M_. President, for more than 200 years after our Constitution was adopted, only one President faced an impeachment trial before the United States Senate. That was Andrew Johnson in 1868. But now, we are concluding our second impeachment trial in just 21 years.
While each case must stand on its own facts, this trend reflects the increasingly acrimonious partisanship facing our nation. The Founders warned against excessive partisanship, fearing it would lead to “instability, injustice, and confusion,” ultimately posing a mortal threat to free government. To protect against this, the Founders constructed an elaborate system of checks and balances to prevent “factions” from sacrificing “both the public good and the rights of other citizens.”
Impeachment is part of that elaborate system. The Founders set a very high bar for its use, requiring that the President may only be removed by a two-thirds vote in the Senate.
The Framers recognized that in removing a sitting President we would be acting against not only the office holder but also the voters who entrusted him with that position.
Thus, the Senate must consider whether misconduct occurred, its nature, and the traumatic and disruptive impact that removing a duly elected President would have on our nation.
In the trial of President Clinton, I argued that in order to convict, “we must conclude from the evidence presented to us with no room for doubt that our Constitution will be injured and our democracy suffer should the President remain in office one moment more.” The House Managers adopted a similar threshold when they argued that PresidentTrump’s conduct is so dangerous that he “must not remain in power one moment longer.”
The point is, impeachment of a president should be reserved for conduct that poses such a serious threat to our governmental institutions as to warrant the extreme step of immediate removal from office. I voted to acquit President Clinton, even though the House Managers proved to my satisfaction that he did commit a crime, because his conduct did not meet that threshold.
I will now discuss each of the Articles.
In its first Article of Impeachment against President Trump, the House asserts that the President abused the power of the presidency. While there are gaps in the record, some key facts are not disputed. It is clear from the summary of the July 25, 2019, phone call between President Trump and Ukranian President Zelensky that the investigation into the Bidens’ activities requested by President Trump was improper and demonstrated very poor judgment.
There is conflicting evidence in the record about the President’s motivation for this improper request. The House Managers stated repeatedly that President Trump’s actions were motivated “solely” for his own political gain in the 2020 campaign, yet the President’s attorneys argued that the President had sound public policy motivations, including concern about widespread corruption in Ukraine. Regardless, it was wrong for President Trump to mention former Vice President Joe Biden on that phone call, and it was wrong for him to ask a foreign country to investigate a political rival.
The House Judiciary Committee identified in its report crimes that it believed the President committed. Article I, however, does not even attempt to assert that the President committed a crime. I sought to reconcile this contradiction between the report and the Articles in a question I posed to the House Managers, but they failed to address that point in their response.
While I do not believe that the conviction of a President requires a criminal act, the high bar for removal from office is perhaps even higher when impeachment is for a difficult-to-define noncriminal act. In any event, the House did little to support its assertion in Article I that the President “will remain a threat to national security and the Constitution if allowed to remain in office.”
As I concluded in the impeachment trial of President Clinton, I do not believe that the House has met its burden of showing that the President’s conduct – however flawed – warrants the extreme step of immediate removal from office. Nor does the record support the assertion by the House Managers that the President must not remain in office one moment longer, particularly given that the House delayed transmitting the Articles of Impeachment to the Senate for 33 days.
For all of the reasons I have discussed, I will vote to acquit on Article I.
Article II seeks to have the Senate convict the President based on a dispute over witnesses and documents between the legislative and executive branches. As a general principle, an objection or privilege asserted by one party cannot be deemed invalid – let alone impeachable – simply because the opposing party disagrees with it.
Before the House even authorized its impeachment inquiry, it issued 23 subpoenas to current and former Administration officials. When the House and the President could not reach an accommodation, the House failed to compel testimony and document production.
It withdrew a subpoena seeking testimony from Dr. Charles Kupperman, a national security aide to the President. And, it chose not to issue a subpoena to John Bolton, the former National Security Advisor whom the House has identified as the key witness.
At a minimum, the House should have pursued the full extent of its own remedies before bringing impeachment charges, including by seeking the assistance of a neutral third party – the Judicial Branch.
In making those choices, the House substituted its own political preference for speed over finality. The House Mangers described impeachment as a “last resort” for the Congress. In this case, however, the House chose to skip the basic steps of judicial adjudication and instead leapt straight to impeachment as a first resort.
Therefore, I will vote to acquit on Article II.
M_. President, the decision is not about whether you like or dislike this President – or agree with or oppose his policies – or approve or disapprove of his conduct in other circumstances. Rather, it is about whether the charges meet the very high Constitutional standard of “Treason, Bribery, or other High Crimes or Misdemeanors.”
It has been 230 years since George Washington first took the oath of office, and there are good reasons why during that entire time the Senate has never removed a President. Such a move would not only affect the sitting President but could have unpredictable and potentially adverse consequences for public confidence in our electoral process.
It is my view that, except when extraordinary circumstances require a different result, we should entrust to the people the most fundamental decision of a democracy, namely, who should lead their country.