Early on Sunday morning last week a friend called me up in an emotional storm. It was the morning after Donald Trump’s second acquittal from impeachment. “You must write about the impeachment, and the title of your article should be ‘Not democracy – hypocrisy.’”
The last time I wrote about impeachment was in November 2019 – a year and three months ago, which seem like a decade. The situation when I wrote was that the US Senate was in the midst of its first impeachment trial of Trump on charges of soliciting foreign interference in the 2020 presidential elections, involving an infamous phone call between him and Ukrainian President Volodymyr Zelensky.
At the time I was impressed with the Senate proceedings, which I watched on CNN, but took issue with the idea, raised by an acquaintance, that the impeachment procedure in the US is far more efficient and fair than the procedure in Israel, which involves decisions by the attorney-general – an appointed official, as opposed to the elected members of Congress in the US – whether to investigate, what to investigate, and whether to indict, but not to actually try, which is the job of the courts.
All this was a month before Attorney-General Avichai Mandelblit announced his decision to indict Prime Minister Benjamin Netanyahu on charges of bribery, fraud and breach of trust.
In the meantime, Trump was acquitted twice, by the Senate, of the charges against him and was not impeached – once on February 5, 2020, and the second time on February 13, 2021, when the charges against him were inciting his supporters to storm Capitol Hill on January 6, in order to prevent Congress from certifying President-elect Joe Biden’s election victory, which turned into a violent and destructive riot, in which several persons were killed, and the life of vice president Mike Pence was endangered.
In the second round the procedure was hasty and much less impressive than in the first, but in both cases the final outcome seemed to have nothing whatsoever, or very little, to do with the actual charges or the evidence presented, placing a question mark on whether elected congressmen are really a more efficient and just means to indict and try a wayward president than an appointed attorney-general, and two court instances (a district court, and the Supreme Court, if the judgment of the district court is appealed) in the Israeli case.
In fact, the question ought to be asked, why, in a country where the separation of powers is considered a supreme value (much more so than in countries with a parliamentary system of government such as ours), elected representatives and senators – whose main tasks are to represent and legislate, whose main motivation (according to numerous academic studies) is to get reelected, whom no one expects to be neutral and partial on any issue, and most of whom do not qualify to be appointed as judges in a court of law of any level – are considered qualified to sit in judgment of the President of the United States, especially a manipulative president, with the power to “get even” with congressmen from his own party who might vote against him.
Is there any doubt whatsoever that any district court or the Supreme Court in Israel, even if its makeup is not perfectly balanced as between liberal and conservative judges, will issue a fairer and more just judgment than 100 US senators, who are politicians with personal and partisan interests?
And what about 120 MKs? It is no accident that in 2005 the MKs’ Immunity Law was amended so that it is no longer the Knesset that decides whether to lift the immunity of an MK whom the attorney-general wishes to indict, but the attorney-general who decides whether to indict an MK, and the Knesset may then decide to apply his immunity. This happened after the Knesset abused its power when it decided not to lift the immunity of two Likud MKs caught voting twice in a vote on the Economic Arrangements Law for 2004.
BUT BACK to Trump’s acquittal on Saturday, February 13. Can the 43 Republican senators who voted for acquittal (seven voted with the Democrats, compared to only one – Mitt Romney – in the first impeachment trial) be accused of hypocrisy, and do they pose a threat to democracy in the US?
First of all, many of the Republican senators who voted against impeachment did not conceal their opinion that Trump’s conduct on this occasion had been despicable, nor their refusal to accept his allegation that the presidential elections had been fraudulent. In fact, their argument for objecting to impeachment was constitutional: that one cannot impeach a president who is no longer in office, even if the act for which he was impeached by the House of Representatives, and the vote in favor of impeachment in the House, had occurred while he was still president; but the trial in the Senate began after Biden had been sworn in as the 46th president of the US. (This was no coincidence, but a deliberate Democratic decision, based on the fact that, as of January 20, they would have a majority in the Senate.) If I am not mistaken, the question whether constitutionally a former president can be impeached remains unresolved.
Of the 43 Republican senators who voted against impeachment, a few not only were opposed to impeachment, but believe Trump was right in claiming that the presidential election was rigged, and that he was right to resist Biden’s being sworn in as president. The remainder didn’t vote against impeachment only because of the alleged unconstitutionality of the procedure. Many were worried that voting in favor of impeachment might interfere with their political careers, since no one knows how much influence Trump will continue to wield in the GOP in the future. Many were also worried about the implications of an impeachment on the cohesion of the GOP, which is rather rickety at the moment. It is a fact that of the seven Republican senators who voted for impeachment, none has any worries about reelection, for various reasons.
So, one might accuse many Republican senators of being lily-livered, but though some of them might be hypocritical (as might be many Democrats for that matter), the greatest danger to the American democracy in recent years came from the former president they were called upon by the House of Representatives to impeach, on the basis of the provisions of the US Constitution, which provide for an impeachment procedure on charges of “treason, bribery, or other high crimes and misdemeanors,” but are outdated and ineffective, and ought to be amended or declared obsolete, as was done in the UK – from which the US adopted the impeachment concept in the first place.
In the UK, parliament still has the power to impeach holders of public office for “high treason or other crimes and misdemeanors” – a power that was last used in 1806 and, though declared obsolete in 1999, still formally exists, side by side with modern means of dealing with such a problem if it emerges.
Not having a written constitution apparently makes for greater flexibility, and the ability to apply common sense.
The writer was a researcher in the Knesset Research and Information Center until her retirement, and recently published a book in Hebrew, “The Job of the Knesset Member – An Undefined Job,” soon to appear in English.