Here’s something that won’t happen in Roanoke Circuit Court today, or in any courtroom in the land:
The prosecutor won’t hold back an indictment from a grand jury until the rules are settled for how to conduct the actual trial.
And the foreman of the jury won’t announce that he and a majority of jury members have agreed on the rules of how the trial will be conducted.
And those rules won’t leave it up to the jury to decide whether any witnesses get called to testify.
None of these things happen in court; so why are all of them happening in Congress as the House Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell tussle over the impeachment of President Trump?
Actually, that’s an easy question to answer: Because an impeachment trial isn’t a court of law. It’s an inherently political event, so we should not be surprised when politics rule the day.
Still, at least some of us have a different question: Why aren’t there standard rules for impeachment?
There’s probably an easy answer for that, too: Because both parties want the right to protect their own. Republicans don’t want witnesses in the Trump impeachment trial — not because they worry that will change the inevitable outcome (it won’t) but because they worry that witnesses might embarrass Trump politically in his re-election campaign. You can bet, though, that if at some future date a Republican-controlled Senate was holding an impeachment trial for, say, President Elizabeth Warren, there’d be witnesses aplenty. By contrast, if a Republican House impeached a Democratic president and a Democratic Senate was sitting in judgment, then Democrats would have zero interest in witnesses.
Is this really the best way to run a republic?
No, but it’s all we have. The U.S. Constitution says very little about impeachment. It gives the House “the sole Power of Impeachment” but says nothing about how the House should conduct those proceedings. Therefore, all the Republican complaints about the process the Democrats used may well be right, but really have no constitutional standing.
Likewise, the Constitution says the Senate “shall have the sole Power to try all Impeachments” but says precious little about how those trials should be conducted, other than that a two-thirds vote is necessary to remove an office-holder and, if the president is being tried, the chief justice of the Supreme Court should preside. That means the Senate is free to do whatever it wants.
Why, though, must we adopt new rules for each impeachment? Is it too much to ask to have a consistent set of rules for each one? Apparently so. Again, impeachments only appear to be a judicial process; they’re really political events. But what if we did treat them in a more legalistic way — with the same set of rules for each one? After all, Roanoke Circuit Court currently has nine murder cases pending on its docket. We don’t invent new rules for each one based on how disposed the jury feels toward the defendant. The laws may change over time but they change for everybody.
McConnell has made it clear he has no interest in hearing from any witnesses. “The House chose this road,” he has said. “It is their duty to investigate.” That’s not, of course, how a legal case works in court. In a criminal case, witnesses might testify twice — first before a grand jury and then later in a trial. Indeed, it’s likely that there are more witnesses called at a trial than before a grand jury — because the standard for a conviction is higher than for an indictment. If you apply a criminal justice model to impeachment, then the House is the grand jury issuing an indictment and the Senate is the jury hearing the trial —and should be expected to hear witnesses, as many as necessary. (If you want to quibble with that analogy, there’s lots of room to do so. Grand jury proceedings are secret; the public only sees the indictment that’s issued. With impeachment, we saw lots of televised coverage of hearings and votes.)
In any case, McConnell is effectively saying here that an impeachment works nothing like the judicial system. He’s not wrong about that since, as we’ve seen, there is no constitutional guidance on how to conduct an impeachment. Still, when McConnell says it’s not the Senate’s duty to investigate, that’s not how other impeachments have worked.
The most recent impeachment wasn’t that of Clinton in 1999; it was the impeachment of Thomas Porteous, a federal judge from Louisiana, in 2010. In the Porteous case, the Senate conducted a full-fledged trial that closely mirrored how a trial in federal court would operate. Porteous was accused of various colorful forms of corruption that basically involved taking money he shouldn’t have. (He was, after all, from Louisiana. If there’s corruption involved, it’s bound to be colorful). The Senate didn’t want to shut down business that line to deal with a mere federal judge, so it appointed a 12-member committee to hear the evidence. That committee heard testimony from 26 witnesses — 14 for the prosecution, 12 for the defense. The testimony took five full days and produced a record that runs more than 6,400 pages that was then forwarded to the full Senate. Whether senators actually read all that is a matter of speculation (we know how we’re betting) but they were ostensibly expected to. Then closing arguments were made before the full Senate.
Of note: The lead prosecutors in that impeachment were then-Rep. Bob Goodlatte, R-Roanoke County, and Democrat Adam Schiff, more recently in the news for his role in investigating Trump. And representing the judge was law professor Jonathan Turley, who testified for Republicans in the House hearings on Trump.
Now, impeaching a federal judge is different from impeaching a president. There’s a lot less at stake and, at least with Porteous, a lot more agreement about what constitutes bad behavior. (Taking money from lawyers practicing before you — definitely bad). The House voted unanimously to impeach the judge and the Senate voted to convict him on all four counts — with the Senate vote on one count also being unanimous.
Here’s the problem, though: The next time the House votes to impeach a federal judge (or a president, for that matter), there may be an entirely different set of rules in both the House and the Senate. Think what you will about whether Trump deserves to be impeached and removed from office, but can we all at least agree on this: Shouldn’t there be a consistent set of rules?