Month: April 2019

Impeachment

Impeachment

The Impeachment of a President

Calls for the impeachment of President Trump have been circulated since before he assumed office. Any pretext seems to suffice.  If one is shown to be groundless, another is quickly adopted.  

With the Democrat party now in control of the House of Representatives, and a lineup of committee chairpersons right out of the Star Wars Bar Scene, reckless talk of impeachment in the halls of Congress and on the cable opinion shows have reached a fevered pitch. While much of the talk is silly and petty, the subject is serious business.

What does the Constitution say about impeachment?

Impeachment was debated on and off through the four months of the constitutional convention in Philadelphia where the framers of our constitution were creating a government of Checks and Balances.  Not only did these wise men insist on the Separation Powers to obviate the concentration of power in too few hands, but they also wanted a means for one branch of government to be able to Check the power of another branch. 

The impeachment process was a means to Check the power of the Presidency.  The drafters wanted a strong president but not a king and authorizing the impeachment of the President, even if limited to the rarest of circumstances, insured we would never have a king. 

For historical reasons the framers adopted a specific structure for the use of the impeachment procedure. For impeachment to occur the House of Representatives must vote articles of Impeachment.  The members of the House then present the articles to the Senate. The Senators serve as jurors in the Trial of the President presided over by The Chief Justice of the United States. If convicted of any article there is one and only one punishment. The President is removed from office.

The Federalist Papers inform us Alexander Hamilton and James Madison had two main concerns about the impeachment procedures. 

First they worried about the political process.  Having the matter tried in the Senate they were concerned about the character of a jury made up totally of elected officials.  In other words, politicians.  If the impeachment of the President devolved to a political exercise it would make the President permanently subservient to the Senate. And the need for a strong executive was one reason the original Articles of Confederation were abandoned in favor of the Constitution. 

Their solution was the requirement that articles of impeachment could only originate in the House and fully two thirds of the Senators had to vote for conviction.  In the 1990s Bill Clinton had 54 votes cast in the Senate for his impeachment on one count and 50 on another.  Were it not for the two thirds requirement he would have been removed from the Presidency.  Similarly, Andrew Johnson was acquitted by one vote in 1868.

Second.  The Framers also sought to circumscribe the process by proscribing very narrow grounds for impeachment. The grounds are limited to “Treason, Bribery, or Other High Crimes and Misdemeanors.” The phrase “Other High Crimes and Misdemeanors” confuses even some members of Congress.  What is clear is that the framers abhorred the idea of impeachment being used as a political tool, a process by which the dominant party in Congress removes Presidents because they have the votes and they perceive it is in their political interests to do so.  Establishing a political revolving door of Chief Executives would defeat the very purpose for which the office was created.

The debate concerning the article about impeachment over those hot summer months in 1787 saw the framers consider and reject a number of proposals concerning grounds for impeachment including misfeasance and malfeasance as well as corruption. Each revision served to narrow the definition. And finally they settled on “Other High Crimes and Misdemeanors.”  

“High Crimes and Misdemeanors” does not refer to routine crimes.  For example, a common Drunk Driving charge is a misdemeanor.  That is not the kind of crime the framers were talking about. The term High Crimes and Misdemeanors was taken from old English law.  It was used to describe political offenses against the Crown. 

High Crimes and Misdemeanors contemplate a crime against the State.  The original clause actually said High Crimes and Misdemeanors “against the United States.”  The phrase “Against the United States” was dropped for stylistic reasons by a special subcommittee because it was thought to be a redundancy. 

The road to impeachment is narrow and straight up hill.  It is meant to be difficult and it is.  

As was seen in the impeachment of Bill Clinton, petty politics by petty venal politicians (that time by the other party) won’t result in the removal of the President.  

In pursuing Bill Clinton and after spending 50 million dollars on a special prosecutor, after interrupting the lives of countless people, shaming and vulgarizing society by discussing a stained blue dress in a trial on the Senate floor presided over by the Chief Justice, not one count resulted in a conviction.  It was an ill-advised and unsuccessful attempt to remove a President. And it was an embarrassment for the nation in front of the entire world.

No doubt there are those who wish to see it all happen again.  For the nation’s sake let’s hope not.  Probing every member of the President’s family, including his minor children, all his past business dealings, and, yes, his sexual peccadillos seem to be an obsession of some members of Congress.  Senator Dale Bumpers, during his arguments on the Senate floor defending President Clinton, paraphrased H.L. Mencken.  He pointed out that H. L. Mencken said, “When someone says it’s not about the money, it’s about the money.”  As related to Clinton’s trial in the Senate, Bumpers, said, “When somebody says, it’s not about the sex, It’s about the sex.”  And I, in turn, will paraphrase Dale Bumpers: “When someone says, it’s not about the politics, it’s about the politics.”

There are more pressing matters, at home and abroad, that demand the attention of our nation’s leaders. They need to wake the hell up, quit torturing definitions, and get to it.

For other articles and writings by Phil Cline, visit philcline.com

Electoral College

Electoral College

The Electoral College

In the last segment I addressed the proposal by some candidates for the Presidency to pack the Supreme court. In this segment I will discuss the Electoral College.  There are various proposals by the same candidates to modify it or eliminate it altogether. 

While any proposal to change the Constitution or amend it should be approached with extreme caution, changing or modifying the Electoral College is one idea worthy of debate.

The current proposals regarding the Electoral College can be understood in the context of the 2016 presidential election. 

President Trump penetrated the vaunted “Blue Wall”, a collection of states in the East whose electoral votes had gone to the Democrat nominee dating back to 

Ronald Reagan.  His feat was unexpected, defied conventional wisdom and left much of the country laughing at pundits, pollsters, and “professional” journalists.  He won the election in the Electoral College, while his opponent managed to secure the popular vote by running up huge margins of votes lodged on her behalf in heavily populated California.

In modern times we have seen three presidents elected with less than a majority of the popular vote. Bill Clinton (43% in 1992), George W. Bush (48% in 2000) and Donald Trump (47% in 2016).  

This would have been of little concern to the framers of the Constitution.  They constructed the Constitution with a healthy skepticism about the wisdom of the universal suffrage, much less entrusting the election of critical offices to the direct vote of the populace.  For example, it was not until 1913, with the passage of the 17thAmendment that U.S. senators were elected by voters in the respective states. Until then it was an appointed position. And the wise men who drafted our Constitution would have been scandalized at the notion of granting felons the vote must less as some democrat candidates and Speaker of the House Pelosi of San Francisco has suggested, sixteen-year-old kids. In passing I find it ironical that the legislature of Speaker Pelosi’s home state determined that the same juveniles she wishes to enfranchise can’t be held fully responsible for the brutal and violent crimes they sometimes commit because brain science supposedly supposedly established the judgement centers in their brains haven’t’ fully formed.  

Most citizens understand the President is not elected by a direct, popular vote.  Rather the Constitution in Article II, Section One, states he or she is to be elected by a system of electors, known as the Electoral College.  Each state has a group of electors equal to the number of state representatives in the house and senate.  Plus the District of Columbia has three.  That means there are 538 electors and it takes 270 to elect the president.  A president is elected not by how actual votes of citizens are distributed. It is done by how the Electoral College votes are distributed in what are 51 separate elections.

When the framers developed this means of selecting a Chief Executive, it was a novel approach.  From their historical perspective the Chief Executives of most nations were chosen by bloodline, military power, or legislative selection.  The Electoral College was, in some scholars’ views, an experiment.  The reviews regarding its success have been mixed.

There are two additional aspects to the Electoral College that need to be understood.  

First, the Constitution delegates to the States, the appointment of the Electors “in Such manner as the Legislature thereof may direct.”  

And it this regard, most states employ a “winner take all” system.   That means that if a state has 20 electoral votes available and one candidate receives 10 million actual votes, but the other candidate receives 10 million votes plus one, all 20 electoral votes go to the winner and none to the candidate who had millions vote cast for him or her.  

California is a prime example.  It has 59 electoral votes, the largest number of electoral votes of any state.  Almost 20% of the number of electoral votes needed to be elected president.  Yet California as it relates to the Electoral College (and barring the emergence of a Reagan like figure) is a one-party state.The registration advantage of one party is so lop-sided, it is felt there is no need for the nominees to even come to California other than to drop in on the swells in San Francisco, L.A., and Silicon Valley to pick up campaign funds. 

Texas has, until recently, had a similar imbalance in favor of the other Party. 

Looked at another way, a candidate can take just 3 states of the 50, California, Illinois and New York and be well on the way to victory.  In a presidential election, there is never a real contest in any of these states, yet they account for 105 electoral votes, more than one third of what it takes to be elected.  Yet, again, there is no need for either candidate to campaign in any of these three states. And the margins that the candidate from the dominant party run up is of little consequence.  

The second aspect of the Electoral College to be considered is that most of the arguments that originally undergirded the Electoral College system have long ago melted into history. 

In the federalist papers it was argued that the election of the president should be by “a small number of persons, selected by their fellow-citizens from the general mass,(who) will be most likely to possess the information and discernment requisite to such complicated investigations.”  Those noble sentiments notwithstanding, Electors, modernly, are just party representatives. They are not these so-called persons of discernment, if such a person ever existed. And what is even more concern is that nothing in the Constitution requires the electors cast their ballots in accordance with the votes of their states.  The problem of the so-called “faithless elector.”  Many states, however, have laws to obviate this loophole.

The Federalist papers also contended that the Electoral College was a means to keep foreign influences from “an improper ascendancy in our councils.” The fearful Russians notwithstanding that is hardly a concern in today’s world.

The one idea that hasn’t lost its currency was the thought that an Electoral College would ensure all the states in the nation had a say in the selection of the Chief Executive. Individual States, during the formation of the Republic, were jealous of their prerogatives and of each other.  They didn’t want a single populous state or region to put forth a favorite son who would represent his region to the detriment of the smaller states.  

Does the operation of the Electoral College have to be this way?   Is it required by the Constitution?  

The answer to both questions is No.  

Even if it would be too difficult, politically, to amend the Constitution and replace the Electoral College with the direct popular vote for President, there is nothing in the constitution that requires that the Electoral College votes in the states be “winner take all.”   In fact two states award electoral votes proportionally based upon the voting in individual congressional districts. Those two states are Maine and Nebraska.

Nationwide, were other states to change from a “winner take all” model it might lead to a real campaign in many more states than the so-called swing or battleground states.  

Even if the minority party registration in individual states were only 30% or 40%, it would behoove candidates to campaign in congressional districts so that those electoral votes could be added to others in other regions of the country.  That 30% or 40% in California would translate into the same number of electoral votes as Pennsylvania, which turned the tide in the 2016 election. It might rival Florida that, in my opinion, gets way too much attention every 4 years.  

In the nascent movement to replace the Electoral College, there are some States seeking to circumvent its provisions by awarding all their electoral votes to the winner of the national count.  Such an approach is shortsighted.  It’s a formula by which the state itself is disenfranchising the state’s own voters.  For example, even though an overwhelming majority of, say New Mexico’s voters cast their ballots for one candidate, because California and New York with their huge populations favor a different candidate, New Mexico’s voter’s ballots would be completely wiped out. 

As to eliminating the Electoral College altogether and awarding the election to the person who wins the most popular votes nationwide, its best to remember the old saying of “be careful what you wish for.”  The framers of the Constitution possessed a certain genius for avoiding crippling ideas. There is a reason they insisted on a majority of electoral votes.  Had they opted for popular vote not only would the smaller states have been disenfranchised in favor of the bigger ones, but the Presidency could be won by a plurality of votes. 

Consider for a moment that there are two dozen men and women running for the democrat nomination. Three quarters of them have little to recommend them in terms of judgement, experience or proven leadership. Many of them are adopting socialistic principles without fully understanding the implications.  There is little loyalty in the group for even the traditional values of the democrat party.  Is there any reason to believe that if it was possible to win an open election, that same number of persons would not run for the Presidency itself?  If a dozen or so ran for President, is it possible that with a disciplined campaign someone with 30%, or 25% or less of the popular vote could be elected President? 

Those questions and others need to be answered before any change, not after. 

For more articles on the Constitution and writings by Phil Cline, visit philcline.com