President Donald Trump’s impeachment trial has finally begun, complete with 100 senators who serve as both judges and jurors, several members of the House of Representatives who act as prosecutors, a defense team of lawyers, and presiding over the whole affair, the Supreme Court’s John Roberts. All of these people, except for the defense counsel and the chief justice, are politicians who have now either leaped or been forced into a judicial role. This highlights a dangerous characteristic of the impeachment process: It permits, and even invites, the injection of a massive amount of politics into what is, or at least should be, a judicial proceeding. Given that the politics of the past generation has been particularly vitriolic, impeachment thus presents a ripe opportunity for the political element to further weaken the rule of law.
Cynics would say that law and politics have always been hopelessly intermixed, and that impeachment is no different. But the Anglo-American tradition at least has a pretense of keeping the law, the courts, and the judges apolitical, and to some, it’s much more than pretense.
What’s the difference between law and politics anyway? Or perhaps a better starting point is, what’s the difference supposed to be? One of the classic metaphors for explaining the distinction is a ball game. The rules of the game are the law, and the referees are the judges. The players are politicians and other political actors, such as public-interest groups or lobbyists; the teams are political parties; and the ways in which the various players and teams use the rules to get what they want during the game are politics.
But this doesn’t get it quite right, so we need to make some adjustments. First, the players themselves get to choose the referees. Second, they can collectively overrule the referees. Third, if enough of the players agree, they can rewrite the rules, even to the disadvantage of other players or the opposing team. Fourth, the players can make the crowd in the bleachers (U.S. citizens) play by the rules as well. Finally, the players can have a big influence on the people who aren’t even in the stadium (citizens of foreign countries).
While this is a more accurate picture, it’s also a more confusing one. But it does show something essential to the separation of law and politics: For a player, the rules can be either an obstacle to what she wants to achieve or a means of achieving it, depending partly on whether she can manage to change the rules.
People are willing to put up with such a system, even when it costs them a short-term gain, for three main reasons. First, they value the long-term stability that the rules achieve, because if those rules are applied consistently, outcomes of future conflicts are relatively predictable. Second, a consensus exists among the players that all sides will abide by the rules even when it costs a side one of these short-term gains. Third, the rules are supposedly impartial, not inherently favoring one side or another.
But for more than a century in American legal circles, this framework has been under attack. First came the legal realists, who denounced the very idea of an abstract, objective set of apolitical legal principles. Judicial decisions, the realists declared, were influenced just as much by what the judge had for breakfast—or what lurked in his Freudian unconscious—as by the impartial dictates of law. Next came the critical legal studies movement, a legacy of the New Left and the 1960s, best described as a strange bedfellows mash-up of Karl Marx and Harvard Law School. Judicial decisions weren’t unconscious at all, argued the crits: Judges had known all along that they were handing down diktats that favored the establishment while cloaking those decisions, and themselves, in the regal impartiality of the law, which in fact wasn’t impartial. The game, they contended, was rigged.
All of this by itself would have done a lot to blur the lines between law and politics, but it’s been helped along in the past half century by an inordinate amount of judicial activism. Activism is neither liberal nor conservative; rather, it can be used in the service of either philosophy. It’s simply what happens when a judge bases her decision more on her subjective beliefs about what the law ought to be than on an objective analysis of what the law currently is. Earl Warren is the textbook example. He had a classic response when hearing from lawyers who stated the law during oral argument before the Supreme Court. “Yes,” Warren would ask, “but is it right, is it fair?” Oliver Wendell Holmes’s statement from decades earlier was a prescient riposte to such activism: “I hate justice,” he wrote, “which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.” Or, as he is supposed to have once told an idealistic advocate arguing for justice and fairness, “This is a court of law, young man, not a court of justice.”
The legal realists would argue that all judging is activist, that even a judge who believes he is showing restraint brings his own predilections to the mix. Nevertheless, some judges apparently try hard either to show restraint or at least to mask their activism. One sign that a judge is trying to keep herself out of the equation is whether she likes the result of the case. If she wishes that A had won but she nevertheless felt constrained by the law to rule for B, it’s a good sign that she’s trying to avoid activism.
There have been periods of particularly strong judicial activism throughout our history, but rarely have they been as sustained and visible as the generally liberal activist phase of the past few generations, with its catchphrase of the “living Constitution.” This era has further confused the public’s thinking about the law and politics distinction, because activism invites judges to behave sometimes as if they’re frustrated politicians.
Activism is so widespread on the bench because, in the words of that great jurist Yoda, it’s “quicker, easier, more seductive” than judicial restraint. With activism, the law is always what the judge thinks it ought to be, so the judge always gets the result he thinks he should get, and because the law always agrees with him, he’s validated by the experience. But despite this, judges and courts constantly assert that they don’t play politics, which helps explain why the country is not only confused but cynical about law’s supposed apoliticality.
Chief Justice John Roberts, who will play a key role in President Donald Trump’s impeachment trial, seems determined to uphold this fiction. “We don’t go about our work in a political manner,” Roberts said in September. “That’s not how we at the Court function, and the results in our cases do not suggest otherwise.” In making this claim, which strains credibility, Roberts completely ignored some breathtakingly political decisions in the Court’s history that nearly every law student studies, including a few in which Roberts himself has been an activist. These cases have involved topics as varied as slavery, labor law, economic regulation, contraception, abortion, and same-sex marriage. Yet Roberts, and many others, staunchly maintain that such decisions are law, not politics. No wonder people are confused.
With the Trump impeachment, the country is getting a high-profile lesson in this muddling of law and politics. Normally the activism-restraint battle takes place mainly in the courts among jurists. But impeachment is a judicial proceeding conducted by a legislature full of politicians. Many of those politicians are lawyers who should know the difference between law and politics, but their refusal either to recognize this, or else to point it out, is making the confusion worse than ever.
There’s a lot the Constitution doesn’t tell us about impeachment, which has led to endless debate over some key impeachment issues. The most celebrated one, of course, is the exact—or even approximate—meaning of “other high crimes and misdemeanors.” But a few things are relatively clear. First, despite the recent, incessant protestations of politicians and commentators to the contrary, it’s partly a judicial process. The constitutional text regarding impeachment speaks explicitly of a trial, an oath for senators, conviction, and judgment. This isn’t the language of politics (unless you’re a crit). Impeachment’s history as of 1787, moreover, was that of a parliamentary judicial procedure. Next is the fact that impeachment is delegated to Congress—that is, to politicians. Third is the clear bifurcation of “the sole power of impeachment,” which goes to the House of Representatives, and “the sole power to try all impeachments,” which the Senate possesses.
So here’s the problem. In this age when law and politics have already converged, impeachment, with its judicial and political elements, forces Congress to ask a question it would really rather not have to answer: Is there really a difference between the two, and if so, which one should predominate in impeachment?
There are advantages and drawbacks to both the political and judicial approaches. If members of Congress treat impeachment as political, then it’s simply a tool politicians can use to score political victories large and small, short and long term, and the rules don’t matter. But that can make the politicians seem not just petty but downright subversive of the established constitutional order, given the Constitution’s textual restrictions on the process. If they treat impeachment as judicial, on the other hand, then they can seem to rise above mere party politics into the impartial realm of the law and act for the good of the nation and our constitutional system. In that case, they have to at least appear to play by a stricter, more weighty set of rules, some of them deeply rooted in the American legal tradition, others announced by the Constitution itself.
But the politicians, being politicians, would like to have their cake and eat it too. That has led a lot of the major congressional players in the Trump impeachment to be obviously inconsistent.
Take the bicameral approach, for instance. House Republicans have attacked the Democratic majority for rushing the impeachment process, for refusing to wait until the courts had weighed in regarding Trump’s refusal to let his people testify before Congress. The hackneyed Democratic response, sometimes couched in terms of constitutional duty, is that the House, having “the sole power of impeachment,” doesn’t need to wait for the courts. House Democrats have a point. But then Nancy Pelosi, who has spoken loudly of constitutional duties and the rule of law, did something bizarre. Having gotten the House to pass two articles of impeachment in something of a rush, Pelosi then stalled, refusing to send them on to the upper house in an expressed attempt to influence Senate trial procedures. She thus blithely ignored the only other time the Constitution uses the word sole: when the document gives the exclusive power over impeachment trials to the Senate. High-flown constitutional duty had suddenly morphed into political tactics.
If the constitutional niceties of impeachment are to be observed, then the best way for Pelosi and the House managers to influence Senate decisions would be to do so judicially and constitutionally, through the managers’ pleadings and motions. That’s been done since the very first federal impeachment, in 1797. But Pelosi wasn’t willing to wait for that. Worse, she doubled down on the “constitutional duty” argument when defending her decision to withhold the articles. “Our Founders, when they wrote the Constitution, they suspected that there could be a rogue president,” she said. “I don’t think they suspected that we could have a rogue president and a rogue leader in the Senate at the same time.” She was wrong. Many of the Founders feared potential collusion between the president and the small, aristocratic Senate.
Pelosi’s thinly disguised political maneuvers look even worse in light of one of the Republicans’ few really solid arguments. As they have noted repeatedly, House and other Democrats have been calling for Trump’s impeachment since his inauguration. The persistent efforts by a vocal faction of congressional Democrats to impeach Trump on several occasions taint, to a large degree, the actual impeachment. In light of those earlier activities, the current proceedings seem like nothing more than the latest attack in a three-year political offensive that has been in continuous search of a justification.
To be sure, Pelosi and the House Democrats do have some degree of cover for these missteps. The House by its nature is more volatile than the Senate, and it’s designed to be, including during impeachment proceedings. It’s likewise more partisan, and according even to the more restrictive judicial view of impeachment, it’s meant to function somewhat like a grand jury, in which the subjects of investigation have always had fewer rights than defendants in full-blown criminal trials. Nevertheless, when one’s oft-proclaimed solemn constitutional duties dovetail so nicely with one’s blatant and highly partisan politics, eyebrows are bound to go up, and so they should.
The Senate—which, according to the Constitution and the terms of its oath, is to serve as an impartial court—has less cover than the House. On top of that, the senators have so far handled things even more oafishly than their House colleagues. The most severe transgression, without a doubt, has come from Majority Leader Mitch McConnell. In his remarks on the Senate floor on December 19, McConnell harped on the law, talking about the importance of due process and Senate’s constitutional duty to be more deliberative than the House. But he also self-servingly misrepresented Alexander Hamilton’s position, erroneously claiming that in The Federalist Papers, Hamilton wrote that impeachment decisions were to be partly political. (Hamilton stated that the offenses, not the process, were political, and that the Senate was to act in an independent and impartial manner.) This misrepresentation echoed McConnell’s inexcusable declaration two days earlier. “I’m not an impartial juror,” he stated flatly. “This is a political process.” He was thereafter echoed by other senators. Yet last week these senators formally swore, orally and in writing, that in the impeachment trial they would “do impartial justice according to the Constitution and laws: So help me God.” Even if one truly thinks that impeachments are purely political, such gross hypocrisy should trouble everybody who believes in the rule of law.
One important element of the rule of law is that the other person’s rule-breaking doesn’t entitle you to break rules as well. The law doesn’t allow vigilantism. If we’ve gotten to the point where A need not play by the rules because B isn’t doing so, then the social contract has been broken, and we’re back to the state of nature. This is, sadly, the case: McConnell and the Senate Republicans have as much as told House Democrats, “You’ve played politics in your rush to impeach Trump; now it’s our turn.” This kind of tit for tat is to be expected in the political arena, but in the judicial world, it can be disastrous. It destroys the stability and predictability that are the whole point of law, and replaces them with political whim masquerading as principle.
Then there’s former Vice President Joe Biden’s statement in early December that he wouldn’t comply with a Senate subpoena. The problem is that blatant refusal to comply with a congressional subpoena is the precise basis for the second article of impeachment against Trump, which makes Biden, and by association his fellow Democrats in the House, look very bad. Biden has since walked that statement back, but not uncategorically. “I would honor whatever the Congress in fact legitimately asked me to do,” he said, suggesting that the Senate might do something illegitimate (such as, perhaps, serve him with a subpoena motivated by partisanship). This language is disturbingly reminiscent of President Richard Nixon, who announced during the Watergate investigation that he “would abide by a definitive decision of the highest court” (my emphasis). Ultimately he did comply with the courts’ orders, but not until a unanimous Supreme Court ruling (with one justice sitting the game out) told him to.
All of this fumbling with conflicting legal and political notions has the congressional leadership looking either hypocritcal or incompetent; take your pick. Given that nearly all of the key congressional figures in this business—including McConnell, Chuck Schumer, Adam Schiff, Jerry Nadler, and for good measure, former Senator Biden—are lawyers with ethical obligations as well as legal training, both possibilities are frightening.
As the impeachment of Donald Trump wears on, and despite all the talk about the Constitution, the Founders, and sacred and solemn duties, the process seems less and less like a battle of principle. Every day it becomes more like a street fight in which nobody truly cares about the long-term consequences for the American constitutional system and our sense of the rule of law. And that’s a terrifying thought.