Impeachment is not over until Americans vote in the election
Although the president was acquitted in his impeachment trial by Senate Republicans, the arguments made on his behalf hardly acquit him with respect to the rule of law, constitutional history, or plain common sense. As some senators described it, acquittal of impeachment charges and innocence are not necessarily congruent when it comes to judgment.
Considering the prudential factors, they understandably concluded that although abuse of power and obstruction were proven beyond question, the lack of bipartisanship in the proceeding, a looming election, along with other factors meant removing the president at this time would not serve the national interest. Others voted to acquit to save their political hides from primary challengers. Others succumbed to fallacious legal arguments. Thus, final judgment will come in November and thereafter.
In the face of widespread criticism, impeachment defense attorney Alan Dershowitz attempted to minimize what he argued during the Senate trial, claiming that he did not say “that if a president believes that his reelection was in the national interest, he can do anything.” In fact, he came rather close to saying it, and a White House counsel later argued precisely that.
Centuries of English and American legal history and the very words of the Framers make it plain that the “high crimes and misdemeanors” include abuses of office and violations of the constitutional oath to “take care” that our laws are faithfully executed. This is just what the president was charged with. Acting for personal interest rather than national interest while subverting congressional appropriations is a prime example of the autocratic conduct the Framers believed warranted removal from office.
Although it also is clear that impeachable misconduct does not need to be predicated on a criminal violation, the charges against this president are redolent of crimes. The attempt to receive a foreign emolument, in the form of material assistance for his reelection campaign, is just the sort of solicitation and receipt of bribes and gratuities that are prohibited by the United States criminal code. As a former assistant United States attorney, I once successfully prosecuted a sitting senator for such criminal charges.
Consistent with a Justice Department opinion, the president argued that he is not subject to indictment and prosecution while in office. Instead, he must be removed from office before the instruments of criminal law can be applied. That clearly implies, consistent with the understanding of the Framers, that congressional responsibility for impeachment lies outside the federal criminal law and is concerned with the kind of conduct that violates the public trust and of the oath of office taken by the president.
Even if a president avoids removal, impeachment is a stain when there is ample evidence of misconduct. Whether there will be greater future effect will depend upon emergent facts, especially potential revelations from witnesses whose testimony was blocked by the Senate majority. But even if there is no immediate change, that may not truly be the end of things.
The Watergate scandal began with a burglary in 1972, not long before an election, but producing its determinative outcome over the two years that followed mostly after the election. Besides the fact that the five burglars and two of their overseers had been certainly identified as officials of the Nixon campaign were indicted later that fall, the president claimed that he had nothing to do with their conduct. This satisfied enough of the public that, only a few weeks later, he carried 49 states and won reelection by a landslide. But then in 1973, the Watergate “plumbers” were convicted.
One of them, James McCord, later wrote a letter incriminating himself and gained an audience with the trial judge. Thereafter, the House began an impeachment inquiry, a special prosecutor was appointed and fired, and the tapes were ordered to be disclosed by the unanimous Supreme Court, proving that the president had indeed been involved in a criminal conspiracy to obstruct the federal investigation. The House then received a bill of impeachment including a charge of abuse of power. So the lame duck president, stripped of the overwhelming public support he enjoyed only a year and a half earlier, chose to resign in disgrace that summer.
Turning to today, we do not know if there will be new revelations from present and former government officials concerning more presidential misconduct and intentions. Some of that information is the subject of pending litigation. Nor do we know the contents of various financial and tax records also before the courts. Disclosure of such facts can change public and congressional opinion even after a successful reelection.
The recent action of the Senate to acquit has sent the question to the American electorate. The answer will depend upon ever emerging facts and whether there will be constructive and principled campaigning by candidates who can appeal to thoughtful voters who hold traditional American perspectives on the economy and the role of government.
Stuart Gerson is founding member of Checks & Balances, an organization dedicated to the rule of law, and is lead counsel in El Paso versus Donald Trump. He served as an assistant attorney general of the United States.