The Death of Impeachment?

The Senate sitting as an impeachment jury is not faring well in the court of public opinion.

Steve Russell
Feb 16 · 12 min read
“It’s…alive!” Public domain photo courtesy John Locke Foundation

I’ve even heard people I would have thought knew better criticize the Framers for the procedural steps they wrote down as prerequisite to nullifying an election. I’ve now watched three impeachments, four if you count the involuntary departure of Richard Nixon, and the claim of election nullification is always lurking.

Of course, it’s true that the result of an election is being nullified. Would it sound better if described as “giving the voters a mulligan?” Donald John Trump did not bring to the White House the education or the experience we have come to expect, he never got a majority of the popular vote, and he could not get his job approval numbers over 50 per cent, much less keep them there. Is it unreasonable to ask for a do-over?

In an effort to avoid election nullification, does the Senate practice jury nullification? I say not exactly, and the differences between the Senate and real juries might leave us feeling a bit better about our institutions.

I must confess, though, the argument that conduct thought not politically survivable would become so when impeachment fails is a siren song hard to resist. I must wonder what is not politically survivable now that we know it’s possible to claim that airmen shot out of the sky in combat are not war heroes or to brag about grabbing a woman’s crotch without consent? However that is sorted out, the jury trials over which I have presided by the hundreds are nothing like impeachments.

A quick peek at the few presidential impeachments does suggest there is some aspect of continuing political warfare by other means.

Andrew Johnson was a political rarity: a Democrat who opposed secession in the run up to the Civil War. That unusual and strongly held position led to Johnson’s inclusion on the ticket with Abraham Lincoln in an effort to soften the Republican image and get what few Democratic votes could be gotten. Upon Lincoln’s assassination, President Johnson got crosswise with the radical Republicans over conduct of Reconstruction almost immediately and it did not take him long to alienate the entire Republican Party.

Johnson’s dive in the esteem of the Republicans started in 1865 and by 1868 the Senate was cuing up trial of presidential articles of impeachment, 11 of them, with Chief Justice Salmon P. Chase presiding. Contemporary reports suggest a wild and wooly affair (at least, for a trial) and historians appear convinced there was bribery on both sides.

The first vote was in May, on the 11th article. The first two Confederate states to return to the union were Arkansas and Florida, in June of 1868. The absence of the Confederate states accounts for why it would only take 36 guilty votes to remove Johnson.

In case anyone thought that identical vote reflected some cosmic truth about the impeachment cases, it is worth noting that none of those 10 Republicans ever held public office again.

Richard Milhous Nixon came under investigation in 1973, having clobbered anti-war candidate George McGovern in the 1972 election. The worst misconduct of which Nixon was ever accused to my knowledge was the sabotage of the Paris peace talks by slipping secret messages to the South Vietnamese delegation that if they pulled back from the imminent agreement and let the election happen, Nixon would win and see that they got a much better deal than the one on the table. Any American family that lost a son or daughter between 1972 and 1975 would probably have a keen interest in whether Nixon extended the war for political advantage, but the investigations that led to Nixon’s political demise involved who paid for a burglary of the Democratic National Committee headquarters in the Watergate complex. The machinations Nixon undertook to impede the investigations led to what is now conventional wisdom:

Three articles of impeachment were reported out of Judiciary favorably by identical votes, seven of 17 Republicans and all 21 Democrats, charging obstruction of justice, abuse of power, and contempt of Congress.

Two others failed by identical votes of 12–26, Republicans voting party line and nine Democrats crossing over. The two left in committee were tax fraud and usurping Congressional war making powers.

The Rules Committee scheduled debate on the three articles on the floor to begin August 19; Nixon resigned August 8.

William Jefferson Clinton’s impeachment was cued up for trial in 1998, Chief Justice William Rehnquist presiding in a very snappy robe it is said he designed himself.

There had been four articles of impeachment presented in the House; three came out of Judiciary on party line votes, 21–17:

The final vote that shook loose for Mr. Clinton was cast by Lindsey Graham, who is a Senator and so was a “juror” in Mr. Trump’s cases. Graham represented South Carolina in the House of Representatives from 1995 to 2003.

(Russell digression™ “Juror” is in scare quotes because it does not appear in the U.S. Constitution, Article I, Section 3. Clauses 6 and 7, where most instructions appear regarding impeachment.

Article III, Section 2, clause 3, does offer a clue when it excepts impeachment from the right to a jury trial:

No jury has to mean no jurors, right?)

With these votes on the House floor, Mr. Clinton stood impeached, and all four articles reported out of committee went to the Senate for trial. The Senate clicked back into almost party line mode, but nothing like we have seen in the Trump impeachments. The biggest breaks in party lines were much more robust than the single digit GOP defections in the Trump cases. In Article IV, Abuse of power, the Republicans produced 147 votes plus one Democrat, while the Democrats came up with 203 votes plus one Independent for not guilty — and they were joined by 81 Republicans, enough to make me feel I died and woke up bipartisan.

Majorities voted to convict Clinton of grand jury perjury and obstruction of justice, but both articles fell short of the two-thirds required for conviction.

I chanced to be in Europe during part of this, and the lawyers I met seemed to find great sport in asking the American judge to explain how it is in the national interest to impeach a POTUS for lying about a blow job. Details about a semen-stained dress and a cigar cured in Monica Lewinsky’s vagina also made it across the pond. It reminded me of a dream I had where I got a bit part in a Saturday Night Live! skit and some sort of dimensional shift rendered SNL the real world…

Because there are so few presidential impeachments, it was possible to take a look at every one of them before asserting that the process is dominated by partisan politics. Donald Trump was impeached twice, neither case presented a serious dispute about the facts, but both were easily defended with a legal theory I call the Fifth Avenue Homicide. A shortened version says:

I understand that it appears unlikely the law would be applied correctly to the facts in any given case where virtue did not run with party identification. Still, the tiny bit of judge that I have left in one knee jerks to signal that unless we were in the jury box, we should go easy on those who were.

At least, we could take a look at how jury nullification plays out in ordinary criminal cases and ask if it informs presidential impeachment.

Just as prosecutors have the discretion not to charge guilty people, juries have the power not to convict guilty people.

At the disreputable end of our legal history, all white juries routinely turned loose Klansmen for crimes up to and including murder.

On the side of freedom, there is the famous case of John Peter Zenger, who printed news stories accusing the royal governor of New York of criminal behavior and as a result found himself charged with criminal libel. At the time, truth was not a defense to libel. If the charge was defamatory and you printed it, you were guilty.

The judge instructed the jury correctly, but Zenger’s lawyer, Andrew Hamilton, spoke directly to the jurors over the head of the judge:

When I am the fellow in the black nightgown playing the part of the most powerful person in the courtroom, I must instruct the jury that they are the judges of the facts but they must get the law from me. That’s not precisely so.

Should the jury ignore the law, what is to be done? The government cannot appeal a not guilty verdict. I cannot punish a juror for having an opinion that does not match my own. Theory be damned, the only practical way to stamp out jury nullification would be to stamp out juries.

Justice Oliver Wendell Holmes, as skilled a man who ever wore the robe, stated the reality:

Take it from a judge that we have juries to protect us from both overbearing judges and crackpot legislators. When used in the limited circumstances that justify it, jury nullification is the conscience of the community.

Agree with it or don’t, the power of jury nullification is real and essentially unreviewable. While I’ve been too ill to observe any of the trials — let alone try some myself — -I strongly suspect some jury nullification in the prosecutions of the Water Protectors among the Standing Rock Sioux and their allies.

Isn’t there anti-Indian bias to contend with around reservations? Sure there is, but where could you find enough people for a jury who don’t need clean water? In North Dakota as of last year there were 837 criminal cases against Water Protectors. There have been 26 guilty judgments after trial out of 797 cases disposed of.

A common charge against the Water Protectors appears to be “riot.” Watching from a distance, it appears that law enforcement officers just tell people they are a riot and start arresting them.

When the Water Protectors come to court, riot is defined as:

There are plenty of places in that definition with room for good faith differences of opinion. Prosecutors have shown they might overreach into some bad faith interpretations, as they did when they charged Amy Goodman with riot for taking pictures of what was going on for her TV show, Democracy Now!

It is worth noting that the prosecutor did not back off charging a reporter with riot. The judge threw the case out. Therefore, the Water Protectors have some hope that a jury can be aroused to use of its nullification power by the need to put down a mad dog masquerading as an attorney for the public interest.

Even assuming that the mad dog representing the government has quit frothing, and assuming that the government can actually prove a riot and connect each Water Protector with the riot, the power of jury nullification remains coiled and ready to strike.

The jury could decide based on anything from the prosecutor’s attitude toward a particular person to a sense of personal responsibility for climate change such that riot is the wrong charge at the wrong time against the wrong person.

Jury nullification is a dangerous amount of power concentrated in a small group that may be politically biased, stupid, uninformed — anything ordinary people might be.

Prosecutorial discretion is a dangerous amount of power concentrated in one person who may be politically biased, stupid, uninformed.

Power carries the possibility of abusing power and even if the jury might possibly use its power mistakenly, don’t we sometimes need protecting as much as our water does?

John Peter Zenger got charged with a crime for exposing the government’s bad behavior in 1735. From where I sit, it looks like something similar happened to Amy Goodman in 2016. Had the judge not acted, Goodman would be like Zenger, relying on the power of the jury, a power that cannot be checked.

If the Founders lacked the insight to see the U.S. as a colonizer of Native Americans, those racial blinders might have been stripped away when the Spanish colonies of the Philippines, Guam, and Puerto Rico became American colonies after the Spanish-American War of 1898. Puerto Rico was governed by a presidential appointee with a customary colonial disregard for civil liberties.

Jesus Balzac published a newspaper in Arecibo, Puerto Rico, and wrote articles highly critical of Governor Arthur Yager, a Princeton classmate of President Woodrow Wilson. We are not informed by the Supreme Court of the exact content of these editorials, but they resulted in two counts of criminal libel. In a one paragraph dismissal of Balzac’s First Amendment defense, the Court reported:

Upon denial of a jury trial, Balzac was sentenced to a total of nine months in jail. Balzac’s jury demand in such a political context is an eerie echo of the libel prosecution of John Peter Zenger for criticizing the colonial governor of New York. Zenger’s trial is, of course, the proverbial textbook case of jury nullification. It may surprise nobody that Balzac was denied the opportunity to follow Zenger’s example and therefore had no chance to become the John Peter Zenger of Puerto Rico.

What the Puerto Ricans may lack in liberty, they make up in paper towels, I suppose, since Donald Trump’s visit.

I set out to explain and therefore attempt to distinguish impeachment and jury nullification. This was set off by a TV commentator’s lament over the Senate allegedly killing impeachment, excising it from the Constitution in a vain attempt to practice jury nullification.

I’ve spread the two methods out for readers to examine, but I want to point out two things that hit me in the face because I come at it as a judge.

Impeachment imposes a binary choice. The person on trial is convicted or not convicted and if convicted the penalty is built in. You lose your job and the only open question is whether you can get it back by cleansing yourself through another election cycle.

The other difference really assaults my accustomed role. I instruct the jury on the law that applies, all of it, with great care. The jury usually needs to hear about burden of proof — which may differ for issues arising within the case. The bottom line burden in a criminal case is “beyond a reasonable doubt,” which I sometimes define but more often I just speak it and trust the jury’s common sense. The plain language tells you that it’s lawful to take somebody’s life even if you still harbor a doubt, as long as you can be persuaded your doubt is not “reasonable.”

Simple or complicated, I tell you the law you need to know to decide the case in front of you and no more. I tell you that harmonizing the evidence into a story is your task. You must decide if witnesses are reporting truthfully. Since you don’t hear the hundreds of cases I hear, you cannot know how rare bald-faced lies are. Incorrect testimony is most often mistaken testimony. Once you have assembled the most probable story, you must apply the law I have explained to you. Do these things and you will reap the reward of civic duty well done. “Go forth,” I say, “and do your difficult job.”

Go piss up a rope, Judge.

You don’t say that out loud and probably don’t even think it, but the truth is that whatever time I spent putting together instructions on the law was wasted. You intend to “go off the reservation” to find the law, and in that search your motives are pure.

I would not punish you if I could, but I’m not here to lie to you and the truth is that a few judges would bury you under the jail. We are not used to having our orders ignored so flagrantly.

Now look at the impeachment case. The Senate “jurors” have not disobeyed any orders because there were none. The only penalties at issue are losing a public office and not being able to seek it again. Failing to convict a guilty person does not leave a criminal running loose. Impeachment does not trigger the double jeopardy rule, so a criminal prosecution is still on the table.

If the vote was a majority of Senators for “guilty” but not two thirds, the result is recorded as “not guilty.” Really? The evidence was broadcast over live TV and is available to prosecuting attorneys. Over a third of the Senate did not want to remove the President, but impeachment worked the way it was designed to work and the way it has always worked.

If impeachment is dead, long live impeachment.

The National Discussion

The home of opinions on American politics and policy.

Steve Russell

Written by

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

The National Discussion

The home of opinions on American politics and policy.

Steve Russell

Written by

Enrolled Cherokee, 9th grade dropout, retired judge, associate professor emeritus, and (so far) cancer survivor. Memoir: Lighting the Fire (Miniver Press 2020)

The National Discussion

The home of opinions on American politics and policy.

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