What ancient Rome, the Founding Fathers and MLK can tell us about impeachment

trump at a lecturn

President Donald Trump was acquitted of impeachment charges on Wednesday. (Photo courtesy of Creative Commons)

The repercussions of President Donald Trump’s impeachment and today’s acquittal by the U.S. Senate will extend from the coming presidential election to the future health of American democracy, according to a panel of top UC Berkeley scholars reacting to this extraordinary moment in American history.

Some predicted a damaging erosion in the power of Congress to hold future presidents accountable for corrupt or criminal behavior. One warned of an assault on language so severe that it undermines our sense shared values and meaning; another said advocates of democracy must bring urgency and inspiration to their stories or risk further political losses.

And one described how members of the ancient Roman Senate rendered harsh judgment on emperors who violated the values and trust expected of them in their exalted office.

We asked Berkeley scholars in a range of fields for their reactions to the Senate vote. Here’s what they told us:

In the Roman Empire, political judgment after death

head shot of Carlos F. Noreña

Carlos F. Noreña

The spectacle of impeachment proceedings against Donald Trump might seem like a uniquely American exercise of a “checks-and-balances” mechanism to rein in presidential power. In most political systems, though, the executive authority is subject to some form of constraint. Even the Roman Empire, in which emperors were held to be above the law, was no exception.

In the Roman case, the main institutional check on imperial action was a formal judgment of the emperor by the Senate. This recalls our own constitutional practice. The key difference is that this official judgment took place only after the death of the emperor, when the Senate convened to hold what was, in effect, a trial on his life. Emperors who had adhered to the standards of a good ruler were deified and entered into the pantheon of Roman gods.

Those who had diverged from these norms had their memories formally condemned—their names erased from public documents, their statues toppled and the coins that bore their portraits melted down. In a culture in which posthumous reputation was paramount, this process kept most emperors in check. Whether our own approach to this perennial political problem can still be effective remains to be seen.

Carlos F. Noreña, associate professor of history and chair, Ancient History and Mediterranean Archaeology program

A shared language is the first casualty of culture war

headshot of linguist Robin Lakoff

Robin Lakoff, professor emerita of linguistics

Most of my work has centered around the importance of language to the business of being human: making meaning, making sense to one another, arguing, being persuaded, creating reasons for what we do. The assumption I have always made (and am being forced to reconsider given the current contretemps) is that language matters. We do listen to one another, and our minds can be changed as a result.

But the current Republican members of the U.S. Senate have made a mockery of this assumption. It doesn’t matter what they are presented with — facts, documents, witnesses — phooey! I think they know that they are behaving in an infantile (pre-linguistic) fashion, but something else is more important than being fully human — primal fear. What the Senate does sets an example for all of us, and a precedent for future senators: Language, meaning and function can be separated from each other. We do not have to listen, much less to act, on anything we hear.

Thus, we become infrahuman.

I am thinking, too, of what Thucydides said about the erosion of meaning and trust in language during the Peloponnesian War. We are in a crisis, if not an all-out war, and meaning-making and sharing via language is the first casualty.

Robin Lakoff, professor emerita of linguistics

‘Impeachment and removal are (now) a hollow threat’

a headshot of the dean

Erwin Chemerinsky is the dean of UC Berkeley’s law school.

My great fear in light of the Senate’s decision is the message for future presidents. It is now clear that impeachment and removal are a hollow threat, so long as the president’s party sticks with him or her. It also communicates to future presidents that there is no reason for them or their aides to ever cooperate with congressional investigations; disregarding subpoenas has no consequences.

At the same time, the Justice Department takes the position that a sitting president cannot be indicted. And President Trump argues that a president cannot be made to comply with a subpoena, even for information about crimes that occurred prior to taking office.

Put altogether, the effect is to undermine any semblance of checks and balances. The core of the rule of law always has been that no one, not even the president, is above the law. Yet, the lesson of all this is that the president is above the law, and there are not mechanisms to hold the president accountable. It is very frightening.

Erwin Chemerinsky, dean of the UC Berkeley School of Law

The people will have the final verdict

head shot of law Professor John Yoo

John Yoo, Emanuel Heller Professor of Law

The critical constitutional question, which both parties have failed to persuasively answer, is this: Did the president commit a “high crime or misdemeanor” that justifies removal from office?

Today’s Democrats have probably never signed a document so replete with quotations from The Federalist Papers and the 1787 Constitutional Convention as the House Judiciary Committee’s Dec. 13, 2019, impeachment report. Democrats suddenly favor the Founding because it lends some support to their claim that the standard of “Treason, Bribery, and other high Crimes and Misdemeanors” for impeachment includes conduct that falls short of federal crimes.

On the other hand, Trump’s defense could have drawn equal, if not greater, support from the historical record of the Founding. An initial close reading of the Constitution’s text suggests that “other high Crimes and Misdemeanors” must have a similar nature to “Treason” and “Bribery,” since they are included in the same list and, crucially, linked with an “other.”

Ultimately the best argument in the president’s defense from the Framing comes from the importance of the political process…. Even if the Senate failed in its duty, the people would still have their say: By rejecting a president’s campaign for reelection, the people would render their own verdict.

John Yoo, Emanuel S. Heller Professor of Law and director of the Public Law & Policy Program at Berkeley Law (Text derived from “What the Founders Told Us about ‘High Crimes and Misdemeanors’,” by John Yoo, published at nationalreview.com on Jan. 24, 2020.)

Checks and balances diminished

head shot of Eric Schickler, professor of political science

Eric Schickler, co-director of the Institute of Governmental Studies

The impeachment outcome has critical implications for congressional-presidential relations and the robustness of the impeachment process. Impeachment is the ultimate weapon that Congress was granted under the Constitution to check a president who abuses his or her power. The other tools that Congress has — the power of the purse, its oversight role — can generally be frustrated by a determined president.

One deep concern is that if impeachment has come to be seen as a purely partisan process — in which the president’s party can be expected to stick with the president, no matter what — then the tool can no longer be used to hold a president accountable, since there will never be a two-thirds majority to convict, no matter what the president does.

The Constitution anticipated that members of each branch would have some commitment to the power of their own branch — and this would lead them to act when another branch abuses its power. The framers knew that party and other goals could interfere — but their belief was that commitment to the institution would outweigh party in such moments, for at least some, if not all, members. We can no longer take that assumption for granted.

Eric Schickler, Jeffrey & Ashley McDermott Professor of Political Science and co-director of the UC Berkeley Institute for Governmental Affairs (IGS)

‘The public has a short memory’

head shot of Laura Stoker, political science professor of the Graduate School

Laura Stoker, Professor of the Graduate School, political science

Will impeachment move the needle for the 2020 election? As with so much in the Trump presidency, probably not much. Democratic and Republican voters listen to the contrasting messages of their party leaders, which are reinforced by partisan media. If party unity on either side begins to give way, then the impact on public opinion could be larger. But that is unlikely.

The opinions of independent voters are more moveable. While they tend to be closer to Democrats in their general opinions about Trump, they are closer to Republicans on the question of removing him from office. This gives Democratic politicians an incentive to move on after the Senate’s vote to acquit.

Still, that doesn’t mean the Ukraine saga will be over. We can expect more revelations. John Bolton’s book will come out. Investigations involving Rudy Giuliani and others involved in the scandal are a wild card. The alleged corruption of Joe Biden will continue to be a Trump campaign theme.

November is a long way off, and the public has a short memory. We can expect the 2020 election to be a referendum on the Trump presidency writ large, with impeachment just one piece in a larger mosaic.

–  Laura Stoker, Professor of the Graduate School, political science

Democrats overreached — but had no choice

headshot of Henry Brady, dean of the Goldman School of Public Policy

Henry Brady, dean of the Goldman School of Public Policy

I think the Democrats overreached, but I don’t think they had a choice. The idea that they overreached is based on my political sense about the inevitability of President Trump’s acquittal in the Senate. The idea that they didn’t have a choice is based on my moral and ethical sense.

Morally and ethically, Democrats had to record for posterity that Trump’s request in the phone call on July 25, 2019, with the president of Ukraine to “do us a favor” was a brazen abuse of power. This moral stance by the Democrats in the House and Senate has not convinced everyone, but polling shows that the majority of people in America now feel that President Trump did something wrong.

A number of Republican senators have indicated that the Democrats proved that Trump did something he should not have done — they just don’t think it should lead to a guilty verdict in the impeachment trial. Most Republicans go even farther and absolve Trump of blame. Historians will debate who is right, but at least the Democrats have set a standard to be considered.

Henry Brady, dean of the Goldman School of Public Policy and Class of 1941 Monroe Deutsch Professor of Political Science and Public Policy

Learning the lessons of Roosevelt, Kennedy and King

head shot of M. Steven Fish, professor of political science

M. Steven Fish, professor of political science

Congressional Republicans have chosen Trump over the nation’s laws, ideals, security, global leadership. Their democratic and patriotic meltdown offers Democrats the chance to pick up the flag that Republicans have dropped and to carry it on behalf of all Americans.

While Democratic House managers have made a powerful case for impeachment, party leaders’ overall response to Trumpism over the past four years has been insufficient. They double down on their tax and healthcare promises and speak a language of care and benevolence that fails to resonate outside the progressive base. Plugging progressive policies is a must for Democrats, but voters aren’t just looking for healthcare providers. They long for leaders who make them feel great about being Americans and they prize strength and straight talk in top officeholders.

The progressives who dominated U.S. politics during the middle third of the 20th century understood this. In order to build support for and enact Medicare, Social Security and civil rights over furious opposition from the right, Franklin Roosevelt, Martin Luther King, John Kennedy and Lyndon Johnson offered stirring, optimistic narratives that tethered progressive causes to the nation’s identity, security and highest purposes. Today’s Democrats would be wise to take a page from their playbook.

M. Steven Fish, professor of political science