Jeffrey Tulis of the University of Texas says the Framers assumed the Senate would not be “as tightly tethered to factionalism and political passion as the House.” But this assumption became anachronistic with the emergence of political parties, direct election of senators and the eclipse of Congress by the modern presidency.
Under today’s degenerate norms, party loyalties extinguish legislators’ concerns for their institutions’ duties and residual dignity. An impeachment process requires the Senate, as Tulis says, “to recompose itself into a new institution — an impeachment court.” Members take a juror’s oath: “I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws.” This, Tulis says, reminds senators “that they are not sitting as senators” but as jurors. But not as jurors are usually understood.
In theory, for the trial’s duration the Senate is, in Tulis’s words, “a new institution with new rules, new norms and new responsibilities.” In fact, the theory is incompatible with the political dynamic Hamilton foresaw, and with new norms reflecting the dominance of presidents and parties.
Most of today’s Republican senators will think of themselves only as senators and, worse, as modern senators: passive passengers on a minor planet, the Senate, orbiting the presidential sun. Democratic senators, too, have been complicit in creating, through sloth and carelessness, today’s swollen executive and are equally subservient to presidents of their party.
When Rep. Sam Rayburn (D-Tex.), who was speaker for 17 of his 48 years in the House, was asked, “You served under eight presidents, didn’t you?” Rayburn replied, “I did not serve under any presidents. I worked with eight presidents.” This constitutional-political world has vanished.
According to Tulane Law School’s Stephen Griffin, the House’s articles of impeachment are arguably the first “not to be grounded ultimately in allegations that the president committed a federal crime or other violation of law.” The president’s misdeeds are clear and gross but, says Josh Blackman of South Texas College of Law Houston, are not unambiguously “tied to a preexisting, well-understood offense.” Such linkage is not necessary to justify removal — gross, persistent abuse of the constitutional structure suffices — but linkage helps the public comprehend the process. And Rep. Kelly Armstrong (R-N.D.) wisely warns: Throughout U.S. history, accusations of presidential abuse of power have been frequent and frequently valid, but beware of them becoming articles of impeachment whenever opposite parties control the House and White House.
Today’s impeachment has had benefits and will have more. Attentive Americans already have learned much about the difficulty and potential perils of lassoing a runaway president with a lariat woven of concepts such as “abuse of power” (which presidents were innocent?) and “obstruction of Congress” (how defined, and by whom?). Soon Americans will learn much, not about the president — he is an open comic book who has read himself to the country for years — but about senators, a slew of whom aspire to be his successor.
Intelligent, informed, public-spirited Republican senators can conclude that, because the United States is riven by recriminations hurled by irreconcilable factions and because institutions are indiscriminately distrusted, it is imprudent to remove the president 10 months before voters can neuter him. Or such senators can decide that this president’s deeds, regarding Ukraine and in frustrating congressional investigation thereof, are execrable but insufficient to justify truncating a presidential term that is almost 75 percent over.
Or blinkered Republican senators can affirm the president’s self-assessment as perfect yet persecuted. And incandescent Democratic senators can demand his removal — due process and valuable norms be damned — because he threatens due processes of law and valuable norms.
Senators must now risk indecent exposure of their minds. In 10 months, voters will decide what to do about the president’s malignant frivolousness.