On Dec. 19, the day after the House of Representatives voted to impeach the president, Frank Bowman III wrapped up a day filled with media hits and TV spots on cable news by giving a book talk at Columbia’s Skylark bookshop.
Bowman is a law professor at MU and Columbia’s resident impeachment expert. His event at the book shop was to promote his 2019 book, “High Crimes and Misdemeanors,” a history of the impeachment process, what the founders intended it to be and an exploration of what impeachment would look like today if those intentions were fulfilled.
Bowman argued at the event that much of the current impeachment debate stems from a fundamental misunderstanding of the notorious phrase serving as both the title of his book and the constitutional definition of an impeachable offense. He said the history of the phrase, and the reasons the authors of the Constitution used it, indicates an open-endedness meant specifically to allow for unforeseeable possibilities.
“In law, and particularly in constitutional law, history always matters,” said Bowman.
The United States judicial system is built on a system of decisions setting a precedent that can be applied to the same situation in the future. Bowman argues that the phrase “high crimes and misdemeanors” needs to be interpreted within a similar context, one that makes clear that a violation of law isn’t necessary to qualify someone for removal from office.
“My view of the impeachment power is that ultimately it gives Congress the power to decide,” Bowman said.
But he’s quick to note that impeachment is essentially a political process and partisanship will be the most important factor in determining the result of the Senate trial. Even with the Articles of Impeachment currently being held in the House by Speaker Nancy Pelosi, the debate has shifted to just what the Senate trial will look like.
Two articles have been brought against the president by House Democrats related to his call with the president of Ukraine, Volodymyr Zelensky, on July 25 last year. The articles, charging abuse of power and obstruction of Congress, assert that Trump attempted to extort the president of Ukraine for personal political gain, in the form of a sham investigation into a political opponent, and then covered it up by telling figures who heard the call to ignore congressional subpoenas.
The next step is the naming of impeachment managers by Pelosi, who will formally bring the articles to the Senate, and then argue the case for removal from office in front of the jury of senators. Pelosi, however, is taking advantage of the fact that the Constitution doesn’t dictate when the documents must be transferred and is holding off in an attempt to grab any leverage possible.
In recent days Senate Republicans, including Missouri’s Josh Hawley, have threatened to pass measures forcing the House of Representatives to relinquish the articles of impeachment to the upper chamber. Bowman contends this move by the senators is grandstanding; there is no scenario where Republicans would actually be able to change Senate rules to force Pelosi’s hand.
But he thinks the articles will head to Congress’s upper chamber soon, and when they arrive there, he notes that the Constitution offers little guidance on what the trial there should actually look like.
Much of the debate centers on the calling of witnesses and enforcement of subpoenas. During the House investigation a number of senior White House officials ignored subpoenas. The typical method of having these summonses enforced is the courts, but with appeals expected to lower court rulings that process would inevitably reach the Supreme Court, taking at least half a year.
Democrats hoped to circumnavigate this problem by calling these witnesses for the Senate trial. With Supreme Court Chief Justice John Roberts presiding over the trial (as dictated in one of the few rules of impeachment trials that the Constitution does set down), he would have the authority to enforce subpoenas immediately, forcing those present in the room for the president’s now infamous Ukraine telephone call to testify under oath.
“What McConnell is proposing to do right now is to probably ram through some resolution on a simple majority that says ‘OK, what we’re going do is we’re going to convene this trial. We’re going to have arguments first from the parties, at which point we will then and only then address the question of whether there is going to be additional actual evidence.’ That’s crazy,” said Bowman, who isn’t shy about saying whose side he thinks the Constitution is on.
“When you conduct a trial, you give opening statements after you understand, basically, what the outline of the evidence is going to be,” continued Bowman. “You don’t have an argument about what the evidence might be if we were going to actually go get it.”
House Speaker Nancy Pelosi has held the articles from the Senate in hope of receiving a guarantee that witnesses will be called as part of that evidence, but Democrats need three Senate Republicans to flip just to get to a tie, an event Bowman believes is incredibly unlikely.
“Mitt Romney said something (Monday) about how he may be interested in hearing from Bolton,” said Bowman, referring to former National Security Advisor John Bolton, who left the White House shortly after the Ukraine call. Some media outlets reported that his departure was a result of his concern about the call. Bolton stated Monday that he is willing to honor a Senate subpoena and testify.
“Today (Sen. Mitt Romney) is blithering about how he’s sure the majority leader (Sen. Mitch McConnell) will provide for just rules,” continued Bowman. “I don’t think any of them are going to break.”
Supervising editor is Fred Anklam Jr.