The drafters of the Constitution did well in including an impeachment and removal process to address presidential abuses. And they did well too in giving impeachment power to the House of Representatives, the national body closest to the people, as a function of its proportional representation and complete re-election every two years.
But the drafters did poorly in placing presidential trials in the Senate, due both to its political nature and to the dynamic created by presidential succession laws since 1792, which have usually ensured that one of any impeached president's Senate jurors stands in line to succeed him.
Look at what's happening now. President Donald Trump's trial is playing out in public before it even begins. Senate Majority Leader Mitch McConnell, (R-Ky.) has declared that he is not impartial, and announced that he will run the trial "in total coordination" with the White House.
Other senators on both sides of the aisle are drawing hard conclusions well ahead of the presentation of any evidence or argument in front of them, if evidence is formally presented at all. And many other senators are acting as if they wish the whole issue would go away. This is far from the impartial trial that the Founding Fathers had in mind.
Early cases should have alerted American leaders to the potential problems with having presidential impeachment trials in the Senate. John Tyler had inherited the presidency upon the death of William Henry Harrison in 1841, just 30 days after inauguration day. As Jared Cohen discusses in Accidental Presidents, Tyler's policies annoyed his Whig Party, which instigated a mass Cabinet resignation and the president's formal excommunication from the party. In 1843, a House resolution accused Tyler of corruption, misconduct, abuse of power and obstruction of justice, the first serious move toward a presidential impeachment. The nation's capital hadn't been this tense since the British burned much of the city in 1814.
Complicating things was the governing Presidential Succession Act of 1792. In the absence of a vice president, the president pro tempore of the Senate stood next in line to the presidency. Any Senate vote to convict and remove Tyler would thus require that senator to vote on whether to put himself into the White House. (At the time, it was Willie Magnum of North Carolina.)
It didn't come to that; Tyler had committed no crime other than thwarting his party's agenda, and the House neither voted on formal articles of impeachment nor moved the charges to a trial in the Senate. The blatant political motivation behind the effort, however, should have demonstrated that the Senate was unsuitable for trying presidential impeachments.
The issue resurfaced 25 years later when radical Republicans in the House and Senate made Democrat Andrew Johnson the first impeached president. Johnson was also governing without a vice president after he replaced the assassinated Abraham Lincoln. As in 1843, the chief executive's conviction would have given the office to the Senate's president pro tempore--in this case, Benjamin Wade of Ohio, one of the very radical Republicans leading the effort to get rid of the president.
Wade indeed voted to remove Johnson at the trial, which fell one vote short of removal, partly because of senators' concerns about Wade's fitness for the office. Although a new law in 1886 removed the Senate's president pro tempore from the line of succession, the position returned there, right after the vice president and speaker of the House, in 1947.
The Constitution's drafters let us down by giving presidential impeachment trials to the Senate. They also ensured that such errors need not be permanent: They created a living document, one that could and should be adjusted by the amendment process as the nation's needs change. Our leaders have jumped in to adjust or add to the text of the Constitution 27 times in just over two centuries. This ability to amend the Constitution opens up other potential venues for trying impeached presidents:
The Supreme Court. An impeachment could be referred directly, for immediate action, to the nation's highest court which, even if it has become more political over the years, remains a less partisan body than the Senate. Senators have shown that the separate oath they take when weighing the removal of an impeached president fails to miraculously transform them into impartial members of a constitutional jury; the Supreme Court would be an improvement.
The states. The Senate trial originally involved the states, in that each state's legislature selected its senators until the 17th Amendment took effect just over 100 years ago. Returning the trial to these legislatures in some fashion could revive this federalist sensibility. Because state electors are the ones who vote the president into office through the electoral college, there is a reasonable argument to give the impeachment trial back to the states.
The people. A nationwide referendum could be held as quickly as possible after the impeachment to decide the fate of the president. Impeachment has the effect of overturning the most recent electoral outcome, so having all of the people weigh in has merit, even if the logistical hurdles this would involve are substantial.
A panel of former presidents and vice presidents. Since George Washington retired, America has always had between one and six living former presidents. At least two have been alive at all times during the last 45 years, and they tended to act less as partisan hacks and more as elder statesmen. Perhaps a president's removal should come only with a unanimous vote of the living ex-presidents. We could add in the vice presidents to get a larger body of people who still remain more aware than senators of the burdens of the nation's highest office, limits on presidential power, and the downside of partisanship.
These options may sound implausible. But that's just because trying impeachments in the Senate is all we have known in this country. Consider that democracies as diverse as Croatia, Lithuania and South Korea hand the responsibility for impeachment trials to their highest courts. Romania puts presidential removals to a national referendum. And if you find it odd to hand such a momentous duty to a small group of citizens, even ex-presidents, consider Italy, which selects 16 people from outside the country's parliament to join 15 high court judges in deciding impeachments.
Each of these ideas has its problems. But so did the development of clear and effective mechanisms for handling vice presidential vacancies and cases of presidential disability, and that didn't stop the drafters of the 25th Amendment from coming up with solid solutions. In fact, the experience with that amendment is a reminder that it is never too late. Eight presidents died in office, and several others nearly suffered the same fate during their tenure as president, but we eventually changed the Constitution to fix the problem. Even high hurdles can be overcome in the amendment process.
There is one more practical argument against changing the locus of presidential impeachment trials: The Senate--which, like the House, must approve any amendment to the Constitution by a two-thirds vote unless two-thirds of state legislatures bypass the Congress and call for a constitutional convention--might never give up its prerogative to hold a trial. But maybe that wouldn't be an issue. Each presidential impeachment so far has seen many if not most senators become quite uncomfortable about being forced to vote on the fitness of the president. Senators from both sides of the aisle dreaded our most recent impeachment trial of Bill Clinton in 1999, and wished that the decision whether to eject the president from office rested with somebody else. This president's eventual Senate trial looks likely to play out similarly.
The founding generation did its best to craft a government that Madison said was "intended to last for ages." But they also counted on future generations to take their work and improve on it. Subsequent generations of leaders have failed us, setting bad precedent and leaving us with a highly politicized process that has only worked once, and that time only indirectly, by forcing President Richard Nixon to resign before his expected impeachment and removal. Instead, partisanship has undermined executive accountability in a cumulative departure from what the framers intended.
It need not be this way. A good start to making it right would be taking presidential impeachment trials out of the Senate.
David Priess is chief operating officer at the Lawfare Institute, a visiting fellow at the National Security Institute of George Mason University. and a former CIA intelligence officer.
Editorial on 01/19/2020