Now that Speaker Nancy Pelosi has allowed the House to transmit the Articles of Impeachment to the Senate, the question is not if President Trump will be removed from office but whether there will be a Senate impeachment hearing or Senate impeachment trial.
As the Senate impeachment proceedings begin the distinction between an impeachment hearing and an impeachment trial is very important. It’s important because it will determine how the misconduct of a President will be dealt with in the 21st century and beyond. The general consensus among most legal scholars and the opinion of the Department of Justice is that a sitting President cannot be prosecuted in a criminal court of law.
This is because the founding father’s intent was that any questions about a President’s criminal misconduct or removal from office are a political matter, not a legal matter. In other words, the only entities that can constitutionally deal with the misconduct of a sitting President are the United States House and Senate and not a court of law. If the House concludes that a sitting President is guilty of misconduct it has 2 choices, it can vote to condemn the misconduct by voting to censure the President or recommend to the Senate removal from office by voting to impeach the President. Only the Senate can remove a President from office by two-thirds of the Senators voting guilty after a Senate impeachment trial.
The constitutional power of a House and Senate impeachment is the only thing that prevents a sitting President from being unaccountable to anyone. The absence of a House and Senate impeachment would mean a President would be a dictator beyond the reach of any law to restrain his or her power. This fact alone is why how the Senate decides to handle President Trump’s Senate impeachment will determine the future of American democracy.
Contrary to the opinion of Democrats, the future of America’s democracy does not hinge on whether or not the Senate votes to remove President Trump from office, the future of America’s democracy depends on whether or not the Senate chooses an impeachment hearing or an impeachment trial.
If the Senate chooses to have an impeachment hearing, all that will happen is a Senate judgment on what Republican Senate Majority Leader Mitch McConnell has said is the House’s incomplete factual record lacking firsthand fact witnesses. A Senate vote based on an impeachment hearing with no testimony from firsthand fact witnesses or all the relevant documentation sets a bad precedent for American democracy. It validates the practice of allowing the Senate to reach an impeachment judgment in any future impeachment trial by denying a President and American citizens a full examination of all the facts.
Under impeachment hearing circumstances, a not guilty verdict could mean the American people are stuck with a President who has potentially betrayed their trust. A guilty verdict could mean the high bar the founding fathers intended for removing a President from office by establishing the two-thirds Senate vote requirement would be lowered. Under impeachment trial circumstances, a totally different scenario takes place.
An impeachment trial allows the Senate jurors access to all available relevant information. This would include any related documents, first or second hand fact witness testimony, and any germane government report like the recent Government Accountability Office report which states that President Trump’s order to delay transmission of funds to Ukraine violated federal law. An impeachment trial allows access to these things regardless of whether or not the documents, the witness fact testimony or the government report is included in the Articles of Impeachment document transferred from the House to the Senate.
Both a guilty or not guilty vote at the end of a Senate impeachment trial is good for American democracy. Because at the end of the day the issue of a President’s removal from office is a political decision, not a legal one. Republicans have already indicated that whatever happens they will not vote to remove President Trump from office, so he will remain President regardless of what is revealed during a hearing or trial. But an impeachment trial will allow all the facts of President Trump’s misconduct to be revealed to the American public. This empowers the American public to prevent a repeat of the same misconduct by a future President. An impeachment hearing leaves the American public ignorant of all the facts of President Trump’s misconduct and unable to prevent a repeat.
The human reality is that it’s OK for Republicans and Democrats to disagree on what should be the consequences of President Trump’s official actions as President. What’s not OK is for Republicans and Democrats not to have full disclosure of the facts surrounding President Trump’s official actions as President. That’s why Senate Republicans must adhere to their sworn constitutional duty and allow a Senate impeachment trial. Because all American citizens HAVE A RIGHT to be fully factually informed about the President’s official actions as the leader of America!!!
Isaac Newton Farris Jr. is the nephew of Martin Luther King, Jr. and serves as Senior Fellow at the King Center. Growing up in one of the most socially and politically active families has given him a unique perspective on current events. Drop by his website for straight talk free of one-sided political spin.
Originally published at https://isaacnewtonfarris.com on January 22, 2020.