Opinion

Impeachment is rigged. The Founders knew it.

The Founders made some mistakes, and America is paying the price today

The Founders saw Mitch McConnell and the rest of the Senate GOP coming a million miles away. Unfortunately, they didn't do anything to stop them.

McConnell, the Senate Majority Leader, is prepping his chamber for an expected impeachment trial of President Trump in the new year — but he and many members of his caucus are signalling furiously that the game is rigged.

"We all know how it's going to end," McConnell said Thursday on Fox News. "There is no chance the president is going to be removed from office."

"I am clearly made up my mind," Sen. Lindsey Graham (R-S.C.), added Sunday on CBS. "I'm not trying to hide the fact that I have disdain for the accusations in the process."

So much for the senatorial oath to "do impartial justice" in impeachment proceedings. But none of this is surprising. Since the outset of the impeachment process, all political forecasts have been made with the presumption that Senate Republicans would put party over country. The odd thing, though, is that the Constitution's crafters foresaw this exact problem with the impeachment process they created — and decided to let it linger.

Impeachments "will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused," Alexander Hamilton wrote in Federalist 65. "In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

That's a remarkably precise description, more than 200 years in advance, of how we can expect the impeachment trial of Trump to play out in the Senate. And it's worth asking: If the flaws of the impeachment process were that obvious to the Founders — if they knew that "real demonstrations of innocence or guilt" would be meaningless — why didn't they try to come up with a different, better process?

One reason, surprisingly, is that they decided to do impeachment the way it had always been done. In Great Britain, Hamilton wrote in Federalist 65, the House of Commons would handle impeachment and the House of Lords would hear the trial of the impeached official. A similar arrangement was already outlined in the constitutions of most of the 13 U.S. states. The Founders went with what was familiar.

They also were worried about making government more complex and expensive. They considered creating an entirely separate court of trial for impeachments, Hamilton wrote: "It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending." The first option would cost too much money, he said; the second would be too cumbersome.

Two centuries later, though, a separate court to hear impeachments doesn't seem quite so problematic — the expense of a standing court might be less than, say, the $400 million in military aid that Trump withheld from Ukraine. And modern advancements make travelling from the 50 states fairly easy, indeed.

Instead, we're stuck with a Senate that has all but rendered its judgment on Trump even before the trial has started.

Trump's rise, of course, has highlighted some of the Constitution's shortcomings, most notably, the Electoral College, which was designed to keep voters from directly choosing America's president — in order to prevent them from choosing a demagogic grifter like Trump himself. Instead, the Electoral College overturned the will of the voters in 2016 and gave us the kind of dangerous president the Founders were trying to avoid.

At least the Founders were trying to prevent a problem in the case of the Electoral College. With impeachment, it appears, they foresaw the problem — and dealt with it by shrugging and somewhat obnoxiously daring their critics to do better.

"If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert," Hamilton wrote. If critics of impeachment want to do better, he added, "they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious."

The Founders were smart. They tried to prevent people like Trump from becoming president. They foresaw that McConnell would rig a Senate impeachment trial in Trump's favor. But they didn't stop either man from accomplishing his aims. Americans tend to worship the Constitution as essential to their liberties. But the Founders were fallible men, and the document they created could use some fixing. If we survive Trump's presidency, it will be time to take a fresh look at our founding document.

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