There are two things on which serious people—a club from which Alan Dershowitz has resigned—agree with respect to impeachment. One is that no tenable standard of impeachment requires a president or other official to have committed a literal crime. Two is that the Senate is going to acquit President Trump. The question is how to navigate the latter certainty without establishing a precedent that upends the first one.
Herewith is a proposal: Before the inevitable acquittal occurs, Republicans could agree to support a resolution rejecting that first, preposterous, element of the Trump defense. In exchange, Democrats could agree not to force votes on subpoenas for John Bolton or other witnesses who would merely confirm what everyone already knows. That would put the Senate on record as saying it is acquitting the president for reasons other than his failure to commit an indictable offense.
Such a bargain would clarify the real question in the trial, which is not whether President Trump did what he is accused of—see “serious people,” supra—but rather whether it warrants his removal from office. More important, it would avoid a precedent that would likely neuter the power of impeachment for all time, or at least for all times in which the president has not shot someone in the middle of Fifth Avenue.
The trial memorandum Trump’s defense filed with the Senate last Monday shows how readily precedents become entitlements. Take, for example, the supposed requirement that the House vote to initiate an impeachment investigation.
This requirement does not exist in the Constitution, but previous impeachment inquiries have entailed such a vote—so these proceedings are alleged to be illegitimate for not having started with one.
Precedent is an admirable standard. The problem is that, with only two prior presidential impeachments behind us—separated by more than a century—the number of precedents is hardly sufficient to have established a pattern.
If precedent is the standard, then, the paucity of experience elevates the importance of any single impeachment. If the Senate allows the literal-crime defense to pass in silence, followed by an acquittal, future presidents will seize on it as proof that the principle has been established. That question is of more moment than whether or President Trump serves out his term—especially since his acquittal is inevitable anyway.
Meanwhile, Democrats have a plausible case for subpoenas, but the chances of those subpoenas adding substantially to our knowledge of the high crimes and misdemeanors of which the president actually stands accused is limited.
He did it.
That much is known.
Testimony from John Bolton, for example, would be dramatic. It might add more evidence to the case that President Trump withheld aid from Ukraine for political benefit, but that evidence is already ample. His testimony would not add substantially to the Senate’s ability to judge whether these offenses rise to the level of removal.
Bolton’s testimony, or that of other witnesses, might also make a vote to acquit more uncomfortable for some Republican senators. It would not make a two-thirds vote for conviction any likelier. The larger consequence of voting on subpoenas is to force Republicans to take a public stand against them, so that they may be held accountable for this on-the-record action at a later electoral date.
But there may be a way to trade this near-term accountability for Republican senators for an important historical precedent.
Thus the swap: one uncomfortable vote for another. Republicans agree, before acquittal, to back a resolution explicitly stating they are not doing so on the basis that President Trump did not commit an indictable crime. He might have, he might not have: The point is to put the Senate on record as rejecting the constitutional argument advanced by Trump’s defense. And in return, Democrats let them off the hook on a subpoena vote.
The swap is not ideal. Democrats would be trading away the absolute best case they can make in this impeachment for the sake of impeachment’s future as a constitutional mechanism. This means trading a short-term political advantage for longer-term constitutional health. And it would not be unreasonable to say that this is the equivalent of negotiating with a hostage-taker: Namely, Senate Republicans who refuse either to call witnesses or, like many of their Democratic colleagues, to try the case with an open mind. But the point of hostage negotiations is to get the hostage back. And the hostage in this case has become the impeachment power itself.
In other words, if America is going to weather not only this crisis, but the next one, then it may require the Democrats to put country over party.
That used to be a thing that politicians did.
It’s important to understand that the reason to preserve the authority for impeachment isn’t because the next president who is impeached will bow in deference to this proposed resolution. We should expect future presidents to make the same argument Trump is making now. The danger would be encasing that precedent in amber in the current case.
What matters in the future is less the actual use of impeachment down the road than the possibility of its use. Like nuclear deterrence, the weapon is only chastening if its use is plausible.
A precedent according to which the only offense deemed impeachable is the commission of a chargeable crime would vitiate the power of impeachment, perhaps permanently. It would send a signal to future presidents that there is no tether on their conduct between elections. That is the evil to be avoided.
We are told that history is watching and that this is a moment for statesmanship. Part of statesmanship is realizing where matters stand. Where matters stand is acquittal.
Whether one likes that or not, the basis on which it is determined matters. There is no scenario for conviction. But there is a scenario for neutering impeachment in the process of acquittal. The statesmanlike move is to leverage what power Democrats have—and that centers around votes on witnesses and documents—to assure that impeachment endures as a viable constitutional mechanism.