The Senate’s Burden


Two of my AEI colleagues, Greg Weiner and Adam White, have written pieces here at NRO this week that ought to be read, and read together, to get a sense of the responsibilities of the Senate in the coming impeachment trial. I really recommend them (Weiner’s here, and White’s here).

Weiner reminds us that the judgment confronting senators (and which confronted members of the House) is ultimately a political judgment, in the highest sense:

Impeachment is a matter of prudence whose frame of reference should be civic health, not merely presidential conduct… It is not merely whether Trump is guilty but also whether the nation will be better off—now and in the future—if he is put on trial and removed

This seems to me a crucial facet of the question that now faces the Senate, but one to which President Trump’s blazing narcissism tends to blind everyone involved. Of course Trump did what the House accuses him of doing, and clearly there is something seriously improper about it. Abuse of power is a reasonably adequate way to describe the character of that impropriety. But whether that should have led to this impeachment, and whether it now should lead to a removal, is not simply a question of whether this happened but of the implications of impeachment and removal for our bruised political culture and our institutions.

The president’s narcissism makes that necessary judgment difficult to summon because Trump insists that everyone pretend he didn’t do what he’s accused of doing and that he has behaved perfectly. He leaves no room for Republicans to say what to me seems on net to be the case: that what happened was seriously improper but given all the relevant circumstances and implications it doesn’t rise to the level of removing a president. Republican members of Congress with real institutional self-respect should not care what the president’s ego demands, but today’s Republican members of Congress do care, and so they make it impossible for the decision they face—for removal or against it—to be made with dignity or seriousness of purpose.

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This is a particular problem when it comes to the president’s trial in the Senate, for reasons that Adam White articulates. An impeachment trial is a particularly challenging and sensitive governing responsibility, and the framers lodged that responsibility in the Senate because they thought it really couldn’t go anywhere else. That’s not because senators would be capable of acting as a jury, or as judges, but because what was required of them as senators came closest to the kind of exercise of judgment that an impeachment trial would demand. As White puts it:

The Framers did not commit impeachment trials to the Senate because they wanted the Senate to temporarily become a different kind of institution. They committed impeachment trials to the Senate because the Senate itself, as they originally envisioned it, was the institution best suited to carry out the extraordinary work of such a trial. To carry out the job that the Constitution assigns to them, senators shouldn’t reconceive of themselves as courtroom jurors. They should recommit themselves to the Framers’ original vision of their job in general.

He goes on to elucidate that vision in a very illuminating way.

The only thing I’d add to these two important essays is what emerges when they’re read together: that the Senate has a distinct responsibility to consider the prudential circumstances involved in the decision to remove a president. The question before the Senate is not just whether President Trump did what the House says he did, but whether that should result in his removal from office. That question is not defined for senators by any statute, standard of evidence, or rules of interpretation. They are in this respect neither judge nor jury in this trial; they are senators.

People on all sides of the question of impeachment and removal have been hiding too much behind the analogy to criminal or civil procedure in this process—whether to say that if the evidence of Trump’s making demands of Ukraine is there then he must be found guilty or to say that the traditional evidentiary bar or procedural demands of a criminal trial suggest this process has been faulty. And there is, of course, some analogy. The president stands accused and must now be judged. But the analogy is very limited, because the act of impeachment and removal is not in the end a judicial act but a political one.

To be sure, it’s a very complicated political act, and lodging the power of removal with the Senate was not a simple call for the framers. It was seriously debated at the constitutional convention, and the only real discussion of the impeachment power in the Federalist (in papers 65 and 66) is entirely about whether it’s right for the Senate to be the body with the power to act on an impeachment and remove the president. In those papers, Alexander Hamilton is uncharacteristically circumspect regarding that question—he acknowledges serious drawbacks to putting the Senate in this position and ultimately concludes that it’s only the least bad of the options he can think of. In fact, he ultimately doesn’t even quite defend it. Federalist 65 ends with this very peculiar peroration:

But though one or the other of the substitutes [for holding trials in the Senate] which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole community, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.

Not exactly sold on this idea, is he?

The argument Hamilton does make for the Senate being the least bad option, though, is worth our considering in this context. It is rooted in the sheer difficulty and immense importance of the task, and precisely in its being a matter of prudential judgment:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

For Hamilton, this doesn’t make the Senate the obvious place to put this responsibility, but it ultimately makes the Senate the least inappropriate and impractical option. And key to the reason for that is precisely the fact that an impeachment trial is ultimately not analogous to a criminal or civil trial. Hamilton says plainly that an impeachment trial,

can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it.

It is plainly evident that the senators are not a jury in this proceeding. If nothing else, the fact that they set the rules, can make decisions on all procedural questions, and can override the presiding officer even though he is the Chief Justice of the United States should suggest that. They are also not quite a judge. Their responsibility is to exercise judgment prudentially—which is their job in any case because they are senators. The special circumstances, with the peculiar partisan pressures they create (which, as Hamilton put it, always raise “the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt”), create a special and more sobering need for level-headedness, but as White suggests the obligation is not different in kind from the one senators are already subject to.

For this reason, I tend to think the oath that current Senate rules require of senators at the beginning of an impeachment trial (“I solemnly swear or affirm that in all things appertaining to the trial now pending, I will do impartial justice according to the Constitution and laws, so help me God”) doesn’t get things quite right. The original oath, adopted by the first Congress (“I do solemnly swear or affirm that I will support the Constitution of the United States”) is more appropriate to the character of the task—both because it calls senators to their fundamental constitutional duty and because it is the same oath they were to take upon becoming senators in the first place, not a different oath directed to a different purpose.

The challenging task of trying an impeached president is assigned to the Senate because it calls upon the virtues that the Senate is meant to both demand of its members and inculcate in them. Whether it does that in our time remains to be seen, to put it mildly.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.

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