For Democrats working their hearts out, on behalf of one or another candidate, the discovery that President Trump appears to have marshaled the unmatchable power of his office to conjure up investigations into a leading political rival is a heavyweight punch to the gut. The unfairness of having to fight against someone willing to fight that dirty, and with the power and resources to distort the election almost at will, is enraging.
For Republicans who worked their hearts out in 2016 on behalf of candidate Donald Trump, the relentless investigations into the president are equally enraging. The unfairness of having to constantly fight against what feel like efforts to undo a legitimate election result causes them to see red. Conservative media is full of angry denunciations of Democrats for failing to accept their humiliating political defeat.
We are all enraged, the entire polity. We are enraged because few of us believe the other side respects, and will protect, free and fair elections.
Our problem is made worse because current demographic and electoral dynamics mean that the divergence between the popular vote and the electoral college vote that we saw in 2016 could potentially repeat itself in 2020. With a result like that, each major party believes that the legitimacy of leadership lies with it.
Each party makes a mistake if it thinks that it can secure legitimacy only on the basis of its own, often vitriolic, partisans. Democrats need to reach “deplorables” if they are going to have not just a popular vote victory but also the electoral college. Republicans need to reach “human scum” (I’ve got my T-shirt on order) if they are going to have not just an electoral college win but the popular vote.
The ball is about to bounce to the Republican-controlled Senate to hold an impeachment trial. Trials are opportunities for curing anger, but the conditions have to be right for that eventuality to emerge. For starters, you have to take the trial seriously.
The first condition for a fair and curative trial is an oath, which, according to the Senate rules for impeachment, would take the following form: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of Donald Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
This is not too far off a standard jury oath. Here, for example, is what the jurors in my home state of Massachusetts must swear: “You shall well and truly try the issue between the Commonwealth and the defendant, according to your evidence. So help you God.” My understanding of my role as a juror is that I’m to listen to the evidence with impartiality and then come to a decision on the basis of what I’ve learned. This is what it means to take a trial seriously.
In contrast, Republican senators have instead been messaging that they are already fully decided on the question of whether the president is guilty of offenses that undermine our constitutional structure. In other words, they are loudly assuring us that they are not able to hear the case impartially, as their oath requires. They are not taking the coming impeachment and trial seriously.
In this they are reflecting the views of their like-minded constituents that the impeachment drive is one more act in the drama of Democrats refusing to accept the 2016 election.
But it is time, Senators, to rise above this view. Each side has good reason to think the other has undermined the integrity of our electoral system. It is time for a creative resolution that acknowledges the unfairness both sides have experienced and finds a way to guarantee the integrity of our electoral system for 2020 and thereafter.
Some observers on the conservative side have recognized this reality, suggesting an outcome that acknowledges the president has done wrong but choosing the procedure of censure to convey that. Or perhaps there might be conviction on some impeachment charges but imposition of a penalty like censure rather than removal from office. There are surely other possibilities.
Senators, you will be on oath, before your God, and before the American people. I’m not asking for your pity, but for your respect for us. Americans on both sides still love their country. The anger inspired by the experience of electoral integrity being undermined is itself proof of how much our elections, our constitutional system, matter to us. We don’t care just about pocketbook issues. We care that we have the power and authority to steer our country through free and fair elections. We want proof that our leaders respect our commitment to free and fair elections. We need catharsis, in the form of recovery of a firm foundation for believing in the soundness of our electoral process. You have the power to deliver this.