Will ANY Republican Senator be able to fulfill the oath they will swear at the beginning of Trump's impeachment trial?
By
David Cay Johnston, DCReport Editor-in-Chief
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| MSNBC |
The second article,
obstruction of Congress, should be the tougher one for Senate Republicans. It
flows from Donald Trump’s stonewalling the impeachment inquiry – no testimony,
no documents.
On top of this utter contempt of Congress, Trump claims absolute immunity from investigation by anyone for anything. His lawyers asserted in federal court in October that the NYPD could not investigate even if Trump literally shot someone on Fifth Avenue.
If Senate
Republicans let Trump off the hook, they will be deciding that future
presidents can defy Congress any time they wish.
The second impeachment
article, the one that should vex Senate Republicans, says that Trump “directed
the unprecedented, categorical, and indiscriminate defiance of subpoenas issued
by the House of Representatives pursuant to its sole Power of Impeachment.
President Trump has abused the powers of the Presidency in a manner offensive
to, and subversive of, the Constitution…”
Undisputed Facts
The facts are
undisputed. Trump did exactly what is charged. While House Republicans mock the
impeachment articles, they have not even tried to dispute the facts. Instead,
some of them literally yell that the proceeding is unfair, but it is Trump who
spurned an invitation to testify from Speaker Nancy Pelosi.
Here’s the problem for
Senate Republicans: precedent.
Let Trump get away
with this total defiance of Congress and a future Democrat or independent could
do the same.
If Senate Republicans turn a blind eye to this blanket defiance and let Trump off the hook, they will be deciding that future presidents can defy Congress any time they wish. They would be destroying the fundamental Constitutional duty of Congress to oversee and investigate the conduct of the Executive branch.
Enabling A Democratic
President
Context matters. In
this case, Trump says Article II of our Constitution gives him unlimited power.
Do Senate Republicans want to validate that position?
Those are the
arguments that House Democrats prosecuting the impeachment case should drive
home. So should voters, especially Republicans represented by senators in their
party—unless they like dictatorial presidents.
Of course, the
Republicans have demonstrated again and again that they don’t care about
precedent.
Some examples:
Some examples:
Former President
Barack Obama was denied a hearing on his Supreme Court nominee in his last year
in office, but Republicans say they’d confirm a nominee if a court seat opens
up during Trump’s last year in this term.
The
Republican-controlled Supreme Court made George W. Bush president by a vote of
5-4 and said, pointedly, that their decision wasn’t precedent.
Newt Gingrich a few
days ago bemoaned that the Democrats were barreling toward impeachment at
Christmas time, yet Gingrich had Clinton impeached the week before Christmas.
The real issue: Are we
a nation of laws or men? Do we have checks and balances on power or do we side
with Trump’s repeated assertions that as president he is unbound from
any limits on his conduct?
‘Do Whatever I Want’
Here are just two
examples of Trump’s statements that he believes he is possessed of unchecked
powers.
“I have an Article II
where I have the right to do whatever I want as president, but I don’t even
talk about that,” Trump said in July. He also said that Article II “gives me
all of these rights at a level that no one has ever seen before.”
That is, of course,
not true as anyone who has ever read the thousand words in our Constitution’s
second article.
Now there is one
condition under which it makes perfect sense for Senate Republicans to keep
Trump in office. If they want a dictator and not a president with specific and
limited authority, then they should vote to acquit.
Of course, that would
be the end of America as we know it.
Emperor Donald I
Trump reminds us
frequently that he is thinking about staying in office until he dies. At
rallies for the 2020 campaign, he talks of how this would be good—and then
issues a disclaimer that he is only joking.
But this is no
laughing matter. And we should worry that he is looking for a way to seize
power given both his open contempt for the rule of law and his embrace of
dictators: Putin, Kim, Duterte, Erdogan, and Xi, not to mention the murderous
Saudi regime.
For more than four
years, I have warned that Trump is a wannabe dictator, a man with no loyalty to
country or principle, but only to himself.
He lusts to become Emperor Donald I, even though he might not use that title if he seizes full power. And he wants to be followed by his oldest daughter as Empress Ivanka I.
He lusts to become Emperor Donald I, even though he might not use that title if he seizes full power. And he wants to be followed by his oldest daughter as Empress Ivanka I.
In his own jumbled
mind, Trump has long believed that he is superior to the rest of us. He has
told us that he alone can solve our problems.
A Privileged and
Powerless Senate
Our Senate might still
exist under Trump the dictator. When ancient Rome transformed from a republic
into a dictatorship, the Senate remained, a privileged but powerless vestige of
a bygone era.
Do Senate Republicans believe, as Aristotle observed, that democracy means to rule and to be ruled in turns? If they do, then how can they set a precedent that a future Democrat in the White House can hold Congress in contempt and ignore its subpoenas?
This is not an issue
of litigating a Congressional subpoena by turning to the third branch of our
government. That is taking place right now with federal courts adjudicating
Trump’s refusal to comply with a 1924 law says the tax returns of any American
“shall” be provided to Congress on request. That defiance is not impeachable
unless our Supreme Court eventually rules against Trump, as I expect, and he
refuses to comply.
Trump’s oath requires
him “to the best of my ability, preserve, protect and defend the Constitution
of the United States.”
Openly Violating Oath
By asserting that he
is beyond the reach of Congress, Trump is openly violating his oath. That’s
grounds for removal.
The first article of
impeachment may give Republican senators an out to acquit Trump by disputing
the facts.
The first article of
impeachment charges that Trump “solicited the interference of a foreign
government, Ukraine, in the 2020 United States presidential election. He did so
through a scheme or course of conduct that included soliciting the Government
of Ukraine to publicly announce investigations that would benefit his
reelection, harm the election prospects of a political opponent, and influence
the 2020 U.S. presidential election to his advantage… in a manner that
compromised the national security of the United States and undermined the
integrity of the United States democratic process. He thus ignored and injured
the interests of the Nation.”
While the evidence in
this is overwhelming, there is room to dispute some facts, including Trump’s
intentions.
Nothing to Dispute
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"I am trying to give a pretty clear
signal I have made up my mind.
I'm not trying to pretend to be a fair juror
here."
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Does the Senate want
to emasculate itself? Do senators want to say that their subpoenas carry no
legal authority, but are mere begging requests? Is Congress a co-equal branch
of government or an illusion?
Do senators respect
the institution of the Senate? Or are they mere servants of Trump?
Democrats would be
wise to press the point that letting Trump get away with defying Congress and
claiming to be above the in prosecuting the case in the Senate, which under our
constitution tries all impeachments.
There is good reason
to expect they will. The impeachment articles match the streamlined and
carefully framed arguments in the last two impeachments. Both were of federal
judges. They were successfully prosecuted by Rep. Adam Schiff, the California
Democrat who chairs the House intelligence committee.
Impeachments Past
Schiff ran his
impeachment inquiry hearings with a firm hand. He prosecuted the two previous
cases with what Barbara Radnofsky, in her book A Citizen’s
Guide to Impeachment, describes as extraordinary skill.
The Senate has history
on the conduct of such political trials, though the constitutional directives
are sparse, giving wide latitude to Senate majority leader Mitch McConnell
(R-Ky.) in how to proceed.
For example, it is possible that McConnell may try to dismiss the impeachment with the equivalent of what in a court of law would be a summary judgment dismissing the case.
The risk here is that McConnell and anyone who votes for such an action may be seen by voters as acting in contempt of the body politic. As I read our Constitution, a trial is required, not mere disposal of the case, but that is arguable.
McConnell could also
decide that no witnesses will testify, relying on the written record and debate
by senators. He could try to impose rules severely limiting what House
prosecutors can say.
Chief Justice Presides
Fortunately for all of
us, our Constitution provides that when a president is on trial in the Senate
the presiding officer will be the chief justice of the United States, now John
Glover Roberts Jr.
Be comfortable with that. Roberts is not going to sully his reputation, or that of the Supreme Court, in whatever trial takes place. Like or dislike his jurisprudence, and as someone who reads his high court opinions, I don’t care for the long-range direction he is taking the court, Roberts conducts himself with dignity.
The question
Republican senators must address, and that we must make them address, is
whether they will retain any dignity, or even purpose, if they let Trump get
away with his ongoing offenses to our Constitution.