Published by The Lawfare Institute
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The first impeachment of an American president took place 79 years after George Washington’s election. Then another 106 years passed before the next major congressional move toward impeachment, the House Judiciary Committee vote to impeach Richard Nixon in 1974 and then three more impeachments followed in relatively quick succession: Clinton’s 22 years later and then, after another 20 years, Trump’s first and second impeachments. Trump’s presidency is, of course, distinctive in this history: two impeachments within the same term, in two consecutive years, both concerned with abuse of power—the first such abuse in his quest for reelection and the second in his attempt to reverse his loss. At any rate, the pace of impeachment has picked up. It is possible that this history is of limited significance, largely a function of Trump’s demagogic presidency, but it is just as possible that the late 20th and early 21st century experiences should set our expectations about how often impeachments will occur in the future.
If this is the case, the time has arrived for Congress to examine and reform the impeachment process, especially in the conduct of Senate trials. It is faring poorly, or headed in the wrong direction, on two measures. It is shortchanging fact-finding, and, more particularly, the Senate tends to leave to the House the requisite factual development. In addition, it is failing to establish in clear terms that this is a constitutional, not—in the narrowest sense—a legal, process. Both these problems became evident over the course of the second Trump trial.
Neither of these failings accounts for Trump’s acquittal, which was ensured by Republican iron-clad unwillingness, clear from the beginning, to vote for conviction. But both contributed to a muddled, incomplete trial record and helped set a dangerous course for future impeachment processes to follow. The Senate rules that govern impeachment, largely unchanged for 150 years, are in need of reform.
The Role of the Senate in Finding Facts
The Nixon impeachment played out over months of both House and Senate investigations, and in the House, these included both closed-door investigative activity and public hearings. The House Judiciary Committee conducted its part of this inquiry for three months, and the public hearings that followed consumed more than two months. The Select Committee on Presidential Campaign Activities, the “Watergate Committee,” launched an inquiry in February 1973 that spanned 16 months.
The Clinton impeachment marked the first step away from congressional responsibility for fact-finding. It relied almost entirely on fact-finding by an executive branch officer, Ken Starr, who was involved in impeachment as independent counsel operating pursuant to a statute that Congress on a bipartisan basis, following the Starr and other unhappy experiences, allowed to lapse. The Senate voted for only three depositions as part of that trial. No witnesses gave testimony or underwent cross-examination on the Senate floor.
The first Trump impeachment did benefit from fact-finding conducted by the House and from related Senate inquiries, but under a trial procedure imposed by the then-Republican majority on a party-line vote, the Senate dispensed with any formal factual inquiry during the impeachment process and concluded the trial in just under two weeks. The second Trump impeachment, voted under extraordinary circumstances, at least proceeded under a bipartisan resolution adopted on a vote of 89-11 but consumed only a matter of days. The Senate trial wrapped up in less than a week, even though Trump had left office and the need to move quickly to remove him had passed.
The House appears to have become the principal fact-finder in impeachment, to the extent that it discharges this function. The Senate rules governing impeachment trials permit the Senate to call witnesses and subpoena evidence, but it rarely does much of the former or any of the latter. The Senate had the occasion to pass judgment on the demagogic presidency, and in the end, relying primarily on a jurisdictional objection, it did not do so. Some of the senators voting to acquit denounced Trump’s conduct on Jan. 6, and while this is better than nothing, it served to muddy the outcome—particularly when the Senate was addressing misconduct as egregious as Trump’s. Even if, as is highly unlikely, additional fact-finding would not have changed the outcome, it might have at least stirred the senators who stood by Trump to a greater level of public embarrassment or discomfort. At the urging of the House managers, the Senate briefly considered calling witnesses and then settled for a written statement by one witness to be read into the record.
It might seem sufficient to have the House carry the burden of investigation, and all things considered, including the value of a timely disposition, limit the Senate’s role in fact-finding. But the House cannot be certain to have developed a complete record for impeachment, and the Senate has an independent responsibility to “try” a case, which will normally imply enough fact-finding to test the House records and fill in any gaps. There may be cases where the House could not reach agreement on calling a witness, but the Senate could. And it is possible, too, that the argument for calling the witnesses in a particular case would be strengthened by developments after the House vote, such as where the press exposes new information that could (and reasonably should) affect the Senate’s judgment about the need for direct testimony. There is also the matter of the differences in the support required for impeachment and conviction. The House may well explore just the facts required to support impeachment by majority vote. The Senate vote to acquit, or to convict with supermajority support, may warrant additional fact-finding. In fact, it might seem to require some independent attention to the facts.
One additional effect of the short shrift now given to the development of the trial record may be an undue advantage to the impeached president. It’s hard to imagine any president facing impeachment or conviction relishing an extensive process that involves serious factual inquiry. A rushed process with curtailed fact-finding also lends substance to the vacuous calls to respect a president’s “due process” rights—setting aside the point that presidents have no such specific rights, except those that the Senate concludes it should provide for. (There may be examples at the extremes where a “due process” claim would have judicially enforceable merit, such as if, as Justice David Souter suggested in a case involving a judicial impeachment, the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin-toss, or upon a summary determination that an officer of the United States was simply “a bad guy.”)
Of course, in any reform that would invite prolonged proceedings, the Congress must always contend with the costs of partisan uproar over impeachment and of the demands it places on its regular calendar at the expense of other, pressing business. In the recent Trump impeachment trial, senators were reasonably worried about a Senate tied up in impeachment and not attending to the public health emergency and the associated economic and social stresses. Referral to a trial committee for investigation would have partly addressed this legitimate consideration by clearing the floor for other business.
Even now, there are calls for Congress to engage in continued fact-finding, and this is all for the good. There is more to be learned about the weeks leading to Jan. 6 and about the events of that day, such as Trump’s indifference to the violence and his intention that it disrupt the congressional tally of electoral votes. But this fact-finding will be divorced from the impeachment process, and whatever emerges from any such inquiry will fall outside the formal record of this impeachment. We will not know what difference it would have made, if any, to the outcome. In the end, while the House managers staged a brilliant presentation of the public record, key questions remained to be answered and were not before the trial concluded.
For all these reasons, the Senate could amend its standing rules to provide that upon receipt of the House articles, unless the Senate votes otherwise, the charges would be referred to a committee for investigation. The Senate impeachment rules specifically permit the appointment of a trial committee to perform this function, and the Senate has used such committees successfully in investigating and adjudicating judicial impeachments. Under reformed rules, referral to a trial committee would be the routine, default choice, not the exception. It would enable the fact-finding to occur without “tying up” the Senate floor and making other business impossible.
A Senate reform of its rules to require a full factual inquiry into articles of impeachment blocks at least this one path of escape for senators fearful of bucking the president of their own party. It is also one defense against the demagogue that neither the election nor the Senate trial provided. The demagogue thrives on lies. Rules providing for committee investigations in the ordinary course send the message that the lies will not go too easily unexposed. A committee process is necessarily, or at least relatively, a more intensive fact-gathering exercise: It has only this focused mission, and this focus is not likely to be affected to the same degree by the full Senate’s concern with clearing the floor and “turning to other business.”
An additional reform of the rules could aid in this reinvigoration of fact-finding and checking. Senators who ask questions of counsel are now compelled to have their questions written and then read aloud by the chief justice (or Senate officials) for a response. The senator posing the question may not follow up. This allows counsel to control the exchange; the lawyers can go on at length, and nothing they say is subject to check, even for obvious evasion or plain misstatement of fact. In the recent trial, Sen. Bernie Sanders asked Trump counsel Michael van der Veen if he accepted his client’s denial that he lost the election. Van der Veen dodged the question and testily lectured Sanders on relevancy. When Sanders attempted to respond, the presiding officer reminded him that “[s]enators, under the rules, cannot challenge the content of the response.” The truncated response to van der Veen that Sanders managed to utter—“You represent the president of the United States!”—does not appear in the Congressional Record. The rules, if amended to provide senators with more leeway, need not open up the avenue for unlimited senatorial speech-making, but they can do more than current rules to make the time for questioning more meaningful and to pressure responsive answers from counsel.
The “Legalization” of the Process
While the House and the Senate have each had occasions in the past to affirm the proposition that impeachable offenses need not involve prosecutable violations of law, there was too much in the Trump trial record this time around that moves dangerously in the other direction. Michael McConnell has suggested that the House overreacted to the criticism of the first impeachment—for Trump’s pressure on the Ukraine government to fabricate an investigation of his chief political opponent—by framing the second on “incitement” in narrowly “legalistic” terms. As a result, it wound up “unnecessarily shoulder[ing] the burden of proving the elements” of the crime of incitement when there is no question that Trump’s actions leading up to and including Jan. 6 constituted a fully impeachable dereliction of constitutional duties.
Whether this is the correct assessment of the House’s motives in drafting the article as it did, it may have had the effect of over-legalizing the process. And this over-legalization could be seen in other ways during the Senate trial. One notable example is Senate Minority Leader Mitch McConnell’s speech following Trump’s acquittal. McConnell argued the case against “late impeachment,” finding that it was a close constitutional call but concluding that the former president is not subject to conviction once he or she no longer holds office. There’s little point in rehashing the argument to the contrary, which I believe to be the far stronger one. But McConnell also characterized the impeachment process as a “forum for American justice” and argued that, because it was not the only or “final” one, it should be understood that the acquittal did not save Trump from a full accounting for his actions: “He didn’t get away with anything yet.” McConnell emphasized that Trump faces potential criminal and civil legal consequences for his actions.
But the prosecution of a crime is not the same as, and cannot compensate for, the redress of a serious constitutional offense. McConnell repeatedly acknowledged that Trump committed such an offense. “Practically and morally responsible” for the events of Jan. 6, Trump had been “determined to either overturn the voters’ decision or else trash our institutions on the way out.” And yet, on the theory that Trump is now a private citizen, McConnell suggested that we can be fully satisfied that any remedy lies with the justice system. But it doesn’t. The justice system does not serve as a vehicle for rendering constitutional judgment on official conduct, much less for disqualification from future office-holding. It cannot answer directly, as the Constitution requires, a president’s attempt to “either overturn the voters’ decision or else trash our institutions on the way out.” And one further consequence of treating the impeachment process as only a “forum for justice” may be the generation of pressure for prosecutions—for expanded criminal theories of liability or extensive investigations—when the Senate is unwilling to render constitutional judgment.
This misplaced legalization of the impeachment process emerged also, almost comically, when van der Veen, who seemed to have taken over as lead lawyer from Bruce Castor, lectured the Senate about the federal rules of civil procedure. “I don’t know how many civil lawyers are here,” van der Veen asked sarcastically, but, he said, senators without the required legal training should know that Trump’s lawyers were entitled to call witnesses. And not by Zoom, but “in person, in my office, in Philadelphia.” Senators needed to appreciate that this is “civil process. That is the way lawyers do it.”
It was at this point that one yearned for a senator to lodge a formal objection with the presiding officer. What van der Veen suggested was nonsense, which fully merited the laughter that it elicited. But nothing more, for the record, was said about the flatly erroneous statement about the application to an impeachment trial of the rules of civil litigation. During the Clinton impeachment, in similar circumstances, Sen. Tom Harkin objected successfully to repeated references to senators as “jurors,” and Chief Justice William Rehnquist sustained the objection and directed senators to “refrain” from the misleading statements about their constitutional role. The Harkin objection helped to set the record straight about the Senate’s function in impeachment—a court sitting in judgment of alleged constitutional offenses, not simply resolving questions framed by others in legal terms—and it was unfortunate that van der Veen’s ludicrous assertion was not also decisively rejected.
Amended Senate rules could affirm that the Senate decides the rules of procedure and that it is not in order for counsel to suggest that the body is bound by the requirements for the conduct of civil process, or “due process” as understood in that context. It could also cite as grounds for objection statements flatly inconsistent with the Constitution and applicable precedent, such as claims that the charges must satisfy the elements of any analogous crimes. For example, a charge that a president “lied” about matters of consequence does not require strict adherence to the requirements for establishing “perjury.”
These amended rules would encourage members to lodge the appropriate objections. They would help clarify the distinction between a legitimate and an illegitimate defense—just as much in the interests of the viewing public as in the service of a trial conducted on sound constitutional grounds.
To argue for reformed rules for impeachment is not to contend that impeachments should become the new constitutional “normal.” Nor is it an embrace of unscrupulously politicized impeachment, untethered from rigorously framed constitutional argument, to affirm that an impeachable offense need not be a crime. The Constitution does, however, provide for impeachment of presidents, vice presidents and civil officers, and in the periodic struggles over the “imperial presidency” and the risk that we will see more of the demagogic model the Trump presidency represents, there may be more rather than less resort to the process than in the first 185 years of the history of the presidency. If so, there is every reason to refine the process in light of experience and ensure that the standing rules better serve the goal of a thorough, efficient, constitutionally grounded and credible trial.
In the last impeachments, the Senate has adopted framework resolutions, even by slim majority vote, to adopt procedures for impeachment, and this raises the question: Would it matter if the Senate amended its rules, if it could simply displace them by resolution for any particular impeachment? One answer is that by amending the rules, the Senate would raise the bar for simply ignoring them on critical issues. It would have acted to make extensive changes for the first time in more than a century. This action would affect the debate in any particular impeachment over a deviation from the key changes effected by the reforms; it would put the burden on proponents of the deviation to justify them. And it would not mean that the Senate could not by resolution address other, more routine procedural issues, such as the time allotted for presentations and closing arguments, or for senators’ questions.
This is a key benefit of the amended rules: establishing consistency of core process and obviating the need for negotiations from scratch over baseline process. And the particular requirements it should address, as proposed here—a committee charged with fact-finding and protections against the “legalization” of both the process and the standards for impeachment—are not the only ones that reformed rules could cover. The Senate could clarify, for example, the motions, objections and points of order that would be permitted, and who would be authorized to make them. The more clarity, the better. But by committing itself to a fact-finding process and defending itself against creeping “legalization,” the Senate would be signaling that it was taking seriously into account recent experience and the likelihood of having to meet this constitutional responsibility again, in the not-too-distant future.