Cline on the Constitution

Impeachment Chronicles – Part Two

The Judiciary Committee of the House of Representatives held a hearing last week. It was a yeoman’s attempt to underpin all the speculations and opinions being passed off as facts with legal speculations and opinions on whether all the speculations and opinions would be enough to rid the country of the awful man in the White House.  All in all, it was a sad attempt. 

The panel was made up of four Constitutional Law Professors.  Three were selected by the controlling party and one by the minority party.  

Of the three; heavyweights as far as academic credentials go, lightweights as far as real life credentials go; they had their minds made up years ago that this President had to go.  They had staked out their position long before the matter of Ukraine entered the general consciousness. To a tee they acted out their role of elite patricians talking down to the plebeians, the mob, the rest of us common wretches who might dare to question why Congress was expending so much time and money on a fool’s errand.   

John Healey, a columnist for the L.A. Times wrote of the three, “None showed a glimmer of doubt making them seem at times more like ideologues than academics. It would have been better to have professors more interested in gray areas and who acknowledged the possible existence of other explanations for Trump’s behavior. That sort of witness might have prompted committee members to abandon their prepared statements, put down the leading questions prepared by their staffs and engage in a real back and forth exploring the Constitutional principles.”

Indeed. Their bias was so extreme it could only be termed bitter.  Even mean. One of their number so consumed with her disdain she thought nothing of causing the public humiliation of the President’s 14-year-old son.  As professors of law the three turned out to be poor examples.   Maybe on other subjects related to the law, they can brilliantly recount case decisions and relate them to unique fact patterns, but on the subject of impeaching this President their bitter and overreaching bias led them to contentions ludicrous to anyone with a basic grounding in Constitutional law.

The Fourth member of the panel, Professor Jonathan Turley of George Washington University Law School was more circumspect.  He reaffirmed principles I outlined in my last blog concerning the limited meaning of “High Crimes and Misdemeanors,” and the danger that proceeding to impeachment on such a thin record the House has produced to date with such, as he put it, “a paucity of evidence” is a mistake with far reaching consequences.  It will inevitably lead to the routine use of impeachment as a political tool.  Something the framers had specifically warned against.  He also urged everyone to put down the hate and anger and engage in a civil discussion of such weighty issues.  I knew this meant trouble for him.

As I sat in my comfortable living room with my nice hot cup of coffee, I thought to myself, “Oh no, John, the Brownshirts of the Left are going to come after you, Son.”  And they did.  His home and office were already receiving death threats and hate filled messages while he was still seated at the table in the hearing room.  I predict they aren’t through with the poor bastard yet.  Expect lies, deception, and attempts to destroy his career.  A professor, in today’s environment on college campuses, arguing it would be better if everyone put aside their anger and act rationally?  Yeah.  Good Luck with that, John.

The attorneys for the Majority and Minority who did most of the questioning were little better.  As my coffee grew cold, I was thinking, “My God, is the best my profession can muster for as important enterprise as this?”  

Alan Dershowitz, himself a Harvard professor of Constitutional Law, wrote, “Wednesday’s House Judiciary Committee impeachment hearing squandered an opportunity to educate the public about the criteria for impeaching a president. Instead of each side cross-examining opposing witnesses, Democrats and Republicans mostly threw softballs at their own witnesses. There were a few momentary exceptions, but for the most part what we heard from four legal scholars were prepared lectures that repeated what the witnesses had previously written.”

He went on to say that because the witnesses were allowed to “express their rehearsed views without having them challenged by adversarial questions, they studiously avoided the facts and kept their comments conclusionary as if their elite academic status brooked no challenge from such small concerns as the true facts and actual evidence.”

He concluded with a bit of prescient wisdom concerning the abject failures of the Attorneys hired to assist with questioning. 

“Our nation is deeply divided over the impeachment issue. There is far too little reasoned dialogue and there have been too few constructive exchanges about these different views. Effective cross-examination can force advocates to modify extreme views and to bridge differences. Perhaps neither side wanted that. Their bases demand the uncompromising advocacy of extreme positions. But the American public is entitled to nuance and narrowing of differences. Had the Democratic experts been effectively cross-examined, they would have had to justify their contention that the governing criteria for impeachment include abuse of office, corruption, violation of public trust, maladministration, bad conduct, placing partisan interests above national ones, and other vague, open-ended criteria of the kind the framers explicitly rejected.”

There was discussion of proposed grounds for impeachment articles reportedly drafted before the hearing opened.  I discussed “High Crimes and Misdemeanor” in my last post.  “Bribery”, a further ground delineated in the Constitution and “Obstruction” nowhere mentioned were also discussed though the points being made were difficult to follow through the fog of posturing and self-serving obfuscation.

Two relevant Supreme Court cases were mentioned.

The first case reference people might have heard but not understood was to McDonnell vs. United States. The Pro-impeachment professors avoided discussing it because they wanted to expand the definition of the crime of bribery when in the McDonnell case the Supreme Court had specified it was limited.  

In the case, the governor of Virginia, Robert McDonnell and his wife were indicted and convicted by a jury of accepting over 175K in loans, gifts, and benefits from a Virginia Businessman.  These included buying 20K in designer clothes for the wife, 15K to help pay for daughter’s wedding and a 50K loan to help with their financial situation. The businessman had developed a nutritional supplement made from a compound found in tobacco.  He wanted to have his product researched by public universities and hoped the Governor would facilitate his obtaining those studies.   The Governor had arranged meetings between the businessman and government officials, hosted events featuring the product at the governor’s mansion and made numerous contacts with university and pubic officials concerning the research studies the businessman wanted done.

The U.S. dept of Justice, contended that all the efforts made by the Governor were “official acts” done on behalf of the businessman and fit within the bribery stature that made illegal receiving any sort of gift, loan etc. in return for an official act.  The Court of Appeal had upheld the conviction.  But the Supreme Court reversed and threw out the conviction.  And the vote was unanimous.

The opinion was written by Chief Justice Roberts.  

The court found that the Department of Justice had given such an expansive definition to an “official act” that it raised significant constitutional concerns.

In the context of the Ukraine imbroglio the term quid pro quo has been much bandied about.  In the McConnell opinion, Roberts wrote that under the government’s interpretation “nearly anything a public official accepts from campaign contributions to lunch counts as a quid and nearly anything a public official does – from arranging a meeting to inviting a guest to an event counts as a quo.”  And such an interpretation is unconstitutional.

Sounds familiar.

The danger, an old one: The attempt to politicize the criminal law or criminalize politics. 

The court said “we decline to construe the (Bribery) statue in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of good government for local and state officials.” 

As to “Obstruction,” an effort was made by some on the committee to equate non-compliance with a subpoena from Congress as Obstruction of Justice. It is not. The differences in opinion were largely based on procedural notions.  Some contended just the act of denying a Congressional Subpoena is Obstruction.  It is not until there is an attempt to enforce it which requires taking the matter to court.  And when the Congress goes to Court, they must overcome justifications for the Executive Branch not complying such as the assertion of Executive Privilege. 

What is Executive Privilege and what is its Constitutional basis?

Article II of the Constitution vests in the President of the United States the “Executive Power.”  Contrary to some loose commentary, Congress does not have “oversight” of this function.  There is no constitutional basis for an assertion that one branch of government has “oversight” over a co-equal branch of government regarding their core powers. They may investigate.  They may hold hearings. Within limits.  But they do not have “oversight” of the exercise by the President of the “Executive Power.”  

And in the exercise of the Executive Power, the Supreme Court recognizes the existence of an “Executive Privilege” over confidential material and an unwarranted intrusion upon Executive Privilege violates the Separation of Powers.

However, the Privilege is not absolute, no more than any power vested in a branch of government is absolute.   However, the Privilege is entitled to “great deference” as Chief Justice Warren Burger stated in U.S. v. Nixon, the case referenced in the hearings, but which remained unexplained.

Burger in the U.S. v Nixon described the basis for the Privilege:

“The valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties; the importance of this confidentiality is too plain to require further discussion.  Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.”

Chief Justice Burger went on to say, “The expectation of a President to the confidentiality of his conversations and correspondence, like the claim of confidentiality of judicial deliberations, for example, has all the values to which we accord deference for the privacy of all citizens and, added to those values, is the necessity of protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision making.  A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”  

And those considerations, Justice Burger says, provide the basis for a “presumptive privilege” for Presidential communications.

However, the ruling was qualified.  It was repeatedly pointed out that the assertion of Executive Privilege by the Nixon administration was a general one and that the President had not claimed confidentiality based upon a need to protect “military, diplomatic or sensitive national security secrets.”

There is a clear implication that if such an assertion had been made, the court may have upheld the declaration of Privilege.  

One more interesting aspect to this:  The Court appended a proviso that a federal court would take care that the information was reviewed and assessed in camera, out of the public eye, where the confidentiality of the material could be protected.  Good thing.  One must question whether Congress any longer contains men and women who can be entrusted with confidential information. 

And on it goes.  So far, we have seen little that measures up to the standards we would expect for an exercise of a serious Constitutional power like Impeachment. 

But, we ain’t done yet. 

For more writings by Phil Cline you are invited to visit philcline.com