Tags: Presidential History | Trump Impeachment | Ukraine | nunes | flake | mcreynolds

Trump Impeachment Hearings: A Verdict Before Trial?

adam schiff and devin nunes two california congressmen

(L-R) House Intelligence Committee Chairman Adam Schiff, D-Calif., delivers his closing remarks alongside ranking member Rep. Devin Nunes, R-Calif. during a hearing before the House Intelligence Committee in the Longworth House Office Building on Capitol Hill Nov. 19, 2019, in Washington, D.C. (Shawn Thew - Pool/Getty Images)

By Tuesday, 19 November 2019 05:07 PM Current | Bio | Archive

The rhetoric coming out of Washington, D.C., reminds me of an exchange between the King and the Queen in Lewis Carroll's "Alice In Wonderland."

"Let the jury consider their verdict," the King said . . . .

"No, no!" said the Queen. "Sentence first — verdict afterwards."

Of course the Queen had things backwards. There is a lesson here for today.

If the House impeaches Donald Trump, he will be tried by the Senate, with Chief Justice John Roberts presiding. In effect, senators will act as a jury.

Normally, individuals biased one way or the other are carefully excluded from juries by a process called voir dire. There is no equivalent way to exclude senators from the "jury" for impeachment trials.

But the principle that jurors should be impartial is equally valid for impeachment trials. It is clearly improper for senators to determine their verdict before that trial even begins.

It is equally improper for reporters to assume that Democrats will all vote to convict and Republicans to acquit. If senators rely on personal evaluations of evidence and arguments presented at the trial, their verdicts are unlikely to line up neatly along party lines.

Former Republican senator Jeff Flake of Arizona, asked recently if 30 Republican senators would vote to convict if the ballot at the trial were secret, replied that in his opinion it would be 35. Flake knows many of them personally.

Flake, no longer a senator, won't be a "juror," so he did nothing improper in stating his belief that Mr. Trump is guilty.

It is discouraging that many Republican senators are mouthing White House talking points, claiming that the investigation is a witch hunt, an attempt to nullify an election, and a partisan power-grab. Since they will act as jurors if it comes to a trial, the least they can do now is to avoid acquitting Donald Trump before the trial starts. In plain language, they should shut up.

Similar advice applies to Senate Democrats. They should avoid saying before the trial that they would support convicting Trump. They, too, should shut up.

The underlying problem here is that our representatives have abdicated their responsibility to act as members of an independent branch of the government, co-equal with the executive branch. It undermines the balance of power written into the Constitution when legislators put loyalty to party above loyalty to Congress or loyalty to the country.

Members of both parties have misbehaved, but congressional Republicans are especially guilty at the moment. For one example, Sen. Mitch McConnell's refusal to allow Senate votes on bills not pre-approved by the president has destroyed the constitutional right of Congress to enact legislation over a presidential veto. "Vetoes" before a bill is enacted cannot be overridden.

The exclusive right to appropriate money conferred on Congress by the Constitution has also fallen into disuse. Congress didn't stop the president from diverting money from the military budget to build a wall that it had refused to fund.

And what about the power of Congress to declare, or refuse to declare, war? It just continues to finance wars initiated by the president.

If Congress hadn't abdicated its constitutional responsibilities, Mr. Trump might not be in so much trouble. A powerful Congress could have encouraged him to back off from actions — like threatening to withhold Ukrainian military aid appropriated by Congress — now threatening to end his presidency.

Impeachment is a belated attempt to restore the balance of power among our government's three branches. But if the craven behavior by legislators continues it probably won't get anywhere.

In 1935, Justice James Clark McReynolds, dissenting from a particularly outrageous Supreme Court decision, declared that "this is Nero at his worst. The Constitution is gone."

McReynolds exaggerated. But this time it may be true.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.


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Impeachment is a belated attempt to restore the balance of power among our government's three branches. But if the craven behavior by legislators continues it probably won't get anywhere.
nunes, flake, mcreynolds
Tuesday, 19 November 2019 05:07 PM
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