Politicians and activists on both sides of the impeachment battle in the US have been deeply committed in pursuing their political goals while, at the same time, forgetting that impeachment is first and foremost the procedure for proving that an offence has been committed before it is a political process. The campaign machines have been running ahead of the evidence gathering process.
Provisions in the US Constitution anticipate that if a president has committed “Treason, Bribery, or other High Crimes and Misdemeanors”, then the Congress could impeach and remove the president. But anyone interpreting the rules for impeachment these days is more likely expressing a personal opinion, rather than sharing first-hand knowledge. Applying the rules is not an easy process. There is, in fact, no legal precedent. And for each opinion there is one that vocally contradicts that view.
Some, like Harvard professor Alan Dershowitz, who is now defending Trump, change their earlier opinions. In his statement made when the Congress was attempting to impeach Bill Clinton in 1998, Dershowitz, who was a vocal Clinton supporter at the time, claimed that a technical crime was not required. He is now arguing the opposite.
In this political environment, it is hard to say whether politicians and scholars speak out of their intellectual conviction or political persuasion. Whether a president can be impeached without committing what constitutes a federal crime, as well as the standard of proof in the impeachment proceedings, represents two difficult legal questions. There is absolutely nothing about that in the US Constitution. The use of certain words such as try, convicted, and conviction in the rules suggest that impeachment might be likened to a criminal proceeding, where the standard of proof is beyond a reasonable doubt.
I personally take this position as well, although many constitutional scholars disagree. I believe that an impeachment inquiry needs to collect enough evidence to demonstrate beyond a reasonable doubt that a president, regardless of the political affiliation, has committed treason or some other serious crime.
Both sides have done enough to erode the institute of impeachment, which will have negative implications for these proceedings and in the future. Trump and the Republicans refused to work with the legislators’ inquiry. The Democrats, in turn, decided not to wait for the proper legal procedures to play out in the courts and ordered the White House to release evidence and they have rushed the hearings in the hope of scoring political points as they hope to synchronise their efforts with the country’s election cycle.
Both sides have effectively stalled the legal process, and in the absence of hard evidence, the case against Trump cannot be built. This has not stopped the Democrats and their supporters from claiming that the president is not fit to govern and needs to be forced from office, but with no strong evidence against Trump, the Republicans can claim that he has done nothing wrong.
In doing so, both sides are ignoring the rule of law. Under the American system, all people and institutions are subject and accountable to laws that are fairly applied and enforced, and that everyone is innocent until proven guilty. Without following those basic rules, one cannot secure a non-arbitrary form of investigation and prevent the arbitrary use of power.
When the rule of law is ignored, as is the case in the impeachment proceedings, both sides tend to go with ‘the rule of thumb’ – an approach that is wholly dependent on their worldview, politics, and way of doing things. As a result, the country has found itself heading into a presidential election that is as polarised as ever and with its democratic institutions having been undermined by a heavily politicised impeachment process.
Unless impeached, which seems highly unlikely, Trump is likely to emerge from this as a chief executive who is emboldened more even more powerful. He will continue governing using his unconventional style. For not being held accountable he will be even likelier to engage in excessive interference in domestic and foreign matters. In his bid for re-election, he will be able to re-energise his supporters and legitimately claim that his agenda was unfairly victimised by the Democrats.
The Democrats, who remain deeply divided over the direction of the party, have made the impeachment look like a political process that is supposed to bring about party unity based on their collective loathing of Trump instead of a shared ambitious plan for the country.
What will be much more problematic for them in the years to come, however, has been their approach to the current impeachment. They need to be concerned that at some point in the future, one of their presidents will face removal from office based on inquiries that are backed by unproven and politicised claims.
The rule of law in the US is taking a back seat in this process while each side of the political spectrum continues to turn up the volume on their political arguments.