Last November, I encouraged readers to approach the national challenge of impeachment with thoughtfulness, confidence, purpose and empathy. Unfortunately, most Americans appear to have approached it with ranting and raving in either agreement or disagreement. But we still have time to give the Senate trial the seriousness it deserves.
This week, we have had the unique opportunity to watch the impeachment trial of President Donald Trump unfold in the U.S. Senate. This is the third time in our country's history that the impeachment of a sitting president has gone to a Senate trial. President Andrew Johnson was impeached by the House of Representatives in 1868 with a bipartisan vote (122 Republicans, 4 Democrats). In 1998, the House voted in favor of impeachment of President Bill Clinton with a vote of 258 (31 Democrats and 227 Republicans).
This impeachment is different: It is not bipartisan. The House of Representatives passed the two articles against Trump without a single Republican vote. Two Democrats voted against both articles, and another joined them and voted against the obstruction of justice charge. Rep. Tulsi Gabbard, D-Hawaii, voted "present" for both.
Article 2, Section 4 of the Constitution declares, "The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." It offers no clear definition of "high crimes and misdemeanors."
The process requires the House of Representatives to pass the articles of impeachment and the Senate to hold the trial. The chief justice of the Supreme Court oversees the process, and the sitting senators serve as the jury. This trial is designed to remove our duly elected president from office. To do this, at least two-thirds of the 100 senators have to vote to convict based on the articles of impeachment.
This is perhaps the most serious process that a senator will take part in as part of his or her official duties.
Last year, I was picked to serve on a jury for a criminal trial in Fulton County, Georgia. It was this experience that helped me understand the importance of having a jury trial, of understanding the law involved in the case and of weighing the evidence.
The jury deliberated for a few hours, and the vote was split. Once we walked through the evidence, those who had voted guilty realized that while they may have believed the defendant was guilty, they had not been given the evidence needed to justify a guilty verdict. We found the defendant not guilty. Our decision was based on facts and law -- not feelings. This is the way the Senate should decide Trump's fate.
In the trial, the senators can consider only the articles passed by the House, and they must deliberate based on constitutional law. Trump lawyer Alan Dershowitz's testimony on Monday laid out the argument that the charges themselves did not fit within our constitutional framework.
Dershowitz is a retired Harvard Law professor who voted for Hillary Clinton in 2016 and opposed President Bill Clinton's impeachment. Clearly, he is no Trump supporter. But he is a supporter of our constitutional law.
"(T)he Senate must determine whether abuse of power and obstruction of Congress are constitutionally authorized criteria for impeachment," Dershowitz stated. His argument was that the two articles passed are not constitutionally authorized criteria for impeachment. If these were allowed, Dershowitz argued, the president would be relegated to serve "at the pleasure of the legislature," as termed by James Madison, one of our Founding Fathers and our nation's fourth president.
This is what is so fascinating and important. While Congress does have the right to vote on articles, it is the Senate's duty to determine whether the articles passed by the House are constitutionally authorized.
If they are not, and if the accusations are too "vague and open-ended and noncriminal," as Dershowitz argues they are, then senators of all parties, no matter how they may feel about Trump, must vote against the articles of impeachment.
Dershowitz listed 19 presidents who had been accused of abuse of power throughout our history. "Abuse of power is a political weapon, and it should be leveled against political opponents." he argued. "Let the public decide."
His point is that if the Democrats believe Trump is abusing his power, they should defeat him on Election Day, not through a politically charged impeachment process. There is a reason our founders set the bar high for impeachment. The president does not serve at the pleasure of the legislature, nor should he.