(Bloomberg Opinion) -- If ordinary rules of precedent were being followed, there would be no argument over whether witnesses should be allowed at the Senate impeachment trial of President Donald Trump. Every single Senate impeachment trial, ever, has had witnesses. The precedent is unanimous.
But the painful truth is that precedent carries much, much less weight in impeachment than it does in other constitutional contexts, whether in Congress or the courts or even within the executive branch itself. That’s unfortunate, because precedent helps make procedures — like how a trial works — fair and legitimate.
There’s a simple reason impeachment precedent is so weak: Impeachment happens rarely, and human memory is short.
The gaps in time between impeachments mean that almost no one really recalls exactly how it was done the last time, or the time before that. That turns out to be an invitation to big changes in practice — changes that may even be invisible while they’re happening.
The fight over the Senate trial rules is a case in point. Majority leader Mitch McConnell introduced his proposed rules by saying they followed the precedent of the Bill Clinton impeachment trial. Democrats objected that in fact they deviated in at least four important ways (two of which were later fixed by changes McConnell accepted).
But did anyone really recall what the Clinton-era procedures were? I certainly didn’t, despite being a constitutional law professor whose job is supposed to include paying attention to things like that. I even attended one day of the Clinton Senate trial, courtesy of a ticket generously passed on to law clerks by the chambers of then-Chief Justice William Rehnquist. Yet I had no recollection whatever of the Clinton rules. I had to look them up online like everybody else.
The senators didn’t seem to remember, either. Twenty-eight current senators participated in the Clinton impeachment of 1998-99. And with the exception of a couple of small-potatoes judicial impeachment trials, they surely haven’t considered impeachment trial procedures since.
Institutional memory works a lot like human memory: Repetition helps. Rarity hinders. And impeachment is stunningly rare.
As my terrific Harvard Law School student Michael McCambridge pointed out during a recent law library public event on impeachment, the timescale of change for impeachment differs markedly from the timescale of evolving judicial precedent and executive branch precedent. In those contexts, precedent usually accrues gradually and (mostly) continuously. But when it comes to impeachment, any changes to precedent are much more disjointed — and much more easily forgotten as soon as the moment passes.
Here’s another example from this round of impeachment. In December, I found myself in an argument with some other professors about when impeachment actually takes place. I was totally surprised to find them arguing strenuously that impeachment takes place when the House votes — because the precedent made it so blindingly clear that impeachment takes place when the House officially tells the Senate that it’s impeaching the president. That’s how it has happened at every single impeachment, ever. There were even state court cases saying so. From the standpoint of precedent, I wasn’t saying anything even slightly controversial.
But the other side’s view had traction because no one really remembers those other impeachments. They’re too rare to create muscle memory of how it’s done. And we are so used to saying that the House has “impeached” when it votes that lots of non-lawyers were genuinely puzzled (or outraged!) by the statement that impeachment wasn’t official until sent to the Senate. It turns out that the House started expressing itself that way a little more than a hundred years ago — although it never even imagined withholding the articles of impeachment from the Senate until this time around. The change in language wasn’t consciously noticed, and it opened the door for a more serious break with precedent.
Why does the weakness of impeachment precedent matter? After all, no precedent is absolutely binding in the U.S. constitutional system. The Supreme Court can reverse its own precedents when five justices say so. The executive branch can depart from precedent — as Trump has already shown more than once. Congressional precedent can change when a majority of either chamber wants it to — as in the use of the so-called nuclear option to take away the filibuster from judicial nominees.
But the strength or weakness of precedent matters a lot when it comes to creating fair procedures — and legitimate outcomes. Precedent generates fairness because it means the rules are set in advance, so they apply more or less equally no matter who is affected by them.
The fact that the impeachment inquiry in the House deviated from precedent weakened its public legitimacy to some degree. And if the Senate trial doesn’t have witnesses — in complete defiance of precedent — that will reduce its legitimacy, too.
We shouldn’t have to reinvent the rules of the game every time we play it. The fact that we do makes the rules seem less fair. It makes impeachment seem more political and less judicial. That in turn undercuts the constitutional norms for which impeachment is the last protection. That’s bad for the republic — and for all of us.
To contact the editor responsible for this story: Sarah Green Carmichael at sgreencarmic@bloomberg.net
This column does not necessarily reflect the opinion of Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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