Mitch
McConnell and the other 99 senators must serve the institution and the
Constitution that established it, not President Trump.
Senate Majority Leader Mitch McConnell in the Strom Thurmond room in The U.S. Capitol buildingCredit...Damon Winter/The New York Times
By
Mr. Leahy is a Democratic senator from Vermont.
When
the Senate ultimately convenes to consider whether to remove the
president from office, for just the third time in its history, it will
convene not as a legislative body, but as a court of impeachment. And it
will not just be President Trump on trial. The Senate — and indeed,
truth itself — will stand trial.
Senators
serve as a unique combination of judge and juror during an impeachment
trial. Sworn in by the chief justice of the United States, senators take
a special oath to do “impartial justice according to the Constitution
and laws.” This is an oath I have taken several times. First elected to
the Senate in 1974, in the wake of Watergate, I have served on six
impeachment trials since then — five judges and one president. I take
this oath extraordinarily seriously. And it’s one I fear the Senate is
on the verge of abandoning.
Senator
Lindsey Graham has admitted that he’s “not trying to pretend to be a
fair juror here.” The Senate majority leader, Mitch McConnell, vowing a
quick acquittal, boasted that he is “not an impartial juror” and pledged
that “there will be no difference between the president’s position and
our position as to how to handle this.”
This
is tantamount to a criminal defendant being allowed to set the rules
for his own trial, while the judge and jury promise him a quick
acquittal. That is a far cry from the “impartial justice” required by
our oaths and the Constitution.
Given
this, I understand why the House speaker, Nancy Pelosi, did not rush to
send the Articles of Impeachment to the Senate before the holiday
recess. A sham trial is in no one’s interest. A choreographed acquittal
exonerates no one, serves only to deepen rifts within the country and
eviscerates the Senate’s constitutional role. That is why the advice I
shared with my fellow senators last week was to go home for the
holidays, take a deep breath, and come back and conduct the trial as the
Senate should — and as the Constitution requires.
How
the Senate conducts the trial will be up to 51 senators, not simply one
or two. While the chief justice presides, the duration and scope of the
trial, including whether to call witnesses or compel document
production, will be decided by a simple majority of the Senate. It is my
hope that those decisions will be agreed to by all senators.
For
example, although the House impeachment of President Bill Clinton was
marked by deep partisan acrimony, the Senate came together, 100 to 0, to
approve a resolution outlining trial procedures. I said then that we
had “to preserve the Senate and give the country a sense of
credibility.” Asked at the time by this newspaper about grumblings from
the White House, I made it clear that it is not the Senate’s role to
defend either the president or the House.
There was a sense then, shared even by Senator McConnell, who first came to the Senate in 1985, that the Senate itself was on trial. That is even truer today.
The House has accumulated
significant evidence that Mr. Trump used his office, and leveraged
congressionally appropriated foreign security assistance, for his
personal political benefit by attempting to coerce Ukraine, a foreign
ally facing Russian aggression, to announce an investigation into a
domestic political rival.
The
trial is the president’s opportunity to present a full-throated
defense. There are many documents that could shed additional light on
the president’s actions and several witnesses who have yet to testify.
If exculpatory, I would expect the White House to welcome the production
of the documents and urge the participation of the witnesses. They
include the acting chief of staff, Mick Mulvaney, who publicly
acknowledged that aid to Ukraine was tied to the prospect of
investigations; the former national security adviser John Bolton, who
described the president’s advisers’ attempts to compel Ukraine to
intervene in our domestic affairs as “a drug deal,” and the senior White
House budget official, Michael Duffey, who — we learned over the weekend — quietly ordered the Pentagon to freeze aid to Ukraine roughly 90 minutes after Mr. Trump asked the Ukrainian president for a “favor” on July 25th.
But
so far, the president has directed these and other witnesses not to
cooperate, and key documents have been withheld. That should change when
the Senate holds a trial. During the Clinton trial, Senate Republicans
passed a second resolution to call specific witnesses — even though
those witnesses had previously testified extensively. Today, Mr. Trump
is blocking critical witnesses from testifying at all.
The Senate should reject such stonewalling. It should not be complicit in a cover-up. We deserve to have the full story.
Nor should the Senate be complicit in promoting fact-free distractions and distortions. The president and some of his defenders have embraced objectively false and misleading defenses in the face of the House’s substantial evidence, including promoting a baseless theory that Ukraine interfered in the 2016 election. Even the president’s own national security advisers dismissed this theory as “completely debunked” and “a fictional narrative” that was “propagated by Russian security services.” The longer we permit cynically derived conspiracy theories to be equated with actual facts — with the truth — the more perilous the state of our republic.
How the Senate handles the coming trial will shape both the presidency and our constitutional system of checks and balances for decades, long after Mr. Trump leaves office. Will the Senate allow the president to abuse his public office to pursue wholly personal gains? Will the Senate permit the coercion of foreign governments to interfere in our domestic elections? Will the Senate enable the unprecedented, wholesale disregard of lawful congressional subpoenas to cover up the truth? Will the Senate make this the new norm?
I would not suggest to any senator that his or her oath requires at this time a specific verdict. Whether allegations are proven at trial is an entirely separate matter. But I strongly believe that our oath requires that all senators behave impartially and support a fair trial, one that places the pursuit of truth above fealty to this or any other president.
After vigorous debate, the framers included the power of impeachment in the Constitution for a reason. Presidents are not kings. Nor are they above the law. They can be removed for high crimes or misdemeanors, which means, according to Alexander Hamilton, an “abuse or violation of some public trust.”
The
Senate has a job to do. And it’s not to rig the trial in favor of — or
against — President Trump. Our job is to follow the facts and abide by
the Constitution. An acquittal based on anything less would hardly be an
acquittal at all.
Patrick Leahy (@SenatorLeahy), a Democratic senator from Vermont, is the vice chairman of the Appropriations Committee and a leading member of the Senate Judiciary Committee.
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