A Broken System Acquitted Donald Trump

No president can be removed for abuse of power — that's the radical reality of our democracy at the moment.

President Donald Trump was acquitted of impeachment charges on Wednesday. After Republican senators voted not to hear from a single witness ― the first time that’s happened in the impeachment trial of a U.S. president, of which there have now been three — it was clear to everyone that acquittal was guaranteed. But really it was guaranteed all along.

The Trump administration engaged in unprecedented obstruction of Congress. The brazen nature of that cover-up was made possible by the extreme polarization of our political system, which has rendered parts of our Constitution essentially unusable. And the Republican Party has shown it will take full advantage of that dysfunction in order to protect its president and maintain power as its base of support shrinks. The result is a presidency that quite literally can do no wrong. The conservative movement has finally destroyed the myth, rooted in the Watergate era, that the system can work to remove a corrupt president. And it has done so thanks to decades’ worth of efforts to loosen the reins placed on the executive branch.

Senate Majority Leader Mitch McConnell (R-Ky.) walks to the Senate chamber before the start of the impeachment trial of Presi
Senate Majority Leader Mitch McConnell (R-Ky.) walks to the Senate chamber before the start of the impeachment trial of President Donald Trump at the Capitol, Jan. 31, 2020.

An Unprecedented Stonewall

In a stark break from the precedent of other presidential impeachments, Trump withheld all documents and forbade all witnesses from testifying ― which itself led to an article of impeachment on obstruction of Congress.

The Senate, for the first time in its history of holding impeachment trials for presidents, federal judges and Cabinet officials, did not call a single witness to testify, nor did it request or review any new documents.

The basic outline of Trump’s wrongdoing is as clear today as it will be in the history books. Trump withheld $391 million in congressionally approved aid from Ukraine, and a head-of-state White House visit, in order to get newly elected President Volodymyr Zelensky to announce an investigation into former Vice President Joe Biden and his son Hunter. The president of the United States sought to coerce a foreign country to help him win reelection.

Gordon Sondland, U.S. ambassador to the European Union and a key participant in the scheme, testified that he told the Ukrainian foreign minister that the country would have to announce an investigation into the Bidens in order to obtain the withheld aid money. He testified that he believed, and acted as though, there was a quid pro quo link between the military aid and White House visit and the announcement of an investigation into the Bidens.

While Trump insists the call where he asked Zelensky to “do us a favor” and investigate the Bidens was “perfect,” his defense lawyers offered a gamut of conflicting defenses, from claiming no quid pro quo existed to arguing that there was a quid pro quo but it was not impeachable.

In a dramatic speech, Sen. Mitt Romney (R-Utah) said he believed Trump committed “an appalling abuse of the public trust,” and his oath to do impartial justice required him to vote to remove the president from office. But throughout the trial, it was made clear that most other Republican senators had already decided to acquit Trump and did not want to bother to inform the public of the facts of the case.

“Unless there’s a witness that’s going to change the outcome, I can’t imagine why we’d want to stretch this out for weeks and months,” Sen. Roy Blunt (R-Mo.) said.

The authors of the impeachment clause of the Constitution did not anticipate senators who would act to protect their political party instead of their branch of government.

“There is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense,” Sen. Lamar Alexander (R-Tenn.) said in a statement declaring he would vote against hearing from new witnesses, even though he believes Trump did everything he is accused of doing.

“New witnesses that would testify to the truth of the allegations are not needed for my threshold analysis, which already assumed that all the allegations made are true,” Sen. Marco Rubio (R-Fla.) said in a statement where he said Trump committed an impeachable offense, but still should not be removed from office.

More information could only mean more problems for the rest of the Republicans. And so they dismissed the facts of the case, refused to hear any new evidence and, ultimately, accepted a sweeping argument of executive immunity stating that the position of the presidency confers immunity to commit corrupt acts.

Firsthand witnesses to the president’s actions who’d refused to testify before the House’s impeachment inquiry were available. There were a lot of them, actually. The Senate could have brought in former national security adviser John Bolton, acting White House chief of staff Mick Mulvaney, Trump’s personal lawyer Rudy Giuliani, former Secretary of Energy Rick Perry, former deputy national security adviser Charles Kupperman, State Department Councillor T. Ulrich Brechbuhl or acting budget chief Russ Vought. But they didn’t.

Nor did they vote to obtain documents related to the Ukraine scheme that were withheld from Congress by the Office of Management and Budget, Department of State, Department of Defense and Department of Energy.

The Republicans who voted against hearing from firsthand witnesses to Trump’s actions, or seeing documents with relevant evidence, said they didn’t need to hear or see any more because the president’s acquittal was predetermined from the beginning.

“I’m not an impartial juror,” Senate Majority Leader Mitch McConnell (R-Ky.) said before the trial began. And so he remained throughout.

How Did They Get Away With It?

Alan Dershowitz, an attorney for Trump, argued that the president can abuse the power of his office in order to get reelected
Alan Dershowitz, an attorney for Trump, argued that the president can abuse the power of his office in order to get reelected because he is the president.

Republicans were able to conduct a sham impeachment trial because the authors of the impeachment clause of the Constitution did not anticipate senators who would act to protect their political party instead of their branch of government.

The Constitution structures a balance of government branches to disperse power. It does not structure a balance of political parties. While early American politics had its factions and ideological partisans, it did not look at all like today’s hyper-polarized politics with two neatly cleaved parties.

The result is a political party arguing — not incorrectly — that simply nothing can be done if the president decides to abuse his power.

The president’s lawyers’ argument was that the president can only be impeached for breaking the law, and not for an abuse of power. Moreover, they said, the president can abuse his power if he wants, because he is the president.

These arguments range from the absurd to the dangerous. The first argument, that abuse of power is not an impeachable offense unless it includes some violation of the criminal code, does not bother to consider that the authors of the impeachment clause said the exact opposite.

The president may be impeached by committing “those offenses which proceed from the misconduct of public men,” or “the abuse or violation of some public trust,” Alexander Hamilton wrote in “Federalist No. 65.” These abuses of power, Hamilton wrote, “be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

James Madison similarly argued before the Virginia state constitutional ratifying convention that the president could be impeached for offenses not included in the criminal code. Were the president to exclude most states when ratifying a treaty or constitutional amendment, Madison argued, “a majority of the states would be affected by his misdemeanor,” and he could be impeached. Similarly, Madison argued impeachment could be used “if the president be connected, in any suspicious manner, with any person, and there be grounds to believe that he will shelter him.”

“No previous statute is necessary to authorize an impeachment for any official misconduct,” Justice Joseph Story wrote in his “Commentaries.”

Trump’s lawyer Alan Dershowitz, a Harvard Law School professor, took this debunked argument to its most absurd length. He argued that the president is allowed to abuse his power in pursuit of reelection, so long as he doesn’t violate a specific criminal statute, because the national interest is vested in his person because he occupies the office of the presidency.

“If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz said in response to a question on Jan. 29.

And why is that? “Every public official that I know believes that his election is in the public interest,” Dershowitz said.

Dershowitz’s argument reverses the constitutional structure of the presidency by vesting its power and authority not in the office itself, but in the individual who holds it. 

It is an even more extreme version of Richard Nixon’s infamous quip to David Frost that “when the President does it, that means it is not illegal.”

The Visible Bridge

President Richard Nixon waves goodbye from the steps of his helicopter outside the White House after resigning from office fo
President Richard Nixon waves goodbye from the steps of his helicopter outside the White House after resigning from office for abusing his power.

There are some obvious parallels between Trump and Nixon, the only president to resign in disgrace. Roger Stone, Trump’s longtime political adviser, is a former Nixon aide with a tattoo of Nixon on his back. Both Trump and Nixon faced impeachment for corruptly abusing their office in pursuit of reelection.

But where the Watergate scandal and Nixon’s subsequent resignation in lieu of removal by impeachment have gone down in America’s national mythology as a moment where patriotism and the Constitution triumphed over venal partisanship, Trump’s impeachment trial represents the negation of that triumph.

Nixon’s removal from office occurred at an odd time in American history, during a period of low partisan polarization and in the middle of a recession. Still, Republicans would not have pushed Nixon to resign if not for the release of a White House tape revealing he personally suggested that the CIA pressure the FBI to shut down the investigation into the Watergate break-in.

Today’s politics are best characterized by both high polarization and asymmetric polarization. Both parties are sorting into ideological and geographically coherent blocs, but the Republican Party has moved farther to its ideological pole on the right as its share of voters shrinks. Ideological rigidity is increasingly necessary for Republican politicians as their base of support retreats into a smaller minority of the population. That retreat to minority status also necessitates rigid support for offices and governmental bodies that can be won and influenced with minority support ― like the presidency, the Senate and the Supreme Court.

In a speech to the Federalist Society, a conservative legal group, in November, Attorney General William Barr bemoaned the “steady grinding down of the executive branch’s authority that accelerated after Watergate.”

“It is critical to our nation’s future that we restore and preserve in full vigor our founding principles,” Barr said. “Not the least of these is the framers’ vision of a strong, independent executive, chosen by the country as a whole.”

The system failed. The president can abuse his office in pursuit of reelection. No need to worry about what the authors of the Constitution said. At least until a Democrat is elected.