Maya Wiley writes:

The Senate impeachment trial of President Donald Trump has begun. Senators now face the monumental question of whether to remove the president from office—and yet, something bigger is at stake here. The Constitution’s fundamental design is on trial too.

This is clear from the articles of impeachment themselves. Start with the first article, which charges that the president abused his power by holding support for an ally foreign government hostage to better his chances at reelection, rather than advancing the interests of the United States.

But President Trump, with the support of his attorneys at the Department of Justice and his own White House counsel, has argued that he has absolute authority over foreign policy. Thus, no abuse of power is possible, because any power he exercises is legitimate by definition. His attorney Alan Dershowitz has told the public he will go so far as to argue that the Constitution does not even allow impeachment for abuse of power, only for crimes.

Trump’s defense is a direct test of the Constitution’s allocation of power when it comes to foreign policy. The Constitution distributes foreign-policy power between Congress and the executive branch. The president commands the armed forces and controls diplomacy through the State Department, but Congress raises and pays for the military, appropriates foreign aid, and has the sole power to declare war.

There are areas of tension and uncertainty the Constitution doesn’t address, and presidents of both parties have fought with Congress over their respective roles. But until Donald Trump, presidents have at least seen the relevance of Congressional power. According to the historian Jon Meacham, George H. W. Bush mentioned impeachment five times in his personal diary as he labored for congressional approval to get Iraqi troops out of Kuwait after its invasion. If Congress wouldn’t approve, the elder Bush believed he might face impeachment if he moved forward regardless. Barack Obama spent six months striking ISIS in Iraq and Syria, but did go to Congress eventually to authorize military force. Bush the younger requested and received approval for military action from the Democratically controlled Senate in 2002. Nancy Pelosi refused to consider an impeachment investigation of George W. Bush for initiating the invasion of Iraq based on a misrepresentation that Iraq had weapons of mass destruction. But the point is, impeachment is Congress’s way of reining in a president who has over-assumed foreign-policy authority. In this way, the impeachment of Donald Trump tests whether doing so is possible, which is a test of the Constitution itself. [Continue reading…]