Trump’s impeachment: judicial or political?
The ongoing impeachment trial of US President Donald Trump in the US Senate raises the bedeviling question of whether impeachment is a judicial or a political process. On this issue may rest his fate.
That it is judicial is partly shown by the oath-taking of 99 of the 100 US senators (one, James Inhofe, was absent) before US Chief Justice John Roberts—the trial’s presiding officer—swearing they “will do impartial justice.”
On this basis, the two articles of impeachment alleged that Trump, a Republican, “abused his power” by (1) withholding economic and military aid to Ukraine unless that country investigated the alleged misconduct of Joe Biden, his probable Democratic rival in the US presidential election this year, and (2) by stopping his White House assistants from testifying during the impeachment investigation of the US House of Representatives.
On the other hand, the camp of Trump—which includes Alan Dershowitz and Kenneth Starr, the celebrated lawyers against former US president Bill Clinton, a Democrat, during his own impeachment in 1999—argued that the articles failed to allege any violation of law, and therefore fall short of the constitutional grounds of “treason, bribery, or other high crimes and misdemeanors.”
The Democrats counter that “abuse of power” was the principal reason why the framers of the US Constitution conceived of impeachment as the method of removing high officials.
Bragging that impeachment is a political process, US Senate Majority Leader Mitch McConnell announced, even before the articles of impeachment were filed, that he was standing by Trump as a matter of party discipline.
In fact, he asked for the summary dismissal of the two articles without trial and without hearing the evidence, but retreated when some Republican senators dissuaded him.
Nonetheless, he obtained the full support of the Republican majority of 53 senators (vis-à-vis the Democratic minority of 45 plus two independents) to reject the House request to subpoena witnesses who, and documents which, were precisely barred by Trump from the House hearings.
After all, he added, the House—composed of 235 Democrats, 199 Republicans and one independent—voted 228-193, largely along party lines to approve the two articles.
To paraphrase his tit-for-tat argument, if the Democratic majority in the House could impeach Trump, so can the Republicans majority in the Senate acquit him.
On the other hand, to uphold the articles and oust Trump, two-thirds vote (67 senators) is required, meaning that all the 45 Democrats, the two independents and at least 20 Republicans must vote together to kick him out.
Definitely a tough job!
In my humble opinion, impeachment is neither purely judicial nor purely political; it is sui generis with its own unique genre. If it were purely judicial, the Constitution (of both the United States and the Philippines) should have lodged the impeachment trial in the Supreme Court, or in an independent body composed of lawyers who are versed in the labyrinths of the law.
However, the power to impeach had been lodged in the House while the power to try and oust, in the Senate. Both chambers are composed of individuals with varied education, training, calling and social status.
They were elected by the people to be their alter egos to enact laws and to discipline those who have become unworthy of their trust.
While the impeachment process may be shrouded in constitutional undertones, legal rituals and judicial formalities, the ultimate decision is one of policy: Will the senators’ constituencies be served better by retaining or ousting the impeached official?
Reason and logic, emotion and passion there would be, but the judgment of the people’s alter egos will always be justified by their sense of what is beneficial for the folks back home.
At bottom, impeachment is sui generis and unique: judicial in its search for truth and political in its pursuit of the public weal. But it is neither overwhelmingly legalistic as claimed by the legalists nor blindly partisan as perceived by McConnell.
It may show a veneer of legalism, but it has an imbedded core of public wisdom.
The peoples of the world, including us, are keenly watching this public display of the American brand of democracy and sense of fairness, decency, integrity and accountability.
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