Cline on the Constitution – Impeachment Chronicles, Part Three – On to the Senate!

Last week, members of the House of Representatives finally showed up in the Senate to pursue the Impeachment of President Trump.

I followed the proceedings in the Senate, with an idea of picking out various constitutional issues to discuss.  What the week in the Senate brought home, however, is that this is not and has never been an Impeachment by the Congress.  It is, instead, what the Framers warned against.  It is an Impeachment by one party in Congress, the Democratic Party. 

Although I prefer to not discuss party affiliation concerning Constitutional issues, the process in the House, crystallized by the presentation in the Senate, was so partisan it is unavoidable. And now, regrettably, that same extreme partisanship appears to have bled over into the Senate.

First it is reflected in the weakness of the Articles themselves. Although the Articles, as written, purport to describe “High Crimes and Misdemeanors,” they do not.  There is no attempt to allege a crime nor criminal conduct.  As I have outlined in previous posts, misfeasance, malfeasance, maladministration and the like were explicitly rejected by the Framers who wanted only the narrowest of grounds to seek removal of the President, only those that would constitute direct criminal conduct against the United States government.  Alleging, without any direct evidence, it was all done “to benefit his re-election” does not rise to that level. The use of innuendo, speculation, opinion, hearsay and inference doesn’t cut it. And, were this not an exercise by one party and only one party it would not be allowed. 

Suggesting a foreign leader to look into rumored corruption in his country that impacts the United States is neither a High Crime nor unusual, unless it is filtered through a partisan prism. Although a couple of the presenters went to pains to proudly repeat their new axiom, “If this is not impeachable, nothing is.” the opposite is more apropos. “If this is impeachable, then everything is.”  

Especially is the partisanship apparent in the overlay of what has become today’s playbook in the politics of personal destruction.  The coordinated disclosure of “new” information from sources whose credibility is questionable designed to drive the new cycle.  We last saw this in the Kavanaugh hearings. One might call this the “Avenatti Maneuver” named after the disgraced and crooked attorney who became a CNN media star and erstwhile presidential candidate by peddling lies and distortions.  

Finally, it can’t be ignored that no one, in or out of government, expects a conviction on either article of impeachment and the fact there are no members of the House Republican caucus, none from the other party, who support or even stand neutral about this attempt to impeach this President, we are left with the inevitable conclusion that despite the elevated paeans to high Constitutional principles the only possible motive in this pursuit of the removal of the President are purely political, to cripple his chances of re-election and/or gain control of the Senate.  

This is also a consideration in the “Obstruction of Congress” Article.  It is not Obstruction of congress to refuse to kneel before the Hangman.  Only Democrats, not Congress as a whole, sought to breach the traditional confidentiality of the Executive Branch.  And they took procedural shortcuts which made their attempts subject to legal challenges.  They knew the failings and consequently refused to seek redress in the courts when their target refused to send bullets to his firing squad who already had publicly avowed to execute the prisoner. 

And, again, were this not an exercise that was completely partisan they may have been persuaded to follow the law and take the time necessary to it right. And when you seek to remove the President from office, one wants to do it right.

As the House argued their case in the Senate, though mind numbingly repetitive, there was a couple of issues that I found interesting.  I will just touch of one in this post and save others for later.  

First, is it Constitutionally proper for the President to exercise Executive power when 1) subordinates disagree or 2) outside “experts” disagree?  

President Trump, to the consternation of detractors, wanted to know if rumors he heard about Ukraine being involved in the 2016 election were true and if evidence like a missing server might be located there.  Extensive time and effort were expended in attempting to establish this was a “debunked” theory and, therefore, his wishing to know was corrupt. It was emblematic of how many of his actions were questioned.  The real issue is who gets to decide what the President thinks is important or true?  Ambassadors, Career Service Officers, outside “Experts” or him? Dare he ignore their collective wisdom and act on his own?  

Article II provides that “The Executive Power shall be vested in a President of the United States of America.”  It was placed there to correct a weakness in the original Articles of Confederation by which the nation was governed before the Constitution was ratified by the States. Is the term “Executive Power” just window dressing? 

The power of the nation’s Chief Executive is just that. He doesn’t have to listen to or believe subordinates or others.  Even if it is more prudent to do so. Even if the “experts” and “careerists” find it insulting that he dares act inconsistently with their understanding of “current” practice or past “policy.” That is in the nature of being an Executive.  Consensus, a majority vote, accepted theory is not necessary for an Executive to ask. And opposing the actions of a Chief Executive, due to a misunderstanding of who owns the power, can be detrimental to a subordinate.  

I will cite just one example from my own experience at running a large public department.  When I assumed the office of the District Attorney, I was very anxious to bring online new programs that I thought were needed. One was a Consumer Fraud unit.  I personally selected a Deputy D.A. who I thought would be well fitted to head up the program and he worked out. For a while.  

At the same time, I had delegated to an Assistant D.A. the task of bringing together dozens of policies and practices the office had been following into one Policy Manual.  He completed his work and I had him circulate the manual for all personnel to sign off that they had read and understood the contents of the manual.  By then the Consumer Fraud attorney had, in his own mind, carved out a special position which he believed made him exempt from compliance with general orders applicable to the rest of the staff.  He declined to read or sign off on the manual.  He registered his dissent on a Thursday.  I was notified on a Friday.  Monday morning, he was doing misdemeanor calendars in a different part of the county and I had a new Consumer Fraud attorney.  He grieved, he complained, he appended a few choice descriptors to my name and heritage, but that was too bad.  I had indeed acted brutally, swiftly and didn’t wait to build a consensus about what was appropriate and not offensive.  I was the Chief Executive of my department and it was my decision to make and his job to comply.

The problem with the Deep State is that they get in their mind they own the outfit and the Executive must have their permission, their buy in, their sign off to act in contravention of their views.  

It’s never been true, not in business and not in government.  And when a President acts on his own beliefs and priorities, their disagreement is not evidence of an impeachable offense. 

For more writings by Phil Cline, visit philcline.com.