24 November 2019

Impeachment Is A Double-Edged Sword

An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.

After two weeks of public hearings on whether or not to impeach President Donald Trump, the Democrats are facing an uncomfortable truth about impeachment--like all political weapons, it is a double edged sword that cuts sharply in both directions, all the time.

In considering impeachment, we must remember that, first, ever, and always, a political response to a miscreant chief executive. As Alexander Hamilton stated in Federalist #65:
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.
Thus, even though the Constitution establishes the causes for impeachment to be "Treason, Bribery, or other high Crimes and Misdemeanors", and so calls our attention to the prospect of a President or other high government official violating the law, impeachment itself is not a criminal proceeding, nor is tied to the judicial branch. Rather, impeachment exists in the Constitution as a corrective measure for when a sitting President greatly oversteps and abuses his authority as the nation's Chief Executive.

The challenge for the Democrats, led by Congressman Adam Schiff, has always been to make the case that President Trump has overstepped and abused his authority as the nation's Chief Executive. That is not a challenge that Adam Schiff can be said to have met to any noteworthy degree.

High Crimes And Misdemeanors

Perhaps no other phrase in the Constitution save the curious construction of the Second Amendment has been scrutinized, interpreted, and arguably misinterpreted as the phrasing from Article 2 Section 4, "High Crimes and Misdemeanors." Unlike treason, which is defined within the Constitution itself, and bribery, which is identified in the Federal Code (18 USC 201), "high Crimes and Misdemeanors" is not something which is explicitly defined within the boundaries of statutory US law.

If we follow Gerald Ford's cynical construction of the impeachment power, "high Crimes and Misdemeanors" is a catch-all phrase designed to give the House essentially carte blanche to impeach a President. Yet that is not quite accurate. As Alan Dershowitz has noted:
Here’s the key point in summary: the evidence of original meaning overwhelmingly supports the conclusion that, at the time of the framing of the U.S. Constitution, the composite term “high Crimes and Misdemeanors” was a well-established, familiar legal term of art that the framers consciously borrowed from longstanding English practice and usage dating back four centuries. That meaning was not so much “vague” as simply broad: a sweeping delegation of power and responsibility to the legislative bodies entrusted with the impeachment power. The term “high Crimes and Misdemeanors” had a broad meaning in English practice and in the American understanding, confiding to the two houses of the national legislature (under the U.S. Constitution, the House and the Senate, exercising their respective roles in the impeachment

The meaning of “high Crimes and Misdemeanors” was, so to speak, its own distinct thing. It was not a combination of “crimes” and “misdemeanors” as understood in today’s criminal-law sense. It was instead a unique legal term with its own meaning. The framers of the Constitution understood and used the phrase in that specialized sense, consciously adopting a known English-practice term of art in preference to other proposed formulations of the impeachment standard. And the ratification debates uniformly reflect that same broad understanding.
Exactly what meaning attaches to the phrase we can begin to see from Hamilton's Federalist 65, when he describes the impeachable offense as being "the abuse or violation of some public trust". Stripped away of the florescence of 18th century political language, an high Crime and Misdemeanor is any conduct which may plausibly be described as an abuse of power. 

As a matter of simple practicality, the easiest abuses of power to establish are those that involve some level of legal misconduct, and the Constitution invites this approach by establishing the first two criteria for impeachment as actual statutory crimes. 

Previous Presidential impeachment efforts have followed this violation of law model. Andrew Johnson's articles of impeachment centered on supposed violations of the Tenure in Office Act. Bill Clinton's articles of impeachment centered around charges of perjury (Chapter 79 of the US Code). Richard Nixon's articles of impeachment, which were never voted on by the full House of Representatives, not only alleged perjury and making false statements to investigators, but also witness tampering (18 USC 1512).

Nixon's articles of impeachment are instructive for Democrats contemplating possible articles of impeachment against Donald Trump because they included such charges as "endeavouring to misuse the Central Intelligence Agency, an agency of the United States", something which is clearly wrong, certainly unethical, but might not be easily reduced to a particular statutory offense.

High Crimes Are Violations Of Ethics

Consistent with the Hamiltonian definition of an impeachable offense are the findings of the committee staff for Nixon's 1974 impeachment inquiry, which elaborated on the Hamiltonian standard as follows:
(1) exceeding the constitutional bounds of the powers of the office in derogation of the powers of another branch of government; (2) behaving in a manner grossly incompatible with the proper function and purpose of the office; and (3) employing the power of the office for an improper purpose or for personal gain.
Clearly, impeachment is not limited to criminal misconduct, nor is all criminal misconduct intrinsically impeachable. Rather impeachment is meant to be used for misconduct, whether criminal or simply unethical, which is both severe and inextricably tied to the office and not just the office holder. 

The criteria are broad and therefore difficult to assess uniformly, as a 2015 Congressional Research Service Report, "Impeachment and Removal", noted. One proposed article of impeachment against Richard Nixon was voted down in committee because it was believed the misconduct in question was more of a private and personal nature, and not intrinsic to the office of President of the United States. By the same token, the articles of impeachment against Bill Clinton for perjury were voted on the theory that 
The House Judiciary Committee report that recommended articles of impeachment argued that perjury by the President was an impeachable offense, even if committed with regard to matters outside his official duties. The report rejected the notion that conduct such as perjury was “more detrimental when committed by judges and therefore only impeachable when committed by judges.” The report pointed to the impeachment of Judge Claiborne, who was impeached and convicted for falsifying his income tax returns—an act which “betrayed the trust of the people of the United States and reduced confidence in the integrity and impartiality of the judiciary.” While it is “devastating” for the judiciary when judges are perceived as dishonest, the report argued, perjury by the President was “just as devastating to our system of government.”
However, in every instance, an impeachable offense carries a clear ethical dimension, regardless of whether it is also a statutory criminal offense. 

Given the broad definition of "high Crimes and Misdemeanors", Gerald Ford could certainly be forgiven for his cynical assessment of the term, although as I have argued previously "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." If Congress is to argue an abuse of the office, the argument must eventually be accepted by the electorate at large.

When The Sword Cuts The Other Way

As this post's title states, impeachment is a double edged sword, and it is double edged because of the broad nature of the term "high Crimes and Misdemeanors". What constitutes a gross ethical lapse by a President of the United States? 

The Constitution does not define particular powers of the President, other than to execute the laws of the United States, serve as Commander-In-Chief of the armed forces, appointed federal judges, and negotiate treaties with other nations, the last two being in conjunction with the United States Senate. This is a far cry from the particular laundry list of congressional powers outlined in Article 1 Section 8. All other powers and prerogatives of the President come as an outgrowth from the office's status as the nation's chief executive: all cabinet departments are answerable to the President, as are all federal agencies and all ambassadors and diplomats.

With a broad governing mandate, it follows that the ethics of the office are similarly broad. Some aspects are reducible to statutory language (such as the prohibitions on gifts and emoluments, as well as the obvious offenses such as perjury), but others considerably less so. This is one of the challenges facing House Democrats wanting to impeach Donald Trump--establishing the gross ethical violation in the eyes of the electorate.

The core allegation of the Democrats has actually not changed much, even as they shifted from "quid pro quo" to "bribery". The essential charge has always been that President Trump corruptly and coercively pressured the Ukrainian government to provide political "dirt" on Joe Biden and his son, Hunter Biden. As I have noted from the outset, if this charge can be proven it is unquestionably a misuse of the power of the Presidency and, arguably, impeachable.

However, the Democrats have still not tackled a very big elephant in the room regarding the charge--the undeniable conflict of interest that existed by Hunter Biden serving on the board of Ukrainian natural gas company Burisma while Joe Biden was Vice President. Just as the ethical charge against President Trump is damning if true, the ethical lapse inherent in the conflict of interest is equally damning to the Bidens  if true, and any factual material attesting to that ethical lapse, or of ethical lapses arising from that conflict of interest, cannot be dismissed as mere political "dirt". The criteria is not whether Donald Trump benefits politically from any such information, but whether any such information is dispositive in a potential legal proceeding against the Bidens.

It is on that point that the news cycle has not been kind to the Democrats. As they have pushed ahead arguing impeachment, news reports regarding Hunter Biden's conduct both in the Ukraine and elsewhere have been emerging with some regularity, all of which is charitably described as "ethically problematic":
Even more damaging to the Democrats' case have been the revelations from their own witnesses that not only are there plausible ethical questions surrounding the Bidens and Burisma, these ethical problems were apparent even to the Obama Administration. If there is one consistent thread through all the witness testimony it has been that singular point.

The impeachment inquiry has produced a steady "drip, drip, drip" of tantalizing and potentially damning revelations--but about the Bidens, not about Donald Trump. The number of such revelations has even reached a critical tipping poing where Senators Chuck Grassley and Ron Johnson are asking the US Treasury for any information it might have about Hunter Biden's dealings, and are broadly pursuing information regarding any contacts between Obama Administration officials, the Ukrainian government, and the Democratic National Committee back in 2016. These are investigations that are being pursued outside of the auspices of an impeachment inquiry, and therefore will not necessarily go away once the impeachment process is done. 

That the impeachment inquiry has resulted in an undesirable level of scrutiny of Joe Biden's two terms as Vice President is nothing if not ironic. Yet the reality remains that Congressman Adam Schiff arguably has made a better case for investigating Hunter Biden than he has for impeaching Donald Trump.

This was always the major vulnerability in the Democrats' strategy on impeachment. An abuse of power charge of any sort against any President is only going to be sustainable if the person or persons believed to have been abused are themselves not fit targets for legal scrutiny. Regardless of what Donald Trump's main motivation might have been in asking for an investigation by Ukraine into the 2016 election and into Burisma and Hunter Biden, so long as there is even one legitimate law enforcement reason to conduct such investigations, the abuse of power charge is never going to last--and there are multiple legitimate law enforcement reasons to investigate the Bidens, just from the published news accounts. Potentially, Donald Trump need not even have a formal impeachment trial in the Senate--the investigations by various committees will provide him with all the platform he needs.

News accounts are not necessarily legally valid evidence, and any one individual news item is certainly not absolute conclusive proof of wrongdoing by either Joe or Hunter Biden. Yet the threshold is not establishing the ultimate guilt or innocence of the Biden clan, merely that reasons exist for an investigation to be undertaken. That threshold has been met, multiple times.

As the Democrats proceed with their next phase of impeachment inquiry, one has to wonder how much more collateral damage will they do to their fellow Democrats, even as they fail to damage President Trump in the slightest.

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