17 January 2020

The Purpose Of Impeaching Donald Trump: Breaking Presidential Power

Nancy Pelosi finally completed the impeachment of the President, signing the articles of impeachment and transmitting them to the Senate. With articles in hand, the Senate officially swore in Chief Justice John Roberts to preside over the impeachment trial, and the senators themselves were sworn in as the impeachment jury--the Senate has now been converted into the Court of Impeachments described by Alexander Hamilton in Federalist 65.

After months of partisan wrangling over hyperpartisan inquiry and investigation by the House, the Senate finally will have its say on the merits and demerits of the case the Democrats have assembled, even as the true purpose of impeachment has already been revealed and acknowledge by those same Democrats: removing a President they do not like, or at least subordinating him to the whimsy of Congress.

The Trial Will Be Impartial (Maybe)

We should note that while the Democrats' impeachment process to date has been historically (and even hysterically) partisan, the impeachment trial itself should be rather less so. The Constitution places a particular charge on Senators, requiring that, while sitting as the Court of Impeachments, all Senators take an especial oath as jurors in the impeachment trial:
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.
Thus while the House impeachment process is characterized by its lack of formal structure, the trial itself is a very formal process. While specific trial rules and procedures still have to be finalized by the Senate, there will be no mistaking the event itself--it will be a trial, and not any other form of government hearing.

We should also note that, for the trial, the Senators are particularly pledged to impartiality, that being the thrust of the oath Chief Justice John Roberts administered to the Senate immediately after being sworn in as the presiding judge:
Do you solemnly swear that in all things appertaining to the trial of the impeachment of President Donald John Trump, president of United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?
The extent to which individual Senators will honor that oath has itself been the topic of some angst by various Democrats and pundits within the legacy media. Many have been  taken aback at Senate Majority Leader Mitch McConnell's blunt statement that he is not an impartial juror, while others have pointed out that while the Senate is the nation's Court of Impeachments, that does not make the Senate itself the equivalent of a jury--and even in Federalist 65 we have the admission of Alexander Hamilton that impeachment is a political rather than judicial process, and impeachment is not to be conflated with a criminal trial.

Impeachment Is Never Impartial

Moreover, the history of impeachment itself suggest that impartiality is an impossibility for any impeachment. The Constitutional mechanism of impeachment is an evolution of the centuries old English process by which Parliament challenged the authority of the monarch.
“Sometimes it was just for cleaning out mid-level judges or other bad officials,” said Frank Bowman, a professor at the University of Missouri School of Law and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. “But the principal constitutional purpose for Great Britain was as a legislative counterweight to royal overreaching and tendencies towards tyranny, and the like.”
While the justification of counteracting "royal overreach" gives impeachment the rubric of ethical and noble governance, it should come as no surprise that in practice impeachment was generally about Parliament seeking to restrict royal authority by importuning royal ministers and officials--usually those associated with an opposing polity. Impeachment in reality is, was, and likely always will be an intrinsically partisan affair. 

Even the American experience of Presidential impeachment has been largely an exercise in partisanship. Republicans will impeach a Democratic President, while Democrats will impeach a Republican President, but neither party is likely to initiate an impeachment of a President from their own party. The impeachments of Presidents Johnson and Clinton in particular were driven by largely partisan impulses, while the impeachment inquiry into President Nixon was notable for the degree of Republican support it drew at the end (a principal reason Nixon opted to resign before Congress could vote articles of impeachment).

The Trump Impeachment Recalls Andrew Johnson

The most partisan Presidential impeachment of all, that of Andrew Jackson in 1868, while ostensibly tied to his violations of the Tenure of Office Act, was motivated more by the conflict between the Radical Republicans in Congress desire for a harsh and punitive reconstruction of the recently conquered Confederacy and Johnson's more conciliatory stance. Even the law Johnson was accused of violating was largely concocted for the express purpose of impeaching Johnson and removing him from office; it was later repealed, and the Supreme Court ruled in 1926 that it had been unconstitutional.

It is worth noting that, prior to Donald Trump's impeachment, the articles of impeachment against Andrew Johnson were singular for their lack of a substantive criminal act, aside from violations of the unconstitutional Tenure of Office Act. The articles of impeachment against President Clinton, by comparison, were centered on the unequivocal crimes of perjury and obstruction of justice, as were the proposed articles for President Nixon.

Like the Johnson impeachment, the Democrats' impeachment of President Trump charts a highly partisan path. The two articles voted out of the House of Representatives do not articulate a single definable crime--merely "abuse of power" and "obstruction of Congress", neither of which is a statutory criminal offense. Like the Johnson impeachment, the impeachment of Donald Trump has proceeded along party lines, with the only bipartisan votes being against impeachment. 

Like the Johnson impeachment, the Trump impeachment is at its core a contest for political power, this time between the House Democrats (and their "Deep State" allies within the bureaucracy of the Executive Branch) and President Trump. As Gregg Jarrett, legal analyst for Fox News, observes, Nancy Pelosi's agenda regarding impeaching Donald Trump has been entirely about damaging him prior to the November 2020 elections. Even House Minority Leader Kevin McCarthy has pointed out how Nancy Pelosi's delay in transmitting the articles of impeachment pulls two of the Democratic front runners--Bernie Sanders and Elizabeth Warren--off the campaign trail right before the Iowa Caucuses and the New Hampshire primary; the possibility of Pelosi using impeachment to put her thumb on the primary scale to favor Joe Biden cannot be dismissed.

Like the Johnson impeachment, the goal of the Trump impeachment is to break the power of the President of the United States.

Not A New Battle

The Constitution's system of checks and balances operates primarily by means of dynamic tension between the Legislative and Executive Branches.  Thus Congress passes laws, but they require a President's signature, and the President is the Commander-In-Chief of the armed forces, but only Congress decides when and where to send troops off to war. The competing prerogatives of both the Legislative and Executive Branches serves to counter the natural tendency of both to accrete political power at the expense of each other.

Because of this deliberate dynamic tension between Congress and the Presidency, Presidents accumulate significant power mainly when Congress fails to protect its prerogatives. It was a supine Congress which allowed President Obama to turn the Authorizations to Use Military Force from 2001 and 2002 into perpetual authority over sending troops into combat under a theory of "implied authorization". Congress allowed President Obama to rewrite immigration law to create a shadow class of people in this country illegally yet protected from deportation under the aegis of "DACA", completely ignoring Congress' Constitutionally-assigned role in crafting immigration law. If Congress fears a President has become too powerful, it need only consult the nearest mirror to divine the cause.

Nor is the rare occasion when Congress decides to show some gumption and restore Constitutional order a cause for concern. The recent resolution by the House seeking to limit the power of the President to engage in war with Iran without the approval of Congress is a healthy step towards restoring Congress' assigned authority to decide when and where the United States goes to war. Even Trump advocate Matt Gaetz thought enough of the Constitution to vote for the resolution, despite the fact that it was introduced by Democrats.

The Trump impeachment is not one of those occasions. Rather, the clear objective of the impeachment is to strip away legitimate Presidential authority, and even fundamental civil liberties. 

The second article of impeachment, "obstruction of Congress", quite explicitly argues that it is a high crime and misdemeanor for a President to seek judicial review of Congressional subpoenas and demands for documents and other information. Congressman Eric Swalwell went so far as to suggest that refusal to comply with a demand of Congress was proof of the President's guilt, earning a stinging rebuke from noted law professor Jonathan Turley, who pointed out that even Presidents enjoy Fifth Amendment protections from self-incrimination, and such protection is not proof of guilt.

Presidents also enjoy a Constitutionally-recognized "executive privilege" which, like attorney-client privilege, affords many Presidential interactions with advisors and other members of the Executive Branch near absolute immunity from compelled disclosure. The courts have repeatedly upheld this privilege even as they have disagreed with Presidents on its application and scope. Yet the Congress, by the second article of impeachment, seeks to end such privilege by making its very use an impeachable offense--a stance that Profressor Turley pointed out was a Congressional abuse of power during his testimony before the House Judiciary Committee over the Trump impeachment inquiry.

The idea that Presidents may not challenge Congressional decree appears even in the logic of the first article, alleging abuse of power. The crux of President Trump's alleged abuse of his office is the temporary withholding of Congressionally-approved military aid to Ukraine, the implication being that Presidents are not to question the decisions of the Congress. The supposedly non-partisan General Accountability Office, which reports to Congress on how taxpayer funds are being spent, has recently determined that Trump's temporary hold on aid to Ukraine violated the Nixon-era Impoundment Control Act, saying that a President may not "substitute his own policy priorities for those that Congress has enacted into law.", yet as Professor Turley points out, such violations are hardly new, as even President Obama was found by the GAO to have run afoul of similar laws without being impeached. For House Democrats to assert that what was not impeachable offense by Obama is not only an impeachable offense by Trump but also a matter of urgency and national security is so absurd as to affront basic logical thinking and reason.

 Merely An Excuse

Ultimately, even the Congress has admitted that the specific acts outlined in the articles of impeachment are simply convenient excuse for the exercise. Democratic Congressman Al Green has repeatedly submitted articles of impeachment against Donald Trump since Trump's term of office began. House Counsel Douglas Letter has stated in a Federal Court filing that, if this impeachment fails, Congress may impeach President Trump a second time.

In other words, the Democrats have already decided President Trump is unfit for office, and are merely casting about for an accusation to justify removing him from office, without bothering to wait for the voters to decide the matter in the upcoming Presidential election. Just as with Andrew Johnson, when the Congress was unable to find a legitimate complaint against Donald Trump, they contrived one.

If this impeachment fails, Congress plans to contrive another, and another, and another, until President Trump is removed from office. The Trump impeachment is not about protecting the Constitution or upholding the sworn oaths Congressmen take. The Trump impeachment is simply about Congressional Democrats rejecting the voters' choice for President--the very danger about which Alexander Hamilton warned in Federalist 65 is exactly what the impeachment of Donald Trump has always been: an impeachment "regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt."

Not What The Constitution Requires

While there is considerable practical logic in Gerald Ford's famous observance that a high crime or misdemeanor is more or less whatever the Congress says it is, even that logic must be subject to the requirements of the Constitution. Because impeachment is limited by the Constitution to "Treason, Bribery, or other High Crimes and Misdemeanors", the plain reading of the Constitution confirms that, to be removed, a President must at least do something demonstrably wrong. 

Being disliked is not any sort of actual offense, and it is not any sort of legitimate grounds for impeaching and removing a President from office. The requirement that two-thirds of Senators must vote to convict for impeachment to result in removal from office demonstrates that, to be a high crime, the impeachable act must be one of blatant and egregious error. The policy quibbles between President Trump and the Congress simply do not rise to that level.

The Constitution requires that impeachable offense be one of egregious error. The House Democrats are advancing an impeachment case that arguably contains no error at all, let alone egregious error. In law, in logic, and in accordance with the strictures of the Constitution, they have no case.

If Chief Justice John Roberts and the Senate truly measure up to their impeachment trial oaths, once the Democrats have finished presenting their case, the Senate will entertain and pass a motion to dismiss the articles of impeachment as Constitutionally inadequate.

Being Donald Trump is not an impeachable offense.

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