It is overly generous to refer to what is unfolding in the US Senate this week as a “trial”. There are not many trials in which it is clear at the outset that the defendant is guilty but that he will nevertheless be cleared of all charges. And while we might be tempted to say that it is not Donald Trump but America’s system of checks and balances that is on trial in the Senate this week, that isn’t true either. That trial was likewise already over before the action in the Senate even began, the result just as horrific.
If this isn’t a trial, then what is it? Far from being an honest attempt to litigate the past, the impeachment proceedings in the Senate are actually about the future. The outcome of the Republican majority’s actions will be to tear up restraints on presidential abuses of power. These proceedings are a ratification of Donald Trump’s conduct in particular and of the use of illegal and corrupt actions in pursuit of partisan gain in general. They are a warning of much worse to come.
That this is not about much more than rubber-stamping the abuse of power is clear from watching the president’s defenders and enablers. Their mouths move, and words come out, but no effort at rational persuasion or even plausibility is attempted. They behave like the functionaries of an authoritarian political system in which words have no meaning and actions have no consequences, at least for the powerful. In this sense they are the perfect products of the Trump era.
Trump seeks not just one particular new power but complete freedom from scrutiny for his conduct
Foremost among them, of course, is Mitch McConnell, whose Republican majority sets the parameters of how exactly this abasement of the Senate will unfold. In any actual trial, the defendant’s advocates would be keen to bring to light evidence which might clear their client. Instead, McConnell is attempting to limit the information available to the Senate, rejecting Democratic amendments which would have subpoenaed additional documents and the testimony of key figures like John Bolton and Mick Mulvaney.
By refusing to bring damaging evidence to light, McConnell has created a permissive environment for the shenanigans of Trump’s lawyers, whose sole aim is to distract the public from the factual record. In the defense brief which they filed at the outset of the proceedings, the lawyers claim that a president can only be impeached if he is accused of violating a specific federal law. Because the House of Representatives did not make such an accusation, the lawyers argue that the entire process is a sham which should be dismissed without further discussion.
This argument is wrong on multiple levels. Impeachment has never been understood to depend on the violation of a specific criminal statute, and any such understanding would allow American presidents to exercise the powers of a dictator. A president would technically break no laws if he encouraged the police to brutalize suspects – as Trump has in fact done – and then used his pardon power to protect them from prosecution whenever they did. Impeachment is supposed to guard against precisely this abuse of presidential power, even if it breaks no laws.
A second problem with this defense of the president is that according to the Government Accountability Office, Trump did in fact violate the law when he withheld aid to Ukraine. Under a Nixon-era law, the president cannot decide not to spend money appropriated by Congress for a specific purpose on his own whim, because doing so violates his constitutional duty to “take care that the laws be faithfully executed”.
With the complicity of the Republican Senate majority, Trump is hence claiming the right to violate even this most basic requirement of his office, and to vastly expand what constitutes acceptable presidential conduct. While previous presidents tended to seek incremental increases in presidential power in service of what they believed, rightly or wrongly, to be the common good, Trump does the exact opposite. He seeks not just one particular new power but complete freedom from scrutiny for his conduct, and he does so in service not of any plausible national interest but rather purely to shield himself from the consequences of his abuses of power.
Trump appears to give little thought to his actions, but McConnell does. Just as he decided that refusing to consider the nomination of Merrick Garland was worth imperiling the legitimacy of the supreme court, now he has decided that the political survival of Donald Trump is worth creating the precedent that future presidents do not have to “take care that the laws be faithfully executed”. The only remedy is to channel public anger into a Democratic seizure of the Senate, and remake a broken institution as an instrument of the public good rather than a rubber-stamp legislature for the would-be authoritarian in the White House. If you want to see the consequences of failing to do so, just tune into the “trial”.
Andrew J Gawthorpe is a historian of the United States at Leiden University in the Netherlands