Can impeachment be fixed?
The first day of President Trump's impeachment trial in the Senate mainly concerned the swearing of oaths. With Chief Justice John Roberts directing a full Senate chamber, 100 senators swore to "do impartial justice according to the Constitution and laws: so help me God."
They were all lying — or, at least, so says Sen. Rand Paul (R-Ky.), and I suspect he is right. "I think the votes have been decided," Paul said in an interview with The Hill Thursday, not excepting himself. "As much as anybody will be pretending to be judicious about this, I don't think that there's one senator who hasn't decided how they're going to vote."
Few other senators have been so forthright about their intent and the probable intent of their colleagues to ignore their pledges of impartial justice from the very outset. The most notable outlier is Senate Majority Leader Mitch McConnell (Ky.) — is there something in the water in Kentucky? — who has announced his "total coordination" with the White House counsel, affirmed there is "no chance" Trump will be convicted and removed from office, and brazenly stated he will not be an impartial juror despite promising exactly that.
The other side of the aisle, just like the last time around, albeit with places traded, is rife with high-minded exhortations to follow blind Justice whither she leads. Yeah, okay. I think the articles brought against the president are compelling and he should be removed from office for these and a number of other reasons. I don't believe this is a "witch hunt," as Trump so often crows.
But it is partisan, undeniably so. There may be a few exceptions, I suppose, but by and large the Senate's mind was resolved along partisan lines before the House even voted to impeach. (It is telling that the sole House Republican who wanted to vote for impeachment was, by the time of the vote, no longer a Republican. It was easier to change parties than to buck this party line.) Paul is right: "[T]he verdict has already been decided."
Our country's founders, most famously George Washington, were wary of partisanship and hoped that the "factions" of the British parliamentary system would not be reproduced in their new republic. Though parties "may now and then answer popular ends," Washington warned in his final address as he left the presidency, "they are likely in the course of time and things, to become potent engines, by which cunning, ambitious and unprincipled men will be enabled to subvert the power of the people, and to usurp for themselves the reigns of government; destroying afterwards the very engines which have lifted them to unjust dominion."
In the design of the impeachment process as a necessary check on executive power, fears of corrupting factions ran high. The choice of the Senate as the location of the president's trial was intended to combat the risk of partisanship rendering the process meaningless. "Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent?" asked Alexander Hamilton in Federalist No. 65. "What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?"
From our vantage point, his questions sound like a bad joke. The Senate, impartial? Uninfluenced? Dignified? Ha!
More prescient is Hamilton's warning in the same essay that should impeachment turn partisan, it would "enlist all [the parties'] 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." There it is. That's the impeachment process we know and hate.
There's one scenario in which a GOP senator might vote to convict Trump, Paul mused to The Hill: "I think if you're pretty much no longer interested in running for office, or no longer interested in getting Republican votes, you might vote to impeach the president." Here emerges, then, one possible reform to make impeachment more than a partisan pantomime: term limits.
This would be, at best, a partial fix. Former members of Congress could have ambition for other political offices which would render the limits ineffective as an incentive toward impartiality, and a strong party leader might be able to whip a party-line vote even without the threat of the next election.
Also worth serious consideration is whether any limited gains term limits might accomplish would be outweighed by their disadvantages. There's good evidence that term limits functionally empower lobbyists and the unelected bureaucrats of the executive branch, both of whom use their permanence to manipulate a perpetually green legislature. In other words, term limits might further inflate the overblown authority of the presidency in their very attempt to tamp it down.
So grotesque is our factionalism that I am unsure any reforms can successfully rescue impeachment from the partisanship enfeebling it. Our priority should be further up the line — structural changes to restrain the executive so we never reach the crisis point of impeachment at all.
But the trouble there is the same as the trouble here: Partisanship gets in the way. Whoever holds the majority in Congress won't cut down executive overgrowth in hopes that their party will soon control its creep. If this sounds defeatist, that's because I think we are defeated. The factions have won.
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