Attorney Ken Starr speaks as President Trump’s legal team resumes its presentation of opening arguments in Trump’s impeachment trial in the Senate Chamber at the Capitol in Washington, January 27, 2020. U.S. (Senate TV/Handout via Reuters)

You hear that argument about Donald Trump’s impeachment, anyway, the idea being that it’s a partisan affair that has lowered the bar on a process that should be sober, even grave, and above the normal political bickering. The usual corollary is that the House should not impeach unless removal is a high probability, perhaps as measured by opinion polls, since such a probability would point to bipartisan consensus.


I would resist the argument from two directions.

First, I’d distinguish between the allegations against Trump and the process by which the House impeached him. We’re told that the Democrats always hated Trump and wanted to get rid of him any way they could, and that their impeachment hearings were nakedly partisan — as if this were some kind of evidence that the allegations themselves lack merit. But it is no such thing, any more than the popularity or unpopularity of any claim, or the biographies of those who accept or reject it, ever decides its truth or its moral gravity. History is full of cases of majorities and near-majorities and even occasional supermajorities getting things morally or factually or morally and factually wrong. Sometimes way wrong. I’m sure we can all think of examples.

A better argument is that while what Trump did was wrong, it was also without consequence; and so it cannot be a case of “treason, bribery, or other high crimes and misdemeanors”; and so his impeachment must have been partisan. But it seems highly debatable whether consequences are required for us to file a presidential abuse of power under “TB/OHC&M.” Here I’d zero in on bribery. The root idea of bribery — understood in a political (as opposed to a criminal or statutory) sense — is that of conferring official benefits in exchange for personal favors. I think that is obviously what Trump tried to do. Quite apart from the success or failure of a particular corrupt act, such a disposition in a president looks extremely serious to me — especially when it reveals a willingness to thwart the execution of signed legislation and so raises institutional questions that transcend policy disputes. To draw an imperfect analogy, we treat attempted murder as an extremely serious crime even though the attempt failed and even if the intended victim was not harmed. (Impeachment is of course not a criminal process, but the criminal law is based on our pre-legal judgments of the situation itself, which are what I mean to appeal to in drawing the analogy.)


Second, I’d say that it’s not the end of the world if the way in which an impeachment is actually conducted — as distinct from the allegations themselves — is partisan. If on the face of things it looks like the president used his official powers to seek personal benefit, why shouldn’t the House impeach by a simple rancorous majority and let the Senate decide whether to remove according to its own more stringent requirement? The framers of the Constitution cannot possibly have wanted the House’s standard to be “Don’t impeach unless removal is assured,” or they would have required a two-thirds majority in both chambers. I think they expected impeachments to be tainted by partisanship, just as in general they expected the House to be more swayed than the Senate by factional winds. This seems totally consistent with what Alexander Hamilton writes in Federalist Nos. 65 and 66 about why the Senate is the right body to try impeachments.



But I do question whether the Senate can be anymore what the Framers meant it to be, since it usually seems as wind-tossed as the rest of our political institutions.


Perhaps that is because it is not the institution the Framers envisioned. It’s interesting to imagine how all of this would be playing out under the original constitutional design — independently acting presidential electors, senators chosen by state legislatures — plus, as not under the original design, universal suffrage and racial equality. (This would of course still be a liberal system in the sense of Locke and the Founders; liberalism need not mean the most direct democracy possible.) Presidential politics might be less pivotal. The parties might not be the ridiculous cults of personality that they have become. The impeachment trial might not be a melodrama for an audience of millions of voters, who would not have chosen the president directly and might not feel that his removal from office defied their will — or defied it more than, say, a legislative overturning of prior legislation. Senators might act with greater independence of mind and less fear of losing their jobs (not that their failures in those areas are excusable now). Various right-wing media might not have beclowned themselves with their instant ritual hatred of John Bolton after having lionized him for decades.

In a word, it might all be more honest.




(Do read, by the way, Peggy Noonan’s most recent Wall Street Journal column. She did not favor impeaching Trump — who, she believes, “is guilty of shaking down the government of Ukraine for personal political gain” and deserved to be censured — but she outlines a way in which the Senate trial can nonetheless attain “a certain gravity.” It involves calling witnesses . . .)