Would the Founders Have Recognized GOP Arguments Against Trump’s Removal?

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As we enter the 2020 election season I have been trying to do more writing for local and regional outlets here in Pennsylvania. This morning I have an op-ed on the impeachment trial at LNP/Lancaster On-Line (formerly Intelligencer Journal-Lancaster New Era).  Here is a taste:

Other Republican senators, including Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska, Ben Sasse of Nebraska, and Pennsylvania’s own Pat Toomey, argued that Trump’s phone call with the Ukrainian president was “inappropriate,” but did not rise to the level of impeachment.

This last group of senators justified their acquittal votes in two ways.

First, some of them argued that the Founding Fathers would have opposed a partisan impeachment. (No House Republicans supported impeachment.)

This is not true.

In Federalist Paper No. 65, Alexander Hamilton, one of the most prolific defenders of the Constitution during the ratification debates of 1787-1788, predicted that impeachments would always be political. As a result, the Senate should always proceed with caution, prudence and wisdom.

Moreover, the framers of the Constitution would never have referred to an impeachment trial as “bipartisan,” since at the time of its writing there were no political parties in the United States.

The second way that this cohort of Republican senators justified their acquittal vote was by claiming that “the people” should decide whether Trump should be removed from office and this should be done when they cast their ballots during the November presidential election.

The Founding Fathers would not have recognized such an argument.

Read the entire piece here.

More GOP Senators Make the “Let the People Decide” Argument to Defend Their Votes for Trump’s Acquittal

Collins

Last weekend it was Lamar Alexander.  Yesterday it was Lisa Murkowski.  Today it was Susan Collins and Joni Ernst.

As I argued (with the help of historian Jeffrey Engel) last weekend in the case of Marco Rubio, in an impeachment trial a Senator can vote however they want to vote.  They don’t have to explain their vote.  They can argue that Trump committed an impeachable act (Collins and Ernst do not go this far) and still choose to acquit him.

Alexander, Murkowski, Collins, Ernst all believe that Trump did something wrong when he asked Ukraine to investigate Joe Biden.  Alexander said that the framers of the Constitution believed that it was the “people” through the “ballot”who should remove a president in an election year. This is an absurd historical claim.  Though Murkowski, Collins, and Ernst do not appeal to the founding fathers, they seem to accept Alexander’s argument.

So here is my question for these Senators:  How will you hold Trump accountable for what he did?  Is delaying the acquittal vote until Wednesday in order to make Trump deliver tonight’s State of the Union address amid an impeachment trial enough of a punishment? If Trump did something wrong, as the majority of Senators believe, how will the Senate exercise its constitutional requirement to check the executive branch?

Presidential Censure in Historical Context

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Democrats in the Senate believe that Trump should be removed from office.  They will vote along these lines tomorrow.  But they only have 47 votes.  This is well below the 67 votes needed to remove the president from office.  In all likelihood, the Senate will acquit Trump.

But several GOP Senators have noted that Donald Trump acted inappropriately when he asked the Ukrainian president to investigate Joe Biden.  Marco Rubio even suggested that when Trump withheld American aid to Ukraine until he got an investigation into his political opponent the president was committing an impeachable offense.

While some Senators will defend the president at all costs, it seems that others–Lamar Alexander, Rubio, Lisa Murkowski, Susan Collins, Mitt Romney–may want to send a message of rebuke to the president for his corrupt behavior. A censure might be an appropriate way to do this.

I don’t think Joe Manchin will get many Democrats to support a presidential censure.  Most Democrats want Trump out of office. Censure will look like a compromise.  But what if the Republicans pushed for censure?  If they really think that Trump committed unethical or impeachable offenses, perhaps they would want to remind the president that his call to Ukraine was not “perfect.” By calling for a censure of Trump, Manchin appears to be calling their bluff.

If the Senate did pass a censure resolution against Trump it would not be the first time this has happened in American history.  As historian Mark Cheathem reminds us, the Senate censured Andrew Jackson in 1834.  Here is a taste of his post at his blog Jacksonian America:

In 1834, the Senate passed a censure resolution against President Andrew Jackson. The decision to rebuke Jackson stemmed from his actions during the Bank War. Suspicious of the 2nd Bank of the U.S., Old Hickory had waged a battle against the financial institution since his first term. In 1832, he vetoed a congressional bill that would have granted the Bank a new contract four years earlier than expected. The following year, in an attempt to permanently weaken the Bank, Jackson ordered Secretary of the Treasury William J. Duane to remove the government’s deposits. When he refused, the president fired Duane. Jackson replaced him with Roger B. Taney, who implemented the removal policy. Bank president Nicholas Biddle responded by instigating a recession. “This worthy President thinks that because he has scalped Indians and imprisoned Judges, he is to have his way with the Bank,” Biddle said. “He is mistaken.”

Jackson’s opponents, led by Senator Henry Clay of Kentucky, also took action. When Jackson refused to give the Senate a document on the removal of government deposits that he had submitted to his cabinet, Clay introduced censure resolutions against both Jackson and Taney. “We are in the midst of a revolution, hitherto bloodless, but rapidly tending toward a total change of the pure republican character of the government, and to the concentration of all power in the hands of one man,” Clay said in a speech on the Senate floor. He compared Jackson to a tyrant and warned his fellow senators that if they did not stand up to him, then the nation would collapse. “We shall die—ignobly die! base, mean and abject slaves— the scorn and contempt of mankind—unpitied, unwept, unmourned!” he concluded dramatically. In a decidedly partisan vote, in March 1834, the Senate passed censure resolutions against both Jackson and Taney. Senators also rejected Taney’s recess appointment as Treasury secretary.

Read the entire piece here.

Lamar Alexander’s Statement is Full of Historical Problems

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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.

Alexander continues:

“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:

Moreover, as historian Kevin Kruse has been reminding us, there were no political parties when the founders wrote the Constitution:

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.

Who in the Senate Will Have the Courage to Vote Against Party?

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Probably no one.

It will take 67 United States Senators (2/3rds of the Senate) to remove the soon-to-be-impeached Donald Trump from office in a Senate trial.  There are currently 45 Democratic Senators and two independent Senators (who will vote with the Democrats).  There are 53 Republican Senators.

In order to remove Trump from office, all of the Democrats and Independents will need to vote for removal and twenty Republicans will need to break with their party.  I doubt this will happen.  But it would certainly be revealing if a handful of principled Republicans (whether such Republicans exist is another question) broke with their party and voted to remove Trump from office.

Who might be the candidates for such a break with party?  The best bets (granted, they are really long shots) are:

Mitt Romney (Utah): Strong critic of Trump with nothing to lose. Utah Republican’s don’t like Trump.

Susan Collins (Maine):  She is not afraid to break with Trump, but did vote to confirm Bret Kavanaugh to the Supreme Court.  Don’t hold your breath. If Collins votes for removal she might lose her seat in Maine.

Lisa Murkowski (Alaska): She has voted against Trump on healthcare and Kavanaugh.

Lamar Alexander (Tennessee):  He is retiring and has been quiet.  Maybe he will want to go out with integrity.

That’s it.

Of course Trump might turn this into a circus.  If this happens, and witnesses are called, perhaps a few more minds might be changed or more information might be revealed.  Mitch McConnell, of course, does not want this to happen.