If a president seeking to overturn the legitimate results of an election is not an impeachable offense, the Founders might not have written the impeachment clause into the Constitution.
James Rosen
If Donald Trump’s bid to pressure Vice President Mike Pence to reject the 2020 election outcome was not the kind of “high crime” the Founders feared, then their clear intention to create an ultimate check on a president’s power is meaningless.
Senate Majority Leader Mitch McConnell appeared to understand the Founders’ intention when he said on the Senate floor on Feb. 13, 2021, that Trump had “fed wild falsehoods” to his followers about the 2020 election. McConnell directly blamed Trump for the Jan. 6 insurrection at the Capitol. “Former President Trump’s actions that preceded the riot were a disgraceful dereliction of duty,” McConnell said. He added: “There’s no question — none — that President Trump is practically and morally responsible for provoking the events of the day.”
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Yet McConnell voted against convicting Trump of inciting an insurrection on the ground that the Constitution’s impeachment clause could not be used against a former president. Trump had been replaced by President Joe Biden just 24 days earlier.
McConnell and other Republican leaders had created this convenient dodge by refusing to hold an immediate Senate trial after the House impeached Trump on Jan. 13, 2021 — one week after the bloody assault on the Capitol and one week before he left office. McConnell’s rationale didn’t prevent seven other Republican senators from joining 48 Democrats and two nominally independent senators in voting to convict Trump, a total of 57 that fell 10 votes short of the two-thirds’ majority required for conviction.
In another dodge, Trump’s Senate defenders said the proper punishment would be criminal prosecution. Now, Trump's lawyers turn that rationale on its head by arguing that because the Senate didn’t convict him, he can’t be tried in a post-White House courtroom.
Between the country’s founding in 1787 and 1998, the House of Representatives impeached only one president: Andrew Johnson, who had been Abraham Lincoln’s vice president before his 1865 assassination. The House impeached Johnson in 1868 for removing Secretary of War Edwin Stanton, a power Congress had annulled for presidents and given to itself the previous year. The Senate fell a single vote short of removing Johnson from office.
Had he not resigned in August 1974, Richard Nixon would have been impeached for having lied about covering up the Watergate break-in of Democratic Party headquarters two years earlier. Republican congressional leaders told Nixon that he faced being removed from office through certain House impeachment and Senate conviction.
But Republicans a half-century ago formed a much more honorable party than they do today, largely because of Trump. The GOP today has abandoned patriotic principles in pursuit of Trump's authoritarian desire for power. Pence, who fulfilled his constitutional duty as Senate president at grave personal risk, is an all-too-rare exception.
After impeaching a president only once in 211 years, the House did so three times in the next 23 years — once against Bill Clinton and twice against Trump. This mini-surge has led some critics to claim that impeachment has become a political weapon rather than a constitutional tool reserved for truly extraordinary circumstances.
When the House impeached Clinton on Dec. 11, 1998, I thought it was a political move that went back years to his tenure as Arkansas governor. His political enemies there had spent millions of dollars planting and publishing crazy conspiracies about him that metastasized after he became president.
The looniest one claimed that Bill and Hillary Clinton had murdered Deputy White House Counsel Vince Foster to cover up his alleged affair with Hillary and his knowledge of their supposedly nefarious deeds. Five investigations concluded that Foster had committed suicide.
Republicans appointed Kenneth Starr as special prosecutor to probe the Clintons' alleged inside land deals in Arkansas. But the bombshell report he released that September instead featured steamy details about Bill Clinton’s affair with White House intern Monica Lewinsky.
When news of the affair broke in January 1998, Clinton emphatically denied it in a nationally televised address, infamously saying, “I did not have sexual relations with that woman, Miss Lewinsky.” Seven months later, in August, he again went on national television again to admit that he’d lied, leading to his impeachment for having obstructed justice and committed grand jury perjury.
To me, perjury was the fruit of the poisonous tree, a probe of extramarital sex on which voters, not prosecutors, should render the verdict. My brother, a lifelong moderate Republican, then a federal judge, disagreed. He lectured me that grand juries form a foundation of American democracy — and that perjury before them by anyone, much less a sitting president, is a grave crime, regardless of the ultimate merits of their investigations. Over the years, I have moved closer to my brother’s view.
Despite my change of heart about Clinton’s impeachment, I still believe Clinton's behavior pales next to that of Trump. If honest grand jury testimony is essential to our democracy, the peaceful transition of presidential power is a great deal more so. It is a sign of the decay of the Republican Party and its total takeover by Trump that all but a few brave GOP politicians excuse his treasonous actions.
Rosen is a former Pentagon reporter who covered the collapse of the Soviet Union as a Moscow correspondent. He wrote this for InsideSources.com.
