McConnell and Impeachment

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.