The Constitution put together by USA’s founding fathers, has in many ways served the country and its citizens well. Some of its precious principles have also inspired other democracies in the making.
However, some of the US Constitution’s terms have over the years become strikingly inappropriate. One example is the second amendment’s term ‘well regulated militia’ and what that means in terms of the right to acquire and carry weapons. Another is the election system with different states having wildly disproportionate number of representatives in the Electoral College, a major reason why a Presidential candidate can win with a deficit of tree million popular votes. A third problem is the mid-term elections which may render the sitting President a lame duck.
But the burning topic today is the ongoing impeachment process against Donald J. Trump.
The Constitution’s Article 2 Section. 4. reads:
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Is there anything wrong with this?
The problem is defined by the term conviction. A conviction is the conclusion of a trial, so the process must be a trial. One aspect of trial and conviction is the incriminating effect of these terms. None of the parties want their president to become a convict. And in today’s partisan climate they fight against it, come what may.
In honour of the Constitution, the impeachment process is still called a trial, but is it one?
Admittedly the process bears some hallmarks of a trial. Firstly, the Supreme Court Chief Justice court is presiding over the proceedings. Secondly, there is some kind of investigation, and thirdly, the senators all solemnly swear to 'do impartial justice according to the Constitution and laws: so help me God'.
However, none of this is significant.
The role of the Chief Justice is primarily to be a symbol of neutrality, and any ruling he might make, can be over ruled by the Senate, including a possible decision to allow new evidence to be presented.
The hearing of witnesses, managed by the House of Representatives, is typically a colourful mix of leading questions, accusations/denial and lengthy political statements, all committing the representatives to early conclusions about the President’s guilt or innocence.
In the present case, the attitudes of the Senators are well known, and any conversion would be a surprise. The positions are so starkly embedded that the Republican majority rejects presentation of potentially important evidence. So, when they swear to do impartial justice, it probably helps very little to add ‘so help me God’.
God hardly wants anything to do with collective perjury.
And the implications?
As an old prosecutor I consider Trump fluorescently guilty, but the Republicans are obviously set to acquit him. Bill Clinton’s was clearly guilty too, but as we know acquitted. (His fellow democrats protected him, and in those days' less partisan climate ten republicans joined them.)
So, are there alternatives to the embarrassing US impeachment show? Other democracies of this world live well with institutions of confidence/no confidence, allowing for a different level of dignity. Another possibility (if conviction is a must) is to let the Supreme Court handle it as a real trial, where the politicians’ role would be to provide evidence and present their arguments. Such constitutional changes seem, however, unlikely.