If Lamar Alexander wants to oppose witnesses in the Donald Trump impeachment trial he has that right. But spare us the “history” lesson.
Alexander statement says:
I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.
So it sounds like Alan Dershowitz’s “absurd” and “baffling” argument convinced the senior Senator from Tennessee. In embracing the Dershowitz argument, Alexander has chosen to reject the consensus of legal scholars and American historians.
“There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence.’ There is no need to consider further the frivolous second article of impeachment that would remove the president for asserting his constitutional prerogative to protect confidential conversations with his close advisers.
“It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.
So what is the difference between an “impeachable” offense and an “inappropriate” offense? Again, Alexander has been swayed by Dershowitz’s argument. Alexander believes that the president is guilty, but he does not believe that Trump committed an impeachable offense. (Dershowitz doesn’t think Trump is guilty of anything). This is also clear from the next part of Alexander’s statement:
“The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.
“The Senate has spent nine long days considering this ‘mountain’ of evidence, the arguments of the House managers and the president’s lawyers, their answers to senators’ questions and the House record. Even if the House charges were true, they do not meet the Constitution’s ‘treason, bribery, or other high crimes and misdemeanors’ standard for an impeachable offense.
Alexander goes on:
“The framers believed that there should never, ever be a partisan impeachment. That is why the Constitution requires a 2/3 vote of the Senate for conviction. Yet not one House Republican voted for these articles. If this shallow, hurried and wholly partisan impeachment were to succeed, it would rip the country apart, pouring gasoline on the fire of cultural divisions that already exist. It would create the weapon of perpetual impeachment to be used against future presidents whenever the House of Representatives is of a different political party.
“Our founding documents provide for duly elected presidents who serve with ‘the consent of the governed,’ not at the pleasure of the United States Congress. Let the people decide.”
On the issue of “partisan” impeachments and the founders, here is historian Joanne Freeman:
This is a lie.
The framers said that EVERY impeachment would be partisan, so the Senate should proceed with wisdom.
Read Federalist 65, folks. https://t.co/noklRMz4Tp
— Joanne Freeman (@jbf1755) January 31, 2020
Moreover, as historian Kevin Kruse has been reminding us, there were no political parties when the founders wrote the Constitution:
There were no parties when the Constitution was written. There were no parties when the Constitution was written. There were no parties when the Constitution was written. There were no parties when the Constitution was written. There were no parties when the Constitution was writ
— Kevin M. Kruse (@KevinMKruse) January 31, 2020
Alexander also suggests that the “founding documents” teach that “the people” should decide whether to move a president. Here he is connecting “impeachment” with the vote and will of “the people.” But the Constitution makes no such connection.
First, as James Madison made clear in Federalist 39, “The President of the United States is impeachable at any time during his continuance in office.” In other words, the president can be impeached during an election year.
Second, the framers were skeptical about trusting the people to make decisions about important matters such as impeachment. The framers did not trust the “ballot”on impeachment. Read the Constitution as it was written in 1787. Senators were not directly elected by the people. They were appointed by state legislatures. This is precisely why the framers believed that the Senate was best suited to serve as judges in an impeachment trial. The “people” in the House of Representatives brought charges in the president (impeachment), but the Senate, those so called “gods on Mount Olympus,” would decide whether or not the people were right (removal). As Madison wrote in Federalist 10, the passions of the people needed to be filtered through “a medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.” In fact, the framers of the Constitution had such a mistrust of the people that they did not allow them to vote directly for the president. It is worth noting that they did not even record the popular vote in presidential elections until 1824.
In the end, Lamar Alexander can oppose impeachment trial witnesses for all kinds of reasons, but please don’t appeal to the founders.
Alexander’s sketchy use of the founding-era is particularly troubling considering that he has always been a strong advocate for more history and civics in public schools.