The Senate as an impeachment forum
In a January 2020 episode recorded during the first impeachment of Donald Trump, Bob Zadek framed the question squarely: the proceeding in the Senate is labeled a trial, and that is how the public sees it, but he asked whether it is one at all, suggesting it might be nothing more than the Senate debating and voting on what he called highly specialized legislation. John Rothmann answered that it is not a trial in the traditional sense — that what was underway was not a legal process but a political process. He noted that senators took an oath and signed a register affirming they would be open-minded and would not be partial, and said that is not what was happening, describing a highly partisan situation in which Democrats were already committed to removal and Republicans to keeping the president in office, so that facts, witnesses and evidence did not matter. Asked whether Mitch McConnell or Lindsey Graham should disqualify themselves, Rothmann said the same applied to Chuck Schumer or Dick Durbin, since they too had predetermined the outcome Withholding Judgment on Impeachment with John Rothmann (2020).
Zadek pressed the point about the oath, observing that it was written under the rules of the Senate rather than in the Constitution; Rothmann supplied the phrase “impartial justice.” Zadek then asked how anyone, let alone 100 senators, could be expected to be impartial when everything about the process is partial, given that the president and the senators are all elected through a political process. Later in the episode Zadek returned to the analogy, asking whether the Senate proceeding is better understood as a trial or an appeal — whether the House had functioned as a grand jury returning an indictment, or whether the House had held the trial and the Senate was hearing an appeal, in which case no witnesses would be taken and the only question would be whether the trial was proper. Rothmann said the framing was right on, and explained that Alan Dershowitz’s involvement reflected that he is an appellate lawyer rather than a trial lawyer, which he took to be a reason the president wanted him on the team. Theoretically, Rothmann said, the House acts as a grand jury, assembles the indictment and forwards it to the Senate, which then conducts a trial with witnesses and evidence — and that is what makes this not a trial, because Republicans had determined they did not want witnesses or documentary evidence, saying the House had built its case and no new evidence would be allowed. He added that the last-minute revelation familiar from Perry Mason would not occur in the Senate trial Withholding Judgment on Impeachment with John Rothmann (2020).
High crimes and misdemeanors and the vote
Rothmann argued that a crime is not a necessary condition for impeachment. He cited Gerald Ford, then House Minority Leader, who was asked during talk of impeaching Justice William O. Douglas what impeachment is and said it is whatever the House of Representatives says it is. Rothmann’s conclusion was that you can impeach someone if you have the votes and convict in the Senate if you have the votes, regardless of the merits. His example was Andrew Johnson, whose charges he said were fundamentally based on the Tenure of Office Act, passed by Congress in order to get him, and who was saved by one vote — that of Edmund Ross of Kansas, an episode recounted in John F. Kennedy’s Profiles of Courage. Rothmann said he believed Trump had abused his power and shown contempt of Congress, but that it becomes a removable-from-office crime only if the senators vote that way. He also previewed the argument Alan Dershowitz would make the next day in the Senate, noting that Dershowitz did not say whether he considered the president’s action a crime, only that it did not rise to the level for which he should be removed Withholding Judgment on Impeachment with John Rothmann (2020).
On the Nixon precedent, Rothmann spoke from experience, having worked for Richard Nixon. He said the Nixon impeachment never took place because Republicans made the decision: Barry Goldwater, John Rhodes and Hugh Scott went to the White House on August 7th, 1974 and told the president he did not have the votes to survive. The legal issue of whether the president had committed a high crime or misdemeanor was not debated. Nixon asked Goldwater how many votes he had in the Senate, and Goldwater — who Rothmann said told him the story himself — replied that the president had six votes at most and that Goldwater was not one of them. Nixon resigned because the political support had collapsed, and Rothmann drew the general lesson that whether the proceeding concerns Andrew Johnson, Richard Nixon, Bill Clinton or Donald Trump, these are political proceedings, reminding listeners that no president of the United States facing trial in the United States Senate has been convicted and removed from office Withholding Judgment on Impeachment with John Rothmann (2020).
Censure, testimony and the parliamentary comparison
Rothmann raised censure as an alternative and dismissed it as ineffective. He noted that Andrew Jackson was censured by a Senate controlled by the Whigs and that the resolution was expunged as soon as the Democrats took over the Senate, so the censure had no consequence. He did not think a censure resolution would follow the trial, and said Republicans would not vote for one; he allowed that they might get the four senators in question — Lamar Alexander, Mitt Romney, Susan Collins and one other — to vote for a censure resolution, but said it would have no impact. Nor did he expect four Republicans to vote to hear testimony, though he said testimony was important and that he would like to hear from Mick Mulvaney and Mike Pompeo, the people closest to the president, saying he did not do this. His summary of the Republican position was that yes, he did it, but it does not rise to the level for which he should be removed, and that the American people would give the ultimate judgment on November 3rd, 2020 Withholding Judgment on Impeachment with John Rothmann (2020).
Zadek used the episode to argue that the British parliamentary system, in which a vote of no confidence is a low-drama event, is politically healthy by comparison, and that the United States struggles to use impeachment as a vote of no confidence. He said the Democrats had set upon getting rid of the president from the moment they entered office in the last term, destroying their high ground by being an impeachment in search of a reason rather than doing their job until they got lucky with the phone call. Rothmann quoted Nixon’s remark in his interviews with David Frost that he gave his enemies the sword and they thrust it into him and twisted it, and applied it to Trump, saying Trump had been in a position to have Republican support on a whole host of issues and even some Democrats, but told people they could not touch him and he did not care what they thought. Rothmann said history would judge Trump harshly and attributed it to arrogance and a lack of understanding of history. He also recalled that when Harry Truman became president and there were questions about his popular mandate, Senator J. William Fulbright proposed reverting to a parliamentary system, and that there was a debate in 1946, particularly after the election that repudiated Truman, over whether Fulbright was right — concluding that the United States is not a parliamentary system and will not become one Withholding Judgment on Impeachment with John Rothmann (2020).
The Senate in a proposed constitutional redesign
In a December 2021 episode, Ilan Wurman discussed a constitutional design that treated the Senate’s structure as a deliberate answer to the problems of democracy. Zadek asked him to explain what he meant by democracy, and Wurman defined it as the idea that the people decide who rules over them on a continuing basis, choosing through election the people who make the rules. He said he did not think the founders believed democracy was an end in itself, and that he was not sure he did either, describing himself as Churchillian — democracy being the worst form of government except for all the others tried. He framed the question as how to create a regime in which human beings can exist and flourish, with a natural law and natural right background, and said democracies have a slightly better track record than non-democratic regimes at creating such regimes, though not a perfect one. That, he said, is why democracy must be checked, invoking Publius in Federalist 10 on creating a popular government that remedies the diseases most incident to popular government, and the need for fundamental liberties in a Bill of Rights and for separation of powers and checks and balances so that ambition counteracts ambition The Conservative Constitution (2021).
Wurman said the project focused on democratic deliberation, and that the Constitution eschews substantively political conservative ends — it does not talk about gay marriage or abortion — because a constitution should set the structure and terms of deliberation for the common good. His example was the Senate: the proposal doubled down on the anti-democratic quality of the United States Senate, making it smaller with one senator per state, so that the Senate would be 50 senators, giving them a single nine-year term so they are not up for reelection, and requiring them to take an oath to legislate for the common good. He said they almost made Senate deliberation secret but that was too far for some on the committee in their mini-convention, so it was not made secret. The point of that structure, he said, is that it is partially anti-democratic but resolves the problems of democracy while remaining a popular government: the people choose the senators, and the senators then deliberate and legislate for the common good, avoiding rent-seeking, partiality and partial interest — saving democracy from itself and for itself The Conservative Constitution (2021).
Across episodes
The two episodes treat the Senate from opposite directions and do not develop a shared argument. Rothmann, in January 2020, describes the Senate as the venue where a fixed political vote decides a president’s fate, with witnesses and evidence beside the point; Wurman, in December 2021, discusses the Senate as a structure designed to produce deliberation for the common good, in a proposed redesign with 50 senators serving single nine-year terms. The excerpts show no development between the earlier and later treatment, and the two guests address different questions.
What the sources do not cover
The excerpts do not describe the Senate’s ordinary legislative business, its committees, its rules apart from the impeachment oath and the question of witnesses, or its historical composition beyond the proposed redesign. They do not state the outcome of the 2020 impeachment trial, the result of the November 2020 election, or whether any censure resolution was introduced. The Wurman excerpt does not identify the document, convention or committee behind the proposed Senate structure beyond calling it a mini-convention, and the Rothmann excerpts break off mid-sentence at several points.