Impeaching President Donald Trump in the House of Representatives – again – was the easy part. Democrats even found ten Republicans to go along with the vote. Convicting Trump in the Senate, though, and perhaps even convening a Senate trial, will be considerably more tricky. It isn't just that an impeachment trial for an individual who no longer holds public office is, shall we say, extraconstitutional, but that this exercise in congressional overreach was not an impeachment at all.
The New Reality of "Snap Impeachment"
Appearing on Fox News recently, legal scholar and George Washington University Law School Professor Jonathan Turley explained that the Democrat leadership of the House of Representatives threw out the impeachment rulebook in order to rush through their second attempt at officially delegitimizing Mr. Trump's presidency:
"They basically circumvented the usual process of impeachment. They did not hold a hearing where the implications of the article of impeachment could be considered. They did not give a formal opportunity for the president to respond in a hearing, and they didn't give any real opportunity to amend the language. They went straight to the floor and demanded a vote… "
Turley described it as a "snap impeachment" and warned that it sets a dangerous new precedent. Back in the olden days, before left-wing extremists – often encouraged by Democrat politicians – rampaged across American cities, looting and burning as they went, people used to say that America was a country of laws. In terms of how the government works, it is not so much about laws as it is about the rules, procedures, and precedents that prevent abuses of power.
The Merriam-Webster definition of a kangaroo court is "a mock court in which the principles of law and justice are disregarded or perverted," or "a court characterized by irresponsible, unauthorized, or irregular status or procedures." This analogy appears a good fit for the recent impeachment. In fact, that isn't an analogy; it is an exact description of what happened in the House.
The Tyranny of Congress
Until very recently, none of the three branches of government could overstep too far because someone was always ready to step in and say this or that is simply against the rules of Congress or the protocols of a federal agency, or something similar. If that were not enough, others would point out that certain proposed actions were unprecedented. Driven by a hatred of Donald Trump, House Democrats decided, with no real thought to future implications, that precedent and rules meant nothing and that, in this case, the lower chamber could decide to impeach a president and not bother even to pretend that there would be any deliberation – much less any opportunity of representation given to the president in question.
Never again will impeachment be viewed as a solemn process, reserved for a time when a commander in chief commits a crime or an act of corruption or blatantly abuses his or her Article II powers. From this time forward, the party that controls the House could simply decide that the president should be impeached, and the vote will be scheduled.
This author predicted, back in November of 2018, that congressional Democrats had this goal in mind: to make Congress the most powerful branch of government, able to bully, manipulate, punish, or strip power from either of the other two branches. It is hard to see how this keeps the three branches co-equal.
Impeachment As a Weapon
Already, one Republican representative, Marjorie Taylor Greene of Georgia, has revealed her intent to file articles of impeachment against Joe Biden once he takes over as president. Greene has yet to explain what charges she will level against the man who has not yet even been inaugurated – and the news was no doubt greeted with cheers by many Trump supporters – but this is not how impeachment was supposed to be used. Democrats did the same, threatening to impeach Trump even before he took office, but two wrongs don't make a right, as the old adage tells us.
Constitutional scholars could no doubt present all manner of arguments pertaining to the correct use of the instrument of impeachment. Still, for the textualist, there can be little doubt that the mechanism was designed to hold public officials accountable for transgressions committed while they held office and that conviction of impeachable offenses meant removal from that office.
To impeach someone for something they did before they became a public official, or subjecting them to an impeachment trial after they leave office, is neither a correct nor appropriate wielding of that particular Article I power.
Congressional Democrats are either assuming that their party will hold power in perpetuity, or they are recklessly disregarding the very real possibility that the new rules could be used against them. The reality is that these rules could very easily come back to haunt them in the worst possible way.
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Read more from Graham J. Noble.
