Last Thursday, after considerable delay, the United States Senate began to organize itself for the trial of the President of the United States. Things might have moved faster—28 days elapsed between the Democrats in Congress voting to impeach the president and the two articles being sent to the upper chamber—but House Speaker Nancy Pelosi apparently had to wait for gold-tipped pens embossed with her name to arrive so she could give them away as souvenirs to committee chairs and impeachment managers.
Kidding aside, it’s hard to tell just who is serious about the impeachment of President Donald J. Trump, or if this is all about politics by other means. Some have argued, with some justification, that the effort to see him removed from office began even before he was sworn in, and that we’ve experienced two and more years of charges in search of an underlying crime.
The upcoming trial seems Kafkaesque. The president stands accused of no crime. As the White House put it Saturday, “The Articles of Impeachment submitted by House Democrats are a dangerous attack on the right of the American people to freely choose their President.” Going further, the president called the entire affair “a “brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election—now just months away. The highly partisan and reckless obsession with impeaching the President began the day he was inaugurated and continues to this day.”
Be that as it may, the constitutional responsibilities and oaths taken last week by members of the Senate require the formalities of a trial to be observed. One hopes they will all—Democrats and Republicans alike—adhere to the oaths they have sworn to be fair and impartial in their consideration of the evidence compiled by the House and that their primary concern will be to see justice prevail. Some will say that means the president will be convicted as charged. Others say it means he will be acquitted. Some, including sources close to the President’s legal team, have suggested the very question is moot, arguing the articles as approved by the House are, on their face, constitutionally invalid, since they fail to allege any crime or violation of law whatsoever—let alone the “High Crimes or Misdemeanors” identified as impeachable offenses in the U.S. Constitution.
That argument may be persuasive to those senators genuinely undecided – especially if they observe the oaths they’ve taken. This seems certainly true where the allegation Trump engaged in obstruction of Congress by refusing to allow senior aides under subpoena to appear and testify. Disputes of this nature, when they arise, are typically resolved by negotiation between the executive and legislative branch or, in the extreme, by the federal courts. This time congressional Democrats, citing a need for urgency— belied by their 28-day wait before sending the articles to the Senate—preferred to act on their own. When one target of a subpoena tried to go to court, the Democrats withdrew them, choosing instead to criminalize what most constitutional scholars would see as an all-too-typical disagreement between two constitutionally co-equal branches of government. Based on the record on such issues, it’s easy to see how but hard to believe possible the Senate could vote 100 to 0 for acquittal on the obstruction charge.
Unfortunately, this is not a time in the political life of the nation when “the better angels of our nature”, govern the actions of our elected leaders. Instead, the Senate’s 53 Republicans, 45 Democrats and 2 independents who caucus with them are highly polarized along ideological lines. The pressure, in particular, is on seven Republicans who are either in cycle or retiring to join with the Democrats in calling for witnesses and to consider issues and affidavits that are not part of the record compiled at the direction of committee chairmen Adam Schiff and Jerry Nadler and Speaker Pelosi.
Just four need to break ranks to effectively put Senate Minority Leader Chuck Schumer in charge. What they will do depends on whether they are guided by politics or principle.
“This impeachment trial is not going to convince anyone about how they are going to vote in the next election,” Ron Bonjean—a well-respected former GOP congressional leadership senior staffer—told me. “It’s not going to change anyone’s mind.”
He’s probably right, oaths of impartiality on both sides of the aisle be damned. “Sticking by the president is an affirmation that this is largely a political exercise by the House Democratic leadership, who know the president will be acquitted,” Bonjean, who is now a partner at ROKK Strategies, said. “Republicans should stick with the president because he’s likely going to win re-election. Those in cycle may have problems with their base if they get on the other side of this.”
Bonjean’s right on this too. Numerous polls show Trump’s approval rating above 90 percent among Republicans. The appearance of perception that any Republican senator seeking re-election is being disloyal to the president during his trial almost certainly guarantees a primary challenge. Sticking with Trump is the right thing to do politically, which is how these decisions are generally made by those actually in the arena.
A second—and, regrettably, secondary consideration—is that the president and his attorneys appear to be right on the legal issues involved. But raising this flag would, of course, imply Trump, even if he showed bad judgment in how the whole business involving aid to Ukraine was handled, has been right more than he has been wrong. And we know how loath chattering classes on both sides of the aisle are to do that.