Who are the true defenders of the Constitution?
Nancy Pelosi, Adam Schiff and Gerald Nadler or Donald Trump and Mitch McConnell?
The ongoing impeachment imbroglio starkly poses that question.
The U.S. House Democrats seeking to remove this president argue that they, in most "somber" fashion, must get rid of Trump because he has put his own political interests ahead of those of the country, and that he has "abused" the powers of his office by seeking to delay military aid to the Ukraine until it agreed to investigate the family of his political rival, Joe Biden.
They purport to believe that this amounts to misconduct of this president so severe, that it meets the constitutional test of "treason, bribery, or other high crimes and misdemeanors" required for impeachment and removal.
In an extraordinary six-page letter sent to every member of the House and Senate, President Trump, in clear and powerful language, disagreed. "This impeachment," he wrote, "represents an unprecedented and unconstitutional abuse of power by Democrat Lawmakers, unequaled in nearly two and a half centuries of American legislative history."
The president defended his conduct with Ukrainian President Zelenskiy as a good faith effort to ferret out corruption in that country and in ours, and he said Congress was "turning a policy disagreement between two branches of government into an impeachable offense."
This was "no more legitimate than the Executive Branch charging members of Congress with crimes for the lawful exercise of legislative power." President Trump, then, staked his defense on the Constitution’s basic principle — the separation of powers.
He maintained that were this impeachment effort to succeed, the presidency would be weakened, all presidents would serve subject to the arbitrary removal power of their political enemies, the precise situation our Framers sought to avoid by limiting impeachable offenses in the manner they did.
Summing up in a few words, Trump wrote "Our Founders feared the tribalization of partisan politics, and you are bringing their worst fears to life."
The morning after the House voted its articles of impeachment, Senate Majority Leader Mitch McConnell, R-Ky., echoed Presidents Trump's theme.
"The House’s conduct," he explained, "risks deeply damaging the institutions of American government. This particular House of Representatives has let its partisan rage at this particular President create a toxic new precedent that will echo into the future."
McConnell also seconded President Trump’s assertion of bias on the part of the House Democrats, "The House’s vote yesterday was not some neutral judgment that Democrats came to reluctantly. It was the pre-determined end of a partisan crusade that began before President Trump was even nominated, let alone sworn in."
More importantly, however, was McConnell’s recourse to the wisdom of the Framers and his defense of the Constitution itself. "The Framers of our Constitution," said McConnell "very specifically discussed whether the House should be able to impeach presidents just for 'maladministration' — in other words, because the House simply thought the president had bad judgment or was doing a bad job."
Invoking the Constitution’s most famous author, the Senate leader decalred, "James Madison himself explained that allowing impeachment on that basis would mean the President serves at the pleasure of the Congress instead of the pleasure of the American people." McConnell thus revealed that both he and the President were not only defending the Constitution, but our most important principle of popular sovereignty, of rule by the people.
McConnell further signaled that so long as he remained majority leader this impeachment effort of the House would fail, '"If the Senate blesses this, if the nation accepts it, presidential impeachments may cease being once-in-a-generation events and become a constant part of the political background noise. This extraordinary tool of last resort," said McConnell, "may become just another part of the arms race of polarization."
Closing with an eloquent explanation of why the Senate was created, McConnell thundered, "'The Framers built the Senate to provide stability. To take the long view for our Republic. To safeguard institutions from the momentary hysteria that sometimes consumes our politics. To keep partisan passions from boiling over. The Senate exists for moments like this."
Making clear that this particular impeachment effort was doomed to fail in the Senate, McConnell stated that there was '"Only one outcome that will preserve core precedents rather than smash them into bits in a fit of partisan rage because one party still cannot accept the American people’s choice in 2016."
It's no surprise, then, that Nancy Pelosi has decided, at least temporarily, not to transmit the articles of impeachment to the Senate, where they are doomed to defeat. That defeat, however, would actually be a triumph for the Constitution, and for the American people.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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