The Great American Show Trial

DONALD TRUMP WAS in the alpine hideaway of Davos this week, making snide remarks about Greta Thunberg and bold claims for his divisive trade and Iran policies to an audience of the global elite. Meanwhile in Washington, his impeachment trial, occasioned by one of the President’s even more controversial foreign policies, was beginning in earnest. The humiliation this represented, which Trump must have seen reflected back at him in the quizzical, knowing faces of his audience in Davos, must have driven him half crazy. The 45th President is now only the third—after Andrew Johnson in 1868 and Bill Clinton in 1999—to suffer the most extreme indignity Congress can heap upon a sitting president. Whatever the remainder of his political career holds, Trump’s two disgraced predecessors’ records suggest, his impeachment will be remembered as an indelible stain on his presidency.

The evidence against Trump suggests that is richly deserved. His alleged abuse, a scheme to strong-arm Ukraine’s newly-elected President, Vlodomyr Zelensky, into doing him a political favour, represents for many legal scholars the most textbook case of impeachable behaviour—of a ‘high crime or misdemeanor’, as the constitution puts it—in presidential history. For neutral observers of Trump’s conduct, it was also predictable. The President has invited allegations of self-dealing, corruption and obstruction of justice since his first day in office, having rarely displayed much interest in the necessary boundaries between his public duties and private interests.

He has directed millions of dollars of public money to his own properties, to cover the security and other costs of his frequent stays there. He has directed foreign diplomats to do likewise, given access to his businessmen children to foreign governments and speciously claimed, when accused of conflicts of interest, that the President is immune to such a charge. It was only a matter of time before he committed some act too heinous for Congress to ignore. This is the crisis a populist rule breaker, with no notion of legal or constitutional boundaries and seemingly no interest in acquiring one, has visited upon America.

Yet notwithstanding the seriousness of Trump’s alleged offence and the strength of the evidence that America’s 100 Senators—sitting in enforced silence, six days a week, under pain of imprisonment—must now weigh, he will almost certainly be acquitted. Impeachment is in any circumstance politically daunting; it requires a two-thirds majority in the Senate to remove a public servant from office. And the fact that Trump’s Republican Party has a small majority in the Senate makes that even more of a stretch in his case. Most of the 53 Republican Senators have already let it be known that they will not vote against Trump, whatever the evidence against him. And their leader Mitch McConnell, a veteran Senator from Kentucky, unveiled additional precautions to spare Trump’s blushes when the trial opened this week.

By restricting the time available for arguments and foiling, at least for now, various Democratic demands for additional evidence and witnesses, he has sought to make the trial as cursory as possible. He has restricted media access to it too. This is the constitutional crisis that extreme partisan polarisation, building over decades and now at an extreme pitch under Trump, has wrought. In combination, these mutually reinforcing crises, embodied by an inveterate rule breaker in the White House with nonetheless a seemingly implacable hold on the legislature that is tasked with keeping rogue presidents in check, represent perhaps the greatest test for American democracy of the modern era.

To appreciate this, first consider the enormous importance America’s founding fathers invested in the impeachment process—as a guard against such an eventuality as Trump. When designing their new experiment in republican government, after the conclusion of the American Revolution, Thomas Jefferson, James Madison, Alexander Hamilton and the rest remained dogged by a fear of the sort of tyranny, monarchic or civilian, they had just freed themselves from. A system of three co-equal branches of government—presidency, elected legislature and judiciary—was their main answer. Locked in a permanent state of competition, they would prevent dangerous power centres emerging within the government. ‘Ambition must be made to counteract ambition’ was how Madison envisaged this. Yet they also foresaw possible extreme circumstances in which Congress, as the pre-eminent of the three branches, might feel the need to take more radical measures: for example, in the event that a senior judge, the beneficiary of a lifetime appointment, turned out to be corrupt. The impeachment power was written into the constitution with such a potential crisis in mind.

Making the presidency subject to impeachment was more controversial. Some of the framers of the constitution feared this could allow Congress to subvert democracy, by acting to remove an elected president its members disliked. Madison countered that four-yearly election would be an insufficient remedy for a seriously rogue president. By setting a high procedural bar for his impeachment and removal, moreover, the presidency could be protected against congressional caprice. Hence the need to secure a majority in the House of Representatives to launch an impeachment trial; and a two-thirds majority in the Senate to secure a conviction.

That high bar is one reason why presidential impeachments have been so rare. The other main reason is that the meaning of the phrase ‘high crimes and misdemeanours’ (which the framers copied, like the impeachment process itself, from medieval England) has proved hard to pin down. Impeachment scholars through the ages have maintained that it need not refer to a criminal act. According to Hamilton, it was best understood to refer to some grave political abuse—to offences, that is, ‘which proceed from the misconduct of public men, or in other words, from the abuse or violation of some public trust’. Nonetheless, endless arguments over what might qualify under that grim definition has stayed Congress’ hand in several cases. After Johnson was impeached (for his feuding with Congress over the proper treatment of the defeated Confederate states), his presidency was saved by a single vote in the Senate. The Senate never came close to removing Clinton. In the modern era, Richard Nixon came closer to suffering that disgrace. After he was shown to have obstructed an investigation into his political affairs and then lied about it, he resigned in 1974, rather than face an impeachment trial he probably could not have survived.

IMPEACHMENT WAS NEVER meant to be easy, then. It was meant to be an extraordinary step, which would serve as a deterrent against ne’er-do-well public officials. But Trump, who appears to have little knowledge of and less interest in the constitution, has proved averse to taking the hint. Legal experts have been debating the potential impeachability of his divisiveness, apparent self-dealing and other misbehaviours for much of his presidency—a debate that heated up considerably last year after Robert Mueller published a report into Russia’s illicit support for Trump’s election. The former FBI Director suggested Trump had been guilty of obstructing the course of justice on numerous occasions, including by sacking Mueller’s successor at the FBI, James Comey, who was overseeing an investigation into Russia’s pro-Trump machinations. That invited an obvious parallel with Nixon.

Yet the Democratic leadership, Trump’s political opponents, were extremely reluctant to impeach him. This was not merely because the Republican-controlled Senate would certainly not remove him. There was also little public support for impeaching Trump, especially among the independent voters both parties are vying for ahead of the general election due later this year. Trump’s eccentricity, including the almost weird brazenness of his rule breaking, makes many voters liable to shrug their shoulders and dismiss his misbehaviour as the excesses of a madman. Better, reckoned Nancy Pelosi, the Democratic Speaker of the House, to focus on beating Trump at the ballot. “He’s not worth” impeaching, she liked to say. It was an understandable position, which drove legal scholars apoplectic. It also became untenable late last year after the details of Trump’s egregious arm-twisting of Zelensky came to light.

The President was revealed by a whistleblower to have leaned on the Ukrainian President to announce a corruption investigation into Joe Biden, a former Vice President and leading Democratic contender to run against Trump next November. The American President then suspended $400 million of congressionally sanctioned military aid to Ukraine, apparently to increase the pressure on Zelensky to do as requested. This was despite the fact that there was no reason to think Biden guilty of any wrongdoing in Ukraine.

The former Obama deputy’s younger son, Hunter Biden, had once sat on the board of a troubled gas company there and probably shouldn’t have done. Biden junior appears to have been straightforwardly trading on his father’s name; but neither he nor Biden faced any allegations that might justify Trump’s request to Zelensky. It seems therefore to have been intended by the President purely to damage a potential rival’s political prospects—and thereby, according to many legal experts, a clear example of Trump abusing the public’s trust in pursuit of a private gain. “If what we’re talking about is not impeachable, then nothing is impeachable,” said Michael Gerhardt, a law professor, when called to testify on Trump’s ruse at the House impeachment inquiry that concluded late last year. That led to Trump being charged with the two articles of impeachment—for abusing his office and then obstructing Congress’ effort to investigate his abusive scheme—he is now battling in the Senate.

This is risky for the Democrats. Indeed, Pelosi’s erstwhile reluctance to impeach was based on a fear that this could backfire on her party politically. American voters are accustomed to removing their presidents in elections and have an ingrained contempt for any sort of machination in Washington. A sense that Clinton, who was impeached for lying about sex in the Oval Office, had been unfairly hounded by his Republican opponents, probably contributed to a big improvement in his approval ratings towards the end of his presidency. Perhaps the best that can be said for the dismal show trial that is now being played out in the Senate is that it does not appear to be having that effect. In fact, it is not obviously having any sort of a pronounced political effect, beyond further entrenching America’s partisan division. The latest poll suggests 51 per cent of Americans are in favour of impeaching and removing Trump from office, while 45 per cent are against. That more or less matches both Trump’s disapproval-approval ratings and the Democratic-Republican vote share. Overall, 89 per cent of Democrats say Trump should be removed compared with just 8 per cent of Republicans.

Every previous presidential impeachment or near-impeachment was tainted by partisanship. Even after the evidence of Nixon’s wrongdoing was made public, for example, over half of Republicans still backed him. Yet the sham impeachment trial McConnell is trying to engineer—notwithstanding the strength of the case against Trump—appears to signal that the impeachment process can no longer be relied on against presidential wrongdoing at all. This points to the fundamental flaw in America’s political design. The basis for the separation of powers was the founders’ assumption that members of the three co-equal branches of government—the presidency, Congress and judiciary—would be primarily loyal to their branch. Madison and the rest had thereby not reckoned on the power of political parties (which had not yet emerged) to create new loyalties, thereby weaken that institutional attachment—and in due course make Congress and the judiciary beholden to the presidency. The blind devotion, and inherent contempt for the constitution, now being displayed by Senate Republicans is the culmination of that corrosive process.

BY NORMALISING PERSONAL and political behaviour that no previous president could have countenanced, Trump has damaged American democracy in numerous ways. But this attack on impeachment, the only means besides elections of holding presidents to account, may be the most serious. It risks leaving America vulnerable to a far more committed and effective rule breaker than Trump is. This is especially troubling given how growing disenchantment with democracy, in America and
elsewhere, appears to be making the emergence of such figures more likely.

There is still time to hope that a few principled Republican Senators might awake to the danger. They might in that case demand that McConnell put on a semblance of a fair impeachment trial—even if they ultimately cannot bring themselves to vote to convict Trump. Such a trial would include, at a minimum, airing the fresh evidence of his attempted Ukrainian scam that the Democrats have demanded this week. Senator Mitt Romney of Utah, who is relatively independent-minded, has hinted that he might indeed vote for this later in the trial. If so, one or two other conscience-stricken Republicans might be emboldened to join him. This would be a welcome twist to a sorry episode. But don’t bet on it. Trump once famously bragged that his supporters would never desert him, not even if he shot someone on New York’s Fifth Avenue. So far, he has been proven right.

Donald TrumpimpeachmentMitch McConnellUS politicsUS president