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Why the Senate must convict

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The nation has witnessed days of complicated arguments by the lawyers of President Trump and by the House impeachment managers, as well as questions from senators. We have learned almost nothing that we did not already know. To be removed from office by impeachment, a president first must be charged with a high crime or misdemeanor by a majority of the House and then found guilty by a two-thirds margin in the Senate. That is the process the Framers mandated in our Constitution.

Notwithstanding Alan Dershowitz, it is the unanimous view of scholars that the breadth of that phrase goes well beyond that of the criminal code. So any action on the part of the president that a simple majority in the House and a two-thirds majority in the Senate deemed to be a high crime or misdemeanor qualifies as such. It comes down to this question. Does the Senate believe the president is guilty of an act that rises to the level of removal? That is the only real question before the Senate.

Trump is charged by the House with such an offense for threatening the delivery of almost $400 million of American military aid to Ukraine unless the president of that country announced investigations of rival Joe Biden and his son Hunter Biden, thus endangering not only the security of the United States but that of a weak but friendly power for personal political ends. It is clear that the president did what he is accused of, and that it can be properly denounced as a high crime or misdemeanor.

That finding alone is not sufficient to convict the president and remove him. An impeachment trial is not a criminal proceeding. The facts do not need to be proven beyond a reasonable doubt, and the president cannot be fined or jailed by the Senate. Moreover, senators may well be able to decide that the only sanction, removal from office, and thus the reversal of the decision in the 2016 election, is so drastic an action that a “not guilty” verdict is warranted even though the charge is believed. 

That was the rationale of many senators during the impeachment of President Clinton. It was true he did it, but it was not grave enough to reverse the results of the election he won. Senators in the trial today may decide that, since there are only nine months remaining until the next election, it is wisest to let the people decide the fate of Trump.

Those senators are judges, not jurors, so they are not, unlike jurors in a criminal trial, restricted to just the evidence presented to them by the parties, but can go through the range of all they know about Trump and use that knowledge to add to or subtract from the specific impeachment charge. They may also use their own judgment as to whether the nation would likely be better or worse managed by a President Pence.

During the 1868 impeachment of President Johnson, the nominal charge had been his violation of the Tenure of Office Act for attempting to fire his war secretary. But the real issue at hand was his constant frustration of plans by Congress for reconstruction of the southern states after the Civil War. Johnson avoided conviction by one vote in the Senate.

Senators have been criticized for making up their minds before hearing a word at the formal impeachment trial. That is irrelevant. No senator can be disqualified for bias. In 1868, a senator who would have become president had Johnson been convicted both participated and voted throughout the entire trial. Senators are political creatures engaging in what Alexander Hamilton, in the Federalist Papers, declared a political process.

So senators can seek evidence as they will, and may not dodge their duty, remembering that the people will make the final judgment. There are thus reasonable grounds on which to base a “not guilty” vote, but they evade the real issue of the words and actions of Trump, and those speak loudly in favor of a guilty verdict. There are valid reasons to vote not guilty. There is more than sufficient evidence to vote guilty. They must do so.

Slade Gorton is a former Republican senator from Washington state.

Tags Alan Dershowitz Constitution Donald Trump Impeachment President Senate

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