Trump Impeachment Epitaph: Constitutional Jury Nullification
Even in a “trial” without witnesses, the House managers presented overwhelming evidence that Trump was guilty as charged. Everyone knew it, but the Senate acquitted anyway.
And yet, despite all that, and at the risk of infuriating everyone on all sides, I’d like to offer a somewhat counterintuitive viewpoint: The end result of the Trump impeachment process is arguably exactly what the Framers intended.
The explicit legal element of impeachment—“treason, bribery, or other high crimes and misdemeanors”—was met. So the House impeached. The implicit political element of impeachment—a national consensus and bipartisan support—was not. So the Senate acquitted.
The Framers designed impeachment as a mix of law and politics, neither an entirely legal process, nor an entirely political one.
On the legal side, the Framers articulated a deliberately broad (but not boundless) standard—“treason, bribery, or other high crimes and misdemeanors.”
In this case there was overwhelming evidence in the House record that President Trump conditioned the release of congressionally appropriated military aid on Ukraine’s agreement to interfere in the 2020 election by publicly smearing Trump’s most-likely and most-feared opponent, Joe Biden.
Call it bribery, extortion, corruption, or anything else you want. According to the overwhelming majority of constitutional scholars, including Jonathan Turley, the only constitutional expert who testified on Trump’s behalf, the legal standard articulated by the Framers is broad enough to include a president abusing his power by corruptly selling out the United States for personal gain and election interference from a foreign country.
It is no wonder that Alan Dershowitz promptly disappeared from the Senate chamber the day after he articulated a fringe opposing view so out of the mainstream of constitutional thinking that even his co-counsel on the Trump defense team termed it “radical.”
But while the legal standard for impeachment was clearly met, the political standard for removal, arguably, was not.
The political element of removal is embodied in the requirement of a simple majority vote in the House to impeach, in contrast to a two-thirds super-majority in the Senate to remove. This assures that the drastic consequences of removing a sitting president not only meet the legal standard but also have widespread political support among voters.
The contrast between the constitutional requirements of a simple majority to impeach in the House and a super-majority for Senate removal was neither arbitrary nor accidental. It reflects the balance of interests that the two bodies were designed to protect.
The Framers intended the House to be a highly democratic institution uniquely responsive to the will of the people. In the words of James Madison, the House should have “an immediate dependence on, and intimate sympathy with, the people.”
The Senate, by contrast, was created in part “to protect the rights of individual states and safeguard minority opinion in a system of government designed to give greater power to the national government.” The emphasis here is mine, but the viewpoint reflects the design of the Framers, and goes a long way toward explaining what happened here.
The analogy is imperfect, but it isn’t too far-fetched to suggest that the Framers, intentionally or not, built something akin to jury nullification into the impeachment process. By establishing a broad standard of impeachment in the House and, at the same time, making the exclusive remedy—removal from office—the political equivalent of the death penalty, the Framers set the stage for jury nullification in the Senate. And by requiring a two-thirds vote for removal, they gave minority opinion a big voice in the decision.
As Madison put it, the Senate’s role is “first to protect the people against their rulers [and] secondly to protect the people against the transient impressions into which they might be led.”
The distinction between the roles of the two houses of Congress was on full display during the Trump impeachment process.
While the House managers relentlessly and effectively established that the proven facts satisfied the legal constitutional standard for impeachment, Trump’s Senate counsel pounded the political element necessary for removal. They argued that a president should not be removed by a strictly partisan vote, especially in an election year, because a partisan removal would take away the right of voters to elect the president of their choice in 2020, would further polarize an already-too-polarized nation, would not be accepted by half the nation, and would generally lead to chaos.
Whether or not you agree with these arguments, the absence of something approaching a national consensus is a legitimate political consideration in deciding whether a president should be removed from office. Here, it seems to have determined the outcome.
While polls indicated that about half of all Americans favored Trump’s removal, that simpy wasn’t enough to form the kind of national consensus that would provide political cover for something so consequential as the removal of a sitting president from office, especially since the polling broke down almost entirely on partisan party lines.
More important, despite widespread belief that what Trump did was both wrong and impeachable, the level of national outrage was at a low simmer, not a full boil. Even among Democratic voters in Iowa, impeachment appeared not to be top of mind. And the handful of Republicans who had the independence to concede that what Trump did was wrong, such as Lamar Alexander, were more inclined to shrug it off than to get up in arms about it.
That wasn’t enough.
You may believe, as I do, that Trump should have been removed. You may also believe, as I do, that the American populace should have been more outraged by Trump’s corrupt behavior.
But they weren’t.
And that gives at least a measure of legitimacy to Trump’s acquittal without exoneration in the Senate. While Mitch McConnell’s conduct of a fixed Senate trial, highlighted by the GOP’s shameful refusal to allow witnesses, was indefensible, the end result was not out of step with the political moment.
Don’t get me wrong. I still believe that Trump’s removal would have been justified. Had I been a senator, I would have voted for it. But I also believe that both the House decision to impeach Trump and the Senate’s refusal to remove him were legitimate exercises of their respective constitutional powers.
So cheer up.
Trump is forever impeached and never exonerated.