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How Trump's Impeachment Trial Could Set New Precedent


The Senate impeachment trial of President Trump is scheduled to resume tomorrow when both sides are expected to deliver closing arguments. Then the trial will adjourn again until Wednesday, when the Senate will finally vote on the two articles of impeachment against the president. It is almost certain at this point that President Trump will be acquitted.

But we want to begin today with a closer look at what kind of precedent is being set with this impeachment trial for future cases of alleged presidential misconduct. For that, I'm joined by Keith Whittington. He's a professor of politics at Princeton University, and he wrote a piece about this for The Washington Post.

Professor Whittington, welcome.


MCCAMMON: You write that even if senators do vote to acquit the president, it is, quote, "imperative that they not wind up endorsing a dangerous view of presidential power and crippling their own institution in the process" - end quote. What do you mean by that?

WHITTINGTON: Well, so I'm certainly concerned that the Republicans will be tempted to want to latch onto a theory that was offered by professor Alan Dershowitz in this trial, really arguing that President Trump's actions are outside the scope of impeachable offenses, that any kind of abuse of office would be outside the scope of impeachable offenses and that we should only think of high crimes and misdemeanors as including actual criminal offenses against the ordinary law.

I think that would be a mistake. It'd be against the history of how the House and the Senate have understood the scope of the impeachment power. And it would, as a consequence, limit how future Congresses might use the impeachment power and what kinds of officers might be impeached down the road.

MCCAMMON: As you indicate, during one question and answer session last week, one of the president's lawyers, Alan Dershowitz, raised a lot of eyebrows when he seemed to argue that any action taken by a president to help his reelection is not impeachable as long as the president believes it's in the national interest. Mr. Dershowitz later spoke to NPR and tried to explain his point a little further. Here's a clip from that interview.


ALAN DERSHOWITZ: The question was, if a person does something completely legal, the president does something legal, completely within his power, but he was slightly motivated, motivated in part by a desire to get reelected, would that turn that motive into a corrupt motive? And my answer was no, it wouldn't turn it into a corrupt motive. It would turn him into a political motive. But if he did something unlawful, if he did something improper, if he did something that violated the law, clearly, a good motive would not serve as a justification.

MCCAMMON: Professor Whittington, how do you respond to that argument?

WHITTINGTON: Well, I think there are several complications there. I mean, one, he ultimately wound up using as synonyms the idea of something being improper but also something being unlawful. And those are potentially two different things.

He also makes an argument about motives and how much we can take into account motives. And so he's offering a standard, I think, is - that is much more narrow than the House or the Senate has traditionally accepted in thinking about impeachable offenses. And even within the context of the standard he wants to offer, I think he is spinning it in a way that is much narrower than the criminal law even that we generally accept.

MCCAMMON: And why does that matter? I mean, what's at stake with getting this right?

WHITTINGTON: I think it's important that we get it right to try to think about what - not only how we're going to resolve this particular controversy and what we're going to do with President Trump now but also how we're going to resolve future controversies down the road, not only involving presidents but also potentially involving other government officials.

Most of our impeachments across American history have not involved presidents. They have involved mostly judges, generally lower court judges. On occasion, they have involved other kinds of government officials as well. I think we want to leave that kind of flexibility in the hands of Congress to be able to use in the future.

MCCAMMON: You've suggested that senators could vote to acquit the president while also rejecting his legal team's defense. I mean, how would that work?

WHITTINGTON: Well, I think Senator Marco Rubio at this point has already laid down a pretty good model for how this works. So Senator Rubio's already released a statement saying that he plans to vote to acquit the president. He has not argued that the president did nothing wrong. He has not argued that what the president did is outside the scope of the impeachment power.

Instead, he says that even if these are appropriate impeachable offenses, the Senate still has to make a judgment as to whether they justify actually removing the president under these circumstances, and that in his view, these charges are not of sufficient gravity to justify removal. And I think that's a perfectly reasonable argument. It's consistent with the scope of the impeachment power and the ability of the House to bring these kinds of charges to the Senate in the future.

And it's also consistent with the Senate's duty to try to evaluate not only did the officer do the thing that he is being charged with doing but also how serious is the thing that he's being charged with doing.

MCCAMMON: When it comes to precedent, as you look at how these events have unfolded in recent days, based on what you know now, how do you think this process will shape future impeachments, assuming the country faces this again?

WHITTINGTON: Well, I think the Senate certainly has opened the door to future impeachment trials not having witnesses, not having a record introduced in front of them. The Senate has at various points started impeachment processes and then ended them early. They dismissed an impeachment charge, for example, when an officer has resigned office before the start of the Senate trial. The Senate's been willing to dismiss those charges. And in those contexts, the Senate did not hear evidence and witnesses.

But in this case, the Senate has moved all the way to final judgment about whether or not to convict or acquit an officer. And yet, they've heard no witnesses. That's unprecedented. And I think it's likely to affect how the Senate sees its role going forward. And I think how the senators describe their thinking as they're voting to acquit becomes very important into how future Houses and future Senates think about the scope of impeachment power relative to these kinds of charges.

MCCAMMON: Keith Whittington is a professor of politics at Princeton University.

Professor Whittington, thank you so much for speaking with us.

WHITTINGTON: Thank you very much. Transcript provided by NPR, Copyright NPR.

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