Republicans have undermined checks and balances, leaving impeachment a hollow threat

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No one thought that the United States Senate would remove President Donald Trump from office, but the script used by Republicans is sure to be followed in the future by both parties and makes impeachment a hollow threat. The result is a big step away from checks and balances and a step towards a more authoritarian presidency.

To begin with, Republicans attacked the legitimacy of the impeachment as an attempt to undo the 2016 election. Of course, this always could be said for an impeachment of a president: It inherently is about removing a president who was chosen by the electoral college. (The rhetoric that impeachment is about removing a president elected by the people is misleading in this instance because Trump lost the popular election by three million votes).

Opinion

The core of the Republican’s defense of Trump was that he did not commit any crime and the constitutional phrase “other high crimes and misdemeanors” requires criminal conduct, not just a serious abuse of power. The overwhelming opinion of constitutional scholars is that this is just wrong. It is clear from its context and from its history that “high crimes and misdemeanors” was meant to refer to a serious abuse of power.

Alexander Hamilton, for example, said that this was about “the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” The late Yale Law Professor Charles Black, in a definitive examination of impeachment, concluded that no illegal act was required to be a “high crime and misdemeanor.” Historical examples, such as the impeachment of Andrew Johnson, confirm this.

Most important, there should be the ability to remove a president who abuses the office and uses it for his own personal gain. But now opponents of impeachment in the future, regardless of the party of the president, can say that the Senate’s decision about Trump supports limiting impeachment to criminal acts.

Trump’s lawyer in the impeachment proceedings, Professor Alan Dershowitz, went even further and declared: “Every public official that I know believes that his election is in the public interest, and mostly you’re right. Your election is in the public interest, and if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

In other words, if the president believes that helping himself get re-elected would be good for the country, he can do whatever he wants.

The lessons likely to be drawn go even further. President Trump refused to comply with all subpoenas, and directed all staff to refuse to comply with all subpoenas, during the impeachment inquiry in the House of Representatives. This was the basis for the second article of impeachment. His acquittal will be used by future presidents to resist any congressional subpoenas knowing that they can point to the Trump precedent.

Each senator took an oath to be impartial and one would think that meant that they would want to hear the evidence – listen to the witnesses and see the documents – before deciding. But the Senate’s vote against this, too, will set a precedent for the future that this is unnecessary.

Republicans in the future will follow this script if a Republican president ever faces impeachment and removal. But so will Democrats know to copy this if it is a Democratic president. Impeachment has been rendered a political circus with no consequences.

At the same time, President Trump and the Department of Justice have steadfastly maintained that a sitting president cannot be criminally indicted. President Trump is now arguing, in cases pending in the Supreme Court, that a president’s records cannot be subpoenaed in court. In other words, every avenue for inquiry and holding the president accountable is being foreclosed. The result is to create a president who is very much above the law.

Those who wrote the Constitution deeply distrusted executive power. They had lived through the abuses of the king and wanted no part of it. Undermining checks and balances serves Trump’s interests and today that of the Republican party that backs him. But it has constitutional consequences that I believe our country will come to deeply regret.

No democracy or form of government lasts forever. Usually, when democracies are lost it is not all at once, but gradually over time constitutional protections are eroded. Donald Trump and the United States Senate have now taken a large step towards undermining our constitutional system.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be contacted at echemerinsky@law.berkeley.edu.

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