What a reasonable senator could not do was what happened here: wholesale shirking of the Senate’s constitutional responsibility to assess — which includes a responsibility to obtain — all the evidence of potential wrongdoing. Senators offered up an unconvincing grab bag of excuses for this dereliction of duty:
That the House didn’t do its homework and it wasn’t the Senate’s job to make up for that — as if the Senate had not been entrusted with the “sole power to try” impeachments. That it would take too long and distract the Senate from its other pressing work — as if there were anything more important, and as if the Senate were actually doing anything beyond ramming through judicial nominees.
As bad an argument, and perhaps even more dangerous as precedent, was Republican Sen. Lamar Alexander’s (Tenn.) assessment that the Senate didn’t have to pursue the evidence because, although Trump’s behavior was, to use Alexander’s milquetoast phrase, “inappropriate,” it wouldn’t justify removal. That may be a legitimate basis for acquittal. But how can the Senate decide how bad the president’s behavior was if it doesn’t know the facts?
Most dangerous of all were the constitutional arguments made by the president’s lawyers, which would render the impeachment clause meaningless: A president cannot be impeached except for criminal conduct. A president cannot be impeached for abuse of power. A president cannot be impeached if he believes his quid pro quo arrangement was in the nation’s interest.
That combination of jaw-dropping audacity and constitutional illiteracy now leaves a toxic residue: the impeachment clause neutered and the country in dangerous constitutional territory.
It would have been one thing if the president’s lawyers, rather than doubling down on his “perfect” conversation approach, had acknowledged that Trump’s behavior was wrong. Instead, they slavishly lauded his good works and proceeded to drain all meaning out of the impeachment clause. The Senate’s acquittal in the face of their extreme positions risks complicity with this constitutional mischief. It is not hard to imagine a future Senate being confronted with the arguments of Alan Dershowitz and the Trump outcome, and being lectured on the significance of this precedent.
There are two risks inherent in any impeachment. One, which Trump’s lawyers repeatedly invoked, is that lawmakers will set the impeachment bar so low that it will become a regular tool to seek to remove presidents on the basis of policy disagreements and as an exercise in partisan mischief.
The other, which Trump’s lawyers resolutely ignored, is that impeachment and removal will be made even more difficult than the constitutional structure already entails — such as the requirement that conviction be by a two-thirds majority — and that presidents will therefore feel unconstrained by the implicit threat presented by the impeachment clause.
That strikes me as the bigger risk. Extremists on either side have bellowed about it on occasion, but the country has witnessed very few serious attempts to remove a president precisely because impeachment is such a drastic and unwieldy remedy. There was lots of chatter after the Bill Clinton impeachment that the mechanism would become just another weapon in the political arsenal. That didn’t happen.
Indeed, even with all of Trump’s outrages, and even with a Democratic majority in the House after the 2018 election, impeachment did not become a reality until the disclosures about his dealings with Ukraine essentially forced House Speaker Nancy Pelosi (D-Calif.) to take that step.
The impeachment power isn’t needed to keep most presidents from engaging in impeachable conduct, just as homicide statutes aren’t necessary to keep most of us from committing murder. Presidents face other constraints, moral and political, on their behavior. The reason the Framers wrote the impeachment clause into the Constitution was that they recognized the risk, even within the span of a four-year term, of an outlier, renegade president, and one so dangerous that they needed to take desperate measures. In such cases, impeachment isn’t overturning the will of the electorate; it’s effectuating the wisdom of the Framers.
They put their faith in checks and balances. We are left with a president unchecked and a system dangerously unbalanced.