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Senate Surrender?

The Trump defense team wants the Senate to walk away from its constitutional obligations for the sake of convenience.
January 30, 2020
Senate Surrender?
WASHINGTON, DC - JANUARY 27: Attorney Alan Dershowitz, a member of President Donald Trump's legal team, gestures to members of the press in the Senate Reception Room during the Senate impeachment trial at the U.S. Capitol on January 27, 2020 in Washington, DC. The defense team will continue its arguments on day six of the Senate impeachment trial against President Trump. (Photo by Mario Tama/Getty Images)

The question-and-answer portion of the Trump impeachment trial, which began on Wednesday, was bound to elicit some eyebrow-raising arguments from the president’s defense team, and it didn’t disappoint. Alan Dershowitz’s contention that no presidential act is impeachable if it’s done with one eye on reelection was a doozy of dubious moral and legal reasoning. But for constitutional analysis, Deputy White House Counsel Patrick Philbin’s lecture on impeachment precedents was singularly disheartening.

In response to a question about “the implications of allowing the House to present an incomplete case to the Senate and request the Senate to seek testimony from additional witnesses,” Philbin delivered a grave warning to what was once known as the world’s greatest deliberative body:

There’s a proper way to do things and an upside-down way of doing things. And to have the House not go through a process that is thorough and complete, and to just rush things through in a partisan and political manner, and then dump it onto this chamber to clean everything up is a very dangerous precedent to be set. . . .

So I think it’s vitally important for this chamber to consider what it really means to start having this chamber do all that investigatory work, how this chamber would be paralyzed by that. And is that really the precedent, is that the way this chamber wants everything to operate in the future?

In a limited way, Philbin is right. Frivolous and baseless impeachments could indeed cripple the government by taking up the Senate’s, the president’s, and the chief justice’s time. But in a country that has only seen three presidents impeached over two centuries—and none removed from office via impeachment trial—the argument that impeachment is becoming too easy rings hollow.

Much more troubling is the constrained conception of senatorial prerogative and power that Philbin’s argument implies. While couched as a rejection of the sloppy, partisan, disorderly House by the august upper chamber, Philbin’s advice would in fact have the Senate submit to the House’s domination.

In James Madison’s formulation, the Constitution is designed so that ambition counteracts ambition and no one branch of government can amass too much power before the others cut it back down to size. Yet Philbin appeals not to ambition but to cowardice. He invites senators to attend not to substance but to style—to consider neither the facts nor the law, but to scrutinize the House’s record and find any flaw, no matter how insignificant, to disqualify it. The Constitution tasks the Senate with trying impeachments; Philbin would have the Senate shirk that duty.

If senators were interested in protecting their institutional interests, they wouldn’t let the other chamber hem in their choices. Far from ratifying the House’s procedure, the Senate could signal its dissatisfaction by supplementing the House record with additional testimony and evidence.

Philbin’s conception is purely Trumpian: It confuses power with pusillanimity and casts probity as a sign of weakness.

The worst part is—it will probably work. The Trump administration has demonstrated how much power Congress has willingly surrendered to the executive branch: to raise tariffs, to abuse emergency powers, to initiate military confrontations, to redirect or halt spending, and to appoint acting executive personnel without advice or consent. Rather than seeing each concession to the president as an embarrassing abandonment of their constitutional duty, most members of Congress seem all too happy to shed some responsibility.

For all that Philbin warned about setting precedents for the future, he wasn’t asking most senators to assume anything they didn’t already believe.

Benjamin Parker

Benjamin Parker is a senior editor at The Bulwark.