Much ado was made by both sides in quoting Hamilton and the other Founding Fathers’ views on the impeachment process. Every time somebody made such a quote a cold chill went down my spine, thinking about how in the next impeachment they’ll be quoting Dershowitz and the President’s lawyers, as proof positive that the President’s “abuse of power” and “blanket obstruction” are not impeachable, and that “it’s okay if you do it to get elected so long as your election is for the good of the people” arguments.
Regular people don’t realize that the law isn’t set in stone. It’s made by precedent. This tribunal sets new precedents. The President’s lawyers, in other words, were never speaking to acquit their client (which was already guaranteed) but to set precedent. Everything in law is precedent. Everything.
One Constitutional argument voids the entirety of the Derschowitz claims (and I have not heard any media or Members of Congress make it): the framers of the Constitution assigned the impeachment process not only to the chief executive but to federal judges. They did that for a purpose. Dershowitz, for example, argued at length (both in the Senate chamber and later in the media), that “abuse of power” can never be sufficient to impeach a president. In order for his arguments to be valid, he has to also say that the same principle applies to federal judges. Having failed to do so, renders everything he said as mental masturbation.
I say again: all the Constitutional arguments made to acquit the President must also (I dare say first) be proven valid for federal judges. Failing that important precedent renders anything else to be said mere hearsay. That’s what the founding fathers wrote into our Constitution. And that’s the argument that must be made in order to water down any aspect of the “high crimes and misdemeanors” arguments as made by Dershowitz et al.
Another way to look at it is to say that the President’s lawyers made the unsubstantiated assumption that there are different rules that apply to federal judges and to the chief executive. That’s not the case. The Constitution doesn’t make that distinction, and no precedent in the jurisprudence of impeachment has made that distinction. If you’re going to do so now, you must first make the argument separating the two, and in such a way that it’s agreeable to both sides.
Another Constitutional argument nobody made is that the founding fathers actually set up the Senator jurors in impeachment trials much differently. In the original Constitution, Senators were appointed by their individual state legislatures. That means when they were sitting in judgement of the President, the jurors were totally isolated from the kind of political pressure exerted on the Senators by President Trump and Leader McConnell. Of course, the 17th Amendment made the Senators elected.
If you’re going to pay repeated deference to the thinking processes of those who wrote our constitution, you must also reference their belief that the only way to ensure impartial jurors is to isolate them completely from the political influence by the person they were sitting in judgment on, the President.
Arguably, given the impediment of the 17th Amendment, the only way to be true to the founding fathers and the constitution is to, in fact, isolate said jurors from the political influence represented by being elected instead of being appointed. One way to do that is to have all votes made in secret. Another way is to assign their next reelection campaigns to their legislatures. Or, you could take the Senators out of the loop entirely, and to let their votes be made by their respective state legislatures. Finally, given the bitterly divisive environment we’re in right now, you could assign the blame to the legislatures while secretly letting the Senators vote their conscience in a private vote, to be made public at some future date.