A Plea to Kansas Senator Jerry Moran

This morning, I was asked by a small, hastily organized group of Wichita citizens to speak on behalf of "A Kansas Call for a Full and Fair Impeachment Trial." There was almost more media there than people--Martin Luther King, Jr. Day is a slow news day, I guess--but many good questions were asked, and hopefully my comments will, in some tiny way, do some good. For whomever is interested, here they are. [Update, 1/27/2020: the Wichita Eagle printed a much shorter and to-the-point version of my comments today here.]

******

I'm going to take my inspiration from the title of this event--the organizers which to issue a "Kansas Call" to our senators. The historian and political contrarian within might be tempted to use that as an excuse to invoke Kansas's populist and radical past, and engage in some deep criticism of the whole impeachment process. That would be fun, at least for me. I could talk about how the authors of the U.S. Constitution probably intended impeachment to be, if not routine, than at least a regular part of the way Congress emphasized legislative supremacy over the executive branch, as opposed to politically fraught enormity it has, popularly at least, come to be seen as. Or I could talk about how the authors of the Constitution apparently assumed a classical republican foundation in their thinking about the responsibilities of elected representatives in investigating and pursuing impeachment, and since that foundation soon disappeared, the result is a process that reads today like a strange mish-mash of the partisan and the principled. And that just scratches the surface!

But no, that kind of deep critique wouldn't fly as a true "Kansas call," at least not in 2020. So instead, I'm going to take the Constitution and what it says about impeachment as conservatively and as straightforwardly as I can. Senator Moran has shown himself to be someone whose conservatism isn't solely a reflection of his membership in the Republican party; though mostly a loyal soldier, he has defended small-town rural interests in opposition to his party's priorities, and has refused to sign up in support of the president and his party leadership in regards the matter of executive war powers. So on that basis, I'm going to imagine that he might be a receptive audience to what I have to say.

Senator Moran, as you know, the Constitution says that presidents may be impeached for treason, bribery, or "high crimes and misdemeanors." The latter is not reducible to a clear question of whether or not a law has been broken, though that is one of the main talking points of President Trump's planned defense in the impeachment trial to begin tomorrow. Unfortunately, it's admittedly something other than an obvious determination.

When President Johnson was impeached, the charge taken to the Senate for trial was that his firing of his secretary of defense without informing Congress was a violation of the Tenure of Office Act, the law of the land at the time (a bad law later repealed and widely viewed as unconstitutional anyway, but still an illegal act in 1868). When President Clinton was impeached, the charge taken to the Senate for trial was his lie under oath about his affair with Monica Lewinsky given during a deposition conducted in connection with another investigation; lying under oath in a legal proceeding being, of course, against the law. In President Trump's case, though, the House impeachment investigation brought forth charges of "abuse of power" (pertaining to his subtle pressuring of the Ukrainian government to begin an investigation into his political rival's son) and "obstruction of Congress" (pertaining to the way he denounced and discouraged compliance with legal subpoenas and other investigative actions taken by the House). These issues are murkier than those in the previous two impeachment trials. Though the Government Accounting Office says otherwise, Trump continues to insist that there was nothing wrong with his phone call to Ukranian president Zelensky, and that in any case, pushing foreign leaders around isn't--or so the president's lawyers say--criminal "abuse." And as for obstructing Congress, well, it won't be hard for those sympathetic to Trump to acknowledge he's a rude loudmouth, a narcissistic blowhard, and then point out that, given his history of hapless fulminating to the crowd, a President of the United States mocking people and slapping them around on Twitter can't be considered the same kind of obstruction as, say, shredding documents. They may have a point.

But of course, that's the rub: someone has to decide if they have a point or not. And that someone includes you, Senator Moran. I urge you to think about what making that judgment call involves.

However politically convoluted or historically dated or theoretically incoherent the process may seem to be, the constitutional facts remain: in the impeachment process, the House, whatever partisan agendas among its membership may or may not exist, investigates and then votes on articles of impeachment--and then you, along with all the other members of the Senate, swore an oath to sit, listen, and act like jurors in a full-on trial. Or in other words, to "do impartial justice according to the Constitution and laws." Note that--the Constitution and laws. Which is a recognition that they are not always the same.

This isn't the time or place for a long survey of constitutional theory, so simply accept this: a constitution functions at least as much through the norms, customs, and performative expectations which it shapes as it does through the specific rules that it lays down. The chaos that has attended President Trump's administration, whether or not you think it to have been abetted by his political opponents from the very moment of his election, is at least partly a consequence of the fact that in the way he approaches his executive responsibilities, his relationships with other branches of the government, his treaty obligations to other countries, as so much more, reflects a total disregard for, and often outright ignorance of, all those norms, customs, and expectations. Maybe you're a "Flight 93" conservative, Senator, convinced that the Deep State is out to destroy President Trump and taking delight when he essentially blows raspberries at every tradition that pertains to his office. I doubt that's the case--but even if it is, the role you are in today demands that you conserve a responsible relationship to those norms.

That, of course, doesn't mean you have to agree with the House prosecutors as they make their case for impeaching the president for abusing his power and obstructing Congress. But to call for hearing their case fully, and for considering what witnesses (both the prosecution's and the defense's!) have to say about that case--that would be an honorable way to acknowledge that responsibility. And it would enable you to be able to authentically exercise the judgment which you have before. 

Last year, when President Trump claimed that the emergency at the southern border was all the pretext he needed to appropriate money for building his wall which Congress had not, in fact, constitutionally allocated for that use, Congress, rightly, protested. The House voted against that action (Representative Ron Estes, my congressman and your colleague, voted with the president); as did the Senate--and you voted with the majority, against Trump's (and your own party leadership's) wishes. At that time, you wrote at length about your fear of an "all-powerful executive," the importance of showing some "understanding of history" in making decisions, and most of all about how "the ends don't justify the means." Tomorrow you will begin sitting as a juror in President Trump's impeachment trial, and prominent members of your own party have made it known--despite criticism from the right and the left--that they have already decided what the end should be: namely, Trump's acquittal. That's not a show of judgment, that's not using--as you said you did a year ago--your "intellect" and your "gut." That's just assuming that this whole process is a show, and there's not reason to pretend that it matters. Taking impeachment seriously, by contrast, whatever the flaws and confusions of this example of it, involves being willing to perform a role, and follow through with it to where the evidence--witnesses included!--you feel it leads.

Look, we're all smart people here: we all know, and most of all we know that you know, President Trump will not be impeached. (Similarly, you surely knew that Trump would veto Congress's blockage of his claimed emergency powers last year, which he did.) We're not asking you to make some kind of grand, pointless stand. But we are asking, as your Kansas constituents, that you do what I suspect your own conservative judgment surely calls for you to do: to push back against Senator McConnell's cynical approach, and demand that the trial, with all its customs and trappings, with its witnesses and evidence and two cases ritually presented, be allowed to go forward as the Constitution specifies.  Let the House impeachment managers call witnesses. Let Trump's defense team do likewise. Let the whole process be performed as it ought to be, however convoluted that path that led to this point may be.

Yes, the articles of impeachment sent to you by the House demand, in the end, a judgment call, an assessment of murky issues of presidential expectations and responsibilities, rather than a cut-and-dried application of the law. All the more reason to add your vote to those who will push against the hurried, dismissive (dare I say "Trumpish") approach to this constitutional matter, those who seek to it as fair and impartial as possible. The result may be foregone--but the process isn't. And is anything positive is to come out of the whole impeachment process, it may be a reminder that, so long as we choose to accept the basics of our constitutional order, then constitutional procedure still matters. That's a reasonable judgment, don't you think?