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Beyond Impeachment

Despite the obstacles, we must press Congress and the courts to restore accountability.

Well, that’s that. Today the Senate voted to acquit Donald Trump of abuse of power and obstruction of Congress, with no witnesses and no effort to gather more evidence.

Only one Republican joined the vote to remove. But what a Republican. Sen. Mitt Romney of Utah was the party’s standard bearer just four years before Trump. His eloquent and powerful speech will endure: Trump is guilty of “an appalling abuse of public trust.” He explained to the New York Times, “I believe that attempting to corrupt an election to maintain power is about as egregious an assault on the Constitution as can be made.”

What does this episode, now concluded, mean for the Constitution and the country?

First, impeachment has lost its sting. At the Constitutional Convention, Elbridge Gerry said, “A good magistrate will not fear them. A bad one ought to be kept in fear of them.” That fear is harder to imagine now, and not only because of the conduct and outcome of the Senate proceedings.

Now three times in American history a president has been brought to trial. In none was he removed from office. In the Clinton and now Trump impeachments, no article even attained a majority vote in the Senate, let alone the two-thirds needed for removal. (Of course, Richard Nixon resigned before he was impeached, and would likely have been removed.)

One aspect of this year’s confrontation that has received little comment is the fact that every other impeachment happened when both houses of Congress were controlled by a different party from the president. Never before did senators get asked to try a president of their own party. We now see how that goes, at least in this age of tribal partisanship.

Second, how the Senate acted will deepen the sense that Congress has stopped acting as a coequal branch of government as opposed to a bunch of party apparatchiks. Trump’s team made absurd constitutional arguments, claiming in effect that the president was above the law, even that any step he took to advance his reelection was per se legal. In July, Trump proclaimed, “I have an Article II [of the Constitution], where I can do whatever I want as president.” Just two days later he made his infamous “perfect” phone call to strong arm Ukrainian President Volodymyr Zelensky.

By voting for Trump, this Senate effectively endorsed this maximalist view. This extraordinary abdication of constitutional obligation raises serious concerns about the unchecked power of the presidency. This will ripple outward in courts, in policy, and in a political party now devoted to a notion of executive prerogative that would cheer the caesars.

It all guarantees that this issue of executive power and its abuse will be a central public topic in years to come — whether in a second Trump term, or in the early days of a new Democratic incumbent.

Some of the answers will come from legislative solutions to restore checks and balances. This includes bolstering congressional oversight, allowing for a more forceful vetting of nominees, reforming emergency powers, and reinforcing whistleblower protections with penalties for retaliation. And, all presidents and vice presidents should release their tax returns and place their business holdings and remaining assets in a blind trust.

Congress must step up in other ways. Presidential abuse fills the vacuum left by legislators. A key step would be to reform the National Emergencies Act and other emergency powers to impose commonsense constraints on the president’s ability to use these powers, and to make it easier for Congress to terminate emergency declarations. It can address core war powers issues by repealing or revising the Authorization for the Use of Military Force, which continues to offer a legal umbrella nearly two decades after enactment. It should assess the presidential appointments process to ensure that appointees are qualified, free of conflicts of interest, and serve in the public’s interest. In areas including recusal rules and judicial review for special prosecutor removals, we must safeguard our systems from the possibility of political interference into investigations of the president, senior political aides, and close personal associates.

Courts must fulfill their responsibilities as well. Chief Justice John Roberts dutifully sat silent in presiding over the trial; he can’t do that when he’s back on the bench. A trio of cases in the Supreme Court seek to reveal Trump’s dodgy finances. Another key case, about whether a subpoena of former White House Counsel Don McGahn is enforceable, also is working its way through the courts. The stakes have just gone up immeasurably for these cases. (And while we’re at it, Trump claims an “absolute right” to pardon himself. Congress should pass a resolution making clear it is appalled by such a self-pardon.)

Many key reforms have been proposed by the National Task Force on the Rule of Law and Democracy, cochaired by former U.S. Attorney Preet Bharara and former New Jersey Governor Christine Todd Whitman and convened by the Brennan Center. They are more urgent than ever. After all, we don’t know who the next president will be, or from which party. Now is the time to begin the bipartisan process of restoring checks and balances.

Presidents have overreached before. After John F. Kennedy appointed his brother to lead the Justice Department and other elected officials sought patronage positions for their family members, Congress passed an anti-nepotism law. When they did so, the system reacted. Richard Nixon’s many abuses prompted a wide array of new laws, ranging from the special prosecutor law (now expired) to the Budget and Impoundment Control Act and the War Powers Act.

Time and again, sweeping reform has followed rampant abuse — but not automatically, and not always. Today, the country is living through another such moment. And once again, it is time to act.