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The Senate Has Convicted Itself

The justifications offered by Republicans who acquitted Trump will have lasting ramifications for the republic.

Sarah Silbiger/Getty Images

There was never much hope that Republican senators would vote in large enough numbers to remove President Donald Trump from office this week. So in his closing statement on Monday, California Representative Adam Schiff set his sights a little lower. “Every single vote, even a single vote by a single member, can change the course of history,” he told the chamber. “It is said that a single man or a woman of courage makes a majority. Is there one among you who will say ‘enough’?”

Utah Senator Mitt Romney was the only Republican who answered that call. In an emotional speech on the Senate floor hours before the vote, he said he would vote to convict Trump on the first article of impeachment, which charged him with abuse of power. “Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one’s oath of office that I can imagine,” he declared. Romney explained that his decision came from more than just the facts at hand. “With my vote, I will tell my children and their children that I did my duty to the best of my ability, believing that my country expected it of me,” he said.

It was a profound moment in the Trump era. In some ways, Romney is more insulated from Trump’s political reprisals than any other Republican lawmaker. (He is not up for reelection until 2024.) But more than anything else, it showed how the Senate, as both an institution and a group of elected officials, failed in its constitutional duty. Laid before it was one of the plainest cases of corruption and abuse of power ever uncovered against a sitting president. In acquitting the president, the Senate has only convicted itself.

Forty-seven senators found the president guilty on both charges, falling substantially short of the two-thirds majority necessary to convict him and remove him from office. Fifty-two senators found the president not guilty on both charges. They voted largely along partisan lines. Romney, who sharply criticized Trump’s coercion of Ukraine when the scandal emerged, voted to convict him of abuse of power and acquit him of obstruction of Congress.

The House’s managers, led by California Representative Adam Schiff, spent the last few weeks recounting Trump’s misdeeds. They laid out in stark detail how the president and his underlings tried to coerce a vulnerable eastern European country into falsely smearing former Vice President Joe Biden, the leading Democratic presidential candidate last summer. A whistleblower complaint alerted Congress to the scheme in September, effectively forcing Trump to release millions in military aid that he planned to withhold until Ukraine’s president publicly tarred Biden as corrupt. It was the most egregious abuse of presidential power since Watergate, and the House managers prosecuted it accordingly.

Their performance was not perfect. Trump’s lawyers repeatedly told the Senate that by convicting the president, it would effectively remove him from the ballot in 2020. Schiff and his colleagues failed to note that disqualification from office was discretionary, not mandatory, and thus couldn’t be used to justify a not-guilty vote. Speaker Nancy Pelosi ignored calls to appoint Michigan Representative Justin Amash as a manager, depriving the team of a conservative voice in favor of impeachment who could have rebutted charges of partisanship. Her decision to withhold the articles after December’s vote gave credence to Republican claims that the impeachment process itself was a political stunt.

There are broader strategic questions that may be harder to answer in the heat of the moment. Would it have strengthened the House’s hand to fight harder for subpoenas in the courts? Would it have worked better to subpoena former National Security Adviser John Bolton and obtain his testimony before the impeachment vote? Would a third article of impeachment charging Trump with bribery have defused claims that there was no underlying “high crime or misdemeanor”? I suspect none of this would have altered the vote’s trajectory, but historians may have a clearer, different perspective.

What is already clear in this moment is the Senate’s abdication of duty. Part of it can be ascribed to structural flaws. Severe overrepresentation of rural states gave Trump’s political coalition an undue level of influence in the process. American separation of powers is also based on the idea that each branch will zealously guard its own power. But as I noted last month, the Seventeenth Amendment upended how the politics of impeachment would work. Instead of appointees from state legislatures who could act somewhat independently, the president’s jurors are now accountable to the same electorate that chose him. “Ambition,” James Madison said, “must be made to counteract ambition.” Now those ambitions are intertwined.

But the real fault must lie with the 52 senators who, out of ideological sympathy or personal advantage, placed those interests above their oaths as senators and as impartial jurors. It would be too naïve to think all 100 senators would vote for Trump’s removal, or that any of them could completely suppress their partisan instincts. But it was stunning to witness the degree to which Republican senators transformed themselves into advocates for the president’s cause instead of neutral observers of it.

Some senators, presented with evidence of a plot to falsely smear the elder Biden, became eager co-conspirators in carrying it out. None seemed to relish the partisan warfare more than Iowa Senator Joni Ernst. As other GOP lawmakers spoke to reporters on Capitol Hill after the first day of questions from senators, she amplified Trump lawyers’ smears against Biden. “Iowa caucuses, folks, Iowa caucuses are this next Monday evening,” she said, almost gleefully. “And I’m really interested to see how this discussion today informs and influences the Iowa caucus voters, those Democratic caucusgoers. Will they be supporting Vice President Biden at this point? Not certain about that.” Ernst later suggested that it could result in Biden’s impeachment if he were elected.

Kentucky Senator Rand Paul had once championed whistleblowers as a critic of U.S. intelligence agencies. But he abandoned those principles for partisan expediency. On the second day of senators’ questioning, Paul tried to force Chief Justice John Roberts to read the name of a person often floated in conservative media circles as the whistleblower who alerted Congress about the Ukraine scheme. To his credit, Roberts refused. So Paul took matters into his own hands, first by reading his question to reporters outside the trial and then by saying it aloud on the Senate floor next to a giant placard emblazoned with the name. It served no purpose beyond intimidation and reprisal.

Other senators compromised themselves in more subtle ways. At one point during the trial, White House lawyer Patrick Philbin argued that there was nothing legally wrong with obtaining dirt on domestic rivals from foreign powers. “I think that the idea that any information that happens to come from overseas is necessarily campaign interference is a mistake,” he claimed. Agreement came from none other than North Carolina Senator Richard Burr, who chairs the Senate Intelligence Committee and led a bipartisan inquiry into Russian meddling in 2016. Burr, who should know the perils of foreign meddling as well as anyone, told reporters that he had “no problem” with that argument.

And then there were the embarrassments. Alaska Senator Lisa Murkowski acknowledged that the president had committed wrongdoings in the Ukraine scandal. At the same time, she made the circular assertion that she couldn’t vote for a partisan impeachment, thereby ensuring that it would remain partisan. Maine Senator Susan Collins went even further to defend her vote for acquittal. While also faulting Trump for his actions, she made the risible assertion that Trump “has learned from this case,” as if to suggest that he won’t do anything like it again. The president, for his part, has continually asserted that he did nothing wrong and acted perfectly in all respects.

At the same time, Trump probably did learn a lot from this experience. He learned that he can wield the presidency’s myriad powers in whatever way best undermines his political rivals, so long as he does a better job of keeping it under wraps. He learned that even if his future schemes are uncovered, Republican senators will either seek refuge in whatever motivated reasoning gets them through a reporter’s questions or simply join him in carrying them out. And he learned that, with the sole exception of Mitt Romney, a generation of congressional Republicans have bound themselves to him with “a cord of steel ... for all of history,” as Schiff warned during his closing arguments.

With impeachment off the table, Trump is free to pick up the Ukraine scheme from where he left off. When asked if Trump would order an investigation into the Bidens after the impeachment trial was over, Trump lawyer Rudy Giuliani welcomed the possibility. “Absolutely, 100 percent,” he told NPR this week. “I would have no problem with him doing it. In fact, I’d have a problem with him not doing it. I think he would be saying that Joe Biden can get away with selling out the United States, making us a fool in the Ukraine.”

Wednesday’s acquittal vote will not collapse American democracy on its own. The republic is still intact. Both houses of Congress are in session. State and federal courts are open. The military obeys the commands of the civilian government. But it still feels like the country has opened a door, walked through it, and locked it behind itself. Trump, through his legal team, made the case for a hyperimperial presidency—one where legislative oversight is optional instead of necessary, where abuse of power is a constitutional duty instead of an impeachable offense, and where placing the public interest ahead of personal gain is a foolish notion. The Senate did not disagree.

It matters that Romney will go down in history as the first senator to vote to remove a president from his own party. It matters more that 52 of his fellow Republicans lacked his courage or his convictions. Their failure leaves only one check against Trump’s future abuses of power: a presidential election in November where he has claimed the right to invite foreign sabotage of his opponents on his own behalf. God save the republic, because no one else will.