In retrospect, it was a mistake for the House managers of the Trump impeachment not to have sought judicial relief to secure testimony from the highest Trump officials. Court action to enforce Congressional subpoenas for the purposes of impeachment testimony should have been pursued relentlessly rather than fitfully. Although the case law is as yet unclear regarding the resolution of such interbranch conflicts, the power of Congress is at its zenith when the subject is impeachment. Doubtless the House managers, knowing that the Senate would never convict, were less willing to throw themselves into litigation that might not be resolved until summer, distracting the public from the presidential campaign.
It wasn’t, however, the tactical errors that may have been made by the House managers that account for the dispiriting feeling the Trump impeachment has left in its wake.
The overwhelming lesson of those impeachment proceedings is that the operation of our laws has become just as degraded as our politics and for much the same reason: our elected representatives don’t seem especially committed to following the law. While the public is far more interested in entertainment and conflict and thus is a poor substitute for Congress in executing those duties the Constitution places on our elected government.
Of all the thousands of words uttered in argument and testimony of the recent impeachment proceedings, the ones most likely to live in the historic memory of our national culture are those of the Senate majority leader, Mitch McConnell. Despite the Constitution’s clear command that the Senate “try” the case of impeachment in its juridical character, and the equally clear language of the oaths taken by senators to try the case impartially, Senator McConnell did not blush when he said:
“I’m not an impartial juror. This is a political process. There is not anything judicial about it. The House made a partisan political decision to impeach. I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”
To be fair, the media was full of confident reminders that impeachment, “is a political process,” despite the abundant and clear constitutional evidence – – historical, textual and structural – – that, as Alexander Hamilton put it in Federalist #65, the Senate must act “in their judicial character as a court for the trial of impeachments,” and not as a political body.
It was to be expected that the Republican majority would marshal its caucus and reject the very witnesses who could provide the testimony those same Republicans decried as missing from the House Report. Had John Bolton testified, the public audience would have skyrocketed and only that could have jeopardized the president.
It wasn’t that the facts were not perfectly clear from the House testimony of those courageous public servants who risked and in some cases sacrificed their careers by coming forward. It was that their presence, the very dullness of their appeal to a nation used to being amused and shocked (in an entertaining way), didn’t get the audience numbers and attention that would ignite public opinion. Is it that Senators weren’t committed to following the law (Senator Lindsey Graham promised to put his fingers in his ears and keep them there rather than listen to new testimony)? Or is it that the law is irrelevant in the court of public opinion?
The court of public opinion, the court whose decisions are determined by polls, referenda, caucuses, TV ratings, influencers, twitter mobs and media personalities, is steadily replacing the legal institutions of government. We will look back on the Trump impeachment as a milestone on that journey. Some say it began with Gingrich’s and Starr’s allergic reaction to President Clinton, or the New York Times’s absurd addiction to Secretary Clinton’s emails but these were only excursions into the law that left their destructive marks.
I think a more important milestone was the refusal of the Senate to hold hearings on Merrick Garland’s nomination to be an associate Justice of the Supreme Court owing, it was claimed, to the fact that an election was a year away. It was said, “Let the people decide,” who are actually not mentioned in Article II as determining the confirmation of judges. It’s a short distance from this incident to the refusal of the Senate to apply the constitutional law of impeachment. Rather than try the case, it was repeatedly said by Republicans “Let the people decide,” who likewise are not mentioned in Article I as the jurors in an impeachment proceeding. These are milestones along the path away from the rule of law and towards a market-driven democracy-of-the-audience. For make no mistake: the replacement of “elite” representatives by the indicia of popular opinion is the surest way to replace law with the marketplace–not a marketplace of ideas but of wealth and power.