02 November 2019

Even In Clown World, The Law Remains The Law

One of the enduring principles highlighted by the seminal Supreme Court case Marbury v Madison (5 US 137) is the centrality of law in our government and in resolving our disputes:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
When we wish to determine who did what wrong in our society, we answer that question with studious application of the law to the facts. The Marbury decision itself is an extended homage to the unyielding reality of the law. No matter the issue at hand, our understanding of its right or wrong begins and ends with the law.

This is the order of things in American civic society.

Now that the Democrats in the House of Representatives have seen fit to put this country irrevocably on a path towards impeaching President Trump, we are well advised to recall the law what the law is, and remind ourselves of the actual text of the various laws that are brought into play by this extended political melodrama.

The Law Of Impeachment

The thrust of impeachment is this: it is the means by which Congress may forcibly remove people from the Executive branch of the government, in accordance with the strictures of Article 2, Section 4 of the Constitution:

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.
Impeachment itself is a two step process, with the first step being the act of impeachment which must take place within the House of Representatives, per Article 1, Section 2, Clause 5 of the Constitution:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Once the House of Representatives impeaches a President, Vice President, or any other "civil Officer" of the United States government, it falls to the Senate to adjudicate that impeachment, and to remove that person from government if two-thirds of Senate members present during the adjudication vote to uphold impeachment and sustain the allegations so made, as established by Article 1, Section 3, Clauses 6 and 7:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
These constitutional clauses are the entirety of the law regarding the particulars of impeachment, such as they are.  There are no other statutes within the US code, and the word "impeach" does not appear within the established rules of procedure for the House of Representatives. When Congress seeks to impeach the President, these are the legal guides for the entirety of the effort. When the White House labels an impeachment inquiry process "unconstitutional", these are the texts that admit or deny that claim.

The most important point to note here is that there is no Constitutionally defined "impeachment process."  There is no text in the Constitution that says how many different votes are needed to actually impeach the President. There is no definition for how Articles of Impeachment are to be drafted. There is merely the requirement that the whole House render an impeachment; in theory, any Congressman could on any given day present a resolution containing Articles of Impeachment and should it pass with a bare majority of the votes, the President would be impeached, and the Senate would be given an impeachment trial to conduct.

This is what the law is on impeachment.

Rights Of The Impeached

Given the brevity of the actual legal text for impeachment, how should we appraise the claims raised by the White House as well as Congressional Republicans that the impeachment inquiry process to date violates due process of law and denies the President the fundamental rights of the accused?

The right to due process arises in the Constitution within the Fifth Amendment (emphasis added):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It is hardly an expansive reading of the text to argue that expulsion from high office constitutes a deprivation of liberty, and so it is incumbent upon the Congress to ensure that whatever impeachment process is determined by either the House or the Senate for its role in impeachment hews to accepted norms for due process of law. Neither can there be any doubt that the President of the United States enjoys the right to due process as much as any other citizen.

Inherent in due process is respect for the rights of the accused. What are those rights? For that we look to the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
We must note, however, that there is a catch: Sixth Amendment rights are framed in the context of a criminal proceeding. Impeachment is not a criminal proceeding, nor is it a judicial proceeding of any sort. Rather, impeachment is a political proceeding, a point which is emphasized by Article 1, Section 3, Clause 7, which explicitly holds open the potential for additional criminal proceedings even after a successful impeachment and removal from office. Were impeachment merely another form of criminal process, after impeachment, trial, and conviction, the Fifth Amendment proscription against double jeopardy would apply, and no further sanction would ever be permissible. We cannot, from a plain reading of the Amendment, automatically extend the particulars of the Sixth Amendment to an impeachment proceeding within the House of Representatives.

Does this mean President Trump has no claim of right in an impeachment inquiry? Not hardly. 

As I have argued in regards to Big Tech censorship of online content and the nature of Free Speech, the rights of the accused are a fundamental right, preceding not just the Constitution but the whole of American government and American society. The rights of the accused are not merely a legal right, but a moral imperative. Even without the bindings of the Sixth Amendment, the Fifth Amendment assurance that in all things there will be due process argues strongly in favor of the President retaining the substance of Sixth Amendment rights if not the precise form. President Trump absolutely has an expectation of being able to, at some point during the impeachment exercise, confront any and all witnesses arrayed against him, and challenge the veracity and propriety of any evidences submitted. At some point during the process of impeachment, President Trump absolutely must be allowed to be heard. Indeed, his right to be heard and defend himself and his honor are primary reasons I argued for the Democrats to commence a formal impeachment inquiry following the release of the Special Counsel Robert Mueller's report on his investigation into the Russian Collusion Hoax, reasons that were echoed by none other than Robert Mueller himself:

It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge.
A due process of impeachment, therefore, must afford the impeached some opportunity of defense.  The House of Representatives may enjoy the sole power to impeach, but that power carries the intrinsic obligation to hew to established civic and legal norms. There may be some small debate over when space for the opportunity to defend should be created, but there is no debate over the absolute legal, Constitutional, and moral imperative for that space.

This is what the law is on the rights of the impeached.

Impeachable Offenses

Within the Constitution, the list of impeachable offenses given in Article 2 Section 4, is brief: "...Treason, Bribery, and other high crimes and misdemeanors." 

That is the sum total of the legal text on impeachable offenses.

That brief list immediately begs the question, however, of what constitutes "high crimes and misdemeanors."

As a curious aside, the exploration of the meaning of this term is also an ironic case for Constitutional originalism. "High crimes and misdemeanors" is an 18th century term of art encompassing a panopoly of misdeeds particular to the holders of high public office, and if a proper understanding of the term requires its reading according to 18th century linguistic and political norms, of necessity one must view the whole Constitution with like regard. The use of that term of art establishes that what constitutes an impeachable offense fundamentally amounts to what 20th century political reformers termed "abuse of power." Such abuse would include various derelictions of executive responsibility as well as various breaches of the public trust that do not rise to the level of criminal malfeasance.

The inherently nebulous nature of the term, as well as the intrinsically political nature of impeachment, was acknowledged by Alexander Hamilton in Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
This is supposed by some to lead to President Gerald Ford's cynical (yet at least somewhat accurate) assessment that "an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history...." As Hamilton warned, there is within impeachment the omnipresent danger that the power of one political faction over another will result in partisan concerns overriding the broader national interests in pursuing impeachment. 

Still, the use of the term "high crimes and misdemeanors" does establish that, to be impeached, a President (or other civil officer of the United States) must behave in a fashion which is rejected by a significant majority of the the American people. Following on Hamilton's view on impeachment and the partisan risks entailed, to qualify as an high crime the conduct must be of a nature that rises above internecine partisan bickering. As high crimes are not necessarily statutory offenses, but political offenses that presumably display a degree of disdain and disregard for the national interest and the national polity, the unspoken addendum to Gerald Ford's assessment must be an acknowledgment that the majority of the House which votes impeachment must accept and be prepared to face the wrath of the voters.

This is what the law is on impeachable offenses.

Are We There Yet?

A virtue of the law is that it provides a framework within which conduct may be evaluated and claims regarding that conduct adjudicated. As Marshall noted in Marbury, the role of any court is to apply the law to a particular set of facts, that from those facts a verdict may be reached, and from that verdict, a modicum of justice dispensed. The framework of the law on impeachment provides a framework within which we may interrogate President Trump's actions, statements, and behaviors, and determine if any rise to the level of an impeachable offense.

The current allegation against President Trump revolves around his July 25, 2019 telephone call with Ukrainian President Volodomyr Zelensky, in which President Trump request Ukraine investigate certain matters arising from the 2016 election, as well as matters surrounding former Vice President and current presidential candidate Joe Biden. Laying aside other facts and particulars pertinent to the allegation for the moment, what manner of impeachable offense might be derived from the telephone call and the request?

One view of the call is that it represented an attempt to pressure President Zelensky to provide salacious dirt--"kompromat"--on a political adversary. Following this coercive interpretation, this view fundamentally accuses President Trump of extortion, which could be an ordinary crime under 18 USC 872:

Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
An alternate view is that President Trump sought, non-coercively, salacious kompromat on Joe Biden for use in his Presidential re-election in 2020. This, it is argued, constitutes an illegal campaign contribution by a foreign principle, which is prohibited under 52 USC 30121:
(a)Prohibition It shall be unlawful for— 
(1)a foreign national, directly or indirectly, to make— 
(A)a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; 
(B)a contribution or donation to a committee of a political party; or  
(C)an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or 
(2)a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
One could also argue that seeking such material might constitute the solicitation of a bribe by President Trump, which is prohibited under 18 USC 201.

These are ordinary crimes covered by federal statute--with bribery an explicit impeachable offense per Article 2, Section 4. As a President is charged in his oath of office to see the laws be faithfully executed, the contention that a President who chooses to violate those same laws has abused his office, abused the public trust, and committed an impeachable offense is not at all unreasonable.

The challenge for the Democrats, then is to present facts which establish that one of these offenses has occurred.  Do they have such facts?

As I argued in my last posting, no, they do not.

Whether one argues extortion, illegal campaign finance, or bribery, in every instance one must establish, clearly and unequivocally, that Ukraine opening an investigation into Joe Biden's activities constitutes a "thing of value." A legitimate investigation cannot qualify, else any legitimately predicated investigation of a political candidate arguably becomes a campaign contribution towards that candidate's rivals, which is an absurd position. For the investigation to have any value for Donald Trump in any capacity, it must lack any legitimate predicate.

Alas, for the Democrats, there are multiple factual predicates that support an investigation, as I have already detailed. No amount of Democrat sophistry can evade the factual reality of the manifest conflicts of interest Joe Biden had regarding implementation of US policy towards Ukraine and the dispensing of loan guarantees. Regardless of whether Hunter Biden committed any crime, or did anything wrong in any capacity, his Burisma directorship presents an unavoidable conflict for Joe Biden which he did not seek to mitigate in the slightest, including obtaining a waiver from the Obama administration (assuming such waiver would have been permissible under the circumstances).

With legitimate reasons to investigate Joe Biden, there simply is no logical way to impute a corrupt act by Donald Trump. By every standard of corruption and abuse of power that operates within American law, there is no corrupt act, and no abuse, by Donald Trump.

Unless and until different facts arise to make the case for corruption by Donald Trump, there are no impeachable offenses established within the July 25 phone call. This is a Clown World impeachment, driven, as Hamilton feared, more by the animus of the Democrats and their majority position within the House of Representatives than on any plain reading of the law or the phone transcript.

Yet the Democrats must still conform to the law. At some point they must make their case in public, and to the public. At some point they must allow Donald Trump space to present his defense and rebuttal. Arguably, as their resolution endorsed the principles of transparency, due process, and the rule of law, they should be creating that space even now, although the indications are that Adam Schiff is leveraging the particular language of the resolution to continue his secret depositions, sifting not for evidence of actual malfeasance, but for sound bites which can be leaked to paint a damning picture of Trumpian corruption, regardless of the reality. He certainly seems determined to continue violating House Rules and deny Congressmen access to the records of the hearings thus far, despite Rule XI(e)(2)(A) of the House clearly stating that all such records of standing committees are the property of the whole House:
(2)(A) Except as provided in subdivision (B), all committee records (including hearings, data, charts, and files) shall be kept separate and distinct from the congressional office records of the member serving as its chair. Such records shall be the property of the House, and each Member, Delegate, and the Resident Commissioner shall have access thereto. 
The Democrats must eventually conform to the law, and reveal everything to the public. When they do, they will need to make their case for impeachment, within the framework of law laid out here. Without a piece of information well hidden and not yet revealed to serve as "the smoking gun," when they make their case, it will want for credibility and substance.

Even in Clown World, the law remains the law. 

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