Below is my (expanded) column in Hill on the regulatory (as opposed to constitutional) concerns raised by Trump’s second impeachment trial. Senators need to sort out these issues before getting the merit. The regulatory concerns can also significantly affect the potential for witness disapproval following removal from office. The House made a mistake by leaving the records and witnesses entirely to the Senate to move forward. The Senate could now decide whether to decide on the protocol – or whether it lacks it. Even a few days of hearings could have kept a record of documents and testimony – and an opportunity for a formal response from the President. It could also have allowed amendments to the language of the article to allow wider support. I have no objection to the removal of a president on his last day, but the House should keep a minimally sufficient record to support a constitutional determination of a major felony and misdemeanor.
Here is the column:
The second impeachment trial against Donald Trump appeared to have effectively ended before it even began on Tuesday. In a procedural threshold vote on the constitutionality of a former president’s attempt, 45 senators voted in favor of a motion to challenge the process, which means nearly half the Senate believes Trump may not be tried, much less convicted . as a past president. It also means that the House impeachment managers may not be able to get the Senate votes for conviction.
For those members who believe the process is invalid, the votes would not change based on merit. When Bill Clinton was ousted in 1999, some Senate Democrats spoke out against trial because there was a lack of votes to convict him. They advocated easy voting without legal proceedings for regulatory reasons. But this time the bigger regulatory problem emerges above the upper chamber. With an acquittal now likely, members of the Senate can focus on the cost of “rash impeachment” for the institution.
Before they took the impeachment oath and voted on Rand Paul’s dismissal motion, I met with all of the Senate Republicans to discuss historical and constitutional issues. I did the same thing before Trump’s first impeachment trial. It was an intense and in many ways inspiring discussion. The senators fought honestly to see if they could vote to “remove” a president who is no longer in office.
The vote on the dismissal is unlikely to end the debate on the constitutionality of a process that contains strong arguments on both sides. There are only two cases where retroactive removal has been attempted. In 1789, the resigning Senator William Blount refused to appear for what he believed to be an unconstitutional trial. The Senate approved and dismissed the case. A closer parallel involved former Secretary of War William Belknap in 1876. The same threshold vote was held, with the same result, when nearly half of the Senate voted to reject the process as unconstitutional. The motion narrowly failed and the Senate then acquitted the process.
But now the Senate is faced with the second regulatory issue. There are cases which, even when legally raised, contain errors so serious that they need to be dismissed as inconclusive for regulatory rather than constitutional reasons. This case poses such a fundamental flaw. The problem isn’t what was sent to the Senate, it’s what wasn’t. There was no record. For the first time in history, the House of Representatives sent an impeachment article to the Senate without a hearing, testimony, or response from the President. Not a word. It just sent a poorly crafted impeachment article like a conclusion in search of evidence.
Modern impeachment has uniform records in the form of testimony or other source of evidence. Early impeachments were dealt with in a very different congress, where evidence hearings were not as common as they are today. Indeed, the modern committee system did not exist. The authors left it to the House to lay the groundwork for impeachment. The expectation was that the high crimes and misdemeanor vote would not be a simple final vote, but would be supported in some form to meet the constitutional standard. Testimony was not exactly the expectation. For this reason, the house is often compared to a large jury, which differs from a process in terms of its rules and working methods. While the constitution only prescribes the articles of impeachment, all impeachments had records that served as the basis for impeachment of the president. However, such testimony has been the norm either at hearings in the House of Representatives or when including witness testimony such as the Clinton impeachment.
Furthermore, I am not aware of any impeachment where the accused, particularly a president, has not been given a formal opportunity to respond. Finally, certain critical facts were identified. Even with the William Blount case, the position was clear, as Blount was to be expelled before his trial in the Senate. While the recordings differed significantly (particularly with regard to modern testimony), there was one record. The House took on the burden (much like a grand jury) of laying the groundwork for an impeachment, while the Senate then took that record and held a trial. The expectation was that the Senate would be able to give testimony (which is why I supported witnesses in impeachments of the president and the judiciary).
The question is whether the Senate wants to legitimize this radical departure from the traditions of both chambers. Some of us asked the House to hold hearings for at least a day for the President to respond. However, the House declined to call witnesses or hold a hearing on the impeachment trial. The leaders of the house said there was not a day left and they did nothing. They waited almost two weeks to submit the article to the Senate. There have also been no formal requests to the administration for responses or any kind of record keeping of evidence that is in control of Congress.
It’s a familiar pattern. When I testified in the first impeachment hearing against Trump, I complained that the house had moved in the shortest amount of time and with the slightest record of impeachment of a president. I testified that Trump could face two articles that were ultimately passed by Parliament, but warned that such a rush was unnecessary and would fail in the Senate. The House Judiciary Committee did not call a single witness, leading the Senate to deny the testimony. House spokesmen Nancy Pelosi and Adam Schiff also insisted there was no time to waste and waited weeks to bring the articles to the Senate.
After the House destroyed its own reasons for his hasty impeachment, I wrote about a dangerous Senate prudential concern about accepting such an inadequate record for the trial. While the constitution contains no records, it was a shocking departure from tradition. I proposed a compromise by the Senate to reject the article on obstruction to Congress to show the House that it should never repeat such an abbreviated process, but rather give the House the witnesses to the process that it should have called. Otherwise, the House would use this case as a basis for future impeachments. The house has now done that and then went a step further.
Instead of filing an inadequate record, she filed no record at all in a second impeachment of the same president. For the Senate institutionalists, this is a virtual mockery. Even an in-house hearing could have provided evidence of Trump’s intent for the Capitol riot. Witnesses could have raised whether the National Guard was offered to Congress in advance or whether Trump was obstructing such assistance. Answers could have been requested from the White House. Acting Secretary of Defense Christopher Miller gave interviews to Oval Office discussions on the matter but was not asked to testify.
I have no problem removing a president on his last day in office, as impeachment plays an important role in condemning illegal activity. But there needs to be some record, and not just one final statement in a hasty impeachment. Like the constitutional threshold, the regulatory issue is a matter of Congress, not of the defendants. It’s not about what Trump did, but rather what the House didn’t do when it sent a mere article to the Senate that was effectively asked to shoulder the burden for both houses. With an acquittal likely now, these significant regulatory concerns will only increase for Senate institutionalists in the future.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and has served as the last senior attorney during impeachment in the Senate. He testified as an expert on the impeachment negotiations of Bill Clinton and Donald Trump. Follow him on Twitter @JonathanTurley.