It Will Never Be Possible To Get 67 Senators To Convict A President, Essentially Making Him Or Her Lawless
So Trump’s second impeachment trial ended a month ago, and as expected the Senate acquitted him of the charge of inciting an insurrection connected to the storming of the U.S. Capitol by his supporters on January 6th. The vote was rather historical though. Seven Republicans joined all 50 Democrats in voting to convict the former president, and several others, including former Majority Leader Mitch McConnell (R-Kentucky) suggested their vote for acquittal had to do with believing the trial of a former president is unconstitutional, and not that Trump wasn’t guilty of the crime.
There have been four impeachments of sitting presidents, two of which were against Trump alone. In 1868, Andrew Johnson was acquitted by one vote, and in 1999, Bill Clinton survived conviction by the Senate by a fairly wide margin of 19 and 17 votes. In both those incidents, no Senator from the sitting president’s party voted for convict. Trump, however, saw defections both times. Last year, Sen. Mitt Romney (R-Utah) became the first Senator from the impeached president’s political party to vote for conviction when he voted to convict Trump of high crimes and misdemeanors related to his pressuring the Ukrainian president to dig up dirt on the man who ultimately defeated him in 2020, President Joe Biden. Romney did it again last month, joining Sens. Bill Cassidy (R-Louisiana), Richard Burr (R-North Carolina), Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Ben Sasse (R-Nebraska) and Pat Toomey (R-Pennsylvania) in convicting Trump of inciting the January 6th attack. This made the vote the most bipartisan ever for an impeachment of a President.
And yet, Trump was acquitted. Ten more votes were needed for conviction. Ten. In the nearly one month since the trial ended, the thought has crossed my mind over and over. It’s hard to imagine what else could’ve been done or said to get those ten votes. Progressives stewed about the decision by the Democratic majority to backtrack on calling witnesses; Republicans had threatened to turn the trial into a long drawn-out circus if they did, but even House Impeachment Manager Stacey Plaskett (D-Virgin Islands) admitted it wouldn’t have changed any votes.
Which brings us to the final conclusion: In the current (and perhaps now permanent) partisan reality, there is nothing a president can do that would get him or her impeached and convicted. Presidents are essentially lawless. Impeachment is an obsolete, badly ineffective way to hold a president accountable. It may have worked in the 18th Century when the Founding Fathers created it. Back then there were only 26 senators, no political parties, and senators were not directly elected by voters, so they didn’t have primaries to worry about. Twenty-first Century America deserves a 21st Century way to hold its leaders accountable. Here are some ideas on how we can do that:
1.) Make The Jurors A Panel Of Randomly-Chosen Federal Judges
In a way, the 17th Amendment may be primarily responsible for the impeachment process becoming obsolete. When the Constitution was written, Senators were not directly elected, and did not have to worry about primary elections. That was purposely done to keep Senators from having to react to populist whims, the way the House often does. It made sense for the Founding Father to see Senators are likely to be able to put aside politics and be unbiased jurors to a president’s trial.
But times have changed, and perhaps that means the people who should serve as jurors has changed as well.
The Judiciary Branch of the United States Government is designed to be the only one not accountable by voters. That’s why federal judges are given lifetime appointments by the President, confirmed by the Senate. That means they don’t have to worry about the political popularity of their decisions, and can focus on legality and constitutionality. We know that the decision to acquit Donald Trump was a political one – Republicans don’t want to upset their base. The Republicans who voted to convict Trump last weekend either aren’t up for reelection for four to six years (Susan Collins of Maine, Bill Cassidy of Louisiana and Ben Sasse of Nebraska were just reelected to six year terms in 2020, Mitt Romney of Utah isn’t up again until 2024 in a state where Trump was never particularly popular with Republicans), or are retiring like Richard Burr of North Carolina and Pat Toomey of Pennsylvania. The seventh Republican, Lisa Murkowski of Alaska, has already survived attempts by her party to primary her, and will run for reelection next year in a state that has adopted a jungle primary system, meaning she doesn’t have a partisan primary to worry about.
How many of the other Republicans might have been inclined to vote for conviction if they weren’t worried about the next Republican primary?
Which brings us the idea of judges. Federal judges never have to worry about primary voters. They are in their jobs for life, or until they decide to retire. That gives them the ability to put aside politics in judging a president’s criminality.
It is true that judges can also be partisan, and idealogical battles are fought on judicial confirmations. Presidents and political party use to process to shape the judiciary to serve their interests, so you can’t have one court (i.e. the DC Circuit or the Supreme Court) serve as the jury. My proposal is to create an impeachment tribunal, featuring one judge selected a random from each of the 11 circuit courts, the DC circuit court and one Supreme Court justice. The panel of 13, called an “Impeachment Tribunal” would sit as jury and House Impeachment Managers and the defense would make their case in the Supreme Court rather than Congress.
The process would remove the U.S. Senate completely, or the U.S. Senate could, like the House, be required to agree to impeachment by simple majority vote and Senators could serve as impeachment managers along with House members.
2.) Lower The Threshold For Impeachment to 60 Votes
There was a reason the Founding Fathers gave the power of Impeachment to Congress. They are the elected representative body of the American people. Even the Senate, which initially wasn’t democratically-elected, is more representative now because Senators are directly elected by the people they represent.
The problem, however, is political realities make it impossible to ever reach the 67-vote threshold for conviction. It is difficult for a party to achieve more than 55 seats. It has only happened once in the past 25 years – when Democrats won 59 seats in the 2008 election, and held 60 seats for a short time during that succeeding Congress. You would often need to convince more than ten members of the president’s own party, and likely more, to convict.
The only time any president came close to being impeached and convicted was Richard Nixon during Watergate, and at the time Democrats held 56 Senate seats and at least ten Republicans warned they would be willing to convict, putting Nixon in danger. If Democrats only had 50 seats in 1974, it is possible Nixon never would’ve faced conviction, and could have survived Watergate.
The first Senate had 26 members and no political parties. It is much easier to get 18 independent Senators to agree on the criminality of a president than 67, many of whom are political allies of the president or represent constituencies where he is popular.
Since 60 seats is a threshold nearly impossible for a party to reach, and maintain, perhaps simply lowering the threshold for a conviction to 60 votes would give the process more teeth. At that threshold, it is likely an incumbent president couldn’t be convicted without some support from Senators from his or her party. We’ve seen that this is possible in Trump’s impeachment trial, but that a double-digit number of conviction votes from the president’s party is a step too far.
3.) DOJ Must Allow For The Criminal Prosecution Of A President
There is always one last option that doesn’t involve impeachment – simply allow a president to be criminally prosecuted by the Department of Justice. Allow the Attorney General, or have Congress authorize, the appointment of a special prosecutor to convene a grand jury, and let the judicial process play out the way it would for any ordinary American.
Right now we don’t know if this is Constitutional or not, but as Robert Mueller noted in his final report on the Russia Wikileaks investigation, it is standard policy of the Department of Justice to not indict and prosecute a sitting president. There are justifiable reasons for this: What do you do in a situation where a president is indicted and awaiting trial? Who is president if he is being held on bail, or on house arrest? Does the Cabinet invoke the 25th Amendment and give the Vice President power while the process plays out? What if they refuse to do that? These questions have national security implications.
The alternative, however, is for us to have a lawless president who can never be held accountable. If Donald Trump, after inciting an attempted coup, couldn’t get the votes needed to be convicted, no president will. There needs to be a plan B, one that is not marred and tainted by politics.
Giving the Department of Justice independent authority to convene a grand jury and try the sitting president in the same away they would any other citizen does that. After all, that would surely mean the president is not above the law.
Regardless of how we do it, it is clear the current status quo is not cutting it. All over America, there are men, and perhaps women, in positions of power and influence who are thinking the presidency is an office that absolves them of all crimes, and are plotting their way to the office.