In 2002, Tom Petty and the Heartbreakers released a song called “The Last DJ,” which was a lamentation on the centralization of commercial radio stations and the elimination of independent voices that had the power to discover, launch—and yes, even destroy—a new band or song. Instead, what Petty and the band saw was a once powerful voice in the creative space that was rock n’ roll radio being muted in favor of a corporately fashionable, advertising friendly radio that played songs not because they were “good” or even musically/lyrically interesting, but because they sold well. In short, Petty’s lyrics lament the slow demise of an institution in favor of “mediocrity” and the almighty dollar.
As I’ve watched and read about the Senate trial of President Trump these past couple of weeks, it has been Petty’s song that I haven’t been able to stop from playing in my head. What he was hearing on the radio, is what I have been watching on my television and reading in the news. The slow and painful demise of a once great institution, Congress. While Petty’s loss is itself lamentable (I haven’t listened to rock radio in at least 25 years), mine has the possibility to be catastrophic for our system of government and our Constitutional order.
For the purposes of this post, I ask that you the reader strip away the politics. It doesn’t matter whether the Senate called witnesses or not, whether you think President Trump committed or didn’t commit acts worthy of impeachment and removal, what I want to talk about is bigger than one trial or one President, it’s what this one trial and one President may mean to the entire foundation of our constitutional republic.
The short-term consequences of the Senate trial were a foregone conclusion—Trump was always going to be acquitted by the Senate—but the long-term ramifications for our constitutional structure have yet to be written and I fear they are headed in a direction for which we will not recover. If I’ve taken away anything from this process it is that there appear to be two fault lines in American politics that if not condemned, countermanded, and reversed immediately will be devastating for the future of the country. I’ll take each in turn:
- Trump Has Solidified the Presidency as the Center of Our System of Government
Since the Constitutional Convention in 1787, there has always been a debate over which branch of the federal government was most powerful. Some, like Madison and others, thought that Congress should and would emerge as the most powerful branch given its proximity to the people and the scope of powers granted to it by the Constitution itself. And for periods of our history that has been the case. Others, like Hamilton, believed in a strong and powerful President wielding executive power and dominating the American political landscape. This has also proven to be true, especially in times of war and crisis; for example, Lincoln during the Civil War, FDR during WWII, George W. Bush after 9/11. In my opinion, this debate was never intended to be resolved, rather it was to ebb and flow as events unfolded and the country required different political solutions to different situations.
What both sides of this debate have in common is that they have always respected and revered the checks that the Constitution provides both branches to keep them in balance. The President can check the Congress by using the veto power to prevent legislation from becoming law, make use of the appointment power to place in powerful positions people he trusts to faithfully execute the laws enacted by Congress in a manner consistent with his vision and beliefs, and use the pardon power to check a runaway Judiciary from imposing unjust and unfair punishments for transgressions of federal law. Congress on the other hand has the power of the purse, by which it can constrain and control the expenditure of funds by the President and his minions. And critically, Congress has the sole power of impeachment and removal, carefully divided between the House (the sole power to impeach) and Senate (the sole power to try and remove), which was to serve as the ultimate check on the power of both the President and the Judiciary.
What we have seen over the last 20+ years is a slow and steady erosion of the constraints on the President and the Executive Branch generally. No longer, for example, is Congress’s “power of the purse” an adequate check on the President. Now, part of this is the fault of Congress, who has increasingly and consistently declined to utilize this power effectively. Congress’s internal process for appropriating money has completely broken down and, consequently, it can only take two tacks, either it enacts massive government-wide (known as omnibus) appropriations bills after careful negotiation with the President to ensure that no veto will follow, or it shuts the government down in a game of chicken with the President that only causes harm to the millions of people and programs dependent on federal funds for salaries and other basic needs and the national economy, which drags when its government fails to perform its most elementary of tasks. Either way, the President is in more control of this process than is the Congress and the result is an eroding of the guardrail between the branches envisioned by the drafters of the Constitution.
Now, with the second acquittal of a President in 21 years from impeachment allegations that were arguably weak (though technically/legally, the case against Trump was stronger), it appears that this power too has been neutered. Reasonable people can debate whether Presidents Clinton and Trump deserved to be removed from office, but what has changed in the last 21 years is that now it appears that there is no longer consensus about whether President Trump should even have been impeached by the House. The notion being floated by many is that impeachment is a tool that is only to be used in the direst of circumstances. However, when pressed to describe the precise circumstances in which impeachment is appropriate, the answer is frequently unsatisfactory. Most fall back on a very narrow reading of the Constitution’s text “treason, bribery, and other high crimes and misdemeanors,” without really understanding the origin and nature of that language. Others insist on the demonstration of an actual criminal act that could be indicted and proven “beyond a reasonable doubt” before a jury in a criminal court. While both these positions are useful if defending a President accused of impeachable offenses, they have the effect of reducing the power that impeachment has as a constraint on Presidential power. In other words, there is a lot of wrong that a President could do before he or she commits treason, bribery, a high crime or misdemeanor, or even commits a federal crime as defined in federal law (Title 18 of the US Code).
To take but one example, assume that a President in a prior life was the inventor and head of a major drug company. Further assume that the President, even having complied with all ethics and other disclosure laws, retains a strong and vested financial interest in the company and its product. Assume even further that the President becomes convinced that an international competitor is a threat to that product and business. Now, if the President uses official actions, say executive orders to the Department of Health and Human Services and/or FDA, or other official resources (criminal investigations, border searches, tariffs) to thwart that competitor’s standing in the market and even goes so far as to cause the competitor company to fail. Problem? Impeachable? Go one further and assume that it is subsequently discovered that the President’s information was false and that the actions were all taken exclusively to preserve his sizeable investment and personal fortune. No crime (felony or misdemeanor) was committed, the actions were not treasonous, there was no bribe, but the President clearly used official resources for personal gain. Should the Congress impeach and remove? According to one, not unreasonable reading of precedent, the answer is no. If that’s right, then what kind of a constraint, if any, is the impeachment power? If a hypothetical President can mobilize the entire executive apparatus to thwart a single company for personal gain without risk of his position, what exactly does impeachment prevent a President from doing?
It may be that the Framers intended a very strong President, but they did not intend an unchecked one. The Presidency has become the undisputed center of the American political system. More politicians aspire to be President than Speaker of the House, a Member of the Senate, a cabinet Secretary, and certainly a federal judge or Justice. For most people, the only government official (high-ranking or otherwise) they can name is the President. He is the most recognizable and arguably powerful person in the country, if not the world. However, if the current Constitutional constraints on the job are ineffective, we need to consider creating others. A President unconstrained by any system is a potentially a tyrant, and that is antithetical to the American way of government.
- The Current Impeachment Shows the Folly of the 17th Amendment
My disdain for the 17th Amendment (go ahead and Google it, I’ll wait)—that’s right, direct election of Senators by popular vote—has long been a personal hobby horse. I have argued many times that it has had two disastrous effects: First, it has destroyed the role that the Senate was supposed to play in our vertical federal system. By that I mean that it prevents the Senate from representing the States, as was originally intended. Second, it has dramatically weakened the role of State Legislatures, depriving them of one the main functions they were supposed to play in the American political system. Case and point, how many readers can name their State Senator? Game, set, match, Glaucon.
But what does this have to do with impeachment? Good question. Here’s my theory. If I’m correct about the effects of the 17th Amendment as described above then you must ask, if the States and State Legislature are the losers, who was the winner? My answer: The President. By turning the Senate into a popularity contest and steppingstone to the Presidency, there is now zero institutional incentive for the Senate to do anything than what we just saw it do; namely, run a procedurally deficient impeachment trial where the outcome was predetermined along political party lines.
Let me put it another way, agree or disagree with the outcome, from a purely Constitutional and institutional prospective the House acted precisely in the way it was designed. As the chamber of Congress closest to the people, it did what most of the people believed correct, it impeached the President of the United States. Sure, it did so on partisan grounds, but the House is a partisan political body that breaks down exactly the way the country currently breaks down, with a small majority supporting the opposite political party than the President. Under the original Constitutional design, the Senate would be a reflection not of the popular will in the States, but of the will of the several States as determined by their State Legislatures, and likely would be constituted differently. In other words, the Senate might be less political party partisan and more institutionally driven. And even if its partisan political makeup were the same—53 Republicans, 45 Democrats, and 2 Independents—its incentives would be different, because the Senators would be answering to a different constituency, specifically, the States themselves. I believe the result of this might have resulted in a more legitimate, less Presidential friendly, process. Would this have changed the ultimate outcome? I have no idea, but it would have been far better for the separation of powers and for the Constitution.