Colorado Republican Sen. Cory Gardner took to the Senate floor in advance of the historic vote in the impeachment trial of President Donald Trump to explain the reasoning for his vote.
“I don't believe we should be removing for the first time in our country's history, the duly elected president of the United States,” he told CPR News in an interview before Wednesday’s historic Senate vote to explain his decision.
Remarks as prepared for delivery, Feb. 5, 2020
The American people have watched Washington convulse in partisan accusations, investigations, and endless acrimony. That division reached its high-water mark as the United States Senate carried out the third presidential impeachment trial in our nation’s history.
We saw over the last two weeks an impeachment process that included the testimony of 17 witnesses, more than 100 hours of testimony, and tens of thousands of pages of evidence, records, and documents which I successfully fought to make part of the record. I fought hard to extend the duration of testimony to ensure that each side could be heard over six days instead of four. What we did not see over the last two weeks was a conclusive reason to remove the President, an act which would nullify the 2016 election and rob roughly half the country of their preferred candidate for the 2020 elections.
House Managers repeatedly stated that they had established “overwhelming evidence” and an “airtight” case to remove the President. Yet they also repeatedly claimed they needed additional investigation and testimony. A case cannot be “overwhelming” and “airtight” and yet incomplete. That contradiction is not mere semantics. In their partisan race to impeach, the House failed to do the fundamental work required to prove its case.
For the Senate to ignore this deficiency and conduct its own investigation would weaponize the impeachment power. A House majority could simply short-circuit an investigation, impeach, and demand the Senate complete the House’s work. The founders were concerned about this. Alexander Hamilton wrote regarding impeachments that “there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
More recently, Congressman Jerry Nadler, a manager in this trial, said, “There must never be a narrowly voted impeachment, or an impeachment substantially supported by one of our major political parties and largely opposed by the other. Such an impeachment will lack legitimacy.” Last March, Speaker Nancy Pelosi said, “Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.”
The framers knew that partisan impeachments could lead to impeachments over policy disagreements. Legal scholars like Charles Black have written that policy differences are not grounds for impeachment.
But policy differences about corruption and the proper use of tax dollars are at the heart of this impeachment. Nevertheless, that disagreement led the House to deploy this most serious of constitutional remedies.
The reason the framers were concerned about partisan or policy impeachments was their concern for the American people. Removing a President disenfranchises the American people. For a Senate of only 100 people to do that requires a genuine, bipartisan national consensus. Here, especially only nine months before an election, I cannot pretend the People will accept this body removing a President who received nearly 63 million votes without meeting that high burden.
The House Managers’ other argument to remove the president, obstruction of Congress, is an affront to the Constitution. The framers created a system of government in which the Legislative, Executive, and Judiciary are evenly balanced. The framers consciously diluted each branch’s power, making all equal and empowered to check each other.
The obstruction charge assumes the House is superior to the Executive Branch. In their zeal, the House Managers would disempower the Judiciary and demand that the House’s interpretation of the sole power of impeachment be accepted by the Senate and the other branches without question. They claim no constitutional privilege exists to protect the Executive Branch against the legislature seeking impeachment. They go further and claim that a single justice, exercising the Senate’s sole power to try impeachments, can strip the Executive of its constitutional protections with a simple decree.
In Federalist 78 Hamilton wrote, “liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments....” Courts have long recognized the importance of due process in impeachment procedures. If the House Managers prevail, the House would have destroyed our constitutional balance, declaring itself the arbiter of constitutional rights and conscripting the Chief Justice to do it.
The Executive branch is not immune from Legislative oversight or impeachment and trial. But that cannot come at the expense of constitutional rights—certainly not without input from the judiciary. After all, since Marbury v. Madison, “[i]t is emphatically the duty of the Judicial Department to say what the law is.” Without this separation, nothing stops the House from seeking privileged information under the guise of an impeachment inquiry. But the House Managers say that, no matter how flimsy the House’s case, if the Executive tries to protect that information constitutionally, that itself is an impeachable offense.
That dangerous precedent would weaken the stability of government: constantly threatening the President with removal and setting the stage for a constitutional crisis without recourse to the courts. With this precedent set, the separation of powers would cease to exist.
Over the 244 year history of our country, no president has been removed from office. The first presidential impeachment occurred in 1868. The next was more than 100 years later. Now, 50 percent of presidents have been impeached in the last 25 years alone. A tool so rarely used in the past is now being used more frequently. This is a dangerous development, and the Senate stands as the safeguard as passions grow even more heated.
These defective articles, and the defective process leading to them, allow the House to muddy things and claim we’re setting a destructive precedent for the future. Of course, bad cases make bad law. The House’s decision to short-circuit the investigation—moving faster than any presidential impeachment ever, and a wholly partisan one—certainly makes for a bad case. So let me be clear about what precedent this case sets.
At the outset, this case does not set the precedent that a president can do anything as long as he believes it to be in his electoral interest. I also reject the claim that impeachment requires criminal conduct.
Rather, this case shows, first, that House committees cannot simply assume the impeachment power to compel evidence without express authority from the full body and corresponding political accountability.
Second, the House should work in good faith with the Executive through the accommodation process. If that process reaches an impasse, the House should seek the assistance of the Judicial branch before turning to impeachment.
Finally, when articles of impeachment come to the Senate along partisan lines; when nearly half of the People appear unmoved and maintain adamant support for the President; and when the country is just months away from an election—in those circumstances, the American People would likely not accept removing the president and the Senate can wisely decline to usurp the People’s power to elect their own president.
It has been said in this trial that the American people cannot make that decision for themselves. I couldn’t disagree more. I believe in the American people. I believe in the power of our people to evaluate the President, to make their decision in November, and to move forward in our enduring effort to form a more perfect union. I do not believe a Senate nullification of two elections over defective impeachment articles is in the nation’s best interest.
So let’s move forward with the people’s business and bring the nation back together. Let’s rise-up together, not fight each other. Not all of us voted for President Trump. Not all of us voted for the last president, or the one before him. Yet we should work to make our nation successful regardless of partisan passions. Passion, positively placed, will provide our nation with the prosperity it has always been blessed with. Partisan-poison will prove devastating to our nation’s long term prosperity. We must not allow our fractures to destroy our national fabric or partisanship to destroy our friendships. If we come together, we will succeed together. For surely we are bound together in this, the great United States of America.
You want to know what is really going on these days, especially in Colorado. We can help you keep up. The Lookout is a free, daily email newsletter with news and happenings from all over Colorado. Sign up here and we will see you in the morning!