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The error of the House was not beginning with the end in mind.
Back in the “I’m just a bill” days of Schoolhouse Rock, I was a Boy Scout getting my first merit badge-fueled deep dive into the US Constitution. It wasn’t difficult to note those moments when the Senate (and sometimes the House) had to forge supermajorities: ratifying a treaty, overriding a veto, initiating an amendment to the Constitution.
One that stood out was impeachment, where the Senate again had a supermajority requirement, but the House did not. Why?
Removing a judge (confirmed by the Senate) or elected official (elected by the electoral college or likewise confirmed) should be a weighty matter, equivalent to modifying the Constitution. An individual is caught in the crosshairs of the checks and balances between branches of government. So the process should be taken in earnest, and with consensus that transcends partisanship or faction.
So why let the House bring articles of impeachment with a simple majority? Why give each chamber full control over its part and – on paper – none in the other? Checks and balances. The House can ignore the Senate completely in its proceedings, but its likelihood of success in the trial approaches zero if they intend to be adversarial. The odds improve when they cooperate, as they must when passing legislation, and especially when preparing legislation that can override an expected veto.
It’s blurrier now that Senators are directly elected rather than selected by the states to represent the states. It makes more sense to let the people’s representatives bring charges (more) frequently, but leave the final, no-appeals judgment to the presumably more sober, thoughtful higher chamber of the legislature representing the states’ interests, chaired by the chief justice of the Supreme Court. This is a well-considered decision: the people deserve their voice, but let wisdom reign. This is less clear in an era where we have so many Senators who are indistinguishable from their House counterparts. Schumer is an excellent example: under the Clinton impeachment, he began as a congressman, then rendered his verdict as a senator. Same Schumer, different desk.
The inclusion of the Chief Justice also sends a message. The Supreme Court doesn’t conduct lengthy trials with witnesses. They choose which cases to take. All trials and appeals are complete, and the high court sits in judgment of the lot. The law itself is on trial – in one case intact but applied incorrectly, in another upheld in full, but sometimes the law itself is found wanting and struck down.
So the question: is hamstringing the upper legislative chamber and the high court’s presiding judge for the duration of the trial meant to take months (or years, as can happen in lower courts)? I think not. The House should do the heavy lifting, not cut corners and expect the Senate to pick up the slack. (Yes, I know. If mixed metaphors were impeachable…)
A complication is that the Constitution was not created in or for the Internet age. Impeachment was never meant to be a live-Tweeted public spectacle. The Senate is not meant for gladiators.
But, here we are. Impeachment as Wrestlemania, with the big belts going to the loudest and most meme-worthy combatants. It’s tailor-made for a Gerald “Speedwalker” Nadler. Adam Schiff seems to covet the Senate’s filibuster rule, and is no stranger to marathon monologues, but isn’t likely to join Dancing with the Stars anytime soon. Speaker Pelosi and Senator Schumer have their fans on The View and late-night TV.
And if ever there was an epic, headline Heel, it’s Bad Orange Man.
That’s the problem. This impeachment hasn’t been about high crimes and misdemeanors. It’s been about low blows and Taking Back The Belt. Trump toppled the reigning heavyweight champ in 2016 with — they allege — a helpful cheap shot from Boris Malenko, King of the Russian Chain Match. Nadler was swearing out loud he’d be the one to bring him down … in 2017. Points for persistence, I guess. But Hornswaggle isn’t pinning The Rock anytime soon.
The current House wouldn’t shock the founding fathers much — the rabble is going to rabble. But they would roll their eyes at the articles of impeachment and the process that led to it. Impeachments are historic because they are so uncommon. If you’re going to kill the king, you’d better not miss. Bring all evidence to the table. All witnesses examined and crossed. Draw conclusions, and make it brief. This isn’t small claims court, but in a way it is: this is one throw, all or nothing. Don’t walk into the chamber that barely tolerates your presence and make demands. You want witnesses? Get them when you have total control. If you claim to have a slam dunk, be prepared to follow through and hang off the rim.
And in the name of all that’s holy, remember that the upper chamber is, for the duration – merited or not — home to the golden-throned denizens of Olympus. Never squat over the chamber pot on Olympus. Go before you show, and make your exit before the lightning bolts come out.
Begin with the end in mind. If you expect to win that two-thirds majority, come with the intent to earn every single vote. Poaching from the edge of the orchard might get a procedural win here and there but it won’t carry the day. Drive straight to the heart of each of the 100 judges, on all sides. This is historic; your arguments should transcend faction. You know your case’s weaknesses, you acknowledge them, and you have a superior response to each. Know your judges, and sincerely appeal to their highest principles. That means acknowledging they have some, even your worst enemies. If your case can’t bridge that divide, you’re wasting everyone’s time and you will return to your side of Capitol Hill, justly diminished.
The Nixon impeachment was the best example we have of a House that did the hard work. They took their time. They started with public sentiment against them. They persisted, built a case, went through the courts. Is there any doubt that a 9-0 victory in United States v. Nixon hastened Nixon’s determination to resign? What’s the goal – to be the one to reach the podium first, win the dank meme war with your sick burns….or to effect actual change? The Rodino committee drafted articles, but they didn’t get an impeachment. They didn’t get a forced removal. But their work led to President Ford nonetheless. A quiet visit to Nixon from some influential GOP senators preempted the need for a trial.
As Reagan said, “there is no limit to the amount of good you can do if you don’t care who gets the credit.”
Was the impeachment of Trump a pursuit of high principles? The results speak for themselves. The House managers and the White House defense scored points with their respective choirs. The House Managers frequently alienated the Senators with inflammatory rhetoric. The results have been utterly predictable since…before the committees first met.
Partisanship can get you into the ring. But don’t expect to win with that strategy.Published in