February 4, 2020:
These past weeks, the Senate has grappled with as grave a subject as we ever consider: A request from a majority in the House of Representatives to remove the president.
The Framers took impeachment extremely seriously. But they harbored no illusions that these trials would always begin for the right reasons. Alexander Hamilton warned that “the demon of faction” would “extend his sceptre” over the House of Representatives “at certain seasons.” He warned that “an intemperate or designing majority in the House” might misuse impeachment as a weapon of ordinary politics rather than an emergency tool of last resort.
The Framers knew impeachments might begin with overheated passions and short-term factionalism. But they knew those things could not get the final say. So they placed the ultimate judgment not in the fractious lower chamber, but in the sober and stable Senate.
They wanted impeachment trials to be fair to both sides. They wanted them to be timely, avoiding the “procrastinated determination of the charges.” They wanted us to take a deep breath and decide which outcome would reflect the facts, protect our institutions, and advance the common good.
They called the Senate, quote, “the most fit depositary of this important trust.” Tomorrow, we will know whether that trust was well placed.
The drive to impeach President Trump did not begin with the allegations before us.
Here was reporting in April of 2016: “Donald Trump isn’t even the Republican nominee yet ... [but] ‘Impeachment’ is already on the lips of pundits, newspaper editorials, constitutional scholars, and even a few members of Congress.”
Here was the Washington Post headline minutes after President Trump’s inauguration: “The campaign to impeach President Trump has begun.”
The articles of impeachment before us were not even the first ones House Democrats introduced. This was go-around number seven. Those previously alleged “High Crimes and Misdemeanors” included things like being impolite to the press and to professional athletes.
It insults the intelligence of the American people to pretend this was a solemn process reluctantly begun because of withheld foreign aid. No, Washington Democrats’ position on this President has been clear for years. ...
Here’s their real position: Washington Democrats think President Donald Trump committed a “High Crime or Misdemeanor” the moment he defeated Secretary Clinton in the 2016 election.
That is the original sin of this presidency: That he won and they lost.
Ever since, the nation has suffered through a grinding campaign against our norms and institutions from the same people who keep shouting that our norms and institutions need defending.
A campaign to degrade our democracy and delegitimize our elections from the same people who shout that confidence in our democracy must be paramount. ...
[I]n reality, both of the House’s accusations are constitutionally incoherent.
The “obstruction of Congress” charge is absurd and dangerous. House Democrats argued that any time the Speaker invokes the House’s “sole power of impeachment,” the President must do whatever the House demands, no questions asked. Invoking executive-branch privileges and immunities in response to House subpoenas becomes an impeachable offense itself.
Here’s how Chairman Schiff put it back in October. Quote: “Any action ... that forces us to litigate, or have to consider litigation, will be considered further evidence of obstruction of justice.”
That is nonsense. “Impeachment” is not some magical constitutional trump card that melts away the separations between the branches of government. The Framers did not leave the House a secret constitutional steamroller that everyone somehow overlooked for 230 years.
When Congress subpoenas executive-branch officials with questions of privilege, the two sides either reach an accommodation or take to the courts.
That is the way this works. ...
And the “abuse of power” charge is just as unpersuasive and dangerous. ...
The Framers explicitly rejected impeachment for “maladministration” — a general charge under English law that basically encompassed bad management; a sort of general vote of no confidence. Except in the most extreme circumstances, except for acts that overwhelmingly shocked the national conscience, the Framers decided presidents must serve at the pleasure of the electorate and not the pleasure of House majorities.
As Hamilton wrote, “it is one thing to be subordinate to the laws, and another to be dependent on the legislative body.” ...
The House Managers argued that the President could not have been acting in the national interest because he acted inconsistently with their own conception of the national interest, a conception shared by some of the President’s subordinates.
This does not even approach a case for the first presidential removal in American history. ...
If Washington Democrats have a case to make against the President’s re-election, they should go out and make it. Let them try to do what they failed to do three years ago and sell the American people on their vision for the country.
I can certainly see why, given President Trump’s remarkable achievements over the past three years, Democrats might feel uneasy about defeating him at the ballot box. But they don’t get to rip the choice away from the voters just because they’re afraid they might lose again.
They don’t get to strike President Trump’s name from the ballot just because, as one House Democrat put it, “I’m concerned that if we don’t impeach [him], he will get re-elected.” ...
Frankly, it is hard to believe that House Democrats ever really thought this reckless and precedent-breaking process would yield 67 votes to cross the Rubicon.
Was their vision so clouded by partisanship that they really believed this would be anywhere near enough for the first presidential removal in American history?
Or was success beside the point? Was this all an effort to hijack our institutions for a months-long political rally?
Either way — “the demon of faction” has been on full display. But now it is time for him to exit the stage.
We have indeed witnessed an abuse of power: A grave abuse of power by just the kind of House majority the Framers warned us about. ...
February 5, 2020:
... The Framers predicted that factional fever might dominate House majorities from time to time. They knew the country would need a firewall to keep partisan flames from scorching our Republic.
So they created the Senate. ...
This partisan impeachment will end today. But I fear the threat to our institutions may not. Because this episode is one symptom of something deeper.
In the last three years, the opposition to this President has come to revolve around a truly dangerous concept.
Leaders in the opposite party increasingly argue that if our institutions don’t produce the outcomes they like, our institutions themselves must be broken.
One side has decided that defeat simply means the whole system is broken; that we must literally tear up the rules and write new ones.
Normally, when a party loses an election, it accepts defeat. It reflects and retools. But not this time.
Within months, Secretary Clinton was suggesting her defeat was invalid. She calls our president “illegitimate.”
A former President falsely claimed that, quote, “[President] Trump didn’t actually win ... he lost the election.” And members of Congress have used similar rhetoric.
A disinformation campaign, weakening confidence in our democracy.
The very real issue of foreign election interference was abused to fuel conspiracy theories. For years, prominent voices said there’d been a secret conspiracy between the President’s campaign and a foreign government.
But when the Mueller investigation and the Senate Intelligence Committee debunked that, the delegitimizing endeavor did not stop.
Remember what Chairman Schiff said here on the floor? He suggested that if the American people re-elect President Trump in November, that election will be presumptively invalid as well. ...
They still don’t accept the American voters’ last decision, and now they’re preparing to reject the voters’ next decision — if they don’t like the outcome.
Heads, we win; tails, you cheated; and who can trust our democracy anyway?
This kind of talk creates more fear and division than our foreign adversaries could achieve in their wildest dreams. ...
The architects of this impeachment claimed they were defending norms and institutions. In reality, it was an assault on both.
First, the House attacked its own precedents on fairness and due process, and by rushing to use the impeachment power as a political weapon of first resort.
Then their articles attacked the office of the presidency.
Then they attacked the Senate and called us “treacherous.”
Then [they] tried to impugn the Chief Justice for remaining neutral during the trial.
And now, for the final act, the Speaker of the House is trying to steal the Senate’s sole power to render a verdict.
The Speaker says she will just refuse to accept this acquittal. ... Whatever that means.
Perhaps she will tear up this verdict like she tore up the State of the Union address.
I would ask my distinguished colleagues across the aisle: Is this really where you want to go?
The President isn’t the President? An acquittal isn’t an acquittal? Attack institutions until you get your way?
Even my colleagues who may not agree with this president must see the insanity of this logic. It’s like saying you’re so worried about a bull in a china shop that you want to bulldoze the china shop to chase it out.
And here’s the most troubling part: There is no sign this attack on our institutions will end here.
In recent months, Democratic presidential candidates and Senate leaders have toyed with killing the filibuster — so the Senate could approve radical changes with less deliberation and less persuasion.
Several of our colleagues sent an extraordinary brief to the Supreme Court, threatening political retribution if the Justices did not decide a case the way they wanted.
We have seen proposals to turn the FEC, the regulator of elections and political speech, into a partisan body for the first time ever.
All these things signal a toxic temptation to stop debating policy within our great American governing traditions, and instead declare war on the traditions themselves.
Colleagues — whatever policy differences we may have, we should all agree this is precisely the kind of recklessness the Senate was created to stop.
The response to losing one election cannot be to attack the office of the presidency.
The response to losing several elections cannot be to threaten the Electoral College.
The response to losing a court case cannot be to threaten the judiciary.
The response to losing a vote cannot be to threaten the Senate.
We simply cannot let factional fever break our institutions. It must work the other way, as Madison and Hamilton intended. The institutions must break the fever, rather than the other way around.
The Framers built the Senate to keep temporary rage from doing permanent damage to our Republic.
That is what we will do when we end this precedent-breaking impeachment.
I hope we will not say this was just the beginning.
I hope we will look back on this vote and say: This was the day the fever began to break.
