Greg Weiner: Due-process rights don’t apply in an impeachment trial
A second, deeper dynamic threatens to give impeachment polling data undue significance. As the country moves through the first impeachment trial of the Twitter era, how the American public perceives the proceedings has become its own subject of intense scrutiny. This is in part because of the concern that the technological environment that shaped the 2016 presidential election—echo chambers, Russian trolls, fake news—will prove similarly divisive and thus damaging to the national psyche as it processes Congress’s approach to presidential removal.
One way to mitigate this problem, at least in theory, is to demand consensus—that’s consensus not only among the senators charged with determining whether President Trump committed an impeachable offense, but also among the public. To push this point, prior to the House vote, conservative commentators seized on current Judiciary Committee Chair Jerrold Nadler’s warning back in 1998, during the impeachment of President Bill Clinton, that impeachment requires “a broad consensus of the American public, a broad agreement of almost everybody, that this fellow has got to go because he’s a clear and present danger to our liberty and to our Constitution.”
There are at least two ways to read Nadler’s statement. It could be read as a statement about the type of conduct that meets the impeachment threshold. If so, it’s accurate; the president’s conduct must be of the kind that, in Black’s words, “a reasonable man might anticipate would be thought abusive and wrong, without reference to partisan politics or differences of opinion on policy.”
The more straightforward reading, however, is that the Senate has no business convicting Trump so long as Americans remain evenly split on his impeachment and removal—as indicated by a Washington Post/ABC News poll in November, a Wall Street Journal/NBC News poll in December, and a NPR/PBS NewsHour/Marist poll earlier this month. And that position finds no support in the Constitution. House Majority Leader Steny Hoyer got it right, constitutionally speaking, as the House’s public hearings got under way back in November: “This is not a question about polls; this is a question about each member deciding about whether or not they believe conduct that clearly has been corroborated by many, many witnesses rises to high crimes and misdemeanors.”
In short, popularity is how presidents get elected (Electoral College distortions aside), but unpopularity is not a legitimate basis for their removal. The Constitution provides that a president may not be impeached and convicted except in cases of “Treason, Bribery, or other high Crimes and Misdemeanors.” This is a legal standard, albeit one whose application the Constitution entrusts to a political branch rather than to the courts. Denying the essentially juridical character of an impeachment trial tends to take the focus off the Senate’s obligation to vote in accordance with its good-faith interpretation of the evidence and the Constitution. It puts the spotlight on national opinion and threatens to legitimize voting in accordance with political expediency.