Who lost the second impeachment case against Donald John Trump?
In the aftermath of Trump’s acquittal, the Democratic House managers who prosecuted the case have taken a lot of the blame, especially from the left, for not calling witnesses to appear at the trial. In a column published by Common Dreams, Ralph Nader and Bruce Fein go so far as to accuse the Democrats of “snaring defeat from the jaws of victory” for failing to insist on live testimony.
That the U.S. Senate would acquit Trump, no matter what evidence was presented, was always a foregone conclusion.
To be sure, the House managers had a surprise opening on the last day of the trial when they proposed to subpoena witnesses. The night before, GOP Representative Jaime Herrera Beutler, Republican of Washington, released a statement with blockbuster evidentiary potential about the now-infamous phone call between House Minority Leader Kevin McCarthy and Trump that took place in the midst of the January 6 insurrection.
Herrera Beutler, who was briefed by McCarthy about the call, wrote:
“When McCarthy finally reached the President on January 6 and asked him to publicly and forcefully call off the riot, the President initially repeated the falsehood that it was antifa that had breached the Capitol. McCarthy refuted that and told the President that these were Trump supporters. That’s when, according to McCarthy, the President said: ‘Well, Kevin, I guess these people are more upset about the election than you are.’ ”
But just as it appeared the trial might expand to include actual courtroom testimony from Herrera Beutler and perhaps others, the prosecution backed down. Lacking support from Democratic Senators for a significant extension of the trial, they settled for a tepid stipulation with Trump’s defense attorneys that allowed Herrera’s statement to be read into the record.
In the end, as in Trump’s first impeachment trial, no witnesses were subpoenaed. And, as in his first trial, Trump was acquitted, albeit this time with seven Republican Senators voting for conviction, still short of the required two-thirds majority.
The House managers, however, didn’t lose the case. As regrettable as their retreat on live testimony was, the case was never theirs to win.
That the U.S. Senate would acquit Trump, no matter what evidence was presented, was always a foregone conclusion.
Only three Presidents in our history have been impeached and tried for “high crimes and misdemeanors”: Andrew Johnson, Bill Clinton, and Donald Trump, whose malfeasance in office earned him the honor twice. All were acquitted. (Richard Nixon would have been another, but he had the foresight to resign before a formal vote on impeachment was taken against him, which the House decided thereafter not to pursue.)
If you’re looking for someone to blame for Trump’s acquittal, don’t tar the lead House impeachment manager, Jamie Raskin, Democrat of Maryland, and the rest of the prosecution team. Blame Alexander Hamilton and the Founding Fathers for the system they created that vested the Senate with the sole authority to conduct impeachment trials.
At the Constitutional Convention of 1787, Hamilton was a prime architect of the impeachment process that has remained intact to this day. Hamilton is widely credited with helping to break an impasse at the convention between proponents of the “Virginia Plan” that called for impeachment by the federal judiciary, and the “New Jersey Plan” that called for impeachment upon petition by a majority of state governors.
Hamilton urged instead that the convention adopt a plan modeled after British parliamentary practice. In the British system (which has since become dormant), a lower legislative body (the House of Commons) promulgated articles of impeachment against government ministers in the fashion of a grand jury, after which an upper chamber (the House of Lords) adjudicated the articles in the fashion of a trial jury.
After some amendments, Hamilton’s plan was adopted. A fierce proponent of the new federal government, Hamilton took his defense of the Constitution and the impeachment power to the public in a series of newspaper essays—the eighteenth-century equivalent of today’s op-eds—that have come to be known as the Federalist Papers.
To his everlasting credit, Hamilton explained in Federalist No. 65 that impeachable offenses encompass both criminal and serious non-criminal conduct amounting to an abuse of power:
“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.”
Where Hamilton and the founders erred—“big time,” as Trump himself might say—was in entrusting the Senate to try impeachment cases, especially those involving Presidents.
Hamilton believed that the Senate, rather than the Supreme Court, would be best suited for the task. Only the Senate, in Hamilton’s view, commanded the respect required for such awesome undertakings. As he asked in Federalist No. 65:
“Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?”
Hamilton promoted a strong executive, but he was also concerned about the dangers posed by demagogues. In Federalist No. 1, he warned “that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”
Hamilton’s prescience in anticipating the rise of demagogues like Trump was uncanny. Sadly, his faith in the Senate as a repository of dignity and impartiality was dreadfully naïve.
Yet that’s the system Hamilton and the founders created and bequeathed to future generations. They gave us a system that more than two centuries later allowed political sycophants including Lindsey Graham, Republican of South Carolina; unprincipled manipulators like Mitch McConnell, Republican of Kentucky; and ruthless authoritarians like Ted Cruz, Republican of Texas, and Josh Hawley, Republican of Missouri, to serve as jurors and sit in judgment for what amounted to a trial about their own complicity in a plot against democracy.
No amount of brilliant lawyering by the House managers or additional evidence would have changed the result in Trump’s second impeachment trial. The fix was already in, dating all the way back to 1787.