With 20-20 hindsight, history has judged that the Senate voted wisely, even if along partisan lines, in acquitting President Andrew Johnson and President Bill Clinton in their impeachment trials in 1868 and 1999. History, however, is likely to render a different verdict on the Senate's party-line acquittal of President Trump last week [Feb. 5] on the two articles of impeachment brought by the House of Representatives: abuse of office and obstruction of Congress.
As precedent, the Senate's one-vote acquittal of Johnson stands for the proposition that the president cannot be impeached for disregarding a constitutionally dubious law that would interfere with his constitutional power to appoint and remove members of his cabinet. Clinton's more conclusive acquittal, with less than a majority of senators voting to convict and remove, stands for the proposition that a president cannot be removed for personal misconduct unrelated to his conduct in office.
Trump's acquittal stands instead for the unsettling propositions that a president can get away with abuse of office and obstruction of Congress as long as he retains and cultivates the support of senators of his party. Days before the anticipated vote, presidential historian Tim Naftali warned in an appearance on CNN [Feb. 2] that he feared the legacy of the Trump impeachment would be "that the president can do what he wants . . . because he will pay no price."
Naftali, celebrated for insisting on a historically accurate depiction of the Watergate scandals when he was in charge of the Nixon presidential library in California, subtly underlined his warning by consciously channeling Trump's infamous distortion of the Constitution's grant of presidential power. "Article II gives me the power to do whatever I want," Trump declared in July 2019, with the House's impeachment inquiry not yet underway.
Other historians were similarly downcast in comments on the likely legacy of Trump's anticipated acquittal published in an article earlier the same day in The Washington Post. "It's a dispiriting moment," historian Jon Meacham commented. "The president’s party, instead of being a check on an individual’s impulses and ambitions, has become an instrument of them.”
Trump and his legal team encouraged Republican senators to stay in line with a combination of political hardball and legal malarkey. In the days before the Senate was to vote on the pivotal issue of calling more witnesses, a White House confidant was quoted by CBS News as having sent an unveiled threat. "Vote against the president," the unnamed source was quoted as saying, " and your head will be on a pike."
Republicans generally disputed the account after the House Democrats' lead manager, Adam Schiff, quoted it during the Senate floor debate [Jan. 24]. But a Democratic senator, Ohio's Sherrod Brown, later described fear as a major motivation for Republican representatives and senators alike in opposing impeaching or convicting Trump.
"They are afraid that Mr. Trump might give them a nickname like Low Energy Jeb' and 'Lyin’ Ted,'or that he might tweet about their disloyalty," Brown wrote in an <op-ed in The New York Times [Feb. 5]. "Or — worst of all — that he might come to their state to campaign against them in the Republican primary."
Trump and his lawyers cultivated the GOP senators' support not only with a threatened stick but also with actual carrots in the form of financial assistance for senators facing re-election in November. Trump formed a joint fundraising committee with Georgia's David Perdue, for example, and was offering fundraising help to others, according to a report by the campaign finance watchdog group Open Secrets.
The report noted that several GOP senators had also been received campaign contributions in years past from members of Trump's legal defense team. Kenneth Starr, for example, gave South Carolina's Lindsey Graham $2,700 in 2017; Jay Sekulow had contributed over the years to several others, including Texas's Ted Cruz and South Dakota's John Thune.
The lawyers played a more important role, however, with hour after hour of nit-picking and pettifoggery. White House counsel Pat Cipollone and his deputy, Patrick Philbin, quibbled about some of the events in Trump's attempt to pressure the new Ukrainian president to dig up dirt on the Bidens but failed to challenge the essential account in the House's abuse-of-office article against the president.
More troublingly, Alan Dershowitz, professor emeritus at Harvard Law School, gave senators legal rationalizations for voting to acquit Trump by telling them that impeachment requires proof of a federal statutory crime. That represented a change of position from his stance during the Clinton impeachment two decades earlier — based, he said, on additional research.
Dershowitz also made the truly astonishing claim that the president could solicit an actual quid pro quo with impunity if he thought it would advance his re-election. "[I]if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment," Dershowitz said in an argument that drew nothing but scorn from other legal experts.
The Republican senators who voted for acquittal in near lockstep will bear the weight through history of accepting that argument and licensing what several of them acknowledged as Trump's "improper" conduct. As the lone Republican to break ranks, Utah's Mitt Romney, the party's presidential nominee in 2012, actually invoked history in an anguished speech explaining his decision. To ignore the evidence for a partisan end, he said, would "expose my character to history's rebuke . . . "
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