The current impeachment proceedings have captured my attention and imagination, rendering me pretty much unproductive these days. (Luckily, my schedule affords this luxury.) Three components of it compel me to watch: my love of political theater, my personal connection to one of the participants, and my first-hand experience with impeachment.
I think my love of political theater is self-explanatory, so I’ll focus on the other two.
My first-hand experience with impeachment
My first-hand experience with impeachment (as in, not watching it on TV) came in college. Serving in the student assembly at LSU, I drafted articles of impeachment against our student government vice president. Our articles had two counts, both of which amounted to the fact that he failed to perform his constitutionally prescribed duties.
Okay, some obvious and important differences between that case and the current situation: it was student government, not the US government; and it was the VP, not the leader of the free world. Still, it was instructive in many ways, and there are significant parallels.
Impeachment is not a criminal trial, although it’s similar in how it proceeds. (At LSU, we modeled our proceedings after the US Congress, with the significant difference that ours was a unicameral legislature: the accusing body and the jury were one and the same.) First, someone is appointed to investigate allegations of wrongdoing (Archibald Cox for Nixon, Kenneth Starr for Clinton, the House Intelligence Committee for Trump).
Those findings are presented to the legislature, who then determines what, if any, impeachable actions may have occurred. The legislature designates someone (in our case, me) to write specific “articles” (impeachable offenses) for a vote. In Congress, that’s the Judiciary Committee. The full House then votes as to whether or not to proceed with any or all charges. (At LSU, with a unicameral legislature, we didn’t have this step.)
To this point, the procedure follows the model of criminal indictment, not trial. Like criminal prosecutors, there’s no obligation for the accusing party to afford the accused any opportunity to present counter-evidence. That’s because the process of indictment is intended to establish whether a crime has been committed and if there is a reasonable basis to accuse the defendant, who is already presumed innocent.
The trial stage of impeachment begins in the Senate after articles have been approved by the House (or, in criminal trials, formal charges by the grand jury or pre-trial judge). The Senate now becomes the jury; the House appoints a prosecutor to argue the case in the Senate; and, at the federal level, the Supreme Court Chief Justice presides. At this point, the defendant can provide evidence, call and cross-examine witnesses, etc.
After all of the evidence has been presented, the Senate votes on each article. If any are approved, the accused is removed from office.
At LSU, one of our two articles passed, and the other failed. The vice president was removed from office (after an appeal to the University Court, which he lost; there is no such appeal at the federal level).
Lessons learned from my LSU experience
I learned a lot from this experience.
- You don’t impeach someone for one transgression (unless it’s a really, really bad and obvious one, like murder, or being caught on tape taking a bribe). You impeach someone for a pattern of conduct that ultimately gets expressed in a singularly egregious, concrete act. In other words, the accused first builds the case for impeachment by poisoning their relationship with the accusing body, then commits the specific act that draws the accusation.
In our case, the VP had never performed the duties of his job, as limited as those were. But it took a defiant act of refusing to comply with a specific requirement (in this case, essentially, reporting on his activities to the student assembly) to finally convince my colleagues and me that he had to go. In the current US case, the president has defied Congress repeatedly for nearly 3 years (and almost certainly broke US election laws), but it took a whistleblower’s insider’s account of 45 extorting the Ukrainians to do his dirty work, and his subsequent cover-up, to finally move Congress to initiate proceedings.
- You don’t impeach someone for the little stuff. It’s only for egregious acts that threaten the system as a whole: invalidating the constitution, distorting the balance of power, or ignoring the important checks built into the system on individual behavior. Our VP claimed he was being impeached for “missing a meeting.” That worked to get the second charge dismissed, but his egregious failure to perform any of his duties nailed him on the other charge. Had we let it slide, we’d have been telling all future holders of the office that they didn’t have to do their job or obey specific mandates from the Assembly. We learned this in the Clinton impeachment, too: while his behavior was unseemly, it didn’t amount to a constitutional crisis.
- But felonies aren’t required for impeachment. They are grounds for it, but they’re not the only transgressions that can remove an executive or judge from office. (Congressional members can’t be impeached; they can only be recalled or expelled.) The LSU student government charter spelled out grounds for impeachment, as does the US Constitution: “Treason, Bribery, or other high Crimes and Misdemeanors,” the interpretation of which is left up to Congress. Needless to say, perhaps, that gives Congress pretty wide latitude in deciding what’s impeachable. Just ask Bill Clinton.
- Impeachment is a blunt instrument and should be exercised only when all other avenues have been exhausted to correct the miscreant’s behavior. In the LSU case, we pressured the VP first to do his job, and when that failed, to resign. He decided to fight us (and lost). The GOP-led House in the 1990s skipped this step, and it was obvious. In the current case, Trump has shown open contempt for Congress (and everybody else, it seems), and foolishly ignored the warning that the near-miss of the Mueller report should have provided. Congress doesn’t have other options remaining.
- Finally, impeachment destroys relationships—and builds others. The LSU VP was a friend of mine, up until the moment we went to trial. We never spoke again after that. On the other hand, I bonded with a few of the members who helped carry the torch against him, and we remain friends to this day. On the national front, we see 45 denigrating witnesses almost daily—people who, weeks before, he praised for their loyalty, intelligence, and service. But I doubt he’ll have much to say to Nancy Pelosi ever again. Like Clinton’s final two years in office, the federal government will get little to nothing done until the next election.
My personal connection to the Trump impeachment
I know one of the participants. I slept on Kurt Volker’s couch on a quick trip to Budapest in 1996, a side jaunt on my first voyage to Bosnia and Croatia. Kurt and his then-wife Karen were junior foreign service officers on assignment to Hungary, and we had run in the same social circles in Washington, DC in the late 1980s. The Volkers were gracious hosts, not only allowing us to stay at his flat, but also took us on an informative, narrated tour of the city. We shared dinner, wine, and conversation on a very enjoyable stay.
I know Kurt to be conservative, circumspect, ambitious, smart, straight-laced, pragmatic, and honest. He took his job very seriously and wanted to make a positive difference. His reputation for integrity and for his expertise in foreign affairs, particularly eastern Europe, matters to him a great deal.
Watching him testify on TV tells me he hasn’t changed much in the 30+ years since we first met. He won’t sell out for Trump, nor for the Democrats.
And here’s my take on things: If he says there was a deal, there was a deal.
 There are exceptions. In some pre-trial hearings, the defense can present exculpatory evidence. Often defense teams don’t do this to avoid tipping their hand at the trial.