It did not take the Founding Fathers very long to discover that they’d made a major screwup in their crafting of the U.S. Constitution. On December 9, 1803, an amendment was introduced to change how we do presidential elections. Specifically, the 12th Amendment was necessary because party-line voting had already developed in the Electoral College. In the 1800 election, this resulted in a tie when every member of the Democratic-Republicans Party voted for both Thomas Jefferson and Aaron Burr for president. It became clear that they would have to abandon the original system whereby each Elector cast two votes for president and the second-place finisher became the vice-president. Instead, there would be a separate vote for vice-president.

In truth, the failure to anticipate factional behavior had already become a problem during the presidency of John Adams. Thomas Jefferson became Adams’ vice-president because he finished second in the presidential election. They did not work well together. I don’t think Jimmy Carter would have been a very good vice-president to Ronald Reagan either, so it’s not hard to see why the first framework needed a quick overhaul.

Perhaps a similar lack of imagination led them to assign the role of jury in the impeachment process to the U.S. Senate. Just as they didn’t anticipate that the second-place finisher in a presidential election would be a natural antagonist of the first-place finisher, and they failed to predict that Electors would vote on a party-line, they may have overestimated the senators’ willingness to convict and remove a criminal president in cases where the president is the leader of their faction.

Currently, Senator Mitch McConnell of Kentucky is the leader of the most powerful faction in the Senate. He actually controls a majority of the seats. The president belongs to this same faction.  If the Founding Fathers had anticipated that a faction could grow so large as to control a majority in the Senate, it’s doubtful that they would have seen their model for impeachment as an adequate protection against tyranny.  In fact, since they set the conviction threshold for impeachment at two-thirds of all senators voting, it’s doubtful that they would have seen it as adequate in a world where a faction can control even one-third of the votes.

Clearly, they made a mistake, but there has been no amendment to the Constitution to rectify the problem.

Today, the man who would be the lead juror in any impeachment trial stood up in the well of the Senate and declared the investigation of the president to be over.

Senate Majority Leader Mitch McConnell made a case Tuesday to move on from investigations of President Trump and his 2016 campaign, calling the matter “case closed” even as Democrats intensify their inquiries of Trump’s conduct.

McConnell (R-Ky.), who will face a reelection bid next year, argued that Democrats are continuing to re-litigate an election result that is now more than two years old — deriding it as a “Groundhog Day spectacle” — and insisted in a floor speech Tuesday morning that the matter is finished and that lawmakers should focus on legislation.

When the leader of a faction makes a declaration like that, there’s no chance that his faction will serve as open-minded jurors. They aren’t going to weigh evidence presented in a trial. They aren’t concerned with guilt or innocence, but only with protecting one of their own.

This places the president above the law, which could never have been the intention of the Founding Fathers.

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