Andy McCarthy: Trump impeachment exercise in 'political judgement’
Former federal prosecutor, FOX News contributor reacts to assertion by Trump attorney that Senate trial is unconstitutional.
So … what exactly is going to happen when the Senate impeachment trial of former President Donald Trump begins on Tuesday? Well, we don’t know for sure. And that’s just the point.
See, we are calling the proceeding a "trial." Technically speaking, that’s accurate. The Constitution (in Article I, Section 3) instructs that "The Senate shall have the sole Power to try all Impeachments." The House, which has sole power to move for impeachment, has done so, charging the former president with "incitement to insurrection." Ergo, it falls to the Senate to try that case.
But let’s pause on that. In this extraordinary case, it falls to the Senate to conduct the trial. This notion is largely alien to us. Thousands of trials occur throughout the United States on a daily basis. Yet, those are judicial trials. They are the ones we know. We are very familiar with the high standards of due process to which they must adhere, developed over centuries of Anglo-American law.
In a criminal case, which is what an impeachment most resembles, the court is the independent institution, ensuring that the accused will not be overwhelmed by the government’s awesome power and resources. A neutral judge presides. The defendant is presumed innocent and need do nothing to prove he is not guilty. The prosecution bears fully the burden of proof. To further even the playing field, the defendant is entitled to counsel, and to discovery of the government’s case, including exculpatory evidence in its files.
Perhaps most significantly for present purposes, the accused is entitled to a fair and impartial jury, and may not be found guilty unless the jury unanimously finds the prosecutor has proved the charge beyond a reasonable doubt. And even if that happens, federal law entitles the accused to multiple rounds of appeal – and if prosecution has somehow transgressed the Constitution or other federal law as they have been interpreted by the federal courts, the conviction will be reversed.
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All that said, if this is your idea of a trial, and you were to wander into the United States Senate on Tuesday, you could be forgiven for gasping, "Toto, I have a feeling we’re not in Kansas anymore." Except, from a due process standpoint, you would not have arrived in a wonderland but a dystopia.
It is not enough to say that Donald Trump is not presumed innocent. The word "presumed" is utterly out of place. It suggests that there is some set of settled assumptions, similar to judicial due process, that governs a Senate trial. There is not. Again, we can’t be sure what will happen.
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In fact, until a couple of weeks ago, we did not even know who would preside over this trial. There was speculation about whether it would be Chief Justice John Roberts, who last year sat on the Senate’s first Trump impeachment trial. But there will be no sequel for him. The Constitution only calls for a judicial officer – the highest ranking one in the land – for impeachment of an incumbent president. Trump is out of office ... so we have a trial without a real judge.
Not only does that raise profound questions about the integrity of the proceedings. It also provokes a serious constitutional issue about whether the Senate trial is permissible – in fact, 45 Republican senators contend that it is not.
The main point of impeachment is to remove an official, and Trump is already a former president who obviously cannot be removed. Democrats and some Republicans point out that the Constitution also makes disqualification from holding office in the future a penalty for impeachment, and thus the insist the trial is valid. But if that penalty were intended to apply to former presidents, the Trump legal team counters, the Framers would have mandated that a real, impartial judge preside over the Senate trial.
In any event, the "presiding officer" will now be Sen. Patrick Leahy, D-Vt., one of the chamber’s most notoriously partisan Democrats. If you have a vague memory from civics classes that the vice president of the United States is supposed to preside over Senate proceedings, you’re recalling correctly. But in this instance, Vice President Kamala Harris opted out because the Biden administration is worried that the Senate trial of a president from the opposition party – a trial that, with Trump already out of office, is overwhelmingly opposed by Republicans across the country – already has the appearance of a vindictive, partisan kangaroo court.
You’re thinking that because the proceeding is a "trial," then fairness must be an absolute requirement. But it is not.
Having Leahy fill the void in his capacity as the Senate’s president pro tempore is not exactly reassuring from the standpoint of fairness.
Ah, but there’s the rub. You’re thinking that because the proceeding is a "trial," then fairness must be an absolute requirement. But it is not. Impeachment is not meant to be fair. It is meant to be political.
That’s not a bug, it’s a feature. Trump’s liberty and property are not at stake – which is when due process requires a judicial trial with all the due process trimmings. Impeachment is a political power the Constitution gives to Congress, a political branch, in order to strip political authority, by removing it or denying it in the future.
Public office is not an individual right; it is a political trust. Depriving a person of eligibility for that trust is a political determination. In our system, it is not something that calls for political judgment, not judicial due process.
Let’s descend from the abstractions of high principle to concrete political reality. In a Senate trial, there is never an impartial jury. Even when the chief justice presides over such trials, his role is merely ministerial. The Senate retains the power to overrule any decision the chief justice makes. Judicial rules and precedent do not control. The presence of a high-ranking judge would simply camouflage the brute fact that the proceeding is political, not legal.
Trump was impeached because Democrats control the House. He will be acquitted because there are not enough Republican votes to convict him. It’s got nothing to do with any legal analysis.
On impeachment, the Framers did not put their trust in law. They relied on politics. They considered assigning impeachment trials to a judicial court; but they opted instead for the Senate – i.e., for the judgment of seasoned statesmen (they were all men back then), who would not ignore legal principles but who would never forget that they were accountable to voters and that, because impeachment is anti-democratic in the sense that it deprives voters of their choice for president, it must be reserved for true emergencies driven by heinous misconduct.
Even if Trump’s misconduct was egregious, is this truly an emergency?
The former president’s prospects of returning to power are highly doubtful. Democrats are determined to conduct the trial now, but the Senate could hold it in abeyance until such time, if ever, that Trump mounts a campaign to return to office. That possibility might do more to discourage a 2024 Trump campaign than an immediate trial that will end in a certain acquittal.
Nevertheless, the trial will proceed. Because it’s a political process, it is easier to predict the outcome than the process. Maybe there will be a full-blown trial in the well of the Senate. Under the chamber’s impeachment procedures, however, Leahy could assign the matter to a committee – perhaps a body formed ad hoc, or perhaps a standing committee, most likely Judiciary – which could effectively conduct a trial, in which witnesses are called and evidence is presented, but without effectively shutting down the Senate’s work.
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If that happened, the committee would certify the record of its proceedings and disseminate it to the full Senate. At that point, the Senate could decide to supplement the record with additional testimony, or it could just deliberate on a verdict.
All of this will unfold starting Tuesday. What it will look like, we can’t be sure. We know only that, though it will be called a "trial," what we’ll be watching won’t be due process. It will be political process.