How The Impeachment Vote Affects The Balance Of Power In The Federal Government

Mary Louise Kelly interviews Vikram Amar, dean of the University of Illinois College of Law.

MARY LOUISE KELLY, HOST:

Throughout the impeachment trial, President Trump’s defenders have argued that it should be voters, not lawmakers, who decide his fate. When Mitt Romney of Utah took to the Senate floor today, he refuted that argument.

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MITT ROMNEY: While that logic is appealing to our democratic instincts, it is inconsistent with the Constitution’s requirement that the Senate, not the voters, try the president.

KELLY: Senator Romney then became the only Republican to vote to remove Trump from office, which means it will be up to voters to decide the president’s fate. To tell us where that leaves Congress, vis-a-vis the president, we’re joined by Vikram Amar. He’s a constitutional law professor at the University of Illinois.

Professor Amar, welcome.

VIKRAM AMAR: Hello, Mary Louise.

KELLY: So we heard Mitt Romney reference the Constitution there, which, of course, stipulates that Congress and the president each have a check on the other’s power. Is that what we saw play out these last few weeks in the Senate?

AMAR: Well, a lot of the checks that the Constitution gives to Congress, including impeachment or repealing statutes that confer power on the president or statutes that seek to override executive orders or proposed amendments to the Constitution – all of these things require supermajorities when the president is not going along. And in a moment where there’s a lot of partisan loyalty, it’s just impossible to get two-thirds of either house of Congress to agree to check the president.

You think about it – we’ve had four instances of impeachment or impeachment-like moments. You had Andrew Johnson. You had Bill Clinton. You have President Trump today. And then you have Richard Nixon. And only Nixon was forced out of office, and that’s because his misdeeds might’ve been particularly problematic and because we were in a moment of unusual bipartisanship in the country. The period from the 1940s through the ’80s was a moment where there were a lot more moderates than there were before or since.

So I think even though I understand Senator Romney’s concern about not convicting people who maybe did really bad stuff, ultimately, the Constitution’s most important check on the presidency is the election check, and that’s what we’re going to have this fall.

KELLY: So given that we are in a moment of distinct lack of bipartisanship and we don’t know when this might end, I mean, how much of a check does Congress really have on the president right now?

AMAR: Well, the one thing that you don’t need a bipartisan supermajority to do is to investigate and educate.

KELLY: Right.

AMAR: So that’s why a lot of people thought that what the House was doing early on was much less controversial than its decision to go ahead and impeach and trigger a trial whose outcome was foreordained. So I think you’re going to see – and you should see – more energy at the House level to subpoena tax records and the like.

KELLY: Well, and indeed – I should inject and say even today, House Judiciary Chair Jerry Nadler said the House is likely going to subpoena John Bolton, the president’s former national security adviser.

AMAR: And one interesting thing is modern Congresses have not tried to enforce their subpoenas very aggressively by sending the sergeant-at-arms to go arrest people who have refused to comply.

KELLY: They say it would take too long to play out in courts and so forth.

AMAR: Yeah. But at the founding, you know, it – Congress didn’t really tolerate people who didn’t abide by its subpoenas and the like. So I think you’re going to see more aggressive information-gathering and then education attempts by members of Congress leading into the election.

KELLY: Vikram Amar of the University of Illinois College of Law, thanks so much for sharing your thoughts today.

AMAR: My pleasure. Thank you.

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