I always tell my students the Constitution is a work of special genius. Madison explained the rationale undergirding the design for our new government by comparing us to angels. If men were angels, he reasoned, we wouldn’t need any government at all. If we were governed directly by angels, we wouldn’t have any cause to fear government tyranny. The great task and difficulty, given our human imperfection, lies in designing a government with sufficient power to do its job and sufficient internal safeguards to prevent it from abusing that great power.
The separation of powers and system of checks and balances, of which we’ve lately heard so much, is what the founders hammered out three centuries ago and what we inherited from them. Their constitutional system divides the federal government’s power between Congress, the president and the courts. Each of these three branches can check, or limit, the power of the other branches. The president, for example, can veto a law passed by Congress. Congress, in turn, can override the president’s veto with a two-thirds majority vote. The president is the commander-in-chief, but only Congress can declare war. The Supreme Court can rule a law passed by Congress unconstitutional. Congress and the states can amend the Constitution to effectively nullify the court’s ruling.
And Congress can impeach and remove the president from office.
This pointed constitutional check on presidential power was particularly important to the founders because they’d just fought to free themselves from one king and feared the rise of another. At first, they considered whether regular elections would offer sufficient protection against an abusive president, but they concluded impeachment was “indispensable for defending” the republic, especially against a president who “betray(ed) his trust to foreign powers” and “practiced corruption” to win election.
They also prophetically noted the “great opportunities of abusing his power” available to a president “particularly in time of war, when the military force, and in some respects the public money, will be in his hands.”
So much of what I heard from President Trump’s defense team tortures the founders’ clear intent. The peril the founders feared wasn’t that a president might violate a specific criminal statute. They were, instead, most determined to guard the republic against a president who “attempts to subvert the Constitution” by abusing his power. They asked the rhetorical question, “Shall any man be above Justice,” and their resounding answer was ‘no.’
Yes, Hamilton warned against an impeachment “regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” That charge of partisan bias, however, can accurately fit a president’s defenders, as well as his prosecutors.
No one is “tearing up ballots.” The explicit purpose of the constitutional impeachment process is the necessary removal of an elected president. As for interfering in the 2020 election, 21st century Democrats didn’t invent the constitutional provision that a president duly removed from office is liable to “disqualification to hold and enjoy” any future federal office.
Despite his defense team’s repeated allegation, President Trump wasn’t impeached over a “policy dispute.” There is, however, a glaring irony in their attempt to defend him by repeatedly alleging the superior merits of his Ukraine policy.
It’s even more rank hypocrisy to claim there’s insufficient evidence of the president’s guilt while you deliberately block the presentation of relevant witnesses and evidence. On his deathbed, Chief Justice Warren warned that if President Nixon was successful in denying Congress access to the evidence in his tapes, “then liberty will soon be dead in this nation.”
Clever lawyering isn’t justice. Justice discourages wrongdoing. It keeps us safe from peril now and in the future.
We stand in peril.
Some Republicans concede President Trump’s actions were “inappropriate” or “not what I would have done” or they “crossed the line.” Several expressed confidence he’d “learned a lesson,” he’d “think twice” next time. His defenders argue he didn’t obstruct justice, that he was motivated instead by his concern for the executive privilege rights of future presidents. Others rest on his insistence that he did nothing wrong.
Tell me. What’s the likelihood a self-serving flouter of presidential norms would care a fig about the prerogatives of future presidents? Is a narcissist who stands before a memorial to fallen CIA officers and brags about how many magazine covers he’s appeared on, likely to see beyond his own reflection?
Is a man who lies about the weather and the size of his inaugural crowd likely to tell the incriminating truth about his own corrupt motives and deeds?
When the nation was just 50 years old, a young Abraham Lincoln foresaw the danger posed by men of particular genius and ambition who would rise up among us to subvert the law and lead us as tyrants. “When such a one does,” Lincoln exhorted, “it will require the people to be united with each other, attached to the government and the laws, and generally intelligent, to successfully frustrate his designs.”
Following Mr. Lincoln’s death, his successor, Andrew Johnson, faced an impeachment trial. Several senators felt compelled by conscience to vote against their party. When it came to be Edmund Ross’s turn, he knew what his conscience was about to cost him: “I almost literally looked down into my open grave. Friendships, position, fortune, everything that makes life desirable to an ambitious man were about to be swept away by the breath of my mouth, perhaps forever.”
He voted his conscience.
I watched the State of the Union performance the night before the Senate met to acquit President Trump.
I watched the chanting, glad-handing senators who’d stopped their ears and turned their backs on witnesses. I thought of Ross and Lincoln.
I couldn’t help feeling shame and grief.
The founders have suffered a defeat.
And so have we.
Peter Berger has taught English and history for 30 years. He lives in Mount Holly.