implications for today. 1876 was the only time in American history when Congress actually overturned the results of a presidential election. Samuel Tilden, Democrat governor of New York, defeated Rutherford Hayes, Republican, by 20 Electoral college votes and by razor thin popular votes. But three states, Florida, Louisiana and South Carolina, challenged the results in their respective states. Congress intervened, and a Republican majority nullified the results in those three states, and gave 23 votes to Hayes, thereby making him the winner. What happened in 1876 was as close as it can get to what happened in our most recent presidential election! And that is not all. In the same year William Belknap, a Republican Secretary of War (Defense Secretary in today’s parlance) was found guilty of taking bribes. He resigned his position so that he could avoid impeachment as a “former Secretary.” But the House impeached him and the Senate, with Democratic majority, tried him, barring him for any future elected position of public trust.
History does indeed repeat itself. It repeats because people don’t learn from past mistakes.
According to 43% of the American public, this impeachment and trial, if not a mistake, is pointless. There is practically no expectation of a conviction. The Democrats, with a forced majority of one in the Senate, simply do not have the 67 votes they need. By last count yesterday, they were still eleven short. As well as the impeachment managers did Tuesday, in making their case on the first day of the trial, 13 Republicans, including Senator Ted Cruz, have already declared that they will vote for acquittal. So that leaves 37 Republican senators. Six are for conviction. The Senate needs 11 out of thirty-one, more than a third of the remaining Republicans to join them. Still, the Democrats are hoping that the four Republican senators not seeking reelection – Burr, Toomey, Portman and Shelby — might vote against Donald Trump. But even if that happened, they would be still seven short. The big question in front of everyone is that would the Democrats’ powerful opening salvo on the first day of the trial, and the subsequent evidence they produce, get them a conviction. If more Republicans change their minds, they will have to explain why they would vote to convict after having determined that the trial of a former president is unconstitutional, the main line of defense for Trump’s lawyers.
The Defense offered two arguments. The first is the Constitution. They, and over 45 Republican senators I might add, argued that the trial is unconstitutional because nowhere in the Constitution is it written that a former president (or any other elected official) can be impeached for crimes he committed while in office. A second line of defense was the former president’s right to free speech. The president, like anyone else in America, can say what he wants. The first amendment precludes him from being pronounced guilty. The third argument was to declare that, like all impeachments, this trial was purely political: to stop Donald Trump from running for public office again. In other words, argued one of the two defense lawyers, David Schoen, to disenfranchise the former president and, with him, his 74 million supporters. They warned that if Trump’s conviction were successful, it would weaken all elected officials forever because it would give their opponents opportunities to bring them down through future bogus impeachments.
The Impeachment Managers have made overwhelming arguments to counter these points. They refuted the freedom of speech by pointing out that Trump is not any U.S. citizen shouting treasonable slogans on the sidewalk. He is the President of the United States with a following of 74 million (that he had on Twitter). What he says counts with his followers. What he said ignited his already excitable followers and they did not “peaceably assemble to petition.” Trump, they argued, unleashed an insurgency. Even the issue whether a former elected official can be tried is not an open-and-shut case. If the Defense argue as strict textualists (those who go only by the letter of the law) that since the Constitution in the impeachment clause does not mention “former” officials, the Senate cannot try one, they can be rebutted by referring to several essays in The Federalist Papers (Nos. 64-66) written by Alexander Hamilton, that warn lawmakers about the trust and responsibility that “We the People,” through the Constitution, have invested in them:
“So far as might concern the misbehavior of the Executive in perverting the instructions or contravening the views of the Senate, we need not be apprehensive of the want of a disposition in that body to punish the abuse of their confidence or to vindicate their own authority. We may thus far count upon their pride, if not upon their virtue. …If the proofs of that corruption should be satisfactory (italics inserted), the usual propensity of human nature will warrant us in concluding that there would be commonly no defect of inclination in the body to divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace (italics inserted).”
Hamilton devotes no less than three consecutive essays to impeachment and the responsibility of the two legislative bodies to justify the Constitution which, he admits, “must of necessity be brief.” (No.64) Hence, the significance of these essays written by John Jay, James Madison and Alexander Hamilton to explain to the various colonies joining the Union of the importance and efficacy of the Constitution. Yes, it does not mention “former” elected officials. But neither does it not mention what to do in the case of former officials. Textualists should note that there is “text,” and there is “context.” The contexts are provided by documents such as the Federalist Papers.
So, then what happens now. Acquittal, because the Republicans do not want to take the risk of convicting Trump on account of his almost 75 million voters, at least 40 million of whom are dyed in wool “Trumpers.” Taking the “Constitutional” route lets them off the hook of admitting that the former president is indeed responsible for the January 6th insurrection.
Nevertheless, the trial is necessary. It will show (not prove) the vast population of Trump supporters the connection between what he has been saying and what happened on that day. Whether they admit it or not, it is bound to leave an indelible mark on Trump’s political career.
He will have to think many times over before he launches another run at the City on the Hill which he has helped desecrate.