You know something is wrong with the impeachment rule when Israel and Nazi show trials are injected into the debate.
It is arguably the most tasteless and irrelevant question posed last Friday by Kevin Cramer, North Dakota’s junior senator, to impeachment managers: “Given the allegations of the House Manager that President Trump has tolerated anti-Semitic rhetoric, has there been a more pro-Israel president than President Trump?”
Then news emerged that Patricia Bast Lyman, a member of the Republican National Committee posted this comment on Facebook: “At least some of those tried by the Nazis may been actual criminals, unlike the current debacle.”
The thought nagged at me when last week’s impeachment trial began that this proceeding, any impeachment trial, does not work in the real world. Some predicted, and most of us feared, that Democratic House members who presented two cases against Trump in consecutive years would not convince two-thirds of the Senate to vote to convict and remove that now-private citizen from Palm Beach.
A single Republican, Sen. Mitt Romney of Utah, voted to convict Trump in his first impeachment trial, and this past Saturday he was joined by six other Republican senators who were persuaded that the former president incited hundreds of thugs to raid the Capitol building on Jan. 6 where they murdered a police officer, injured many others, terrorized Vice President Mike Pence and most members of Congress, vandalized the facility and made off with sensitive materials. All to prevent President Biden’s certification as president.
The Constitution requires a two-thirds vote for conviction, and the House impeachment managers fell 10 short of that number – even if a great many GOP senators openly accepted this accusation. Dissenters mainly claimed that the second trial was unconstitutional because a former president cannot be impeached. Even so, Democrats sought removal from office partly to take a post-conviction vote barring this private citizen from running for president again.
A criminal prosecution in real time would have determined conclusively if said private citizen violated the law. Perhaps the Department of Justice should be required to prosecute a president while s/he is in office if there is strong enough evidence.
Two impeachment acquittals grew from frivolous accusations – in 1868, after President Andrew Johnson dismissed Edwin Stanton as secretary of war, and in 1999 over President Clinton’s lies about his sex life, on Abraham Lincoln’s birthday.
The only impeachment process that worked was that of Richard Nixon’s obstruction of justice in the Watergate burglary. It worked so well in the 1974 case that Nixon resigned before the House could take a full vote. The Judiciary Committee had already voted to impeach with some Republican support.
Congress took the Nixon matter seriously, but the other four impeachments were mired in politics. The impeachment rules make it almost inevitable to politicize impeachment cases. The decisions are too subjective. They do not need to rely on rationale or evidence to convict or acquit – unlike a criminal investigation which requires proof beyond a reasonable doubt.
The two Jewish references compounded my doubts about the impeachment process. On Friday, I was barely paying attention when I heard Cramer’s question as to whether Trump is America’s most “pro-Israel president.”
Trump attorney Michael van der Veen declined to respond to the question, to his credit, and instead berated lead impeachment manager Jamie Raskin for what sounded like a personal dig.
Cramer’s question was apparently a tit-for-tat ploy after Democratic Sen. Jacky Rosen of Nevada questioned if our private citizen encouraged the “anti-Semitic Proud Boys” by tolerating their rhetoric.
Presumably Rosen specified anti-Semitism because she is Jewish, and she was once president of a Las Vegas synagogue. Rep. Stacey Plaskett of the Virgin Islands, one of nine impeachment managers, responded in the affirmative, pointing out that the Proud Boys expressed prejudice against a number of groups.
Next, Patricia Bast Lyman, a member of the Republican National Committee from Virginia, posted the comment comparing the impeachment trial to Nazi show trials in which Nazi prosecutors tried people accused of political offenses. Virtually all were convicted, and most were sentenced to death.
The Jewish Telegraphic Agency reported that after GOP leaders assailed Lyman for this post, she deleted it and apologized, stating, “I am horrified that my comment would be seen as diminishing the memory of those millions who perished solely because they were Jewish. That is not in my heart, has never been and never will be. I am truly sorry that anyone for a moment believed there was any ill intent on my part.”
All three – Sens. Cramer and Rosen and Lyman – were exploiting American Jews. Someone please explain how the question of which party is the most anti-Semitic has anything to do with that private citizen’s impeachment. At least Lyman apologized.
Impeachment has its uses, but reaching the two-thirds threshold has yet to be one of them. The framers of the Constitution must have assumed that mostly wise and honorable people would represent their neighbors in Congress. They would be wrong.
At the very least, the impeachment clause needs to be revamped – probably to require a majority in the Senate to convict. That is still a matter of judgment. Johnson would have been forced to leave office and Clinton would have come close. Revising the clause would require a constitutional amendment, an extremely difficult task.
And what price would our private citizen pay for endangering lives and perhaps conspiring to kill a police officer? He would retire and do what he pleases.
The only way to contend with a president accused of violating the law is to investigate and prosecute him through the criminal justice system. That could happen for the Capitol siege and other suspected crimes, some of which originated with his 2016 campaign.
Not so much after he leaves office but when suspicion arises – while he is in office. The current policy of the Department of Justice is to hold off on prosecuting a president until he leaves office. Prosecutions are most effective when the case is fresh. As time moves on, witnesses could die or be compromised. The administration has more opportunity to conceal evidence.
Unlike impeachment, a criminal investigation demands accuracy to prove a case, and the Senate cannot sentence a president to prison when warranted, like a judge can.
One cannot depend on DOJ to alter its policy since it is technically controlled by the president, and the next president can always return to the existing policy. Congress would need to pass legislation that sets up a system requiring DOJ to prosecute when it deems it appropriate.
If a criminal prosecution interferes with his duties, the president can always step aside until the case is resolved. What else is a vice president for?