Ginsburg and Huq on How to Design a Better Impeachment Process

Designing Better Impeachments

As dramas go, this one was devoid of suspense. The Senate trial of President Donald Trump always had a foregone conclusion. This inevitability did not hinge on the strength of the evidence against the president, nor did it turn on his political allies’ successful prevention of formal consideration of evidence. Certainty was, rather, hardwired.

Nonetheless the trial raises difficult—and pressing—questions. Is it possible to do better? Do impeachment proceedings inevitably collapse into exercises in raw politics? And who is to blame this time?

If, like us, you are reasonably confident in the damning evidence against the president and agree that the Constitution does not to require a statutory criminal act for impeachment, there is a facile answer to this last question: Senate Republicans are at fault for derailing a credible process. One might also look past their particular voting behavior and blame the “all-time record” support for Trump among the Republican rank and file.

Either way, though, this diagnosis misses an important part of the story: the political legitimacy of impeachment trials can prevail only when the institutional design allows it. The failure of a meaningful probe of the president’s actions reflects not so much the unusual circumstances of the Trump presidency as a more profound deficiency in our institutions.

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