An impeachment post mortem: Not the death of democracy
© Getty Images

Now that the Senate impeachment trial of President TrumpDonald John TrumpTrump passes Pence a dangerous buck Overnight Health Care — Presented by American Health Care Association — Trump taps Pence to lead coronavirus response | Trump accuses Pelosi of trying to create panic | CDC confirms case of 'unknown' origin | Schumer wants .5 billion in emergency funds Trump nods at reputation as germaphobe during coronavirus briefing: 'I try to bail out as much as possible' after sneezes MORE is over, we can see through a rear-view mirror more clearly just what happened and why. Even before it’s predictable ending, however, the town was rocked by exploding heads lamenting the death of democracy. 

One columnist even pinpointed the day on which our democracy imploded: “History will remember,” he wrote, “January 31, 2020, as the day democracy died.” It will be, in our lifetime, the “day that will live in infamy” (move over Pearl Harbor). The reason: on that day 51 Republican senators voted to end the trial “without hearing all the evidence.”

Several Democrats in both bodies declared that a real trial had not taken place, chanting the mantra, “No witnesses, no evidence, no trial” – a familiar ploy that if you repeat a falsehood often enough, people will eventually come to believe it’s the truth. In this case, it was not true. There was a real trial that began in the Senate on Jan. 16 and concluded on Feb. 5 with the acquittal of President Trump on both impeachment articles, abuse of power and obstruction of Congress.

ADVERTISEMENT

The trial was in session 12 days, totaling 87 hours. Under the rules adopted, time was equally divided between the Democratic House managers and the president’s lawyers, with 24 hours over three days each for opening arguments; another 16 hours of questions from senators of the managers and president’s team, alternating between Republican and Democratic senators; and a final two-hours for each side to make its closing arguments.

In between, the proceedings were interspersed with a flurry of 15 motions offered on Jan. 21 and 31 by Minority Leader Chuck SchumerCharles (Chuck) Ellis SchumerTrump passes Pence a dangerous buck Democratic mega-donor reaching out to Pelosi, Schumer in bid to stop Sanders: report Trump administration freezes funding for study of hurricane barriers: report MORE (D-N.Y.) and others to subpoena documents and witnesses, all of which were tabled, most on straight party-line votes.

Despite Schumer’s persistent insistence on the need for additional witnesses, House managers and their allies went into the trial confident they had an “iron-clad case” that was variously described as “indisputable,” “irrefutable,” and “incontrovertible.”    

Rep. Gerald E. Connelly (D-Va.), a member of one of the House impeachment investigative committees, told CNN’s Wolf Blitzer on “The Situation Room” Jan. 20, “that the case given to the Senate by the House is iron-clad…. I don’t think you need witnesses, but I do think witnesses could be helpful in augmenting the testimony and the comments provided to the Senate by the House.”

By the end of the trial several Republican senators agreed that the House managers had made a convincing case that the president did what they claimed he did. But, except for Sen. Mitt RomneyWillard (Mitt) Mitt RomneyOrange County declaring local health emergency in response to coronavirus Why Bernie Sanders won the debate Lawmakers raise alarms over Trump coronavirus response MORE (R-Utah), they all voted for acquittal on both articles on grounds the charges did not rise to the level of impeachable offenses.

ADVERTISEMENT

Notwithstanding the praise heaped on House managers from both sides of the aisle, the day after the verdict the managers published an op-ed in the Washington Post in effect charging Republican senators with engaging in a cover-up by not permitting additional evidence and witnesses.

They went on to claim it was “the first impeachment trial in history without a single live witness or new document.” That assertion is false on its face: in 1999, in the impeachment trial of President Bill ClintonWilliam (Bill) Jefferson Clinton6 ways the primary fight is toughening up Democrats for the fall general election Rahm Emanuel: 'Panic would be the adjective to describe the mood' over Sanders Do Trump and Sanders hate America? MORE, the three witnesses subpoenaed for depositions did not testify live before the Senate at trial.  Instead, portions of their taped depositions taken by a small committee of senators were shown to the full Senate.

Moreover, House managers wrote that, “Nothing supported this unprecedented prohibition on witnesses and documents except the overriding interest of a president determined to hide any further incriminating information from the American people.” Yet, two paragraphs earlier they asserted that, “Throughout the trial, new incriminating evidence against the president came to light almost daily, and there can be no doubt that it will continue to emerge in books, in newspapers or in congressional hearings” –hardly an indication of a successful effort to withhold the truth from the American people. 

In fact, an examination of the Clinton and Trump impeachment trial rules reveals that the more recent was much more open than the former. In a Dec. 15, 2019 letter to Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellOvernight Health Care — Presented by American Health Care Association — Trump taps Pence to lead coronavirus response | Trump accuses Pelosi of trying to create panic | CDC confirms case of 'unknown' origin | Schumer wants .5 billion in emergency funds Push for national popular vote movement gets boost from conservatives To avoid November catastrophe, Democrats have to KO Sanders MORE (R-Ky.), requesting certain rules and witnesses, Schumer said his suggestions were based on the bipartisan model of the Clinton trial rules that were adopted, 100 to 0. However, the Clinton trial rules provided that presentations “shall be limited to argument from the record,” that is, only the evidence transmitted to the Senate by the House Judiciary Committee. The Trump trial rules contained no such germaneness limits on debate.

The Clinton trial rules also provided for a vote on dismissing the trial before there could be a vote on calling for additional witnesses and new evidence. Sen. Robert C. Byrd (D-W.Va.) offered the motion to dismiss and lost, despite support from his Democratic colleagues. Democrats immediately pivoted to vote against calling witnesses. Schumer voted with his party colleagues. The Trump trial rules did not formally provide for a vote to dismiss before motions to subpoena witnesses could be offered.

It is difficult to make the case that the Senate trial of President Trump was somehow unfair because no additional witnesses or documents were subpoenaed. Most senators agreed that the House had provided sufficient amounts of both to make an informed judgment. Moreover, there was an acute realization that any attempt to subpoena White House officials would likely lead to legal challenges that could drag-on for months in the courts.

The bottom line is that the impeachment process was a partisan one from the outset, with the House Democratic majority moving the articles unanimously over to the Senate, and the Senate Republican majority acquitting the president on near-unanimous votes.

Alexander Hamilton (Federalist 65), Speaker Nancy PelosiNancy PelosiTrump passes Pence a dangerous buck Overnight Health Care — Presented by American Health Care Association — Trump taps Pence to lead coronavirus response | Trump accuses Pelosi of trying to create panic | CDC confirms case of 'unknown' origin | Schumer wants .5 billion in emergency funds Stone judge under pressure over calls for new trial MORE (D-Calif.) (2019), and former Sen. Joe BidenJoe BidenBiden looks to shore up lead in S.C. Hillicon Valley: Dems cancel surveillance vote after pushback to amendments | Facebook to ban certain coronavirus ads | Lawmakers grill online ticketing execs | Hacker accessed facial recognition company's database Vulnerable Democrats brace for Sanders atop ticket MORE (D-Del.) (1999) all had it right on first impression about the dangers and inadvisability of proceeding with a partisan impeachment. That is not to say the Democrats’ case did not warrant conviction and removal. But the Founders, for good reason, required a two-thirds vote of the Senate to do so, and that is invariably a bipartisan super-majority. 

The outcome of the Trump trial was never in doubt given the circumstances. The Senate was designed to represent the broad interests of the states and nation. It was created to flourish as the home of deliberative democracy, and not an agent of its death --though sitting silently for 12 days listening to others talk is not a skill set most senators possess. The fate of the president will be determined by the American people in a democratic election next November.

Don Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.