An old Latin legal maxim says rex non potest peccare. “The king can do no wrong.”
Of course, America was founded on the very opposite principle. The preamble of the United States Constitution begins with the words “We the people,” which is in sharp contrast to the Magna Carta, which begins “JOHN, by the grace of God King of England.” You can tell a lot about a country by how its documents begin. Or so we thought.
The Framers knew what they were doing when they wrote that preamble, and when they wrote the rest of the Constitution and the Bill of Rights. What they envisioned was that, in the words of John Adams, ours would be “a government of laws and not of men.”
For many of us it has been less than a lifetime since 1973, when President Nixon said, “People have got to know whether or not their president is a crook. Well, I am not a crook.” That was before the Supreme Court rejected his claim of executive privilege and ordered him to turn over the secret White House tapes. Four years later, he told interviewer David Frost, “When the President does it, that means that it is not illegal.”
According to a Gallup poll at the time, most Americans pooh-poohed Nixon’s statement as un-American, but times have changed, and immutable principles have become mutable. During the 2016 campaign, candidate Donald Trump boasted that he could “shoot somebody on Fifth Avenue” and not lose any of his support. No one could believe he meant to be taken literally, right?
Not so fast. Last summer, President Trump tweeted proprietarily, “I have an Article 2, where I have the right to do whatever I want as president.” Shades of Richard Nixon, and a lot like France’s King Louis XIV as well. L’état, c’est moi (“I myself am the nation”).
Since becoming president, Trump hasn’t mentioned shooting someone on Fifth (or Pennsylvania) Avenue, but last October his lawyer told a federal court of appeals that if the President were to commit such an act, the local authorities could not do anything about it.
The impeachment trial of Donald Trump ended a few days ago, and times have changed again—not because the Senate acquitted Trump, which we always knew it would, but because it did so without hearing witnesses or seeing documents. That refusal effectively turned what was supposed to be a constitutional process into an amendment of Article I, Section 3, which says that the Senate “shall have the sole Power to try all Impeachments.”
What that means, according to Hamilton’s Federalist Paper No. 66, is that the Senate acts as “a court of impeachments.” And that is exactly what it did in the first two presidential impeachments, the trials of Andrew Johnson in 1868 and Bill Clinton in 1999, and in every other impeachment trial in American history.
This time, however, it did not. Fifty-one senators voted to deprive the rest of the Senate, and the American people, of relevant evidence, thereby redefining the words “try” and “court.”
What we have just witnessed reminds me of what Juror Number 10 says in the 1997 remake of “Twelve Angry Men”—“Don’t give me any of that facts. I’m sick and tired of facts.” (If you haven’t done so, I recommend watching the movie, preferably the original 1957 version.)
The claim made by many senators that “you should have done it in the House of Representatives” is just bonkers. It’s like a court telling a party that it’s “too late,” you should have called more grand jury witnesses, or taken more depositions during discovery, or filed motions to compel production of documents. Besides, it wasn’t for lack of trying. The House served subpoenas, but the President stonewalled and boycotted the House. How could it be “too late” when the existence of certain evidence wasn’t even known during the impeachment hearings in the House?
The “executive privilege” argument on which Trump’s refusal to cooperate supposedly rested (and which Nixon tried to invoke) is equally specious. Like any privilege, the specific circumstances will dictate whether certain evidence may be withheld. But first you need a witness (or a document), then you get the question, then the lawyer objects, and then the presiding judge makes a ruling (subject, in impeachment trials, to being overridden by the full Senate).
Executive privilege, failure to take a full House vote, not turning square corners—the reasons varied but it didn’t matter. What Trump wanted to do was control the proceedings, and with the help of Mitch McConnell and others, he succeeded. It wasn’t about truth, it was about political party and fear.
“We the People” indeed. History will not look kindly on this latest episode in our unravelling democracy, not necessarily because of the outcome but because of how the Senate conducted the proceedings. As for the missing evidence, John Bolton’s book will come out, unless the White House manages to suppress it; and journalists will keep investigating. The press is still free, and not even Donald Trump can do anything about that, Alan Dershowitz notwithstanding.
As Yogi said, “It ain’t over till it’s over.”