The current impeachment trial of President Donald Trump raises crucial questions not just of fact but of the whole idea of impeachment. The word derives from the Latin impedicare, to fetter, in the sense of hindering. In general usage, the term means to cast doubt on the credibility of a witness. Here, it means to charge a public official with misconduct.
Our constitution gives the House of Representatives the authority to impeach federal officials for “high crimes and misdemeanors” and specifically refers to bribery and treason. Early in our history the Jeffersonian Republicans impeached and convicted two federal judges just for their advocacy of an independent judiciary. But in 1805, after three judges were impeached in Pennsylvania, Gov. Thomas McKean rallied moderate Republicans to successfully defend the judges’ policy independence.
He argued, following Alexander Hamilton, that the judiciary embodied the will of the people as expressed in the constitution while legislatures embodied this will in the legislature. Today, the Republicans accuse Democrats of impeaching over a policy dispute.
The Republicans in their defense have pointed out errors and omissions by the House managers, but the Republican position is routinely advanced through tactics of abstraction, selection and omission. If President Trump changed his policy, he never explained or announced it to anyone. A detailed look at the evidence points toward improper self-interest.
Alan Dershowitz argued that abuse of power is too vague and never a proper ground for impeachment. But when he gave examples of attempts to specify, he included only moral examples like dishonesty. He forgot to consider extortion, which is surely an impeachable crime, so his whole argument that there are no proper grounds fails. Also, while objecting to vague terms regarding impeachment, he ignores the occurrence of this problem throughout the constitution, for example in the phrase “necessary and proper.”
There is wide agreement that we need an expansive interpretation of the constitution to accommodate the great changes in our culture. The Republicans today seek an expansive executive power and narrow impeachment power.
Republicans raised the difficult issue of the extent of each branch of government’s power. But they went to extremes in claiming a nonexistent “absolute immunity” for senior advisers and in portraying the president’s team as warmly seeking accommodation. And executive privilege does not excuse a witness from appearing and does not apply when a crime is being investigated.
We often hear that impeachment is a political process. One problem here is that the term “political” has several meanings, three of which I will note here. Most broadly, the political is about government; more specifically, about issues of the extent of the power of each of the governmental branches; at another angle the political is partisan rhetoric and action.
Senate Majority Leader Mitch McConnell claims he is following the precedent of the 1999 Clinton trial, but in fact he deviates from it in important ways. There was a 100-0 approval of the procedural rules then, and there was no doubt then that witnesses would be heard. This time there was no effort to reach any agreement. So the Clinton case is an anomaly, really quite bizarre as a precedent.
The president’s lawyers taunted the House managers for claiming they had overwhelming evidence but then were not ready for the trial. But the president had blocked more evidence. Many Republican senators claimed a lack of sufficient evidence but seemed ready to refuse to hear more.
The defense team also complained the House managers had tried to frighten senators by claiming that they, too, were on trial and that they would be guilty of the lack of moral courage if they failed to credit the evidence. But, of course, life is that way. Every book reviewer may be judged along with the book, and every jury can also be criticized. The Republicans denied that they were afraid, but there are other forms of moral or mental defect that may apply. What has been lost, minds or morals?
Senators should be sophisticated enough to honor their oath to consider the evidence impartially. Originally, our constitution required senators to be appointed by state legislators as a way of assuring their broad education and impartiality. In 1913, the 17th Amendment required direct election of senators. Perhaps the amendment should have moved the impeachment trial to the more representative House.
So, as the trial reaches a critical stage, party over fairness is the story. The Republicans argue that impeachment must be bipartisan, but it would be corrupt to avoid this goal by becoming ultra partisan. They might claim that since the Democratic senators also all voted for their proposed amendments, the partisanship was equal.
Here, we need to make a sober judgment about where the stronger arguments lie. Surely, at least, relevant witnesses should be heard.
Ed Abegg is philosophy professor emeritus at Edinboro University of Pennsylvania and author of "Political Morality in a Disenchanted World and Engaging the World."