The Senate should do everything it can to avoid a zombie impeachment trial
Americans can be excused if they are confused by recent developments concerning the impeachment trial of former President Donald Trump next week. As lawmakers processed their trauma in the days following the January 6 insurrection, it seemed possible that both chambers of Congress might rebuke Trump for inciting right-wing extremists to launch a violent attack on the US Capitol.
That possibility seemed to fade last week, however, when 45 Republican senators voted to dismiss the impeachment trial on the grounds that it would be unconstitutional, given that Donald Trump is no longer president. With almost 6 in 10 Americans saying they blame President Trump for the January 6 insurrection, according to a NPR/PBS NewsHour/Marist poll conducted in the days after the attack, is it really inevitable that this dark episode in US history will lead to a zombie Senate trial that mindlessly sleepwalks to an acquittal?
Many historians don’t like the idea of inevitability, since it denies the important role of individuals and institutions in bucking perceived trends. In that spirit, I believe there are three potential outcomes, not all of which are mutually exclusive, that would be better than where we seemed to be headed now. The Senate trial could be short-circuited now without a verdict. Alternatively, the Senate trial could be organized on a fundamentally different basis than Trump’s first trial and kickstart a process of educating the public about the events that led to the insurrection. Finally, the energy that drove the House to impeach Trump a second time could be harnessed to launch an inquiry into the events of January 6 on the heels of the Senate trial.
Impeachment as an act of political wisdom
Even if the Senate acquits Trump, impeachment will have served an important purpose. I believe that we will one day look back on Trump’s second impeachment as an act of political wisdom that deterred him from further executive overreach.
Although Trump was impeached on January 13, 2021, with just one week left in his term, there was still time for him to inflict more damage on this country, especially through the use of the pardon power.
Andrew Johnson survived impeachment in 1868, and with just months left in his presidency, granted amnesty to the leaders of the Confederacy — including former Confederate President Jefferson Davis — to “return the love” from the white South for defending him throughout his political ordeal, according to Johnson’s biographer Annette Gordon-Reed.
That amnesty contributed to the slow rewriting of history over the years that denied both the reality of the southern leaders’ treason and their reason for seceding, which was to protect slavery. All Americans — and Black Americans, especially — are still paying the price for that big 19th century lie.
While Trump pardoned his former chief strategist Steve Bannon, who was charged with fraud, and many others who were undeserving of executive mercy in his final hours as president, he could have gone further. Imagine if he had tried to pardon himself or those who had been arrested for participating in the Capitol riot. Keep in mind the former president told these people that he loved them. Initial reports suggest that the threat of a Senate trial over the insurrection may have stayed Trump’s pardoning pen.
Constitutional clarity — or a lack thereof
Trump’s impeachment trial will mark the first time a former president has been tried by the Congress. This is a big deal. The Constitution doesn’t clarify whether the Senate has the legal standing to try a former official or private citizen and the closest precedent is the 1876 impeachment trial of William Belknap, who was the secretary of war — a precursor to today’s secretary of defense.
Reading the record of the Belknap trial as an historian — I am not a constitutional lawyer — I believe the Constitutional arguments both for and against trying a former official are persuasive. But the one that wins out for me is that the Founders left the Senate to do what it wished. Certainly that’s what senators concluded in 1876.
What wasn’t murky in 1876 was Belknap’s guilt. As secretary of war, Belknap controlled which private individuals got the legal right to supply food and dry goods to US Army forts. With many of these forts in isolated areas, these concessions were extremely profitable. The Belknap family took a kickback from one of these profiteers, who confessed under oath — and there were receipts.
At the time, Congress was in high dudgeon about rampant corruption in the administration of then-President Ulysses S. Grant. The Democratic majority in the House was investigating other schemes by administration officials (the President’s own brother, Orvil Grant, later admitted to profiting from running fort concessions). Belknap’s resignation — which he coordinated with President Grant and took place just moments before the House was scheduled to vote on articles of impeachment — seemed to short circuit what would have been a way for Congress to highlight official corruption.
When the trial came to the Senate, then under a Republican majority, the issue of whether it was constitutional gave the president’s supporters, along with senators who were against outlawing official corruption, an easy out. (The corruption of the Grant administration wasn’t a partisan matter. The Republican Party, the President’s party, was divided on the issue.)
The Senate held a vote to determine whether the trial was constitutional. Democrats, along with the Republican reformers voted yes; Republican supporters of the status quo voted no. The vote was 37 to 29. Those who won the vote to proceed with the trial did not have enough votes to reach the two-thirds majority needed to convict Belknap. In the end, Belknap was acquitted on all five articles of impeachment, with each vote breaking in almost exactly the same way as the vote on constitutional standing.
Does this mean the vote to convict or acquit Trump will mirror the 55-45 vote on January 26 determining the constitutionality of the Senate impeachment trial? As in 1876, it is likely that vote foreshadows Trump’s acquittal. It appears that only one senator, Oliver P. Morton of Indiana, voted against the Senate having jurisdiction before he voted to convict Belknap on an article of impeachment.
History rhymes, but does it repeat?
History rhymes but does it repeat? Not necessarily.
Just one week after the Capitol riot, the House succeeded in building enough momentum to impeach Trump — quickly creating a deterrent against an even more egregious use of his pardon power and sending a message that there was bipartisan anger at Trump.
But it is not a foregone conclusion that the Senate impeachment trial will occur at all. While the Senate killed a motion that Sen. Rand Paul introduced last week, challenging the constitutionality of trying Trump when he is no longer in office, another motion could be introduced — this time, with a two-thirds threshold instead of a simple majority. While it’s unlikely, it’s certainly possible, and it would provide a way for the Senate to avoid the worst outcome of all — a speedy trial that leads to acquittal.
If the Senate trial does proceed, then it is important to use it to conduct a thorough examination of January 6 and all possible connections between the president and the Capitol rioters who had bought into his lie that the 2020 election had been “stolen.” Keeping in mind that the Senate can do what it likes in an impeachment trial, let’s review some precedents.
In the heady summer of 1974, after bipartisan majorities in the House Judiciary Committee approved three articles of impeachment, Senate leaders began planning, in a bipartisan fashion, the trial of President Richard Nixon. Since the Supreme Court had just decided in US v. Nixon, that the president would have to turn over more of his infamous White House tapes to the district court, the senators understood that the trial could not be based solely on evidence that was available to the House. Although Nixon’s resignation ended the perceived need for a trial, Senate leaders left a draft of how they would have conducted it.
The Constitution leaves it up to the Senate to determine how to conduct a trial. In 1974, the Senate was prepared to reopen the investigation to introduce new evidence. Senate leaders agreed to broad latitude on the part of the House managers, adopting discovery (or investigation) rules from civil trials and not criminal trials.
As a result, the managers could introduce practically whatever they needed to make their case. Nixon’s lawyer at the time wrote that the proposed Senate rules would allow a “blunderbuss intrusion into the Executive branch.” The Senate leaders also wished to ensure that no evidence could be withheld in the trial “on the grounds of national security.”
President Trump’s first Senate trial didn’t follow the Nixon-era model. Instead, Mitch McConnell, who was the Senate majority leader, adopted the approach devised by a bipartisan group of senators for the 1999 impeachment trial of President Bill Clinton, which narrowly defined the admissibility of new evidence, leaving it up to the senators to vote, after the trial began, as to whether they needed to hear from witnesses.
In 1974, Senate Majority Leader Mike Mansfield and Minority Leader Hugh Scott expected Nixon to be convicted, while both Senate Majority Leader Trent Lott and Senate Minority Leader Tom Daschle in 1999 assumed Clinton would be acquitted. The rules each pair of Senate leaders adopted reflected how they viewed the case at hand. Given the Constitution’s silence on the structure of any Senate trial, the Lott-Daschle approach was as constitutional as the Mansfield-Scott approach.
The fact that McConnell went with the Lott-Daschle approach for Trump’s first impeachment trial 2020 doesn’t mean that Senate Majority Leader Chuck Schumer has to do the same in 2021.
Putting the trial that didn’t happen into practice
What would employing the Nixon model instead of the Clinton precedent mean in 2021?
This is key because Trump and his lawyers will not be able to stonewall this trial as they did so successfully in his first Senate trial. His executive privilege now only extends to the presidential records of his term.
That means the House impeachment managers could now have broad access to records about January 6 and the days before from the Justice Department (including the FBI), DC police, Homeland Security and the Pentagon. These are federal, not presidential, records. The Biden administration could, of course, use executive privilege to prevent some federal records from being introduced, but Congressional leaders could work with the administration to seek common ground.
The impeachment managers should take advantage of this access and build on the Nixon model to introduce a wide swath of evidence, including testimony from witnesses. In a televised trial akin to the Watergate hearings, senators could interview those witnesses, including law enforcement officers and others involved in the events leading up to the attack on the Capitol on January 6.
The public could hear from those who financed and organized the rally where President Trump urged his followers to march to the Capitol and “show strength.” They could hear from participants who broke into the Capitol, learning why they thought this was a patriotic act. The impeachment managers could tell the story of the last hours of Capitol Police Officer Brian Sicknick, who died in the attack, or lay out the timeline showing who finally deployed the National Guard and when.
It is possible, though not likely, that the hearing could create enough legitimate anger, sadness and fear to shift public opinion and convince enough senators to convict the former president. Even if it didn’t, this public trial — with all its evidence — would help people of conscience to better understand the ramifications of the Capitol attack and the dangers of extreme polarization in our politics.
An approach like this would ultimately lead to a longer Senate trial. If Senate leaders Schumer and McConnell still want to keep the trial as short as possible, as reports have indicated, Congress could also establish a 9/11-type commission to present the American people with a clear and thorough summary of what happened on January 6. The commission should have bipartisan support, and congressional leaders should consider announcing this investigation in a way that blunts any gloating we might hear from Trump in the event he is acquitted.
What comes next?
Democrats are in control of the executive and legislative branches. And, just as importantly, there is an emerging bipartisan group on Capitol Hill that agrees that Trump is a threat to the country.
Trump also poses a political problem for the now-fractured GOP, and there are certainly Republicans who would like to bar him from running for president in 2024. Democrats need to work across the aisle and reach out to the 10 Republicans in the House who voted to impeach Trump for a second time and the five Senators who voted in favor of proceeding with the trial. Together, they could coordinate a strategy to introduce witnesses and weaken Trumpism, regardless of the outcome of the trial.
If the Senate does not follow an expanded Nixon model for the forthcoming impeachment trial, Democratic leaders and their few Republican allies should waste no time in laying the ground for a bipartisan investigation of January 6, either in the style of the Senate Watergate investigation or the 9/11 Commission. The Trump trial, especially if it leads to an acquittal, must not be the last word.
While the Biden administration focuses on the pandemic, there is still enough oxygen in Washington to conduct a dramatic and educational impeachment trial and a bipartisan investigation into the day our Constitution came under assault.
