24 January 2020


The Atlantic published a superb, thought-provoking piece yesterday (link here) with the title "An Impeachment Trial Without Witnesses Would Be Unconstitutional." The deck headline beneath that reads "and a resulting acquittal verdict would present Americans with something far worse than a constitutional crisis."

The author, an attorney and former prosecutor, argues that without witnesses, the Senate trial is not a real trial as mandated by the Constitution and thus is unconstitutional.

"In December, Donald Trump became only the third U.S. president to be impeached," he writes. "If Senate Majority Leader Mitch McConnell succeeds in his intention to prevent any witnesses from testifying, Trump will become the first president to be acquitted by an unconstitutional impeachment process."

As for why, the author is guided by a 1993 Supreme Court concurring opinion that stressed "the impeachment proceeding must be in the nature of a judicial trial, and ... 'a procedure that could not be deemed a trial by reasonable judges' would be unconstitutional."

This is a pretty solid argument, with the slight caveat that it's based on a concurring court opinion but not the primary one. It certainly seems like it could be an issue that might be litigated before the high court should witnesses be barred from the ongoing Senate trial.

The author concludes with this paragraph: "If on the day the Senate returns its verdict, history records the failure to convict the president following a trial without witnesses, that will be the day the rule of law dies in America. The courts will remain open for business. Congress will be in session. Citizens will still be able to vote. And a free press will continue to launch withering attacks on President Trump. But the American people will no longer be living in a constitutional democracy."

I don't know if I agree here with this. America has survived egregious unconstitutional acts by previous Presidents. It will survive this one as well, as long as we make certain this is a travesty that cannot happen again.

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