JANUARY 22, 2020 – Even casual observers of the impeachment process know that the House “indicts” and the Senate conducts the “trial,” over which the Chief Justice presides. What’s becoming apparent too is the Framers’ flaw: the Constitution’s silence on discovery, trial procedures, admissibility of evidence, and resolution of legal issues pertinent to impeachment.
Beyond the Chief Justice controlling decorum, the judicial branch has no prescribed role in the proceedings. If only the Founders had given us something as simple as, “The Chief Justice of the Supreme Court [or better, “the Supreme Court” in full] shall establish rules for the impeachment trial, and decide all questions of law and procedure pertaining thereto.” With that simple supplemental language, everyone could’ve turned to the Supreme Court for rulings on discovery requests, evidentiary rulings, and trial procedures. Likewise, legal questions could’ve been submitted to the high court—on an expedited basis, with circumvention of lower courts. The central issue in the Trump case would be, “Do the articles of impeachment state an impeachable offense?”
By submitting highly charged procedural and legal questions to the Supreme Court, the politics inherent in impeachment would be dialed back considerably. This would give the public—on both sides of the political divide—far greater trust in the process, no matter what the end result of the Senate trial.
And let’s not forget: the role of the judiciary is to interpret the law. In what context is an interpretation of law more critical than here—the meaning of “and other high crimes and misdemeanors”? The Framers dropped the ball. We will see a circus act in which the likes of Alan Dershowitz twists himself into a levitating pretzel.
Furthermore, the Framers hadn’t anticipated the situation at hand: an impeached president and the U.S. Senate (the impeachment “jurors,” if you will) working together in lock-step. The deficient impeachment provision will produce a result satisfactory only to Trump supporters. The losers will view it as a rigged verdict in a trial in which jurors were wholly in league with the accused. That perception will leave the country even more divided. We’d be far better off if trial rules and legal issues were left not to parochial poll-driven politicians, but to Supreme Court justices, who, thanks to life-time appointments, were wisely removed from direct partisan politics.
Not since the 10 years ending with Nixon’s resignation has the country been so deeply divided, and absent is any sign of healing, unity, or reconciliation. Thanks to a flawed Constitutional provision, Trump’s impeachment and the vicious election campaign that follows will further strain the body politic. Republicans, led by Trump, will excoriate Democrats for having put the country through a “ridiculous, unconstitutional” impeachment. Democrats, in turn, will bash Trump and Republicans for abuse of power, a massive cover-up and a sham trial.
By a narrow margin, Republicans or Democrats will go on to claim victory in November. In the wake of their pyrrhic victory will lie a battered corpse—the United in the “United States of America.”
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© 2020 by Eric Nilsson
