Is President Trump being impeached and tried fairly or unfairly? To Trump and his apologists, the answer is obvious: He is being treated unfairly and denied basic due process.
His attorneys complain, for instance, that Trump’s been denied the right to call and cross-examine witnesses. Trump, likewise, took to Twitter today to complain that “the Democrats already [have] had 17 witnesses, [while] we were given NONE!”
But this is disingenuous. Aside from Hunter Biden, who has absolutely nothing to do with this impeachment inquiry and thus is a diversion, it is not at all clear who the alleged missing Trump witnesses are.
Trump himself, moreover, invoked executive privilege to prevent both his current Chief of Staff, Mick Mulvaney, and his former National Security Adviser, John Bolton, from participating in the House impeachment inquiry.
More to the point, analogies to a conventional criminal trial are inapt and inappropriate. By deliberate Constitutional design, impeachment is a political process.
This doesn’t mean that basic standards of fairness and due process don’t apply. However, it does mean that all of the legal niceties and procedural safeguards that apply in a conventional criminal trial do not apply in an impeachment hearing.
Conventional criminal trials were designed, first and foremost, to protect the innocent. Impeachment hearings, by contrast, are designed to protect the integrity of our laws and institutions, and the safety and security of our country above all else.
Thus we require guilt “beyond the shadow of a doubt” for criminal defendants. American presidents, however, enjoy no such presumption. Their guilt or innocence is secondary to the well-being of the country and our government.
The Political Clock. There’s also the matter of time and the political clock. American presidents are elected to a four-year term. Our Founding Fathers recognized that, because of a president’s limited time in office, impeachment hearings must be conducted expeditiously and not allowed to drag on interminably as many criminal trials do. Otherwise, impeachment could be rendered moot.
For these reasons, legal protections accorded to criminal defendants are simply not accorded to American presidents. The Founders believed that political checks and balances and the separation of powers would ensure that any impeachment hearing would basically be fair, or at least result in a just and equitable outcome.
And so it has been. The House of Representatives laid out a legitimate and fair process of inquiry and impeachment. Trump and his attorneys chose not to participate in this process. Instead, they have attacked and undermined that process every step of the way: by lambasting it as illegitimate from the start.
That is certainly their prerogative; but let’s not pretend that theirs is an honest, good-faith complaint, because it’s obviously not. What it is is political posturing and gamesmanship designed to obstruct Congressional oversight and deny Congress its Constitutionally prescribed power of impeachment.
A similar dynamic has played out regarding Trump’s use of executive privilege as an excuse or rationale for withholding documents from Congress and preventing his officials, past and present, from testifying there.
Law professors Alan Dershowitz and Jonathan Turley complain that the House of Representatives should have taken this matter to the courts and let them decide whether Trump’s use of executive privilege is legitimate or illegitimate. But that would have taken many months and years, potentially, at which point the matter would have been rendered moot by the political clock and the 2020 election.
The House recognized that Trump was not acting in good faith, and instead, was stonewalling. Accordingly, then, they charged him with obstruction of Congress, which is the second article of impeachment. The first article of impeachment is abuse of power.
The House then delivered its articles of impeachment to the Senate, in the hopes that the Senate would compel witnesses and documents Trump denied to the House.
That was a smart, fair-minded and legitimate move. Unfortunately, Senate Republicans are uninterested in a fair impeachment trial. For crass political reasons, they want simply to go through the motions and summarily acquit Trump.
They act as his political Praetorian Guard, not as members of an independent branch of government charged with checking the executive’s abuse of power.
The truth is that Trump is clearly and plainly guilty as charged. He abused his authority as president to try and secure personal political favors from a foreign government, and he tried to use Congressionally authorized aid to that government as leverage to secure these favors.
And, because he’s plainly and obviously guilty, Trump and his attorneys refuse to contest the basic facts of the case, or even to participate in that case in any real and substantive way.
Instead, they complain about process. In so doing, they bring to mind that old law school admonition to aspiring trial attorneys: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
Trump and his attorneys have spent all of impeachment and the months leading up to it yelling like hell. But anyone even vaguely familiar with the case knows that they’re yelling loudly because the facts and the law are against them.
And what’s really unfair is not the House impeachment, but the Senate trial designed to conceal the truth from the American people while acquitting a president obviously guilty of wrongdoing.
Feature photo credit: Jon Elswick/Associated Press via the Boston Globe.