Two major concerns of
delegates to the Constitutional Convention in1787 were the threat of foreign
influences and the authority of the new American presidency. The former were
obvious. Determining how to structure the latter was a serious challenge
without an existing model.
Although there
was broad sentiment for a strong executive capable of energetic leadership, the
framers’ experience with royal governors left them leery of granting too much
power to the president and thus enabling a despot.
To protect the public
interest against the potential perfidy of an avaricious or overly ambitious
president, provision for impeachment of the chief executive was included in the
Constitution as well as for other civil officers. The process is structured in
keeping with the overall system of checks and balances. Authority is divided;
the House has sole power to impeach; the Senate, sole power to try and either
convict or acquit.
Specifying that the
Chief Justice of the Supreme Court preside over the trial reinforces the
significance of impeachment. It also recognizes the possible conflict of
interest if the Vice President were allowed to officiate.
Much has been written
about whether or not the framers anticipated the rise of political parties, but
certainly they could not have envisioned the bitterness of the existing
partisan divide. Nor did they likely foresee
close coordination between an impeached president and the Senate. In fact,
Alexander Hamilton in essay #65 expressed great confidence in the autonomy of
the upper house:
“Where else, than in the senate, could have
been found a tribunal sufficiently dignified, or sufficiently independent? What
other body would be likely to feel confidence enough in its own situation, to
preserve, unawed and uninfluenced, the necessary impartiality between an
individual accused and the representative of the people, his accusers?”
The current Senate is not likely to be
viewed as impartial. In part, this results from the hyperpartisanship characterizing
our political landscape today. No House Republican
voted for impeaching Donald Trump despite the transcript of the president’s
conversation with his Ukrainian counterpart and the testimony of several
credible witnesses regarding Trump’s withholding of military aid from Ukraine
in his quest for a 2020 electoral advantage.
But perhaps more
significant is the attitude of Senate Majority Leader Mitch McConnell. He has stated
publicly he will run the expected Senate trial “in total coordination” with
Trump’s White House. “I'm not an impartial juror," McConnell has said. "Impeachment
is a political decision. The House made a partisan political decision to impeach….I
would anticipate we will have a largely partisan outcome in the Senate. I'm not
impartial about this at all."
McConnell’s comments are consistent
with his words and actions for at least a decade now. He has openly disparaged
President Barack Obama, abused the rules and customs of the Senate to further
his legislative agenda and in general refused to entertain the normal give and
take that allows the legislative process to function. Only 70 bills have become
law this year as McConnell has prioritized approving Trump’s judicial
appointees.
McConnell also has an
obvious conflict of interest.
Article I, sec. 6, of the US
Constitution states that “…no Person holding any Office under the United
States, shall be a Member of either House during his Continuance in Office.”
This provision is consistent with the separation of powers doctrine, and the
framers’ disdain for a parliamentary system in which the legislative and
executive branches are intertwined.
McConnell has violated the spirit of
this provision if not the letter. His wife, Elaine Chao is the Secretary of
Transportation in Trump’s cabinet. She was Secretary of Labor in George W.
Bush’s cabinet from 2001 until 2009.
While there is no mention in the
Constitution of a legislator’s spouse serving in an office of the United States
that evidently reflects the circumstances of the day. Only men, white men,
could vote and serve in office at the time. Women of any color could not even
vote. Is there any doubt that such a prohibition would be in place if the
framers had had 20/20 foresight?
It is not a question of Chao’s credentials
to serve, but of McConnell’s obligation to avoid potential conflicts of
interest. Democracy requires more than elections. It also requires a political
atmosphere in which trust exists among citizens and their representative.
Personal convenience may sometime suffer.
In the short term,
the proper thing for McConnell to do is to recuse himself from participation in
the Trump impeachment trial. If he wishes to see his wife serve in the cabinet,
McConnell should resign his senate seat. If he refuses to acknowledge his
conflict, he and those Republican senators up for re-election in 2020 who support
him as majority leader should be held accountable for ignoring the intent of
the Constitution on a significant representational issue.
