Maybe the Senate Isn’t Up to the Job of Trump’s Impeachment Trial

(Bloomberg Opinion) -- President Donald Trump is on trial in the Senate. But the Senate is on trial, too — to see if it’s capable of fulfilling its constitutional duty to hold a credible impeachment trial.

James Madison thought the Supreme Court, not the Senate, should try presidential impeachments. Until now, the other framers’ rejection of Madison’s idea seemed to have been wise. Yet the unprecedented degree of partisanship in Trump’s “trial,” and the possibility that for the first time there will be no witnesses, raises the possibility that the framers’ impeachment design has hit a dead end.

The Supreme Court trial option wasn’t an afterthought at the constitutional convention in 1787. To the contrary, it was the first idea about where impeachments should be tried, and prevailed throughout most of that long, hot Philadelphia summer. As late as August 27, some three months into the convention, the working draft of the Constitution’s impeachment provision called for “removing the President on impeachment by the House of Reps. and conviction in the supreme Court, of Treason, Bribery or corruption.”

On September 4, a committee recommended switching impeachment trial power to the Senate. Gouverneur Morris of Pennsylvania, speaking on behalf of that committee, offered what he called “a conclusive reason for making the Senate instead of the Supreme Court the Judge of impeachments.” This reason: an impeached president might subsequently face  a criminal trial, which could go to the Supreme Court.

The only objection came from Charles Pinckney of South Carolina, who thought this would make “the same body of men which will in fact elect the President his Judges in case of an impeachment.” But that objection disappeared when the framers settled on a method for selecting a president that didn’t involve the senators.

The issue arose again on September 8, the same day that the convention decided on the words “high crimes and misdemeanors.” James Madison himself explained that he did not think the Senate should try impeachments, “especially as he was to be impeached by the other branch of the Legislature.” He feared the power of the legislature much more than he feared the power of the president, and worried “that President under these circumstances was made improperly dependent.” Madison’s solution was to propose a special tribunal consisting of Supreme Court justices, among others.

To this, Gouverneur Morris replied that he “thought no other tribunal than the Senate could be trusted. The supreme Court were too few in number and might be warped or corrupted.” Morris went on to answer Madison’s concern about giving the Senate too much power by saying that “there could be no danger that the Senate would say untruly on their oaths that the President was guilty of crimes or facts, especially as in four years he can be turned out.”

Nonetheless, Madison put forward a motion to take the trial power away from the Senate. The delegates voted, by state as they always did, and the motion was defeated 9-2. With the Senate trial power now set, Morris proposed inserting a requirement that any conviction would require the votes of two-thirds of the Senators. This proposal was adopted without any further discussion.

In Federalist number 65, Alexander Hamilton tried to justify the decision to give impeachment trials to the Senate by insisting that the Supreme Court would have lacked the “fortitude” to remove the president, and that the justices, being few in number, would not possess the “credit and authority” needed to remove a president. He then added Morris’s old argument that the Supreme Court might have to judge a criminal trial of the president after he was removed from office. Hamilton dealt with a version of Madison’s idea of a Supreme Court-led tribunal by repeating the same concern; and he concluded that having the Chief Justice preside over the Senate trial was a “prudent mean” between the two options.

Ultimately, the framers trusted the Senators to have legitimacy and to act in accordance with their oaths. And it’s fair to say that through most of constitutional history, the Senate has done an adequate job of trying impeachments.

Today’s partisanship threatens that legacy. Arguably, a trial in which all witnesses are excluded is not a trial at all. If the Senate can’t produce a trial that makes Americans believe it possesses the “credit and authority” to try the president, maybe it’s time to start thinking about a new constitutional solution.

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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