In the past couple of months we’ve all watched as the impeachment proceedings against President Trump have played out in the House Intelligence Committee, the House Judiciary Committee, and finally in the full House’s adoption of two articles of impeachment. And in the debates that preceded the votes to move from one step to the next, we’ve heard a lot of partisan rhetoric that’s probably confused us more than clarified the issues. So let’s really try to sort it out.
Let’s start by forgetting about the first article – the one that charges the president with abusing his power by withholding aid that Congress approved for the Ukrainians, in order to get information he could use against his political opponent Joe Biden. Let’s not parse the president’s words or analyze his intent – or waste any time deciding whether the call he made was “perfect” or the smoking gun of abuse of power.
Let’s pretend instead that he did what he said he could do during the 2016 campaign: shoot someone on Fifth Avenue and not lose any of his support. And let’s assume that the only witnesses to the event were his Secret Service agents, several of whom saw exactly what happened.
Then let’s assume that word about the incident somehow leaked out – after all, there was a dead guy lying out there in front of Trump Tower – and let’s go on to assume that an impeachment inquiry was commenced to determine whether the president should be removed from office for allegedly committing the “high crime” of murder. I’m going to assume further that while legal scholars differ on whether a president can be convicted of a criminal offense while in office, he might nevertheless be impeached, convicted and removed from office for killing someone, under Article II, Section 4, of the Constitution.
But then let’s also assume the president refuses to allow his agents to testify about what they saw during the incident or to release the reports they filed about it. What can the House do now? Just throw up its hands and say, “well, I guess we’ll have to let this go, even though there was that dead guy in the street and none of the Secret Service agents had fired a weapon. After all, we can’t take the drastic step of impeaching a president just because of rumors and suspicions, right?”
Or wait, does the House have the authority to pass an article of impeachment that charges the president with contempt of Congress for failing to allow relevant evidence to be presented – because that might be a “high crime” itself?
I hope even a president’s staunchest supporters would say it’s improper, even impeachable, for him to refuse to allow evidence of a murder to be presented to Congress. If not, then do we really have a loophole in the Constitution when it comes to holding a president accountable for his conduct, no matter how outrageous that conduct may be? I don’t think the Founders would have screwed up on such a basic point, because that would make it sound more like they were creating a dictatorship, not a democracy, and they were certainly trying to avoid that.
Then what’s the difference between the hypothetical scenario I posed and the current article of impeachment about the president’s alleged “quid pro quo” phone call? Is it that the president and his House and Senate supporters think the latter charge isn’t “legitimate” or “worthy” or “substantial” enough to warrant cooperation – and so the president doesn’t have to cooperate and can order his associates not to do so either? If that’s really it, then where’s the tipping point and when does the charge become substantial enough to require a president’s cooperation? And who gets to make that decision?
The problem with where we’re headed is that whether the underlying charge is legitimate or substantial enough can’t be up to the person being charged. Not only is there nothing about that in the Constitution, but could the whole process really depend on that kind of slippery slope?
Let’s take a look at the parallel track of the criminal law, where a grand jury indicts a person for an alleged crime – let’s say one he didn’t commit at all – and yet the person must stand trial and hope the evidence submitted will show he wasn’t guilty. He can’t just make it go away by declaring the charge “a travesty of justice” and then refusing to allow relevant evidence to be presented against him. If that’s all it takes, how could even guilty defendants be convicted of crimes? The system would break down entirely – and based on my modest experience with the process, it doesn’t work that way.
Alright, back now to the real world where we have the current articles of impeachment headed to the Senate for trial. But wait, the majority leader is saying there can’t be any new witnesses called or documents presented during that proceeding, no matter how relevant and material to the outcome. Does that sound like a real trial? Probably not even in Judge Judy’s courtroom. That would be like jurors in a criminal case saying they’re going to decide on the defendant’s guilt or innocence based on what they’ve already heard about the situation, from whatever source they want to rely on. I mean, unless I’m all wet here, that way of doing things would sort of negate the whole purpose of having a trial – which is why courts spend so much time trying to find jurors who will make their decisions based only on the evidence presented to them, under oath, in the courtroom.
On the other hand, if you’re a friend and supporter of the accused no matter what, maybe you don’t care how it looks as long as it works out well for your guy. Just don’t call it the constitutional process the Founders had in mind and don’t claim it’s one that even approximates justice for all.
L Phillips Runyon III is a lawyer practicing in Peterborough and the former presiding judge of the 8th Circuit Court.