Making Sense of Marco Rubio’s Statement on Impeachment and Removal

Rubio debate

Here is Rubio’s statement:

Voting to find the President guilty would not just be a condemnation of his action. If I vote guilty, I will be voting to remove a President from office for the first time in the 243-year history of our Republic.

When they decided to include impeachment in the Constitution, the Framers understood how disruptive and traumatic it would be. As Alexander Hamilton warned, impeachment will “agitate the passions of the whole community.”

This is why they decided to require the support of two thirds of the Senate to remove a President — we serve as a guardrail against partisan impeachment and against removal of a President without broad public support.

Leaders in both parties previously recognized that impeachment must be bipartisan and must enjoy broad public support. In fact, as recently as March of last year, Manager Adam Schiff (D-CA) said there would be “little to be gained by putting the country through” the “wrenching experience” of a partisan impeachment.

And yet, only a few months later, a partisan impeachment is exactly what the House produced.

This meant two Articles of Impeachment whose true purpose was not to protect the nation but rather to, as Speaker Nancy Pelosi (D-CA) said, stain the President’s record because “he has been impeached forever” and “they can never erase that.”

It now falls upon this Senate to take up what the House produced and faithfully execute our duties under the Constitution of the United States.

Why does impeachment exist?

As Manager Jerry Nadler (D-NY) reminded us Wednesday night, removal is not a punishment for a crime. Nor is removal supposed to be a way to hold Presidents accountable; that is what elections are for.

The sole purpose of this extraordinary power to remove the one person entrusted with all of the powers of an entire branch of government is to provide a last-resort remedy to protect the country. That is why Hamilton wrote that in these trials our decisions should be pursuing “the public good.”

That is why six weeks ago I announced that, for me, the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable.

The two are not the same. Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office.

To answer this question, the first step was to ask whether it would serve the public good to remove the President, even if I assumed the President did everything the House alleges.

It was not difficult to answer that question on the charge of “Obstruction of Congress.” The President availed himself of legal defenses and constitutional privileges on the advice of his legal counsel. That is not an impeachable offense, much less a removable one.

Negotiations with Congress and enforcement in the courts, not impeachment, should be the front-line recourse when Congress and the President disagree on the separation of powers. But here, the House failed to go to court because, as Manager Schiff admitted, they did not want to go through a yearlong exercise to get the information they wanted. Ironically, they now demand that the Senate go through this very long exercise they themselves decided to avoid.

On the first Article of Impeachment, I reject the argument that “Abuse of Power” can never constitute grounds for removal unless a crime or a crime-like action is alleged.

However, for purposes of answering my threshold question I assumed what is alleged is true. And then I sought to answer the question of whether under these assumptions it would be in the interest of the nation to remove the President.

Determining which outcome is in the best interests requires a political judgment — one that takes into account both the severity of the wrongdoing alleged but also the impact removal would have on the nation.

I disagree with the House Managers’ argument that, if we find the allegations they have made are true, failing to remove the President leaves us with no remedy to constrain this or future Presidents. Congress and the courts have multiple ways by which to constrain the power of the executive. And ultimately, voters themselves can hold the President accountable in an election, including the one just nine months from now.

I also considered removal in the context of the bitter divisions and deep polarization our country currently faces. The removal of the President — especially one based on a narrowly voted impeachment, supported by one political party and opposed by another, and without broad public support — would, as Manager Nadler warned over two decades ago, “produce divisiveness and bitterness” that will threaten our nation for decades.

Can anyone doubt that at least half of the country would view his removal as illegitimate — as nothing short of a coup d’état? It is difficult to conceive of any scheme Putin could undertake that would undermine confidence in our democracy more than removal would.

I also reject the argument that unless we call new witnesses this is not a fair trial. They cannot argue that fairness demands we seek witnesses they did little to pursue.

Nevertheless, new witnesses that would testify to the truth of the allegations are not needed for my threshold analysis, which already assumed that all the allegations made are true.

This high bar I have set is not new for me. In 2014, I rejected calls to pursue impeachment of President Obama, noting that he “has two years left in his term,” and, instead of pursuing impeachment, we should use existing tools at our disposal to “limit the amount of damage he’s doing to our economy and our national security.”

Senator Patrick Leahy (D-VT), the President Pro Tempore Emeritus, once warned, “[A] partisan impeachment cannot command the respect of the American people. It is no more valid than a stolen election.”

His words are more true today than when he said them two decades ago. We should heed his advice. I will not vote to remove the President because doing so would inflict extraordinary and potentially irreparable damage to our already divided nation.

There is a lot we can say about this statement, but two things strike me.

First, Rubio rejects Alan Dershowitz’s argument that the Senate can only remove the president if he commits a crime.

Second, Rubio’s argument seems to reflect the words of presidential historian Jeffrey Engel.  In my interview with Engel on Episode 61 of The Way of Improvement Leads Home Podcast he said:

Because Senators can use any standard of evidence that they want, any standard of burden of proof that they want, and any piece of information that they want (including from their own experience), their job is to determine whether or not the nation will be best served by having the president continue in office or not. It’s to use the evidence that has been accumulated of a “high crime” not necessarily to decide whether or not a crime has been committed, but whether a president is likely to continue to do so in the future having demonstrated a flaw in their character, if you will, that makes them dangerous to the American people. 

Consequently, you could have Senators who believe in their hearts that Donald Trump committed every single act that the House Managers say he did, and if you still believe the nation is better off with him as the president than not, you have an obligation to vote to retain him in office.

By the same token, you could decide that Donald Trump is innocent of the crimes that he has been accused of, the specific crimes he has been accused of, the specific deeds he has been accused of, and decide that he has demonstrated nonetheless a proclivity for putting himself above the needs of the nation, so therefore he should be removed from office. This is entirely subjective and intentionally so because there is no court of appeal.  There is no one who will ever be able to make a Senator change their mind if they don’t want to, or a Senator change their vote if they don’t want to, and they can’t change their vote once it’s submitted. A Senator never has to tell you why he or she voted for or against a presidential impeachment. Now most of them love microphones, so of course they will, but ultimately if you have a court–not a jury, but a court–that is able to make a decision that is without appeal and never has to justify it appeal what that really tells us is people can choose to do what they think is best, and what they think is best may be a political calculation, it may be a moral calculation, it may be a civic calculation, we’ll simply never know.

Which ultimately is why I think Donald Trump is going to be acquitted in this trial because Senators on his side, at least one-third of them, could look themselves in the mirror and say “I like the way the country is going.  I think this man committed a few crimes, but who hasn’t…and I think the country is better off with him in place.” And they can genuinely and justifiably say that to themselves in order to make their vote for acquittal.

Like it or not, Rubio believes that keeping Trump in power is what is best for the country.  Case closed.