February 6, 2020
Following the impeachment and acquittal of President Donald Trump after a bitter partisan battle, Americans now face a new reality that involves serious questions about the ability of the federal government to respect longheld balances of power.
Before the final vote Wednesday, Sen. Michael Bennet (D-Colo.) said on the Senate floor, "We are being asked to save the democracy. And we're going to fail that test today in the United States Senate. And my prayer for our country is that the American people won't fail that test. And I'm optimistic that we won't. We have never failed it before and I don't think we'll fail it in our time."
Some, like impeachment expert and legal professor Frank Bowman, are not so hopeful.
"There's a serious possibility here that the American constitutional experiment will fail and it will start about now," Bowman told Cheddar.
"The trappings will remain … we'll have a Congress sitting in a gilded domed hall at one end of Pennsylvania Avenue going through the motions and we'll have courts sitting in courtrooms," but, he said, "It won't be reality. It won't be the American government that we thought we had."
Bowman isn't saying the U.S. government will cease to exist, but rather that he worries the precedent the Senate and the president have set will have far reaching consequences for how U.S. branches conduct government business moving forward.
There have only been four presidential impeachments inquiries in the nation, so the rulings from each one impact how future lawmakers approach the tall order of impeaching a sitting president. When Congress began moving to impeach President Richard Nixon, he refused to turn over tapes wanted for evidence but was ordered to do so by the Supreme Court. Ultimately, he stepped down from his role as president before Congress issued articles of impeachment.
As U.S. v. Nixon was a case decided by the Supreme Court, there are court opinions and explanations for both the ultimate decision and the process by which justices came to it. A court case carries legal and precedential weight, Bowman said. But a Senate impeachment decision, which doesn't necessitate that same public explanation of decision-making processes, is less constraining and allows the decision to be interpreted through different lenses moving forward.
Throughout the impeachment trial, participants on all sides seemed to be aware of the weight of their actions and the impact they will have on the separation of powers moving forward. Defense lawyers argued that a conviction would prevent a president from feeling at ease when asking trusted advisors for candid advice, a right that they argued is protected by the doctrine of executive privilege. Meanwhile, House managers pleaded with lawmakers to uphold congressional oversight at the risk of rendering its own body without authority.
Now that the president has been acquitted, lawmakers may face a future in which their own decision amounts "to a license for any president to defy congressional oversight on a wholesale basis without any particularities, let alone legally plausible" explanation, long-time constitutional scholar Laurence Tribe told Cheddar.
"I don't think this is the end of American democracy or separation of powers. I don't think the rule of law is dead or democracy is permanently doomed," said Tribe, who teaches alongside defense lawyer Alan Dershowitz at Harvard Law School. "On the one hand, I have a deep faith that in the long run we will get past this, just as we got past the Civil War and WWII. On the other hand, I can't give you a path between here and the long run that could overcome the pessimism that says we have huge obstacles in the way."
Tribe, who along with nearly 300 law professors and constitutional scholars, sent a letter to the Senate last week to "clarify that impeachment does not require proof of crime, that abuse of power is an impeachable offense, and that a president may not abuse the powers of his office to secure re-election," said he's optimistic there is some way to move past the immediate issue of the impeachment.
Bowman, who wrote the letter, said there is a world in which Republicans "suffer losses at the polls," which will be a "healthier" lesson, but also that there is a threat to U.S. democratic practices.
He says he is concerned the Senate has set a standard that "Congress has no guts," and that it is "not willing to protect its own basic authority." Congress has the power to exercise oversight over the executive branch, what Bowman called an "integral part of Congress."
Though some, like Bowman, worry the Senate has weakened its own oversight, Tribe's optimism rests, in part, on three cases pending in the Supreme Court, including Trump v. Vance, in which the Supreme Court will ultimately decide the fate of the president's tax returns.
Tribe is "upbeat that judicial guardrails can be restored," through the three cases in the Supreme Court, coupled with the pending case involving Don McGahn. But his optimism doesn't support the notion that the status quo and what he called "structural problems" — like the electoral college and appropriation of senators — won't be overhauled.
He said he's "worried for the short term, which could become the long term if we end up descending into the worst abuses of tyranny."