THE TRUMP IMPEACHMENTS: LESSONS FOR THE CONSTITUTION, PRESIDENTS, CONGRESS, JUSTICE, LAWYERS, AND THE PUBLIC.

• Author: Gerhardt, Michael J.

TABLE OF CONTENTS INTRODUCTION 1312 I. IMPEACHMENT'S IMPACT ON PRESIDENTIAL REPUTATIONS AND LEGACIES 1316 II. THE NONJUDICIAL PRECEDENTS ESTABLISHED IN THE TWO TRUMP IMPEACHMENTS AND TRIALS 1318 III. COORDINATING CONSTITUTIONAL MECHANISMS FOR HOLDING PRESIDENTS ACCOUNTABLE FOR THEIR MISCONDUCT IN OFFICE 1323 IV. TAKING LEGAL ETHICS SERIOUSLY 1331 CONCLUSION: WHERE TO FROM HERE? 1342 INTRODUCTION

For most Americans, the two impeachment efforts directed against Donald Trump were abject failures. Though a slim majority of the public supported Trump's removal in the first impeachment effort, and a larger majority supported convicting him in the second, both trials ended with his acquittal. (1) The first trial concluded on February 5, 2020, (2) and the second trial finished a little more than a year later on February 13, 2021. (3) In both proceedings, (4) there was evidence that Trump had engaged in serious misconduct: in the first, abusing his power as President to coerce Ukraine's president to announce (unfounded) criminal investigations into then-presidential candidate Joseph Biden and obstructing Congress by refusing to comply with nearly a dozen legislative subpoenas; and in the second, inciting an insurrection by stoking supporters to storm Congress on January 6, 2021. (5) For many people, the two acquittals were evidence that the federal impeachment process is broken. (6) The constitutional threshold for conviction, requiring at least two-thirds of senators present to vote to convict, (7) was practically impossible to meet in both trials given that in each, the Republican majority in the Senate largely stuck together in ignoring or discounting evidence of presidential misconduct and in opposing conviction. (8) For Trump's base, it was a failure of a different sort--the failure of the hateful and hate-filled Democrats to pervert the process to their own nefarious ends; (9) and, for many lawyers, the Senate erred in not conducting the proceedings like real trials, overseen by the Chief Justice who might have insisted on something that more closely resembled the rigorous procedures and evidentiary rules that a real trial or judicial proceeding would follow. (10)

Presidential impeachments are, however, never just about whether the nation's chief executive did something so wrong that he should be ousted from office prematurely. They test not just the President on trial but also the Senate, the Constitution, Presidents, members of Congress, witnesses, the lawyers on each side, and the American people. Far too many viewers--and participants--had to be retaught the basic elements and purposes of impeachments, includingwhy senators--sitting as both jurors and judges--comprise the unique court of impeachment under our Constitution. The Framers vested senators with the ultimate power to convict, remove, and disqualify Presidents for their misconduct in office because they expected that senators had the special qualities, numbers, and temperament to rise to the occasion, to not be easily swayed by the whims of their constituents, and to be held politically accountable in their decisions. (11) In Federalist 65, Alexander Hamilton explained that senators were the ideal arbiters of whether an impeached President or other high-ranking official should be convicted because the Senate would be a "tribunal sufficiently dignified" and "sufficiently independent" of the President or factional interests aligned with the subject of impeachment. (12) Further, Hamilton explained, because the entire Senate was the trial body, it "could never be tied down by such strict rules, either in the delineation of the offense by the prosecutors or in the construction of it by the judges," as in common law trials. (13)

In the second Senate trial, (14) there was no question of curtailing a President's term, as there had been in the first trial, for the obvious reason that Mr. Trump was no longer in office when the second trial began. To no impeachment scholar's surprise, impeachment is generally designed to undo presidential elections--that is one of the major reasons for impeachment: American Presidents take their job based on the condition that they are subject to impeachment and conviction if they commit "[t]reason, [b]ribery, or other high [c]rimes and [m]isdemeanors." (15) Whether a President's misconduct merits "removal" and "disqualification"--the only two remedies the Constitution recognizes as applying to convicted officials (16)--can be as hard to determine as any issue a member of Congress must address, undoubtedly made harder if the President is from their own political party. The Framers, who distrusted popular majorities, would have frowned on public pressure being a factor in impeachment and conviction decision-making. (17) However, the ratification of the Seventeenth Amendment, which made senators directly elected by the people of their respective states, (18) makes such pressure relevant and inevitable. In order to work, the process requires members of Congress to have the wisdom and the courage to do not the expedient thing but the right thing--placing the best interests of the nation and the Constitution above rank partisanship.

Given the fact that I have studied, testified in, analyzed, commented, and consulted on federal impeachments for more than thirty years, I am deeply invested in figuring out whether impeachment retains any utility or can still fulfill its original function of holding Presidents accountable for their serious misconduct in office. This Article suggests that the answers to these questions are in the affirmative. In rendering my judgment, I suggest that leaders, lawyers, and voters should acknowledge and come to terms with several major lessons. As explained below, these takeaways are recognizing (1) the practical limits of the impeachment and removal powers, the exercise of which can leave Presidents damaged and with indelible stains on their legacies (as it did for Andrew Johnson, Richard Nixon, Bill Clinton, and Donald Trump); (2) the fact that "the unitary theory of the executive" (holding that Presidents ought to be in control of the exercise of all executive power), long popular with conservative Republicans and constitutionalists, (19) is a dangerous weapon to use to undermine congressional powers; (3) how the second Senate trial reaffirmed the previously well-established precedent of the Senate's conducting impeachment trials for impeached officials who were no longer in office; (4) how the constitutional mechanisms for holding Presidents accountable for their misconduct in office, including the previously overlooked Section 3 of the Fourteenth Amendment, (20) fit together; (5) the utility of lawyers and judges in defending the integrity of the electoral process; and (6) the need for uniformly vigorous enforcement of the rules of professional responsibility to redress and curb lawyerly misconduct in public service, including impeachment proceedings. In short, a critical examination of Trump's two trials enriches our understanding of the viability of various constitutional mechanisms designed to hold Presidents accountable for serious misconduct in office, to uphold the rule of law and its relevance for the American people. and to implement appropriate checks on lawyerly misconduct.

1. IMPEACHMENT'S IMPACT ON PRESIDENTIAL REPUTATIONS AND LEGACIES

   The first lesson that Trump's trials teach is that the impeachment process is broken, as many commentators have said, (21) but it is not as broken as many of us think. True, the Constitution's requirement that a conviction be by a vote of at least two-thirds of the senators present is practically impossible to meet. (22) The nation has had four presidential impeachment trials and four acquittals: Andrew Johnson (1868), Bill Clinton (1998), Donald Trump (2020), and Donald Trump (2021). (23) Only the first of these--for President Andrew Johnson--came anywhere close to the threshold for conviction, falling but one vote short of the requisite two-thirds required for conviction and removal. (24) The practical impossibility of meeting that threshold becomes even more certain given the rise of rigid party fidelity--allegiance to political party is often stronger than allegiance to the institution of the Senate--and protecting its prerogatives--or to the Constitution. For many Americans who had held Congress in disdain before each of the impeachment proceedings against President Trump, (25) the outcome merely reinforced their sour opinion of the institution. And for those who think that the impeachment trial was a bust because it did not mimic civil or criminal proceedings and lacked a presiding judge to guide the proceedings, Trump's two acquittals surely reinforced their views that the whole episode was a waste of time because it lacked the seriousness of purpose they equate with judicial proceedings.

   Likely nothing can be said that will make people disdainful of the process alter their opinions, but there are several numbers that cannot be ignored. The first is that although fifty-seven votes for conviction in the second Senate impeachment trial fell ten votes short of the number the Constitution requires for conviction, fiftyseven votes for conviction represents the largest vote for conviction in any presidential impeachment trial in American history. (26) Perhaps more importantly, that number included seven Republicans, the most senators ever to vote to convict a President from their own party and, in doing so, risk the censure of their party. (27) That number is impressive but less so than in 1974, when Richard Nixon appeared likely to have been impeached and convicted had he been tried in the Senate, which, at the time, had fifty-six Democrats, one Independent (caucused with Democrats), one Conservative (caucused with Republicans), and forty-two Republicans. (28) Nonetheless, if we broaden our view of events in 2021, there were more than...