The Impeachment Chronicles-Part One
Demands for the impeachment of President Trump have come from various quarters since before he was sworn into office. Any pretext has sufficed. If one turned out to be groundless, another has been quickly adopted. There are two major characteristics in the demands.
The first is that there is an intense desire to remove him from office by any means necessary or at the very least to undermine his ability to use the power of his office. Understandable. He’s brash, boastful, bombastic, the proverbial bull in the delicate china shop of “politics as usual.” Many believe breaking a few dishes, nationally as well as internationally, has long been needed, others are horrified at all the broken pieces of their assumptions littering the floors and hallways of their previously impenetrable government sinecures.
The second, and much more important development, is a consistent lack of respect for the Constitution and time hallowed legal principles in the increasingly desperate desire to bring to him down.
As I’ve monitored the recent hearings on the “Impeachment Inquiry” I find myself shaking my head at how easily otherwise intelligent, and supposedly learned individuals have spread misinformation about the Constitutional basis for Impeachment. Many of them should know better. The empty-headed opinion purveyors in the media are one thing, but to see individuals with backgrounds in the law, perpetuating legal canards is disappointing.
There are many examples to list. Because my space is limited, I will touch upon just two.
The first is the conduct of the Impeachment hearings and the questioning by legal counsel for both the majority and the minority. Though the bug-eyed chairman, Adam Schiff, once a lawyer, consistently perverts the truth, from him it is expected. And, of course, the individual congressman in their five-minute rounds are congenitally wired to preach rather than engage in meaningful inquiry. Some are just stupid. One of their number even suggesting hearsay evidence is the best evidence one can have. Okay, our expectations for such people in how to develop evidence is low.
Not so for the staff Counsel. They know better than to ask for second and third hand hearsay, for speculation, inadmissible personal opinions outside a witness’s field of expertise, answers to hypotheticals without bothering to prove the facts that make up the premises for the hypotheticals, and to misstate evidence and mischaracterize the context of oral statements. In a real court of law, the actual admissible evidence produced in these hearings over days and weeks would have taken, at the most, one productive morning. In short, little of the questioning we’ve seen was designed to get at the truth. The obvious reason was because the questioners weren’t really after the truth. They were after putting language in the mouths of the witnesses, true or not. And there was no Judge or Magistrate to keep their efforts within reasonable bounds. The hearings so far have been a legal wasteland.
Rules of evidence, developed over hundreds of years, are designed to get at the truth and limit admissible evidence to only what is trustworthy. We ignore these rules at our peril. You don’t have to be a lawyer to know how false and destructive unfounded rumors and second-hand information can be. It’s doubly so in a legal proceeding. And Congress is where laws are supposed to be made. Yet basic principles of law seemingly had no place in the hearings just concluded. And, consequently, little that came out of the hearings had the hallmarks of trustworthiness.
The second characteristic I wanted to discuss is the perversion of the Constitutional basis for Impeachment. The grounds for impeachment are actually expressly specified in the Constitution and they do have meaning. Real meaning. Treason has an actual meaning. Bribery has an actual meaning. (Though the term Bribery was used from time to time, since there was a paucity of evidence to support it, no serious effort was made to match actual evidence with the definition of the crime.) And, lastly High Crimes and Misdemeanors has an actual meaning. And about the latter one a much cited misinterpretation of its meaning needs to be put to rest. High Crimes and Misdemeanors is NOT whatever a majority of Congress says it is.
I even read an article by a UC law professor, respected in many quarters, who though he has a an oft expressed hatred for the President and his policies, quoted Gerald Ford for the axiom that High Crimes and Misdemeanors can mean anything a majority of Congress says it is. It’s one thing to quote Hamilton. One thinks of the elegance of the Federalist Papers. It’s quite another for a law professor of all people to quote Gerald Ford who makes one think of a clumsy interior lineman from Michigan. Nice man, but certainly no constitutional scholar.
The pundits and even some members of congress have been quoting the same aphorism. They look into the camera and nod wisely. One expects them to wink at any moment.
Well, it’s not true and when those who swore to uphold and defend the Constitution blithely disregard the Constitution, one wonders at the messages sent to our fellow citizens much less to our youth who should be watching the process and to the teachers we would expect to lead their discussions.
What does the Constitution actually 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 of 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. The Presidency would be severely weakened. 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.” It was meant to be a narrow definition not a broad one.
“High Crimes and Misdemeanors” does not refer to routine crimes. For example, a common Drunk Driving charge is a misdemeanor. And stealing a car is a felony (at least everywhere but California). Those are not the kind of crimes 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 grounds for removal of the President are narrow. They were designed precisely not be what some majority decides they will be. Taking such a tack is injurious to our Constitution and our ability to effectively govern ourselves.
As was seen in the impeachment of Bill Clinton, petty politics by petty venal politicians (that time by the other party) usually won’t result in the removal of the President. It won’t this time either, but the damage done to the public’s understanding of the law and their Constitution may be irreversible.
Impeachment was, for the wrong reasons, done to Clinton. The first impeachment of a President in a century. It’s being done to Trump only a few years later. And the time frame, if we continue to misapprehend the impeachment process will get shorter and shorter until we can expect the Impeachment of a President to be routine when one party controls the congress and wants the power of a presidency controlled by another party.
And we will be a weaker nation for it.
For other articles and writings by Phil Cline, visit philcline.com