Imperfect Union: The Upcoming Senate Trial and the Constitution’s Limits

Thomas O. Falk

Following the impeachment of President Donald Trump in the US House of Representatives, a trial in the Senate will be held. The Democratic party’s issue: Republicans hold the majority and have already indicated that the procedure will be quickly settled in favor of the President.

There are not many precedents when it comes to the impeachment process. With the impeachment cases of Democratic President Bill Clinton in 1998 and Democratic President Andrew Johnson in 1868, there have only been two trials against a Commander-in-Chief in the Senate to date. However, both trials were conducted for weeks, and in both instances, Democratic Presidents faced a Republican majority in the Senate.

The US Senate’s Job According To The Constitution Is Clear

The Constitution lays out the Senate’s obligation to now conduct a quasi-trial against the accused. In such a process, the Senators act as jury members who ultimately come to a fair and non-partisan verdict. As such, the leadership of the Republican Senate will undoubtedly examine the deterrent example of President Johnson’s 1868 trial in preparation. The endless delays due to litigation led to considerable public fatigue and the process took almost a quarter of a year.

Andrew Johnson: A Key Precedent

Johnson had been charged with breaching the Tenure of Office Act, which was triggered by Johnson’s dismissal of Secretary of War Edwin M. Stanton, who ought to have been protected by the act as mentioned above. With Chief Justice Salmon P. Chase presiding, the GOP had the two-thirds majority required for Johnson’s impeachment.

However, several Republicans saved a Democratic President, who took office after the murder of Abraham Lincoln. In the end, a single vote for a 35-19 conviction for impeachment was missing, and Johnson continued to govern for the last nine months of his term.

However, the impeachment and the trial against President Johnson had a strong political impact on the balance between the legislative and executive branches of government. The non-dismissal made it clear that a President should not be dismissed due to being unpopular or a partisan target. In turn, it reduced the President’s influence on the public discourse and governance and promoted a system of government that President Woodrow Wilson would refer to as the “Congressional Government.” Nonetheless, in the end, Johnson had been damaged so severely that his party declined to grant him the presidential nominee for another term.

More Lessons From The Impeachment Trial Of Bill Clinton

In the Clinton case, then-Chief Justice William Rehnquist opened the trial on January 7, 1999, less than three weeks after Clinton had been impeached in the House of Representatives. However, the first seven days were mainly spent on procedural issues, while the actual process that followed took almost four weeks.

For Clinton, just as for Trump now, two articles of impeachment were successfully voted on in the House. One for perjury and one on obstruction of justice. Both came as a result of the Lewinsky affair.

As with President Trump, Clinton’s removal from office was very unlikely. The hurdle of the two-thirds majority is simply a very high one and was chosen by the Founding Fathers on purpose. Compared to Trump, however, Clinton had the disadvantage that his party in the Senate was only a minority with 45 out of 100 seats. It meant that while Democrats were able to prevent a two-thirds majority and subsequent removal from office, it was the Republican’s prerogative to establish the process’ guidelines for everyone to adhere.

As a result, the Democrats were not able to block the prosecutor’s request to testify. On the other hand, Trump’s Republicans now have the power to keep unwanted witnesses out of the nimpeachment process. Chaired by Rehnquist, Clinton was acquitted of both articles of impeachment on February 12, as neither received the two-thirds majority required for the Senators present to be sentenced and removed from office⁠—in that case, 67. On Article 1, 45 Senators voted in favor while 55 voted for the acquittal, and 50 Senators voted in favor of Article 2 for the conviction and 50 for the acquittal.

This Impeachment Trial Is Unprecedented

The situation this time will be different than in the cases of Clinton or Johnson, as the impeached individual⁠—Trump⁠—will be judged by a jury of his very own party. Those who think that Senate Republicans could act as unbiased moral instance are sure to be disappointed. Republican Majority Leader Mitch McConnell made this abundantly clear when he stated that he would cooperate with the White House legal team. The process the world will witness in 2020 will thus be a purely partisan one. Democrats will call it a broken system, in which a guilty person can get away with crimes whenever the partisan circumstances are in his favor, while Republicans will cast it as righteous defense of an innocent man.