Ken Blackwell is Senior Fellow for Human Rights and Constitutional Governance at Family Research Council. This article appeared on Breitbart.com on February 1, 2021.
The fact that Democrat Sen. Pat Leahy – not Chief Justice John Roberts or Vice President Kamala Harris – will preside over former President Donald Trump’s impeachment trial should draw bipartisan condemnation as an assault on the very same democracy and U.S. Constitution that Democrats claim to be vindicating through that trial – and that Democrats know they’re headed to a political setback.
Traveling the globe representing our nation, and in the years since then continuing as an official international observer for other nations’ elections, is enough to impart on me a profound reverence for democracy – that people can rule themselves. It is a rare thing, a precious thing … and a fragile thing.
You see this in the Constitution when it carefully sets out the extremely narrow and limited role in our democratic republic for impeachment: the process for removing those in power without going to the ballot box. It is a serious matter for anyone other than the voters to remove an elected official.
This is especially true when it comes to removing the president of the United States. America has only one president at a time, uniquely chosen by all the nation to represent all the nation. That is central to the purpose of the Electoral College, giving weight both to the population of each state and the fact that each sovereign state has particular regional concerns should be addressed – thus, that each state gets two electors for being a state (reflecting the state’s two senators), plus an additional elector for each congressional seat (reflecting how many people live in that state).
The United States is on a very different path now than it was a year ago, due to the change in the occupant of the White House. Whether you voted for Donald Trump or Joe Biden, all can agree that this profound shift proves that elections have consequences.
The will of the voters should generally be supreme as a basic principle, so the Constitution places strict limits on undoing the results of an election – which is what impeachment does. The Constitution mandates that impeachment of an executive officer can only be for specific purposes: treason, bribery, or other high crimes and misdemeanors. It also requires a two-thirds vote in the Senate to convict, rather than a simple majority.
This principle is uniquely heightened when anyone other than voters is considering removing a president from office; superseding the will of the voters to shorten a president’s four-year term by even a single day is something to be approached with the utmost care and reluctance.
When the Senate holds an impeachment trial of the president, the Constitution commands that the chief justice of the United States shall preside. Legal scholars note that this is because otherwise the vice president could preside as the president of the Senate, a vice president who would stand to gain the ultimate promotion if the trial results in a conviction.
But a second purpose is served by requiring the chief justice to preside. Senators are political animals, elected through the democratic process. Although their six-year terms insulate them from the passions of the moment more than the two-year terms of members of the House of Representatives – the ones who begin the removal process by impeaching a president – senators can still bend to political pressure.
The chief justice, however, is life-tenured and is the head of the judicial branch of government. His presence is an additional guarantee of due process for the accused, of an impartial judge, of the rule of law rather than mob rule, and as a check on political passions. It also means that only the involvement of both the first branch and the third branch of government can remove the head of the second branch from power or disqualify him from future office. Requiring the chief justice’s assent to the process is to make it as difficult as possible to remove a sitting president.
Leahy’s usurpation of Roberts’s role in the second impeachment trial of Trump highlights how this whole affair is unconstitutional. Leahy is not an impartial judge – he has already called for Trump’s conviction before he’s heard any witnesses or evidence. In a federal court, Leahy would be required by law to recuse himself. In fact, there were no such due-process protections in the snap impeachment in the House, and the Senate is poised to mimic those due-process violations – something that the chief justice would surely oppose.
And as Sen. Rand Paul pointed out, the idea of trying a former president is itself unconstitutional. Impeachment is the Constitution’s mechanism for removing someone from office. Trump is now a private citizen who occupies no office. It appears that Roberts has signaled he refused to go to the Capitol to preside over this unconstitutional circus act. Had he gone, perhaps he would but had to rule in favor of a motion to dismiss the proceeding at the outset, a motion raising a constitutional point of order. Roberts is clearly no fan of Trump, so the objection would be based solely on the Constitution, and it says volumes that Roberts will not preside over this illegal farce.
What then do Democrats hope to achieve? They want to disqualify Trump from ever running for office again.
But that’s not their decision to make. The voters decide who to elect for president, not senators. The Constitution does not allow them to take away the people’s choice when it comes to former officeholders who might run in the future.
Even if the Senate could impose such a penalty on a former elected official, it would still take a two-thirds supermajority of 67 senators. They clearly do not have the votes for that. Do not fall for the laughable assertion by some Democrats that 51 votes is enough to disqualify Trump. If the Framers of the Constitution required two-thirds to remove someone for a brief period, then they also required two-thirds to bar that same person permanently. Removal and disqualification are the full range of penalties for a conviction – and two-thirds is what is required for any Senate conviction – including any of the penalties attached to conviction.
That is also why Harris will not be sitting in her seat as president of the Senate for this trial: The Biden White House knows this travesty is a loser for their side. This kangaroo court is not about justice; it is about revenge. The hard-left base that currently controls the once-great Democrat Party is nothing short of bloodthirsty in its deranged crusade to inflict any injury on Trump that they can. Cooler political heads in that party do not want Harris anywhere in the camera shot of this debacle, especially one that Democrats are sure to lose. Voters in Pennsylvania, Wisconsin, Georgia, and other swing states would not approve of seeing Harris leading this inquisition driven by the politics of personal destruction. So instead Leahy, the far-left senator from far-left Vermont, will preside, as president pro tempore of the Senate.
Leahy’s unconstitutional trial will instead result in a repeat of the headline from last year’s impeachment trial: “Trump Acquitted.” Hardly an auspicious maiden voyage for Chuck Schumer’s Democrat-majority Senate, or for the Biden-Harris administration, which will not be able to completely distance itself from this shameful miscarriage of what is supposed to be a solemn constitutional duty of last resort.