After feeding page after page of the U.S. Constitution into a paper shredder as he denied America’s first black president his right to even a hearing on his Supreme Court pick while holding that chair open until a Republican demagogue could ride into Washington, and then turning the world’s formerly greatest deliberative body into an assembly line for right-wing judges, you’d think Senate Majority Leader Mitch McConnell couldn’t sink any lower.
But you’d be wrong.
The framers of the Constitution — who mistakenly didn’t think there’d be political parties, let alone an authoritarian lackey like McConnell at the Senate’s helm — created an impeachment process in 1787 that ensured the leader of the upper chamber would have enormous power to set the rules for the ultimate trial. The Founding Fathers believed, according to authors Laurence Tribe and Joshua Matz, the Senate would prove an “extraordinary court” comprised of “statesmen” not burdened by election pressures because of their six-year-terms.
On Thursday night, with the House on the brink of a historic impeachment vote on President Trump, McConnell went on quasi-state television (the Founders didn’t see that coming, either) to tell Fox News’ Sean Hannity that his court won’t be extraordinary, or statesmanlike ... or fair. The scenario the Kentuckian laid out for Trump’s expected January trial is rather a mockery of a travesty of a sham of justice.
“We all know how it’s going to end,” McConnell said. “There is no chance the president is going to be removed from office.” In declaring that, the Senate majority leader sounded exactly like dozens of TV pundits who — watching weeks of GOP intransigence and unwillingness to acknowledge basic facts about Trump’s reckless presidency — have reached the same conclusion. But unlike the talking heads on CNN or MSNBC, McConnell is about to take an oath to be an impartial juror. But wait, because it gets worse.
“Everything I do during this, I’m coordinating with the White House counsel,” McConnell told Hannity. “There will be no difference between the president’s position and our position as to how to handle this.” That’s remarkable and unprecedented. In a routine criminal trial for, say, DUI, a juror gets bounced for discussing the case over lunch or visiting the crime scene. In a trial over whether the president of the United States abused the power of the nation’s highest office, the jury foreman is working with the defense team on a joint strategy before the opening statements.
And McConnell isn’t the only prominent GOP senator assuring Trump’s base that the impeachment trial will be a farce. “I am trying to give a pretty clear signal I have made up my mind," South Carolina Sen. Lindsey Graham — whose evolution from harsh Trump critic to White House suck-up is the stuff of Psych 101 textbooks — said during a forum in Qatar. "I’m not trying to pretend to be a fair juror here.” James Madison and Alexander Hamilton are no doubt spinning in their graves at Graham’s hyper-partisan interpretation.
How can anyone square McConnell and Graham’s statements with the actual oath that senators are expected to recite at the start of Trump’s expected trial next month? “I solemnly swear (or affirm) that in all things appertaining to the trial of the impeachment of President Donald John Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
So help us, God, indeed! Florida Rep. Democratic Val Demings, who sits on the House Judiciary panel that voted out two articles of impeachment last Friday, called on McConnell to recuse himself from the trial — but recusal would require a sense of justice and constitutional duty that simply doesn’t exist in this amoral void of creeping authoritarianism.
“This impeachment trial is becoming like a Jim Crow trial,” Ibram X. Kendi, the American University historian, wrote on Twitter Saturday. “Deep down everyone knows everything. Everyone knows the racist defendant is guilty. Everyone knows the all-White jury is going to quickly acquit. Everyone knows the exonerated defendant will continue to break the law.”
Advocates of impeaching Trump hoped the process would bring some kind of clarity after three utterly chaotic years. It has — but not the kind of clarity that Trump resisters might have envisioned. To be sure, Trump’s abuse of power in the Ukraine matter is an open-and-shut case that puts an exclamation point on the dangerous demagoguery of a man who also broke the law to pay hush money to a porn star, who uses the presidency to enrich himself at his resorts, and who covered up his actions in the Russia affair.
But the greater takeaway on the eve of the president’s impeachment has been just how far the rule of law has broken down in America. McConnell’s abandonment of the foundational notion of the Senate as a check on monarchical power has put a hard stamp on this betrayal, as we watch 243 years of democratic tradition plunge over the guardrails.
Congressional Democrats, who’ve done a mostly skillful job in managing the impeachment process so far, insist there is still leverage to establish rules for a fair trial in which the evidence against Trump can be properly presented and heard. There is hope that Senate Minority Leader Chuck Schumer can work on McConnell to impose a fair framework, or that maybe three or four of the most moderate Republican senators will work with Democrats on the rules — regardless of how they’ll ultimately vote on removing Trump from office. Frankly, that hope seems unfounded. If you don’t believe, you might want to ask a chap named Merrick Garland.
John Dean has a better idea. Dean, you’ll recall, was Richard Nixon’s White House counsel. Caught up in the early days of the Watergate cover-up, Dean became a whistle-blower — initially to his boss, and eventually to the Senate and the nation, and in the 21st century he has burnished his reputation both as a truth-teller and sage commentator. A frequent analyst of Trump’s foibles, Dean is now promoting an outside-the-box solution to the impeachment quandary.
“Let’s impeach him now and NOT send it to the Senate rather keep investigating in the House, and add such supplemental articles as needed!” Dean wrote on Twitter this weekend. “Just let it hang over his head. If the worst happens and he is reelected, send it to the Senate. But keep investigating!!”
Dean is not alone in suggesting this. There’s a growing sense among those who believe that Congress has a duty — both to the American people and to future presidents — to call out high crimes and misdemeanors that impeachment is actually the be-all-and-end-all sanction, considering that a kangaroo court awaits in McConnell’s Senate. Indeed, people with access to Trump say that — while he believes impeachment will help him in the 2020 campaign (and he may be right) — he also sees the looming vote as a huge humiliation. As it should be.
But if the realistic goal of impeachment is not to remove Trump from office but to define both his legacy and the limits of presidential power for the history textbooks, it should also be more thorough and all-inclusive, Thus, Dean’s rallying cry to “Keep investigating!” I agree. For example, not impeaching Trump for his massive violations of the Constitution’s Emoluments clause — an issue that’s been dropped in the race to a Ukraine impeachment — might make it easier for future presidents to profit off the vast power of the White House.
House Speaker Nancy Pelosi is a brilliant strategist but not an outside-the-box thinker. It’s hard to imagine Pelosi and the Democratic leadership embracing a radical idea like Dean’s — but they should. And it’s not only because impeachment is the sanction that Trump and America needs right now, while an exoneration in the Senate would be dangerous for democracy.
It’s also a great idea because — by impeaching Trump and not sending the articles to the Senate for a trial — it allows Democrats to hold the trial over the head of the president for the rest of his term. That prospect addresses a question that’s on a lot of people’s minds: What if the president is cleared by the Senate and immediately commits an even worse crime?
There is a battle for the soul of America underway right now that both includes yet transcends Trump’s impeachment, and Republicans are making it clear they will happily obliterate the notion of objective truth as well as established law and two centuries of democratic traditions in order to win at all costs. Both Democrats and the majority of citizens who support Trump’s impeachment — as shown yet again in a Fox News poll released Sunday — need to be smarter and savvier about fighting back, starting with the rules of engagement.
Regardless of whether Trump’s impeachment ever goes to trial, the majority of Americans who want to save democracy need to be out in the streets to show Mitch McConnell, Lindsey Graham, Donald Trump and all the others that we will be not be passive, disinterested observers while they blow up the American experiment. That starts on Tuesday night, when a coalition of pro-democracy groups have scheduled more than 500 marches across the country, including in Philadelphia, West Chester and at Rep. Brian Fitzpatrick’s office in Langhorne. (You can find details about Tuesday’s marches here.)