A question came up during the Senate’s impeachment trial of President Donald Trump this week: What matters? To Alan Dershowitz, the answer was power. The Harvard University law professor emeritus argued on Wednesday night that Trump’s actions don’t actually matter as long as the president believes he did them for the right reasons. “If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” he argued.
The House managers strenuously disagreed on legal grounds. California Representative Adam Schiff described Dershowitz’s stance as a “descent into constitutional madness.” But they also took issue with his theory on moral grounds as well. “That is the Fifth Avenue standard of presidential accountability: I can do anything I want,” New York Representative Hakeem Jeffries added later. “I can shoot someone on Fifth Avenue, and it doesn’t matter. No. Lawlessness matters. Abuse of power matters. Corruption matters. The Constitution matters.”
Schiff and Jeffries failed to persuade the Republican-led Senate. As the second day of questions drew to a close on Thursday night, key lawmakers moved to fully adopt the nihilistic world view that Senate Majority Leader Mitch McConnell has long espoused. Tennessee Senator Lamar Alexander was among a handful of GOP lawmakers who had appeared open to voting in favor of hearing witnesses. But he shut the door last night, declaring that it wouldn’t matter. The House’s allegations were true, the president did something wrong—and he shouldn’t be removed from office for it.
“There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence,’” Alexander said in a statement. “It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation.” It was up to the American people, he concluded, to use the November election to punish Trump for trying to cheat in the November election.
Florida Senator Marco Rubio took a similar view of the House’s case in a Medium post on Friday morning. To his credit, he rebuked Dershowitz’s theory of an unbounded executive branch. “On the first Article of Impeachment, I reject the argument that ‘abuse of power’ can never constitute grounds for removal unless a crime or a crime-like action is alleged,” he wrote. He also rejected the obstruction-of-Congress article because the White House had legitimate grounds to invoke executive privilege and the House didn’t litigate it enough in the courts.
Instead he argued that even if Trump was guilty, it wouldn’t matter. “Six weeks ago I announced that, for me, the question would not just be whether the President’s actions were wrong, but ultimately whether what he did was removable,” Rubio said. “The two are not the same. Just because actions meet a standard of impeachment does not mean it is in the best interest of the country to remove a President from office.” In essence, even if the defendant committed the crime, he shouldn’t do the time.
Why wouldn’t it be in the country’s best interest? Rubio cited concerns that half the country would never accept Trump’s removal from office. “Can anyone doubt that at least half of the country would view his removal as illegitimate—as nothing short of a coup d’état?” he wrote. Those concerns are well founded, as I noted in October. But Rubio’s stance elevates a heckler’s veto of sorts—one that the president himself has nurtured and encouraged—over his responsibility as a senator. It risks setting a precedent that impeached presidents can escape consequences if their followers would respond with violence.
The final blow came on Friday morning from Alaska Senator Lisa Murkowski, who said she would not vote to hear additional witnesses. Murkowski said she acted partly to ensure that Chief Justice John Roberts would not be forced to break a tie if there’s a 50-50 tie among the senators—in essence, sparing him from having to render a judgment. But she also faulted the House for what she described as a “rushed and flawed” approach to impeachment.
What set Murkowski’s statement apart is that she said her “no” vote on witnesses wasn’t because they weren’t necessary for the proceedings or wouldn’t be relevant to the case, but because their testimony wouldn’t matter. “I have come to the conclusion that there will be no fair trial in the Senate,” Murkowski said. “I don’t believe the continuation of this process will change anything. It is sad for me to admit that, as an institution, the Congress has failed.”
It’s hard to dispute that statement. But her assertion nonetheless reminds me of a GPS-navigation company’s ad in 2010 that told commuters, “You are not stuck in traffic. You are traffic.” It’s one thing to complain that there won’t be a fair trial in the Senate. It’s another thing to vote in favor of ensuring that there won’t be a fair trial in the Senate. But it’s really something to do both.
It’s worth noting that the president’s lawyers offered their own reasons for why the Senate shouldn’t hear from additional witnesses, flawed and self-serving as they may be. They threatened to waste the Senate’s time with lengthy litigation over executive privilege and call a slough of their own witnesses to gum up the work. But wavering Republican senators didn’t cite those threats as a factor in their decision-making. They simply threw their hands up in exasperation and said nothing mattered. Say what you will about the tenets of Trumpism, but at least it’s an ethos.