The Senate impeachment trial of Donald Trump has left America on the brink of a decision between two horrible choices. We can empower a corrupt, amoral President to cheat in the 2020 Election without consequence, or we can enable a partisan Legislative Branch to embroil future Presidents in endless impeachments over non-impeachable acts. Neither is a good outcome.

The issue is not whether the President did what he is accused of. The issue is not even whether his actions were impeachable. Even some Republican Senators privately admit that Trump’s actions were wrong and impeachable.

The issues are our country’s highly unusual present circumstances, the flaws in the legal arguments by both sides, and the fact that supporting those flawed arguments without condition – on either side – establishes a perilous legal precedent that extends well beyond the Ukraine episode.

Unusual Circumstances

One unusual circumstance is simply the rarity of impeachment in our nation’s history, leaving us with little experience on which to base our thoughts about it.

Another is America’s current hyper-partisanship. Our nation’s Founders never anticipated 24/7 cable news and an internet that could allow every citizen to continuously marinate themselves in the reality of their choice – potentially to the exclusion of real facts. These separate realities keep us from truly hearing each others’ opinions even during face-to-face arguments: our ideas are not only competing on the grounds of differing logic and values, but on entirely differing “factual histories” regarding what has led up to the arguments in the first place.

Donald Trump himself adds to our unusual circumstances. He holds a sway over Republican lawmakers that is truly inexplicable. Even factoring in fear of tweets, the survival instinct of politicians, and a steady diet of Fox News, the fidelity and subservience to this President is bizarre.

As an example, in 2016, Senator Ted Cruz (R-TX) suggested that Trump had mafia ties, called him a “serial philanderer,” a “narcissist,” a “pathological liar,” and said that “morality doesn’t exist” for Trump. Now Cruz is an eager and aggressive defender of Trump.

Similarly, Senator Lindsey Graham (R-SC) once believed that Donald Trump was a “kook,” “crazy,” and “unfit for office.” Now another Trump sycophant, Graham recently said that he was not interested in even hearing evidence or testimony against the President. This is the atmosphere in which the impeachment trial in the Senate is taking place.

Trump’s own behavior has added to the unprecedented political atmosphere. He has doubled down on his requests for foreign governments to interfere in America’s 2020 Election. He announced during a 6/16/19 interview with George Stephanopoulos that he would be open to hearing dirt that foreign governments might offer him on his opponents – something which the head of the FEC quickly pointed out would be illegal. And when his Ukraine activities were exposed, he publicly called on China to also investigate the Bidens during a 10/3/19 press conference. Perhaps committing a crime out in the open in broad daylight seems less criminal.

The President has also recently made a huge fundraising push for Senators who are jurors in his impeachment trial. He is believed to be using other behind-the-scenes “carrots and sticks” to ensure the votes of Republican Senators in his trial as well.

Lastly, the proximity of the 2020 Election – now just over nine months away – has also created an unusual situation. It added unique urgency for the House to move forward quickly with impeachment proceedings to prevent the President from engaging in further solicitation of interference by foreign governments before it was too late.

But Trump used that urgency to his advantage. He refused to comply with any House Democrats’ subpoenas for witnesses and documents, instead sending them off to be tied up in the courts for months or years. He then issued a blanket order that nobody in the Executive Branch was to cooperate with the investigation, potentially leaving the House without any key witnesses until past the 2020 Election, and allowing the President to continue soliciting help for his campaign from foreign governments. So the House chose not to wait for the courts, instead conducting impeachment hearings with the few witnesses and documents that they were able to get, so that they could move the issue on to the Senate for trial.

The resulting lack of key witnesses, however, enabled Trump’s defense team to say that the House had come to the impeachment trial “unprepared” because they did not have all of the witnesses and documents that they had subpoenaed, and had not waited for the court system (likely to be delayed further by numerous appeals) to compel them.

The Democrats’ Legal Flaw

Rep. Adam Schiff (D-CA) argued passionately, skillfully and powerfully before the Senate for the President’s removal from office, making a strong case that Trump’s corruption, placement of self before country, and lack of judgment make him a danger to the nation that he leads. While Schiff’s case was strong, the wording of the Articles of Impeachment themselves gave Trump’s defense team a legitimate counter-argument.

The language of the Constitution is unclear regarding the level of criminal activity required to remove a President from office. The first Article of Impeachment from the House accuses Trump of “abuse of power.” While it is clear that the President did abuse his power, and it is undeniable that the Founders did not want a President to be able to abuse power, the wording of this charge is so vague and subjective that it could allow future Congresses to impeach based on simple policy disputes.

The President’s actions would fall under the specific crime of bribery, a crime which the Founders did specify as warranting removal from office. But Trump’s defense seized on the technicality of the “abuse of power” language to argue that the President should stay in office.

This is outrageous, leaving America with a dangerously corrupt President, but the legal precedent set by removing him from office for a vague “abuse of power” would also be dangerous to our country. Especially in our partisan political environment, the opposing political party will often consider disagreeable acts or policies by the President to be abuses of power. Making “abuse of power” impeachable could easily lead to impeachment and removal becoming a standard part of holding the office of President. Under such criteria for removal from office, for example, President Obama would likely have been impeached and removed for pushing forward the Affordable Care Act or other Executive Orders that the GOP viewed as abuses of power.

The Trump Team’s Legal Flaws

Trump’s legal team presented numerous arguments for the President: that we cannot know for certain what Trump’s thoughts and motives were when he pressured the Ukrainian President, that no new evidence or witness testimony should be allowed because the House should not have gone to trial without all the witnesses and documents, that the House had no key witnesses and therefore had a weak case, that removing Trump from office would overturn the American people’s 2016 vote (any impeachment and removal, by definition, overturns a vote).

But perhaps the most staggering argument about Trump’s coercion of the Ukrainian President was made by attorney Alan Dershowitz, who proclaimed “Every public official that I know believes that his election is in the public interest…. If a President does something which he believes would help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

Accepting this argument by acquitting Trump means that Trump’s political campaign activities can legitimately be wrapped into official U.S. foreign policy. So what will it be? A trade deal more favorable to China in exchange for an investigation into the Bidens? Inviting Russia to help America with election security issues in 2020? All good. Given this President’s particular penchant for pushing boundaries, it is almost certain that he will engage in more such acts – and probably more aggressively than he has until now – if acquitted.

While Dershowitz’s argument is a stunning deviation from our traditional understanding of the Constitution and Presidential power, the implications of it are all the more horrifying for America’s future when one considers that if the President is acquitted (as seems likely), the argument goes into the legal record as part of why he was acquitted. In other words, it becomes legal precedent. From then on, such Presidential misconduct is no longer even worthy of the Legislative Branch’s attention. It will already have been established that using the power of the Presidency for personal campaign activities is acceptable conduct.

Another argument put forward by Trump’s defense is that, with the election coming up in just nine months, it would be wrong to remove Trump from office. Senator Lamar Alexander (R-TN) summed it up the day before he voted not to allow new evidence or witnesses: “There is no need for more evidence to prove something that has already been proven…. The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did.”

This might be a reasonable and defensible position under most questions about Presidential misconduct. But what Alexander said has been proven is that Trump used his Presidential power to pursue his own personal campaign advantage in the upcoming 2020 Election – an election whose outcome can easily be impacted by further misbehavior. So acquitting Trump also establishes the nonsensical legal precedent that a President cannot be removed from office during an election year, even for engaging in illegal activity to change the outcome of that election.

A Possible Solution

The House impeachment managers and the Trump defense team have both made their cases clearly and have had plenty of time to do so, given the Senate’s refusal to hear from new witnesses as damning new revelations coming out daily. The damage to the country by accepting either side’s arguments should be clear. Yet in our current political climate, where dire predictions have become commonplace, the warnings seem like hyperbole, and the predictions may fall on deaf ears with Senators. They are not hyperbole.

A small and unlikely hope exists for avoiding either of the potential Constitutional catastrophes. If Supreme Court Justice Roberts, who has been presiding over the trial, recognizes the perilous place that our Constitution is in as we teeter on the edge of either of two bad outcomes, he can step in. He is the one participant who has the potential to be objective, and presumably has the judicial wisdom to offer a solution.

One possibility is that he could allow the decision to proceed, but could weigh in on how the prosecution and defense arguments have diverged from the Constitution as we have known it. This would give those arguments less legal weight as precedent for handling future instances of Presidential misconduct.

Another possibility is that Justice Roberts could offer an alternative that is neither removal nor acquittal: censure. This would put on record and establish as precedent what many Republican Senators have acknowledged privately – that what the President did was wrong and unacceptable. It is not the degree of consequence that many Democrats think the President’s actions deserve, but it could alleviate some of the danger of simply acquitting the President, which Fox News commentators are already saying would mean that Trump should be seen as completely innocent.

Sadly, Roberts seems pained to intercede in the trial in any way, for fear of creating the perception that the Judicial Branch is just as biased and partisan as the Executive and Legislative Branches. Unfortunately, his courage is desperately needed right now. Without it, the best that we can likely say is that the U.S. Constitution had a pretty good 244-year run.

– rob rünt