Thursday, December 19, 2019

The problem isn't GOP Senators' lack of "impartiality"--it's that they're all insisting the President did nothing wrong

Marty Lederman

As my colleague David Super points out in his recent must-read post, in the forthcoming impeachment trial the Senate Rules will require each Senator to swear an oath "that in all things appertaining to the trial of the impeachment of Donald Trump . . . I will do impartial justice according to the Constitution and laws."  

David suggests this could present a problem for Lindsey Graham, who's already declared he's "not trying to pretend to be a fair juror here” and will vote against removing the President.  Perhaps.  But I'm not sure the absence of "impartiality" is the crux of the real concern here.

Let's assume, for example, that Graham merely meant that he's already come to a view of the merits of the charges, and of whether the Senate should remove Trump from office.  After all, he's already seen plenty of evidence of what the President did, as have we all.  Would his participation in the Senate trial with such pre-existing views necessarily be inconsistent with the notion of "do[ing] impartial justice"?  I doubt it--especially not in this setting, where virtually every Senator is (or should be) already aware of the facts and of the costs and benefits of removing the President from office.  Surely the prescribed oath isn't designed to require Senators to put aside everything they know about the case before the trial begins--or to ignore what they've already concluded based upon that knowledge.

Indeed, I think it's perhaps a category mistake to make too much of the "impartiality" oath, at least in the context of an impeachment trial of a President, for a fairly basic reason--namely, that it's simply implausible that Senators could be "impartial" in the way we expect jurors to be in an ordinary criminal trial.  After all, the Senators all have at least some stake in the outcome and/or in their vote.  Those planning to run for re-election naturally will care about the effect of their vote on their electoral prospects--it'd be asking a lot to insist that any of them be indifferent to such considerations.  More importantly, virtually all of the Senators, whether they're running for office again or not, presumably will care deeply about the effect of the trial on their party's prospects for continued political control of the presidency, the Senate, and the judiciary.  There's a personal element to that consideration, of course--namely, that Senators in the majority party have more power and influence than those in the minority.  But it's not simply a matter of self-interest:  Most elected officials will, with good reason, and because they care about what they see as the merits of various policy objectives, believe that the nation will be better served by one party's control of the federal government rather than the other's.

I'm not suggesting that Senators necessarily would, or should, allow such "partial" considerations to determine their votes.  A principled Senator might well conclude that the nation's interests and her own (or her party's) are at odds, and vote based upon the best interests of the nation.  Even that Senator, however, isn't impartial--i.e., disinterested--in the way we expect jurors to be, at least on the ultimate question of whether to vote to remove Trump.  The conflicts of interest that are ever-present here would never be acceptable in a criminal trial, no matter how insistent a juror might be that she'd put aside her own pre-existing interests in rendering a verdict.

I should hasten to add that David doesn't disagree.  In an email exchange with me he wrote that "I read the oath to be one compelling action rather than an unachievable state of mind:  the senator is promising to listen and to be willing to be persuaded even if she or he believes that to be highly unlikely."  David's right about that "promise," I think, regardless of whether the source of the obligation is the impeachment-trial oath or the broader oath that all Senators take as a condition of holding office to "bear true faith and allegiance" to the Constitution.  Senators must be open to considering any new facts that emerge at trial, and to reasonably assess whether they bear on the question of the President's guilt and whether the Senate ought to remove him.  If Lindsey Graham meant to suggest that he wouldn't do so, come hell or high water, then of course that'd be indefensible, regardless of whether it would violate the oath of "impartiality."  In that case Graham would plainly warrant the opprobrium and ridicule typically reserved for the likes of Rep. Earl Landgrebe, who infamously declared, just one day before Nixon's resignation:  "Don't confuse me with the facts.  I've got a closed mind.  I will not vote for impeachment.  I'm going to stick with my president even if he and I have to be taken out of this building and shot."

Senator Graham is unlikely, however, to be confronted with any new evidence at the Senate trial--even in the unlikely event that witnesses testify--that might implicate his obligation to be open-minded regarding emergent new facts, for the simple reason that the decisions the Senate must make in this particular impeachment trial don't turn on any material, let alone significant, factual disputes.  The President is right about this much:  Just read the transcript.

* * * *

There is a serious problem with Graham's perspective, but I don't think the prospect of "partiality" (which also might well describe the Democratic Senators) adequately captures what that problem is.  What's far more troubling than any possible bias is that Graham--and, it appears, virtually every other GOP member of Congress--has decided to insist not only that the Senate shouldn't remove Trump from office but that Trump didn't even abuse the powers of his office.  Indeed, it's increasingly evident that the standard-issue Republican Talking Point is that Trump did nothing at all wrong with respect to Ukraine--as Trump himself insists, that his conduct was "perfect."

I assume--or I hope, anyway--that no Republican Senators actually believe that to be the case.  Whether they believe it or not, however, the real threat to to our constitutional system here isn't that some Senators might be "partial" during the impeachment trial (of course they will be), nor even that Trump won't be removed from office (which has been the obvious conclusion from the start), but instead that there's been such a rapid and cynical erosion of the long-established consensus view that a President must not conduct diplomacy, nor interfere in law enforcement matters, in order to advance his own electoral, financial or other personal interests.  (Indeed, the President shouldn't weigh in on specific law enforcement investigations or prosecutions at all--an essential norm that Trump has regularly shredded with impunity.)

Ben Wittes and I wrote about this dire threat a couple of months ago:
Whether a majority of the House of Representatives votes to impeach Trump . . . isn’t the only crucial question facing Congress.  Another is whether all or virtually all members of both the House and the Senate—including those who would choose not to vote to impeach or convict him—are prepared, individually and collectively, to condemn the president’s actions unequivocally. . . . 
The boundaries of acceptable presidential behavior are defined by which actions the political system tolerates or condemns. . . .  If a substantial group of members of Congress signals not merely that the president’s conduct does not warrant impeachment and removal but also that it does not even warrant branding as intolerable, such conduct will become normalized—at a great cost to previously unquestioned first principles of constitutional governance—even if the House impeaches Trump. . . . 
Trump doesn’t deny that he urged Zelensky to investigate the Bidens. Yet he’s not the least bit contrite about it.  He doesn’t admit that he erred in an unguarded moment, and he certainly will never pledge to refrain from ever using his diplomatic authorities to advance his own electoral prospects.  To the contrary: Trump insists that his conversation was “pitch perfect.”  Just as he believes an attorney general’s job is to protect the president, regardless of any ethics constraints or norms of prosecutorial independence from the White House, it appears Trump sincerely believes there’s nothing wrong with using the levers of presidential diplomacy, and control of military aid, to induce foreign officials to dig up dirt on his political opponents. . . .  
The Ukraine imbroglio is merely the most dramatic of a series of Trump’s communications with foreign dignitaries so alarming that Trump and other officials have taken extraordinary steps to ensure that they’re not shared with many of the government officials who would ordinarily be privy to them.  Trump made the shocking decision, for example, to not allow any other U.S. officials to know the content of his conversations with Vladimir Putin.  And according to a recent report in the [Washington] Post, he also told Russian officials in an Oval Office meeting in May 2017 that he was unconcerned about Moscow’s interference in U.S. elections.
A president who regularly engages in such nefarious communications with foreign officials—thinking that such conduct is unobjectionable—and who does so largely without any internal or external oversight is obviously a danger to the country. 
What’s worse still, some of Trump’s principal defenders have embraced his substantive defense with gusto. . . .  [And] when the attorney general and White House counsel learned of the president’s communication with Zelensky, and of his delegation to his private lawyer of the responsibility to secure Ukraine’s assistance in tarnishing Biden, they did nothing to put an end to the rogue operation, or to explain to the president that his constitutional oath requires him to put the nation’s interests ahead of his own.

Contrast this with, for example, the justly celebrated 2004 case in which John Ashcroft and dozens of high-ranking Justice Department officials threatened to resign when President George W. Bush refused to terminate a surveillance program that they had concluded was unlawful.  The apparent absence of any similar resistance to Trump’s transgressions reflects at best an indifference by the highest-ranking Trump appointees to a manifest breach of constitutional duty.  Perhaps they, like the political analyst Charlie Cook, thought the Zelensky communication and the Giuliani initiative were “not much more inappropriate than [what] we hear from [Trump] in a typical week.”  But that simply demonstrates the danger we now face: Trump has used the powers of the presidency for his own self-aggrandizement and self-enrichment so brazenly and so regularly—such actions have become so normalized—that it no longer occurs to many of those close to the president to sound the alarm or take steps to end the deviance.

This is a big change.  When President Richard Nixon misused the CIA to try to squelch an investigation into the Watergate break-in, some members of Congress and others didn’t think he should be impeached or removed for it—but virtually no one argued that his conduct was “totally appropriate,” a “nothing burger,” or consistent with the president’s constitutional duties.  Likewise, when President Bill Clinton lied under oath about his conduct with Monica Lewinsky, many people thought it wasn’t the stuff of impeachment, let alone removal, and some people went so far as to sympathize with the president or to argue that his conduct didn’t meet the definition of perjury.  But virtually no one argued that actual deliberate falsehoods under oath would have been proper.
Yet that’s effectively where we find ourselves now—confronted with a president, and some of his defenders, who would insist that abuses of presidential authority are unexceptional or, worse still, consistent with the president’s constitutional oath and duty.

In the long run, this defense of Trump’s Ukraine machinations may well prove more corrosive than what occurred in the July 25 conversation itself.  The president, after all, continues to serve in office and—as the phone call with the Australian prime minister demonstrates—is likely to continue to engage in further self-serving activity with foreign dignitaries as the election approaches.  More upsetting still, we’re perilously close to the point at which there may no longer be a national consensus that there’s anything constitutionally problematic about using governmental powers to advance one’s own pecuniary and electoral interests
Presidents have abused their power before and will do so again.  But Trump’s public defense of his abuse of power here is a distinct problem quite different from the abuse itself, one that exacerbates the threat to our constitutional system.  When vice pays no homage to virtue but is open and proud, it presents a special challenge to accepted morality.  If one steals cash, hides it, and denies the theft, the act poses an enforcement problem.  But if one steals cash and then, once caught red-handed, publicly defends the act as legitimate, that defense poses a challenge to the norm itself.  That is, in effect, what Trump is doing when he declares that his conversation with Zelensky was “pitch perfect” and when his appointees act as though nothing untoward has occurred.  It’s now up to all members of Congress—whether or not they vote to impeach or remove Trump—to prevent this effort to rewrite the proper standards of the presidency.
Our fears have come to pass.  Indeed, we're well past the point where the national consensus about proper presidential conduct has been destroyed:  Now, it's not only a few defenders, or a "substantial number" of members of Congress, who deny any misconduct, but virtually every elected officer of one of the two major parties.  At one time, not so long ago (perhaps even when Ben and I wrote that article!), it might have been plausible to contemplate a Republican strategy of condemning Trump--via, say, a formal censure resolution, and an unequivocal declaration that such self-dealing is an egregious breach of constitutional duty--while at the same time saying that Trump's fate should be left to the electorate in November.

It's now obvious, however, that nothing of the sort is remotely possible. They're all in on the normalization of the previously unimaginable.  If Attorney General Barr were genuinely befuddled about just how Trump and his supporters might be "'shredding' constitutional norms" and betraying "fundamental constitutional precepts," he need look no further.  (But then again, the very problem is that Barr and his ilk, i.e., the entire Republican Party, don't recognize those norms to begin with--which probably means that they'll cease to be norms, at least for the foreseeable future, but can instead be described as merely a case, as Barr would euphemistically have it, of "throw[ing] out the traditional Beltway playbook.")

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