How Lamar Alexander clouds the true meaning of the Constitution

How Lamar Alexander clouds the true meaning of the Constitution
© Greg Nash

Before his vote to acquit the president in the impeachment trial, Senator Lamar AlexanderAndrew (Lamar) Lamar AlexanderBill Barr is trying his best to be Trump's Roy Cohn The Trump administration's harmful and immoral attack on children Democrats worried about Trump's growing strength MORE suggested that, while holding military aid to Ukraine was improper, the Framers of the Constitution would not “expect the Senate to substitute its judgment for the people in picking a president.” Alexander did not really dispute that the president did exactly what the articles of impeachment against him alleged. He just thought it was not the job of the Senate to remove the president. That task, as Alexander and many Republican senators maintained, should fall to the voters in November.

His view of the Senate role in evaluating articles of impeachment might help Alexander sleep at night, but it is certainly wrong as a matter of the Constitution. Consider that the text of the Constitution is quite clear on two critical points. First, impeachment exists apart from the quadrennial election of the president. Second, the Senate has the sole authority to try impeachments. It follows that the Framers believed that, regardless how far away the next election is, some presidential conduct could indeed be so immediately and specifically detrimental to the national interest as to warrant both the impeachment by the House and removal by the Senate.

Indeed, if there were a preference in the Constitution for the question of removal to be decided during the next election, then, as Representative Adam SchiffAdam Bennett SchiffThe Hill's Morning Report - Sanders steamrolls to South Carolina primary, Super Tuesday Schiff blasts Trump for making 'false claims' about Russia intel: 'You've betrayed America. Again' Trump: Nevada a 'great win' for Sanders MORE noted during the trial, presidents could only be impeached in their second terms. This makes no sense given the facts. If a president is found, after an investigation in the House and a trial in the Senate, to have engaged in conduct warranting his removal from office, then it should not matter when that conduct occurred, particularly when, as in the case of the president, his actions did threaten the integrity of the next election.

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On this note, it is worth recalling that during the time the Constitution was ratified, the office of president was not limited to two terms. That restraint would not be added to the Constitution until the ratification of the 22nd Amendment in 1951. The clear allocation to the Senate of the power to try presidential impeachments would be basically pointless if, as in the days of the Framers, another election were always potentially out in the offing.

The Constitution provides no mechanism for a direct democracy check on presidential power that Alexander believes the American people possess. After all, presidential elections are decided not by the popular vote but by the Electoral College. Thanks to that, three presidents in the recent past have arrived in the Oval Office without the backing of a majority of voters. This cohort of minority presidents includes the current one, whose rival in 2016 received almost three million more popular votes than he did. This means the results of a presidential election under the rules established by the Constitution will not necessarily capture the judgment of the majority on the question of whether a president should be removed from office.

In the end, Alexander and those Republican senators who agreed with his assessment of the conduct of the president seem to have conflated policy differences and impeachable presidential conduct. With this perspective, Americans can, when they enter the voting booths in November, weigh the president illegally holding aid to Ukraine in their decision, along with “the terrific economy, with conservative judges, and fewer regulations.”

But this approach to the removal of the president represents a category mistake. His support of tax cuts, his appointment of conservative judges, and his effort to dismantle the regulatory state are not substantively the same as his effort to pressure a foreign nation into investigating one of his political opponents by withholding aid that was authorized by Congress. As the evidence at his trial showed, his request of Ukraine did not reflect a policy choice. Instead it was, as Alexander essentially acknowledged, an improper and illegal effort to get an unfair advantage in the next election.

There should be little doubt that the Framers believed that some conduct warrants the removal of the president by the Senate, because it was both selfish and contrary to the national interest. In the case of the president and Ukraine, it is not clear which is worse, that Alexander and some of his colleagues do not see this, or that they do and it simply does not matter.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”