President Donald Trump is being tried in the Senate. However, the Senate is also in question, to see if it is capable of fulfilling its constitutional duty to conduct a credible political trial.
James Madison considered that the Supreme Court, not the Senate, should prosecute presidential trials. Until now, the other authors' rejection of Madison's idea seemed reasonable. However, the unprecedented degree of partisanship in Trump's "trial", and the possibility that for the first time there are no witnesses, increase the possibility that the editors' political trial design has reached a stalemate.RELATED
The Supreme Court trial option was not a late occurrence in the constitutional convention of 1787. On the contrary, it was the first idea about where political trials should take place, and prevailed during most of that long and hot summer of Philadelphia. . Until August 27, about three months after the convention, the working draft of the political trial provision of the Constitution required "to dismiss the president with a political trial by the House of Representatives and resolve the sentence in the Court Supreme, for treason, bribery or corruption. "
On September 4, a committee recommended changing the power to make political judgments to the Senate. Gouverneur Morris of Pennsylvania, on behalf of that committee, offered what he called "a conclusive reason for making the Senate in lieu of the Supreme Court the judge of political trials." The reason? A president under political trial could face a criminal process that could go to the Supreme Court.
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The only objection came from Charles Pinckney of South Carolina, who thought it would be "the same body of men who, in fact, will elect the president from among their magistrates in case of political trial." But that objection disappeared when the editors decided on a method to select a president that did not involve senators.
The issue came up again on September 8, the same day the convention defined the words "crimes and misdemeanors." James Madison himself explained that he did not believe the Senate should judge the defendants, "especially because it would be judged by the other branch of the legislature." He feared the power of the legislature much more than he feared the power of the president and was concerned "that the president under these circumstances would become unduly dependent." Madison's solution was to propose a special tribunal composed of judges of the Supreme Court, among others.
To this, Gouverneur Morris replied that "I thought that no other court could be trusted than the Senate. The Supreme Court was small and could be twisted or corrupted." Morris continued to respond to Madison's concern to grant the Senate too much power by saying that "there could be no danger that the Senate would lie under oath that the president was guilty of crimes or acts, especially because in four years he can be prosecuted."
However, Madison filed a motion to remove the power of political judgment from the Senate. Delegates voted, by state, as they always did, and the motion lost 9-2. With the power of judgment now established in the Senate, Morris proposed to insert a requirement that any conviction would require the votes of two-thirds of the senators. This proposal was adopted without further discussion.
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In Federalist number 65, Alexander Hamilton tried to justify the decision to deliver the judgments to the Senate by insisting that the Supreme Court would have lacked the "strength" to dismiss the president, and that the judges, being few in number, would not have " the merit and authority "necessary to dismiss a president. He then added Morris's old argument that the Supreme Court might have to judge a criminal trial against the president after he was dismissed. Hamilton dealt with a version of Madison's idea of a court run by the Supreme Court reiterating the same concern; and concluded that having the president of the Supreme Court to lead the Senate trial was a "prudent means" between the two options.
Finally, the editors trusted that the senators would have legitimacy and would act in accordance with their oaths. And it is fair to say that during most of the constitutional history, the Senate has done a proper job in dealing with political trials.
Today's partisanship threatens that legacy. It could be said that a trial in which all witnesses are excluded is not a trial at all. If the Senate cannot present a trial that makes Americans believe they have "merit and authority" to judge the president, it may be time to start thinking about a new constitutional solution.