There’s something about Trump that frequently causes his critics to lose all sense of rationality and perspective. This phenomenon, known as “Trump derangement syndrome,” regularly afflicts his political opponents and much of the media. It also exacts a heavy toll on liberal law professors, particularly those who call Harvard home. A striking example is the recent proposal by Laurence Tribe for the House of Representatives to declare Trump guilty of impeachable offenses without going through the nuisance of a constitutionally-prescribed Senate trial.
Trump’s opponents almost universally believe he is guilty of obstruction of justice in connection with the Russia investigation and perhaps other impeachable “high crimes and misdemeanors.” If so, their recourse under the Constitution is for the House of Representatives to adopt articles of impeachment and submit them to the Senate for trial. The House’s role is like that of a grand jury—to investigate and indict (impeach) the president if it finds the charges well founded. House members then act as prosecutors and the Senate constitutes the jury. Impeachment requires only a majority vote in the House; conviction requires a two-thirds Senate vote.
But House Democrats face a dilemma. While they may have the votes to impeach Trump, there’s no chance the Senate would convict him. Another complication is that a majority of American voters oppose impeachment; thus, impeaching Trump could be both futile and politically costly. Coming to the rescue, Tribe offers a solution to this dilemma: the House can simply bypass a Senate trial and issue its own “verdict” declaring Trump guilty of impeachable offenses. This guilty verdict would not remove Trump from office or impose an actual legal penalty on him. (Doing so would constitute a patently unconstitutional bill of attainder.) However, Tribe assures that it would be “deliberately stigmatizing” by branding him with “a ‘Scarlet I’ that Trump would have to take with him into his reelection campaign.”
Tribe asserts, without much explanation, that the impeachment process provided for in the Constitution whereby the House acts as investigator and prosecutor while the Senate serves as the jury is “misguided” and “old-school.” He complains that a Senate verdict in Trump’s case would be a politically driven “whitewash.” Under his proposal, the House need not “play the Senate’s corrupt game.” Rather, it can act as combined investigator, prosecutor, judge and jury.
Apart from rewriting the Constitution’s impeachment provisions, Tribe conveniently ignores the obvious fact that politics undoubtedly would drive the House’s actions just as much as the Senate’s. He blithely assumes that Trump would have “ample opportunity” to defend himself in the House and even notes the “possibility” that the House might “unexpectedly” exonerate him. However, it is inconceivable that Trump would get objective and unbiased treatment from the kangaroo court process Tribe proposes. The vast majority of Trump’s would-be House Democratic jurors already presume his guilt, as does Tribe.
In sum, Tribe’s proposal flouts the Constitution as well as fundamental considerations of due process and fairness. It’s a sad commentary that animus toward Trump can cause a distinguished constitutional law professor to abandon so readily so many basic American legal values.
While Tribe’s proposal fortunately hasn’t gained much traction so far, it does have the enthusiastic endorsement of another liberal lawyer and virulent Trump critic, Harry Litman. Litman praises Tribe’s proposal as providing “an outlet for House members to respond to the extraordinary gravity of the president’s assault on the rule of law” as well as “some sort of reckoning for Trump’s outrages.” Litman illustrates another of the proposal’s negative features—its elitist, anti-democratic nature. He emphasizes that it affords a way to avoid the “intolerable” (to elites) alternative favored by a majority of Americans of leaving Trump’s fate to the voters in 2020.
Trump has been shattering norms of presidential behavior from the outset of his term. Instead of responding by upholding our bedrock legal and ethical values, however, his opponents too often choose to compete with him in a contest to undermine them.