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Rethinking Impeachment for the modern political era

On Saturday, February 13, 2021, former President Donald Trump was acquitted by the United States Senate after being impeached (indicted) by the House of Representatives on January 13. 57 Senators (including 7 Republicans) voted to convict Trump of Incitement of Insurrection, a historic and extraordinary article of impeachment. The Republicans who voted to convict Trump included Richard Burr, Bill Cassidy, Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey. This is the highest number of Senators from an impeached president’s party to vote for conviction. Still, it is extraordinary that Trump was acquitted given the evidence against him, the fact that many Senators’ lives (including Republicans) were at great risk during the insurrection, and the fact that the stability of our democracy is at stake.

The extraordinary acquittal of Donald Trump begs the question of what exactly can a president be impeached for. If a president of the supposed largest democracy in the world can get away with inciting an insurrection against that democracy and not suffer any consequences (including being allowed to run again in 2024 if Trump chooses), a dangerous precedent has been set for the future. It’s a precedent that will imperil this democracy for years to come.

The Trump presidency exposed many systemic and structural flaws of our political system. The second Senate acquittal of Trump points to a possible flaw in the impeachment clause itself. What we mean is that the framers of the constitution did not construct it around the idea of political parties. The two main political parties dominate. They largely set the rules. What’s supposed to be a system of “checks and balances” is now merely a means of neutralizing the other party during a divided government. During impeachment, it has usually meant that there will never be enough votes to convict and remove an impeached president from office. Growing partisanship and the precedent set by Trump’s second impeachment will probably ensure that future impeached presidents who actually commit high crimes will remain in office or will be able to run again if the impeachment trial happens after the president leaves office after losing an election.

Even among the 7 Republicans who voted to convict Trump, politics very much played a part.

Senator Richard Burr of North Carolina is serving his last term in the chamber. So, he felt free to apparently vote his conscience.

Bill Cassidy of Louisiana just won reelection to the Senate in 2020 and will not face voters again until 2026.

Susan Collins just won reelection but has sometimes been known to go against Trump in rare circumstances. Both Collins and Lisa Murkowski are in states that use Ranked-Choice Voting and there has been debate about whether or not RCV has actually helped the two Senators.
The Alaska Public Media explains Murkowski’s situation in Alaska:

It’s easy to imagine Murkowski would lose to a Trump-endorsed candidate in a closed Republican primary. She already lost a primary election in 2010, before she angered tons of Trump supporters with her inconsistent loyalty to him.

But in August 2022, it won’t be just Republican voters who decide whether Murkowski should advance to the November ballot. She and whoever else wants the seat, of any party, will be on the same ballot for all primary voters. The top four will advance to the general election, and voters will rank them on the November ballot.

Murkowski said the new open primary and ranked-choice voting puts her in a better position.

“I think so,” she said. “I actually, after giving it a fair amount of study, I like that this will put forward, hopefully, a process that is less rancorous.”

Pat Toomey of Pennsylvania is, like Richard Burr, not seeking re-election. 

Ben Sasse, won convincingly in 2020 and won’t have to face voters again until 2026. Sasse of Nebraska had a strong win in a very conservative state (outside of Omaha and Lincoln) despite him being known for speaking against Trump periodically. 

Romney may be in a more vulnerable position. He’s up for re-election in 2024 and is expected to run for his seat again. However, Romney was elected to the Senate in 2018, in a very conservative state, despite forcefully speaking against Trump at times, especially during the primary in 2016. 

The point here is that impeachment will only work if there’s enough political will to do so, not because it’s the right thing to do in a democracy that depends on executive accountability. 43 Republicans chose to acquit and some believe that Trump would have been convicted had there been a secret ballot. 

Newsweek notes:

Senator Mazie Hirono, a Hawaii Democrat, said that “most” Republican senators would vote to convict former President Donald Trump of inciting the attack on the U.S. Capitol if they were given the opportunity to use a secret ballot.

In a Tuesday interview with CNN, Hirono suggested Republicans were making their decisions out of “fear.”

“If the Republicans could vote by secret ballot…most of them would vote to convict,” Hirono told CNN. “So again, that shows that they are hiding behind an unconstitutional claim.”

Only two other presidents in United States history have been impeached by the House. In both cases, the Senate was unable to convict. Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act. The Senate acquitted him weeks after. The Tenure of Office Act was said to be passed to prevent Johnson from removing civil officers without senatorial consent. 

Time goes on to explain:

Johnson’s defense argued that he hadn’t appointed Secretary of War Stanton in the first place, which meant that he wasn’t violating the Tenure of Office Act. They also claimed that Johnson intended to push the Act before the Supreme Court. Historian Hans L. Trefousse argues that the Senators who voted against removal decided that Johnson was being pushed out of office for political reasons: “[The] weakness of the case… convinced many that the charges were largely political, and that the violation of the Tenure of Office Act constituted neither a crime nor a violation of the Constitution but merely a pretext for Johnson’s opponents.”

This result set a major precedent for future presidential impeachments: that Presidents shouldn’t be impeached for political reasons, but only if they commit, as the Constitution stipulates, “treason, bribery or other high crimes and misdemeanors.”

As one of the defecting Republicans, Senator James Grimes, said, “I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an Unacceptable President.”

Bill Clinton was impeached by the House in December 1998 and acquitted in February 1999 for perjuring himself before a grand jury regarding a sexual relationship with White House intern Monica Lewinsky and for allegedly obstructing that investigation. The House impeachment vote and the Senate trial vote fell largely on party lines. 

The only case in which impeachment may have actually worked was in the case of Richard Nixon. In 1974, the House Judiciary Committee approved three articles of impeachment against President Richard Nixon for obstruction of justice, abuse of power, and contempt of Congress. Nixon resigned before an impeachment vote went to the full House after being compelled to comply with the special prosecutor, investigating Watergate. As the evidence against Nixon mounted, his political support among Republican Senators plummeted. Nixon was faced with the fact that he would likely not withstand a Senate trial vote and resigned from office in August 1974. 

We are far removed, in terms of both time and politics, from the days when we came close to holding a corrupt president accountable for his crimes. Even Donald Trump’s actions, which led to his first impeachment, were worst than what Nixon did during Watergate. Not only was Trump acquitted by the Senate, but his polling rose even in the midst of his impeachment trial and in the weeks after. Right after Trump’s Senate acquittal, he did exactly what many Democrats feared an acquitted Trump would do, swiftly moving to purge officials who tried to hold him accountable. Many described the act as his Friday Night Massacre, a reference to Nixon’s Watergate scandal. In the months to follow, and even as the country was gripped with a devastating pandemic and historic racial justice protests, Trump would go on to launch some of the biggest attacks on democracy in US history.

Given its apparent ineffectiveness in an era of growing partisanship and party politics, we may need to rethink the impeachment clause of the constitution altogether. We may need to devise a new way to hold presidents accountable for their crimes and abuses. This will likely require a constitutional amendment, but barring something miraculous, this is very unlikely in our current political era. So, we’re left to imagine a political system that could do a better job at holding presidents accountable, for instance, in special circumstances that could trigger a national recall vote. Parliamentary democracies solve this problem by holding snap elections. 

We must fight for nothing less than full and sweeping democratic reforms. Such a fight will be enormously difficult given our current political circumstances and barriers, but it’s required if we seek to rebuild a badly damaged democracy.

Photo Credit: House Television via ABC News

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The filibuster is anti-democratic. It’s time to eliminate it.

The newly-elected Democratic majority in the Senate is currently debating whether to keep or nix the filibuster. There are strong policy, political, and Constitutional arguments for eliminating the filibuster – and there is little reason to preserve it.

The policy case for killing the filibuster

Small states are already overrepresented in the United States Senate and the Electoral College. When you add a supermajority requirement to pass major legislation – a requirement that does not exist in the Constitution (more on that later) – you only give small states even more power. It is a de facto veto power for small-state senators like Mitch McConnell and Lindsey Graham. It’s also a veto for insurrectionists like Josh Hawley and Ted Cruz.

As the insurrection demonstrates clearly, safeguarding our elections and ensuring voting rights must be a top priority of President Biden and Congress. It is simply unacceptable to let Mitch McConnell veto any progress on some of the biggest issues of our time – be it a ban on political gerrymandering ahead of redistricting, stricter anti-corruption and nepotism laws, new disclosure requirements for donors and super PACs, universal voter registration, and so many more badly-needed reforms.

Much of President Biden’s agenda hinges on eliminating the filibuster. It is true that Democrats can bypass the filibuster with an arcane process known as budget reconciliation – a process that only requires a majority vote in the Senate – but it is only limited to budget-related priorities. Election reform and strengthening ethics laws, for instance, likely does not pass muster under reconciliation.

In addition, Republicans still have a majority on several Senate committees even though they are now in the minority. New members like Mark Kelly, Raphael Warnock, and Jon Ossoff have yet to even receive their committee assignments. McConnell is seeking to tie the hands of the new Democratic majority.

Will the Democratic majority willingly accept this arrangement? And if they do, will Democratic voters forget come 2022 and 2024? I think not.

Senate Majority Leader Chuck Schumer needs to use every tool at his disposal to ensure that Democrats can govern. That means killing the filibuster and changing the Senate’s rules to limit GOP obstruction. The American people expect results, not excuses.

From a policy perspective, the filibuster is absolutely noxious. During the Obama years, the filibuster effectively killed the DREAM Act, common-sense gun control, cap-and-trade climate change legislation, and a myriad of other progressive priorities. Meanwhile, filibusters did not stop the Bush or Trump tax cuts, which were passed through a majority vote using budget reconciliation.

Likewise, McConnell used reconciliation in his attempt to repeal the Affordable Care Act (a.k.a. “Obamacare”). The effort only failed because Senate Republicans lacked even a simple majority in support of repeal. (Senator McCain infamously gave the bill a thumbs down on the Senate floor.)

From a public policy point of view, it’s nearly impossible these days to get a 60-vote consensus on basic governance, let alone controversial issues. The minority party can use this power – which is not found in the Constitution – to stifle any semblance of progress. Indeed, a minority of senators from states already overrepresented in the Senate can grind the lawmaking process to a complete halt. This is not the way to govern a country.

The political case for killing the filibuster

Nearly eight years ago, I penned a piece titled “It’s Time to Kill the Filibuster.”

The context was different then, but the points remain the same today. To briefly recap, Senate Republicans blocked President Obama’s judicial nominees, including three nominees to the D.C. Circuit Court of Appeals – which is regarded as the second-most powerful court in the land. Not only did Republicans weaponize the filibuster to stymie popular legislation, but they also denied President Obama’s judicial appointments an up-or-down vote on the Senate floor.

Democrats wisely responded with the nixing of the filibuster for cabinet-level and judicial nominees. They left an exception in place for the Supreme Court. But they acted far too slowly and ultimately ceded control of the chamber after the 2014 midterm elections. Two years later, Trump won the Electoral College with narrow wins in Michigan, Pennsylvania, and Wisconsin – but failing to capture the national popular vote.

Wielding their newfound power and taking full advantage of the Obama-era vacancies that they engineered – including a SCOTUS seat after refusing to even hold hearings for President Obama’s Supreme Court nominee, Merrick Garland – the GOP rammed its judicial nominees through the Senate. As soon as the filibuster got in their way, they killed it for Supreme Court nominees. Unlike Democrats, they did not hesitate.

They acted decisively after the death of Justice Ginsburg as well, voting on her replacement a mere week before the election – four years after saying that voters should decide a vacant Supreme Court seat in an election year.

None of President Trump’s nominees – Gorsuch, Kavanaugh, and Barrett – would be on the court today if not for Mitch McConnell’s use of the so-called “nuclear option” to kill the filibuster. What would have been a 5-4 liberal majority with Garland on the Court became a 6-3 conservative majority thanks to Republicans’ obstruction tactics and their swift reversal on the filibuster when it became politically expedient.

The lesson that Democrats should learn from this is that they should use their power when they have it to advance the public good – within the constraints of the Constitution. There is no constitutional right to the filibuster. In fact, I would argue that the filibuster itself is unconstitutional.

The Constitutional case for killing the filibuster

The Constitution requires the president to nominate judges and the Senate to offer its “advise and consent.” (The same is also true for Cabinet appointments, ambassadorship, etc.) That means debating and voting on nominations.

Confirmation requires only a majority threshold, something that the filibuster expressly denies. The Constitution does not grant the power to block lawfully-nominated judges for seats on the federal bench with a minority of votes. Republicans have essentially short-circuited the Constitution to suit their political goals.

The country was founded on the principle of majority rule. Indeed, the Vice President’s sole role – other than acting as the successor to the president in the case of death, resignation, or removal – is to cast a tie-breaking vote in an evenly divided Senate. The Founders expected the Senate to be a majority body and nothing else – except in specific circumstances, as outlined in the Constitution. Only a few exceptions require more than a majority: ratifying treaties, Constitutional amendments, and convicting an impeached president or members of the Cabinet.

I am not a constitutional scholar, but I can read the plain text of the Constitution and see that the Founders’ obvious intent was for the Senate to be a body where the majority carried the day – with few exceptions. So why keep this relic that makes an undemocratic body even less democratic?

The choice is clear. The filibuster must be eliminated.

Photo Credit: John Brighenti, Flickr, CC BY 2.0

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Michael Flynn calls on Trump to declare martial law, overturn election results

Fresh off of a pardon, disgraced retired lieutenant general Michael Flynn has called on President Trump to declare martial law, suspend the Constitution, and overturn the presidential election results.

Flynn – who was forced to resign as Trump’s first National Security Adviser after serving for just 24 days – lent his support to a newspaper ad from a fringe Tea Party-affiliated group called We the People Convention. The ad reads like a screed decrying “leftists,” “socialists,” “domestic and international communists,” and other imagined enemies.

However, the most notable section from the ad calls on Trump to assume dictatorial powers:

When the legislators, courts and/or Congress fail to do their duty under the 12th Amendment, you must be ready Mr. President to immediately declare a limited form of Martial Law, and temporarily suspend the Constitution and civilian control of these federal elections, for the sole purpose of having the military oversee a national re-vote.

Needless to say, it is highly unusual for a retired lieutenant general to call on the president of the United States to declare martial law. It’s even more unusual when that person is a former National Security Adviser and campaign adviser to that very same president – a president who had granted his own former official a pardon for a crime that Flynn pleaded guilty.

While many will be tempted to write off Flynn as a kook, the man has both a large following (over 1 million followers on Twitter, to be precise) and the ear of Donald Trump. Again, despite admitting to lying to the FBI, Trump granted this man a pardon just days ago.

Retired Army officer Paul Yingling put it in starker terms: “Flynn’s anti-election propaganda is an essential precursor to violent terrorist attacks on legitimate electoral outcomes,” Yingling told The Daily Beast. “When the bombs go off, the blood is on Mike Flynn’s hands.”

Even if no violence results – which is hardly guaranteed at this rate – the damage that Trump and Flynn are inflicting on American democracy is real and will last long after this presidency ends.

Photo Credit: Gage Skidmore, Flickr