Toot, toot, tootle doodle, doot, doot doodle… Let the Circus Begin. Bring on the clowns and the dancing bears. The impeachment trial in the Senate is set to open tomorrow. The rules of the Senate can still change and likely will.
The opening gambit
As it stands today each side opens by presenting their case. President Trump’s legal team appears likely to proceed based on the idea that the president cannot be impeached for abuse of power. They will on at least one point assert the charges do not rise to the level of “high crimes and misdemeanors.” We are going to watch political theatre.
Currently, there is no mechanism in the rules to ask for dismissal on invalid charges. But the rules can still change and the very well may. Alan Dershowitz, the retired professor at Harvard Law School. He appeared in an interview on ABC’s “This Week.” He gave a sneak peek of the opening gambit. Dershowitz says there is a strong argument to be made; a president cannot be impeached for abuse of power.
Dershowitz referenced the impeachment trial of President Andrew Johnson in support of his argument. In that case, Justice Benjamin Curtis defended the president. Curtis said proof of a crime was necessary to remove a sitting president. Johnson’s Senate trial was an acquittal. Dershowitz goes on to argue the Founding Fathers had concerns about giving Congress too much power. The founders wrote of their fear that impeachment would be used as a political tool for partisan infighting. And doesn’t that ring true today? Let the Circus Begin
“I am making an argument much like the argument made by the great Justice Curtis… The argument is a strong one. The Senate should hear it… You can’t charge a president with impeachable conduct if it doesn’t fit within the criteria for the Constitution…” Dershowitz said.
Trump’s legal team put out a response to a brief by House Democrats. The Democrats assert the president betrayed the public trust. He did so with behavior that was the “worst nightmare” of the Founding Fathers. The Trump team responds to the Senate’s official summons for the trial. In it, they say the president “categorically and unequivocally” denies the charges of abuse and obstruction against him.
The president’s filing states, “This is a brazen and unlawful attempt to overturn the results of the 2016 election and interfere with the 2020 election, now just months away…”
Impeachment is a political process
At issue in the impeachment case are allegations: Trump’s ask of Ukraine to announce an investigation of Democratic political rival Joe Biden. The White House withheld nearly $400 million in aid from the former Soviet republic.
The House brief says, “President Trump’s misconduct presents a danger to our democratic processes, our national security and our commitment to the rule of law.” Trump’s attorneys argue that the articles of impeachment are unconstitutional. They are invalid because they don’t allege a crime.
Under the Constitution, impeachment is a political, not a criminal, process. The president faces removal from office. Doing so requires conviction based on the meaning of the phrase in the Constitution at Art. II Sec. 4. The phrase is, “Treason, Bribery, or other high Crimes and Misdemeanors.” The phrase means whatever lawmakers consider treason, bribery or high crimes and misdemeanors to be. Toot, toot, tootle doodle, doot, doot doodle… Let the Circus Begin.