As a lawyer, I had an experience reminiscent of what is transpiring in the House of Representative’s impeachment inquiry. A client became irate when I treated the other party respectfully, as a means of getting to the truth. We won the case, but my client sadly viewed victory as vengeance — not as a truthful verdict in his favor. The House Democrats and Republicans remind me of my angry client.
From the day President Trump assumed the presidency, many Democrats have sought retribution against him, culminating in their effort to put words into the mouths of selected witnesses and to choreograph a thinly veiled attack on President Trump, in proceedings that reek of unfairness. The Republicans and the president, in turn, have responded to the testimony of credible witnesses by derisively declaring those devoted public servants, who are acting out of conscience, as doleful “bureaucrats,” often attacking them with a venom that should be reserved only for true enemies. Republicans also rant about witness’s lack of firsthand knowledge of the facts, while refusing to call those who have such knowledge to testify.
Representatives on both sides of the aisle are using theaetrics for purely partisan ends to ensure their next election, not in pursuit of truth. They have failed the test for discovering truth that my father taught me long ago. He counseled, “Son, it is highly unlikely that you will discover the truth until you sincerely ask the right questions.”
The framers provided guidance regarding the right impeachment questions. On July 20, 1787, delegates to the U.S. Constitutional Convention of 1787, vigorously debated impeachment. James Madison, the Father of the Constitution, argued elections were insufficient to guard against “negligence or perfidy” and feared that the president “might pervert his administration into a scheme of (using of public funds for personal ends) or oppression (and) might betray his trust to foreign powers. ... (A Presidency) administered by a single man (was susceptible to) corruption (that) might be fatal to the Republic.” Elbridge Gerry emphasized, “A good (president) will not fear (impeachment, and a) bad one ought to be kept in fear of (impeachment).” Gerry trusted “the maxim would never be adopted that the (President) could do no wrong.” Edmund Randolph warned, “The Executive will have great opportunities of abusing his power; particularly in time of war when the military force (and) the public money will be in his hands.” Gouverneur Morris also believed the president might be “bribed by a (foreign) interest” requiring that he be impeached for “treachery” or “corruption.”
The issue to be answered in the impeachment context, therefore, is whether the president sought a personal favor from the Ukrainians in the form of an investigation regarding his major opponent in the 2020 presidential election. If he did, he engaged in a high crime and misdemeanor and should be impeached. If he was merely seeking to ensure that Ukraine continued its efforts to root out general corruption, he should be acquitted. To obtain that answer those close to the president must testify, and the president should follow Bill Clinton’s lead and testify in person.
Near the end of the Convention, on Sept. 7, 1787, Madison cautioned that the Senate was too political to handle an impeachment trial, believing the case should be handled by the Supreme Court. Most delegates, however, believed that senators, insulated from political pressures by longer terms of office, would fairly try their president.
If the House recommends impeachment, which is likely, the Senate must try the case. To satisfy Madison’s concerns, seek the truth and be faithful to their oath, the Republican-led Senate must: 1. Be transparent and afford due process, including respect for witnesses from both sides; 2. Call witnesses with firsthand knowledge; and 3. Be nonpartisan — if they are nonpartisan, the final vote will a matter of conscience and not be along straight party lines.
Transparency, fairness and nonpartisanship will all be present if each senator takes his or her oath seriously. Once again, my father taught our family a very relevant lesson. As a lawyer, he refused to permit a client to leave him millions of dollars on the ground that doing so would reflect poorly on the law and the profession he revered. Our family is poorer economically than we might have been, but he left a legacy that his children and his children’s children have never forgotten. Senators will soon have a chance to leave such a legacy or squander it for a mere pot of pottage, by choosing short-term political gain over earning a place in history worthy of emulation for generations to come.
Rodney K. Smith directs the Center for Constitutional Studies at Utah Valley University and is the author of “James Madison: The Father of Religious Liberty.”