For the second time, the Senate failed to convict Donald Trump at the end of an impeachment trial, but was the trial a failure? For many, Trump’s second acquittal was further evidence, along with his acquittal in his first impeachment trial in 2020, that the impeachment process is inherently broken. It seemed that the constitutional threshold for conviction, requiring at least two thirds of senators present in favor, was practically impossible to meet, even more so if the members of the president’s party generally stuck together in opposition. For Trump’s base, it was a failure of a different sort – the failure of the hateful and hate-filled Democrats to pervert the process to their own nefarious ends; and for many lawyers, it was a failure of the Senate to conduct the proceedings like a real trial, one overseen by a real judge, who might have insisted on something that more closely resembled rigorous procedures and evidentiary rules that a real trial or judicial proceeding would follow.
Presidential impeachments are, however, never just about whether the nation’s chief executive did something so wrong he should be ousted from office prematurely. They are tests not just for the presidents on trial but tests for the Senate itself, the lawyers or advocates on each side, and the American people. Far too many viewers — and participants — had to be retaught the unique scope and purposes of impeachments, including why senators – sitting as both jurors and judges – comprise the court of impeachment under our Constitution. The framers vested senators with the ultimate power to convict, remove, and disqualify presidents for their misconduct in office because they expected that senators had the special qualities and temperament to rise to the occasion, not to be easily swayed by the whims of their constituents, and to be held politically accountable for gross neglect in their decisions. In Federalist 65, Alexander Hamilton explained that senators were the ideal arbiters of whether an impeached president or other high ranking official should be convicted, because the Senate would be a “tribunal sufficiently dignified” and “sufficiently independent“ of the president or factional interests aligned with the subject of impeachment. Further, Hamilton explained, because the entire Senate was the trial body, it “can never be tied down by such rules, either in the delineation of the office by the prosecutors, or in the construction of it by the judges, as in” common law trials.
In the second trial, there was no question of curtailing a president’s term, as it had been in the first trial. Yet, to no scholar’s surprise, impeachment is generally designed to undo presidential elections – that’s one of the major reasons for impeachment: Presidents take their job based on condition that they are subject to impeachment and conviction if they commit “treason, bribery, or other high crimes and misdemeanors.” The question whether a president’s misconduct merits removal and disqualification – the only two remedies the Constitution recognizes as applying to convicted officials – can be as hard as any challenge a member of Congress must address, undoubtedly even harder if the president is from their own political party. The framers, who distrusted popular majorities, would have frowned on public pressure being a factor in the decision making on impeachment and conviction; but the advent of the Seventeenth Amendment, making senators directly elected by the people of their respective states, makes such pressure relevant and inevitable. In order to work, the process therefore requires members of Congress to have the courage to do not the expedient thing but the right thing – placing the best interests of the nation and the Constitution above petty partisanship.
Given the fact that I have studied, commented on, testified in, and consulted on impeachments for more than thirty years, I am deeply invested in figuring out whether impeachment retains any utility or can serve its original function of holding presidents accountable for their misconduct in office. In rendering my judgment (I should note that I served as Special Counsel to the Presiding Officer of the second Trump trial, Senator Patrick Leahy, D-Vt), we should acknowledge and come to terms with several major lessons. These takeaways cannot be ignored by people who are genuinely interested in the viability of impeachment as a check on presidential misconduct.
The first is that the impeachment process is broken, as many of us have said, but it is not as broken as many of us think. True, the Constitution’s requiring a conviction by a vote of at least two-thirds of the senators present is practically impossible to meet. We’ve had four presidential impeachment trials and acquittals in every one of them with only the first of those – for President Andrew Johnson – coming anywhere close to the threshold for conviction. The impossibility of meeting that threshold becomes even more certain given the rise of rigid party fidelity – allegiance to political party is often stronger than allegiance to the institution of the Senate (and protecting its prerogatives) or to the Constitution. For many of those who held Congress in disdain before the proceedings, the outcome merely reinforces their sour opinion of the institution. And for those who think that the impeachment trial was a bust because it did not mimic civil or criminal proceedings or have a judge presiding who would guide the proceedings, Trump’s acquittal surely reinforced their views that the whole episode was a waste of time because it lacked the seriousness of purpose they equate with judicial proceedings.
Nothing can likely be said that will make people disdainful of the process more respectful of it, but there are several numbers that cannot be denied. The first is that while 57 votes for conviction fell 10 short of the number the Constitution requires for conviction, 57 votes for conviction are the largest vote for conviction in any presidential impeachment trial in American history. Perhaps more importantly, that number included seven Republicans, the most senators ever to risk the censure of their party to vote to convict someone from their own party in an impeachment trial. (Interestingly, Richard Nixon in 1974 appeared likely to have been impeached and convicted had he been tried in the Senate, which, at the time, had 57 Democrats, 1 Independent, 1 Conservative, and 41 Republicans.) But that is not all. If we broaden our view, there were more than 67 senators seriously criticizing or denouncing Trump’s misconduct. Perhaps the most searing came from Minority Leader Mitch McConnell, a partisan of the first order, who condemned Trump for being “practically and morally responsible for the unprecedented mob attack on Congress.” True, Senator McConnell voted to acquit (ostensibly because he opposed using the impeachment process against someone no longer in office) and later said he would support Trump if he were again the Republican nominee for president, but his censure of Trump sticks because it came from a (former) Trump ally and powerful leader of the Senate Republicans. While Trump can relish his acquittal only if he ignores the fact of the strong bipartisan condemnation of his behavior, historians, most of the American people, and most members of Congress will not. They understand that Trump’s legacy is a mess of his own making, and no amount of lying, protesting the truth, or blaming others can change the fact that he will go down – literally go down to the bottom of any poll– as America’s most corrupt president and likely its worst. If Trump has any future in American politics, that says more about the state of the American polity than it does Trump, and hardly good news for the future of the republic.
There is a second lesson. Precedents matter because they serve the important functions of facilitating stability, fairness, and predictability in constitutional law and procedures. In litigation, the most important question is often about which judicial precedent is most closely analogous to the conflict at hand. The same dynamic is at work in impeachment proceedings. Precedents, in other words, are not just made by judges. Congress makes them, too. Past proceedings are precedents, which are not binding on subsequent congresses but which influence or inform later proceedings. Just as the case in constitutional law and the common law, the meaning of a precedent depends on how subsequent generations view it and how much they are willing to invest in its meaning. The fact that no other presidents quote James Buchanan or look to him as a model reflects his abysmal performance in office. The same may hold true for Trump, though it is too soon to know for sure.
The precedent likely established in Trump’s second trial is likely to be far different than what Trump says it should be. He was not vindicated; indeed, most of the 43 senators who voted to acquit him explained they did so on their beliefs that former presidents are not subject to impeachment. A majority of the Senate formally voted (56-44) to acknowledge and accept jurisdiction over the trial even though Trump was no longer in office when the trial began. Senator Richard Burr, Republican from North Carolina, explained in his post-trial statement on why he voted to convict Trump that he had accepted that a majority of the Senate had retained jurisdiction and therefore felt he had no choice but to vote on the merits of the case. For him, the merits were clear – he voted to convict Trump. Some others like Senator Charles Grassley, Republican from Iowa, said they voted against jurisdiction but accepted the decision of the Senate to hold the trial and thus they reached the merits of the case. He voted to acquit.
The important point is that this was not the first time the Senate accepted such jurisdiction. This was the sixth time the Senate had done that – a majority voted in the first impeachment trial in 1798 that it had jurisdiction to consider the conviction of Senator William Blount, who was no longer in office; the Senate proceeded with an impeachment trial of West Humphreys more than a year after he had abandoned his federal judgeship to join the confederacy; the Senate voted that it had jurisdiction to conduct the impeachment trial of William Belknap, who had resigned just before the House impeached him for bribery; and the Senate proceeded with impeachment trials of two other judges, George English and Robert Archbald, after they had left the positions in which they had committed misconduct. (In a seventh case, the Senate voted to dismiss the trial because the impeached official, Samuel Kent, had resigned from office before the start of the trial.) It is true, as one of Trump’s lawyers said, that senators were free to disregard those precedents and vote their consciences; however, it is also true that in the future senators may follow these precedents to hold an impeachment trial for someone who has left the office. The Senate vote to accept jurisdiction over Trump’s case is not binding but it is persuasive authority for any senator in future to consider.
The third lesson to be learned from Trump’s impeachment trials has to do with how the different mechanisms for holding presidents accountable for their misconduct fit together. Late on the last day of the second impeachment trial, one of Mr. Trump’s lawyers disdainfully dismissed what he termed, with a sneer, the “Raskin doctrine,” or the possibility that an acquittal of Trump would license future presidents to abuse power all they want in the last few weeks of their terms. Michael van der Veen suggested that presidents would not get away with misconduct in their final days in office because they remained liable at law for their actions. If, for example, a president incited insurrection, then he could be prosecuted later for having done so, he argued.
Like so many arguments made during the trial, this one was politically effective but legally weak (more on that discrepancy later), because it required distorting facts and the law of impeachment. It is true that if a president murdered someone in his last week in office, he could be prosecuted later for the crime. But that situation (putting aside the question of whether the deed was done in the President’s official capacity) largely misses the point of either trial: Neither Trump’s lawyers nor senators who defended Trump paid sufficient attention to original meaning. In fact, their arguments had little or nothing to do with original meaning (raising the question whether they do not really believe original meaning ought to always guide constitutional interpretation). Indeed, the framers designed impeachment to address “political crimes” or abuses of power that are not indictable offenses. For example, presidents may be impeached for betraying their office, though that is not a crime for which they could go to prison. For those who care about principled originalism, every example of an impeachable offense given in the constitutional convention was an abuse of power for which there was no remedy at law. Thus, saying that there is a remedy at law for a president’s misconduct near the end of his trial is mistaken, since the misconduct impeachment was primarily created to address is not redressable in a court of law. Impeachment was placed in the Constitution as the only sanction for the misconduct that most concerned the framers, and notably they accordingly provided for no timeframe for the impeachment or trial to take place.
And yet both the House and the House Managers fell into the trap of characterizing Trump’s misconduct as criminal. This allowed Trump’s lawyers to explain why the managers had failed to demonstrate each of the elements of the crime of incitement to insurrections, though the managers were not obligated to do so. Defense lawyers in impeachment trials naturally try to narrow the field of impeachable offenses to felonies, but, as retired judge Michael McConnel argued recently, the House could have crafted the impeachment article more broadly and not in terms of any given felony, something that House Managers would have had an easier time proving in the trial.
This brings us to the final lesson of Trump’s second trial – on the importance of legal ethics. It featured a repeat of his lawyers’ making outlandish accusations against the House Managers and equally outlandish revisions of history to exonerate Trump. To be sure, it made eminent sense for Trump’s defense lawyers to make political appeals in a political proceeding, particularly since they had enough votes to acquit all along to prevent a conviction. But they still crossed ethical lines, and there is no excuse for that, and there should be no pass for it either. For example, Rule 3.3 of the rules of professional responsibility (adopted in every jurisdiction) requires lawyers to be “truthful” and “candid” in any proceeding before a tribunal, including a legislature. Yet, Trump’s lawyers claimed, with the Senate and nation listening, that “the entire premise of [Trump’s] remarks was that the democratic process would and should play out according to the letter of the law.” This was pure fiction. Instead, according to Trump’s lawyers, he was urging his Vice-President to reopen the certification of the election and “send it back to the states” even though Pence had no such power. Trump’s lawyers insisted (as any defenders might) that he had “encouraged those in attendance to exercise their rights peacefully and patriotically,” a fact that was true but they neglected to mention that Trump’s statement was made only once in contrast to his using the word “fight” 20 times. Van der Veen declared that “at no point was the president informed the vice president was in any danger,” but Senator Tommy Tuberville (R-AL), whom Trump called to urge to continue to protest the election, told Trump that Pence had to be taken out of the chamber for his safety. (The House Managers’ final piece of evidence was an affidavit from a congresswoman who said House Minority Leader informed her of his inability to get Trump to issue a strong statement telling the mob to disperse.). Trump’s lawyers blamed “the Democrats” for not starting the trial before Trump’s term ended, but they left out the fact that Mitch McConnell, as Majority Leader, refused to accept the articles until the day before Biden’s inauguration. Van der Veen also told the Chamber, “One of the first people arrested was a leader of antifa,” a claim decisively proven false.
Lawyering is not about who bangs the table or who screams the loudest, and zealous representation does not include misleading and lying to a court or any other tribunal. The Trumpian gambit that he and his people are entitled to lie, cheat, and steal because the other side (supposedly) did all that and more is the apotheosis of misinformation, aimed to do nothing less than obliterate the rule of law, the search for truth, and holding Trump accountable.
The defense lawyers’ hyperbole and fantastical outbursts in denouncing the managers and all Democrats as dishonest and in repeatedly saying “the Democrats” were engaged in one long conspiracy against Trump were never proven (or relevant) and, worse, perpetuated a bizarre lie that groups like antifa or people masquerading as Trump supporters were somehow responsible for the mob violence that day. (Believing the big lie requires thinking that the people who won the election were attacking Congress to undo the election they had just won.) Trump reportedly enjoyed his lawyers’ disruptions of the trial (they had plainly performed for him), but when such disruptions take the form of professional misconduct, as they did in both trials, the credibility and legitimacy of the trial itself demands that the lawyers themselves must be held accountable in the proper forum for their own infractions. They cannot pretend they never engaged in the unethical conduct; their performances are all on tape, and the tape does not lie.
Yes, impeachment trials are political theater, but that does not mean anything goes. At one point, Van der Veen left the lectern and approached the House Managers in a threatening manner, which prompted Senator Patrick Leahy as presiding officer to call the Senate back into order. Lawyers do not just get to do or say whatever they like or make accusations without any basis; their repeated insistence that Trump was entitled under the first amendment to say whatever he wanted regarding the election was in stark contrast with the facts that Trump was obviously responsible for the attack and that there was no evidence of voter fraud requiring storming the Capitol, much less overturning the election. The complete absence of such evidence explains why judges (appointed by Republican and Democratic presidents) rejected Trump and his associates’ claims of fraud in more than 60 lawsuits. It should go without saying – but it can’t any longer – that the integrity of Trump’s trial depended on the actual facts of what occurred and the Constitution as it is written and designed, not as the parties wish them to be.
After Watergate, law schools started requiring law students to take a course in legal ethics. Regrettably, that has not produced more ethical lawyers. Nor would it seem that more rules of professional responsibility would. What would produce more ethical lawyering is the vigorous enforcement of the rules that now govern the legal profession.
The biggest failure of the trial was the abandonment of any pretense by Trump’s lawyers to stick with the facts or the law. Lawyers understandably want to please their clients and, the more so, when those clients are powerful, rich, or both; and Trump’s lawyers were eager to please him. But in doing so, they made a mockery of the Constitution and the process and sacrificed their own integrity and reputations, likely for good. This is not to say the House Managers were perfect; they dropped a few balls and made some mistakes, but that makes them human not unethical. When lawyers breach or disregard the rules of their profession and get away with it, it makes it more likely other lawyers will do the same. This undermines the administration of justice, which the rules expressly charge every licensed lawyer with protecting. Given that Trump had enough votes to secure acquittal even before the trial began, it was completely unnecessary for any of his lawyers (Bruce Castor, for example, in what appeared to be throwing Senator Ben Sasse (R-NE) under the bus for his independence in concluding the Senate had jurisdiction to proceed or in threatening that Sasse and others will reap “the whirlwind”) to trash their reputations for nothing more than a few minutes of infamy.
In the final analysis, we have not seen the last of impeachment. This is not because members of Congress have developed a taste for the process (essentially no one involved actually relishes the experience) or that it has become a partisan weapon each side may use for its own inappropriate purposes. It is because it has had more impact than its critics acknowledge. In the rarified world of presidents, legacies matter. In Trump’s case, his legacy will not be what he wants, for it will be a legacy no other president is ever likely to wish to emulate or restore. That stings, and, if you do not believe me Trump knows it, you can just read his rage against the dying of his light. Trump will not rest easy as he is beset with lawsuits and the prospect of either oblivion or infamy. And, if you happen to be like me, you can just turn the channel or the page to relish those political leaders who are committed to making our world a better place.