To Impeach or Not To Impeach: A Constitutional Question.

10 Feb

It has been a long time since I’ve entered something on this blog, almost a year to be exact.  But the recent flap over the abortive impeachment efforts have been so ridden with pure partisan rhetoric and galactic class political spin, that, in my opinion, the major memes and posts on that bastion of political brilliance, FaceBook (FB), have only one thing in common from both sides… a nearly perfect ignorance of the very specific language of the relevant document: The U.S. Constitution.  As some of you know, I’ve not been shy about saying that in response to posts, so of course, several times I’ve been taken to task for being a Trump supporter (something several notches worse than being a serial killer in the views of the denizens of halls of academia), or accused of doing it simply to be a contrarian.  It seemed time to do something not reasonable in a FB post since it is necessarily long and detailed, and that is to go into detail to explain why I feel as I do.

I’m not a complete Pollyanna so I don’t actually expect the serious partisans to actually read this since they seem to be devoted to ignoring any opinions contrary to their own.  In doing so, they, of course, betray the reality that the truth does not matter to them since real seekers of some philosophical truth know the only way it is ever found is if the seeker is willing to admit the possibility they might be wrong and therefore remain open to hearing and considering the opposing ideas objectively.  Sadly, I’ve not yet encountered that attitude on Facebook, instead, only a theological-level, divine certainty in the righteousness of their own viewpoint while seeing all others as stupid or perhaps evil.

But for the surprising individual, if there actually is one left out there, who is even remotely interested, here is my own thinking on the issues.  But to make any sense of it I need to give a little foundation since my conclusions are the result a several factors building to it.  There was serious thinking and debate involved in the writing of our Constitution and I think it deserves to be seen as forming the reasons for its very deliberate word usage.  So here is my line of reasoning to arrive at my own position.

First we have to understand that the Constitution was created by a collection of very knowledgeable individuals who had carefully looked over a lot of political history and been influenced by political philosophies from Plato down to Locke and Montesquieu.  They fully understood that they were creating something new and untried, indeed, were forming a government that was, in its approach and style, contrary to the foundational philosophies of any other country in the history of governments.  Knowing that, knowing full well that they would be stepping on a lot of geopolitical toes, they were concerned about being misunderstood both then and down the road in (their) future.  So they wrote prolifically to each other and friends and in publications that are still with us and easy to find for anyone interested in the truth,

When I was in Law School (1971,’72, ‘73) I grew to be totally fascinated by Constitutional Law and jumped wholeheartedly into it.  The more I studied it and its creators the more impressed I was with the wisdom and foresight exhibited in this seminal document.  And I became nearly obsessed with the idea that what set us apart from other nations was the iron clad obedience to the rule of law.  It was, paradoxically, the reliance on the LAW of the day and until it was officially changed, that set us free as a people and apart from citizens of other countries.  In the course of that study, it soon became inescapable that our founders actually ended up re-defining what a Republic was up to that point.

Previously Republics were largely democratic meaning they relied on pure majority rule (well to be fair, the majority of those who were allowed to vote on the matter).  But our founders were dedicated to assuring the Declaration’s famous “rights” for all.  One exchange with Madison illustrated the problem.  He posited a group of three individuals in which two wanted actions that the third opposed.  It was clear the third individual’s rights were not recognized in that scenario where the two could outvote the one.  According to Madison, it made no difference ethically or morally If the group was composed of 3,000; 1,000 of them would have their rights overridden and that was not acceptable to the goals of the founders.  THe numbers changhed but the ethics did not.  So they morphed the traditional republican concept into a representational democracy – something totally new on the world stage.  To avoid one demographic sitting in continual power over others, the electoral college was formulated so the little guys, the rural areas would be operating on a leveled playing field, sometimes to the chagrin and irritation of the self-anointed brilliant citizens from the urban areas.  Without it today, we would be governed by the appropriately titled “Coastal Elites” while those rubes in the fly-over states should just accept that the citified people were ever so much brighter, so much more “woke” to use the modern parlance, and ought to be able to make the decisions for all the rest on matters political as well as moral.  The founders rejected that and went to some convoluted lengths to try to forestall it.

Further, although in other systems, notably Great Britain, the three primary governmental functions of executive, legislative, and judicial all existed, they were not truly separated and independent.  Our creation of them as separate and coequal branches was like none other.  In our system, uniquely, the real “bosses” were seen by the founders as being the people, and the government existed only to assure and protect the rights recognized and described in the Declaration of Independence.  We voluntarily gave the government the power to govern us AS WE, THE PEOPLE, WISHED IT TO, and the Constitution was the embodiment of the law that governed those we allowed to govern us.  It was not created to govern us, the people.  Indeed it derived it power from us.  Rather, it was written to govern the government.   We the people could take back that power via the vote.

What was also unique was that this government of, by, and for the people, could not require anything of the governed (us) that was not approved by ALL THREE of the branches.  The legislature had to first create the laws and pass them, but the executor needed to then approve them, and then, if further challenged, the judicial branch had to approved them as being in concert with the constraints of the Constitution.  It was an amazing set of checks to assure the survival of the rights of the citizenry.  Nothing like it had ever existed in the history of human governments.

The founders believed in the basic goodness of human kind under divine guidance, i.e. that we strove for the good as a general rule.  But they were not blind to the reality that some people “went off the rails” and could seriously damage the institutions they were creating.  Included, therefore, among the Constitution’s provisions were the rules for removing an elected public servant on any level from representative all the way to the president: a process called “impeachment.”

It was thought of by the founders, according to their correspondences, as an incredibly serious step since in doing so it was clear that the government took upon itself the power to override the wishes of its own bosses, the people who had elected that individual in the first place.  Consequently, since those day in Law School, I’ve been “hooked” into carefully watching impeachment proceedings — first about Nixon (I think they had a strong case for removal due to criminal acts but he resigned before they could hold the trial), then Clinton (I think he was a sleaze but did not commit an impeachable offense) and now Trump.  This is potentially the most serious thing the legislative branch can do… undertake the overturning of an election and remove an elected official from office.  If anything tests the strength of the constitution this is it. So I want to present my own thinking on the issue of impeachments and what is required and then apply that to this case.

Hamilton and Madison wrote voluminously about it and among other things, made it clear that this was not to be a matter of common politics.  Malfeasance in office was specifically declared by Hamilton to not be an acceptable reason for removal since it was so subjective.  Additionally, they purposefully did not want to emulate the British Parliamentarian system of “votes of confidence” as they saw it as inherently unstable and far too subject to political and partisan whims.

Matters reduceable to basic, even if serious, policy differences were ruled out as well and for similar reasons; such procedures were seen to be in opposition to the will of the electors who had voted for the individual likely because of the policies promised and in practice.

It is important too, o note another by product of the system they created.  It is important when looking at charges of obstruction of one branch or another, to understand that as a co-equal branch, the presidency could not logically “obstruct” the other branches since it was equal to and therefore not subservient to them (or vice versa).  You and I can obstruct a branch of government, but the presidency cannot, by definition, do it.  But that does not mean it can do just anything it desires.  If it appears to be violating some legislative powers or ethical standards and mores of the contemporary culture, it is the province of the judiciary, in the form of the Supreme Court, to determine one or the other of the branches must give way in that specific incidence.  Without a judicial finding and direction, and a subsequent violation of that finding and directive, one “equal” branch cannot be seen as obstructing the other.  Disputes over authority, and there were plenty of cases of it in the early days, were to be settled via the Supreme Court who, in such circumstances, had “the last word.”  If the court’s directives were violated, then and then only could there be movement to compel a specific action of obstruction or even contempt of court.

They also clearly noted that in order to assure that the action of impeachment was not strictly political (and therefore not allowed) it must be bipartisan in nature.  That is why a supermajority (2/3) of senate votes that would be expected to cross party lines was required for removal.  Due to real numbers it was virtually impossible to achieve a super-majority from just one party.

So what COULD be seen as an impeachable offense?  They settled on very well defined language describing with great specificity what the infractions were that could form the basis for an impeachment.  The wording is now famous and after the last weeks most know them by heart where they may not be able to quote any other sentence in the entire document.  To be qualified for impeachment, according to Article 2, Section 4 which reads:

“The President, Vice President, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

It is one of the clearest directives in the entire document consisting of terms with very specific and commonly understood meanings.  Or at least it was until political narratives sought to redefine them to suit specific agendas.  So lets examine them a little more closely.

First up was treason.  That is interesting because treason is the only crime specifically defined in the Constitution and the founders’ writings make it clear that was chosen to avoid the use of the charge as a political weapon to repress opposition to the government’s or President’s policies.  There have been only a handful of treason cases since our founding and in each one the court seemed to work to limit the definition even further.  Well, lest there be any confusion,  here is what Article 3, Section 3-1 says:

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.”

What has become clear it that (a) levying war requires an actual capability of doing that (a standing army, for example) or providing aid and comfort to an enemy named in a declaration of war or hostilities, and, most importantly, (b) it requires an overt act, i.e. some conduct.  Mere intention or expression is not enough.  That was spelled out clearly in the decision of Cramer v. U.S., in 1945.

I could be wrong, but as far as I know we have not declared war on any of the parties involved directly or indirectly in all this.  So by definition, without a war, or at least some official declaration of a state of hostilities, treason cannot apply.

Moving on we have we have the next enumerated impeachable action…bribery.  Bribery, for a public official, meant the taking of something of value to influence their public service.  For example, taking money and in return, instituting policies favorable to the source of the money and usually (but not necessarily) to the detriment of other constituents.  Clear, huh?  Well, not so fast.  How about a bribe going the other way, i.e. offering some enticement to an individual or country based on the power of the Presidency to alter the behavior of that individual or foreign government?  That is closer to the action alleged in this impeachment process.

The problem with claiming that as an impeachable offense, is that it is, in fact, the very core tactic of nearly all geopolitical diplomacy.  Virtually every diplomatic “deal” is achieved by a series of “quid pro quo” agreements where, in order to get the foreign government or individual to do something we want, we offer inducements or, if appropriate, some negative potential “threat.”   For example, we threatened then applied sanctions on Iran and North Korea to influence their obsessions and work toward achieving nuclear capabilities.  An action hardly could be more of a direct interference in another country’s behaviors, aspirations, or plans than an onerous sanction that creates great economic distress.  We have brought countries into our “club” by offering them something they need such as money or defense.   The historical truth us that every diplomatic deal in history was achieved because the parties “gave something to get something” which is the very essence of a “Quid Pro Quo” agreement.  Does that mean that every President who strong arms another country is impeachable?  Be very careful with that one…  Answering “yes” means there is probably not a president in our history or in our future that would not be impeachable.

In this case, however, it was shown that the government in question, Ukraine, did not see the requests for a favor as pressure of any kind (according to interviews with both its President and Defense Minister).  Additionally, they did not do or act as requested, did not do any investigation or make any announcement of planning to do so, and yet, the funds allocated by Congress, though delayed, were nevertheless delivered within the timelines of the original grant and, on top of that monetary aid, war materials were delivered in the same time frame that the previous administration had refused to give at all.  There was no showing of fact indicating the delay brought any harm to Ukraine especially since they were not even aware of the delay.

One can spin that six ways from Sunday but since Ukraine suffered no detriment and we got nothing either, it is hard to see that exchange as a viable intended, much less consummated bribe since, when the smoke cleared, there was not any quid nor was there any quo.

The request may well have been stupid, even sleazy.  Moreover, because of its appearance as something personally beneficial to the President and not the country, it may well be an appropriate target for some form of approbation or public censure.  But it does not appear to have been a successful bribe and if it was an attempted bribe it didn’t get very far since even the intended victim did not see it as such.

So, moving on, what else ya got?

There was the argument proposed by the accusers, that no actual crime needed to be committed in order to have an impeachable offense, so lets look again at what, other than Bribery or Treason, is enumerated as impeachable offenses.  The words are pretty clear on their face.  “… or other high crimes or misdemeanors.”  Pay careful attention to the use of the adjective, “OTHER,” it’s a critical word in this sentence.  Remember the founders had long debates and sometimes literally fought over virtually every word in the constitution to make sure it expressed exactly what they wanted.

When the Constitution was written, “High Crimes” meant what today we call “Felonies” and misdemeanors meant what today we call, uh, “misdemeanors.”  (Ref. Black’s Law Dictionary of the time).  Both are types of crimes defined under both statutory and common law.  Some legal authors have seen the dichotomy as representing actions that are “Malum In Se” (actions criminal or abhorrent in and of themselves without the need for legal definitions such a murder or rape, etc.) compared to actions that are “Malum Prohibitum” (actions made illegal by statute such as speeding or jaywalking).  But even so, actions following those definitions were still understandable as crimes.  If they were not, then the phrase “OTHER high crimes and misdemeanors” makes absolutely no sense.  In a section as serious as this one, writing a nebulous set of definitions for conduct allowing for removal of office for the country’s executive branch seems so far beyond unlikely as to be unthinkable.

An interesting, if desperate, argument was made during the impeachment process that since we did not have a country yet we had no laws and no crimes to define.  Therefore the founders did not need a crime to be committed in order for action to be impeachable.   Really?  Ignoring for a moment their use of the legal term defining types of crimes, do you think if you committed a robbery in ANY jurisdiction of the time you could get away with it on the claim that there was no country and therefore no laws to break?  We had no end of local laws and statutes, and jurisdictions were still aware of and following British common law under which those terms were readily understood.  There was no country when Benedict Arnold was accused of treason so does that mean if captured he could not have been tried and punished?  That conclusion is utter nonsense and a desperate grasping at straws.

Read the definition of impeachable offenses again… slowly if necessary.  The wording of the Constitution does NOT say, “… or other things we don’t like.”  Nor does it say, “…or other actions congress decides are impeachable.”  It specifically lists two types of crimes with commonly accepted meanings.  I do not understand why that is so hard to comprehend other than a blatant partisan refusal to give up on the idea that there is, of course, an impeachable offense in here to let us hang the S.O.B even if we have to redefine words otherwise clear on their face.

Since the trial of impeachment deals with the existence of crimes by its own definition, then it is de facto a criminal trial where the standard of proof is, as it is in all criminal cases, and was under common law, guilt beyond all reasonable doubt.  One reason for trying to make the case that some criminality is not necessary, was to make the trial into more of a civil action where the standard of proof is “preponderance of the evidence.”  But I believe the precise wording in the Constitution defining the cause of action makes in inescapably a criminal trial.

That all leaves me with the inescapable conclusion that politically stupid as the President’s actions were, as inappropriate as they certainly were, under the very clear meaning and words in the Constitution, they did not rise to the level of an impeachable act.  And that failure would lead naturally to a filing for a directed verdict as soon as the prosecution’s case was made since no real case had been laid out.  Much was made over the issue of witnesses but I see that as simply a red herring and diversion from the failure of the primary action.

First of all, there were already de facto  prosecution witnesses inserted into the presentation via unchallenged cleverly edited video excerpts with no option to cross examine the witnesses by the defense team.  But setting that aside, in a trial, witnesses are called for one reason, to establish the facts of the case, especially when they are challenged or disputed.  The judge is there to establish and rule on matters of law to be applied to those facts – that is NOT the job of the witnesses.  The jury is there to overlay those facts (they are called the “triers of fact” for a reason) on the law as presented by the judge and render a verdict.

There is no available verdict of innocent, only “guilty” (meaning the defendant did the deed as alleged) or “not guilty” meaning only that the case against him or her was not proven beyond a reasonable doubt.  And impeachment is the only sort of criminal trial where, under the Consitution, the concept of “double jeopardy” does not apply so it is important to see a verdict of “not guilty” with no more meaning than it actually has.

But in this case, the “facts” were accepted by both sides.  The phone call and its general wording was not in question.  The question was only about the propriety and legality of the specifics of the call.   Impeachment is specifically NOT to be about policy disagreements which were at the heart of the committee’s witnesses, and that leaves only the issue of legality of the alleged conduct.  Various new “witnesses” whose policy agendas were in concert or opposition to the call or the President would not change the facts in question, and the final application of law was to be the sole purview of the judge and, in the end, a matter for the “jury” (the senate) to decide by a 2/3 vote.

The resulting vote was clearly partisan so the founders would not have accepted it anyway and would have likely declared the equivalent of a mistrial and sent everyone packing.  Both the impeachment hearings and the trial were completely along almost perfect party lines.

And now some of the more rabid in the opposition are still wanting to do it again. I think that is tactically, irrationally, illogically, and profoundly stupid and counter productive.  An election is coming up in a few months.  The proper solution, if the goal is removal, is to vote the one you see as evil spawn of the devil out of office properly and remove the issues stemming from a wildly partisan and very flawed process.  To continue down this already failed path merely serves to harden the hearts of his base, allows independents to see it as an apparently totally political and highly partisan move, and to see him as the victim, if not martyr, in this political theater.  I think if one wants to see someone else as president next term, continuing down this path, rehashing failed concepts over and over, ad nauseum, will only serve to aid his re-election bid.  So for those of you who so despise him and the very ground he walks on, if you continue down this path and if he wins re-election you will have no further to look for blame than the nearest mirror.

So there you have it. This is simply my opinion about the merits of the case as presented, it has nothing to do with my personal feelings about Trump as a president.  That does not and should not be a factor no matter what you think of him personally.  Because if personal animosity is allowed to be the foundation for impeachment and removal proceedings, then no future President is safe from this form of harassment and given the time spent on this to the detriment of needed governmental business, our whole system will simply grind to a horrible and pointless halt.

I, for one, think that will be the nail in our country’s coffin that ends it all and I do not wish to encourage any action or process that can lead to that result.

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Posted by on February 10, 2020 in Uncategorized


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