Impeachment – The Legal Question

April 3, 2018

For the past two weeks we’ve talked about how impeachment changes the issues surrounding Donald Trump and the political impact of prior impeachments in America. Now we turn to the constitutional language: “The President … shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”[1]

Well before the Constitution was written, impeachment began as a wide-open power of the British House of Commons to prosecute people in the House of Lords. But the Commons largely limited themselves to statutory crimes so that the House of Lords would be more likely to convict.

Crossing the waters, colonial legislatures limited themselves to the behavior of public officials. Legislative impeachment of anyone other than public officials would encroach on the job of courts and give legislatures too much power over citizens at large. Impeachment, however, became an important tool in the colonists’ battle with the British Crown.

On independence, legislatures limited themselves to action that affected public duties or danger to the republic. The new governments were to be constrained by rules of fair dealing. Elections did not provide a sufficient check either against mob rule or official chicanery. And public officials were not entitled to dismantle the separation of powers among legislative, executive and judicial departments with separate and complementary duties.

By the time the Constitution was written, the basic elements of impeachment in the thirteen states were unethical conduct that endangered the public or the republic. Statutory penalties were for courts to adjudicate. Political penalties, like removal from office, would still be appropriate for impeachment even for statutory crimes. Impeachments prosecuted in that period included corruption, like bribery, breach of public trust like using powers for personal advantage or to injure others, misuse of power such as bullying private citizens, and undermining the republican character of government with its careful divisions into executive, legislative and judicial powers.

In the Convention, a committee suggested that officials could be removed “for neglect of duty, malversation, or corruption.” Malversation, somewhat redundantly, meant “improper or corrupt behavior in office.”  Before they could vote on it, another committee brought to the floor a proposal that officials could only be impeached for “treason or bribery.” George Mason believed that was much too narrow, and on September 8, 1787 he suggested adding maladministration as an additional ground. His proposal was defeated, but in response, he proposed the language we now have, “high crimes and misdemeanors,” and it passed. “Misdemeanors” had been mentioned but once during the Convention and only in the context of crimes at sea. A widely consulted legal text of the era, however, defined misdemeanor as “smaller faults and omissions of less consequence than ‘crimes.’” That definition seems broader than “maladministration” and could easily encompass “neglect of duty, malversation, or corruption.”[2] But then why were those terms taken out? In The Federalist, Hamilton explained that the grounds of impeachment came from “the abuse or violation of some public trust,”[3] essentially supporting Mason’s approach. Their view quickly became standard.

The larger point is that the Founders sought a method to protect the republican character of the Constitution, enable the legislature to stop corruption, and to make sure that the president would faithfully execute the laws, respect the rights of citizens and obey the checks on official power built into the Constitution and principles of republic government. That forms the basic understanding of what the impeachment clause was designed to accomplish, and why some presidents would need to be impeached. Proposed articles of impeachment should be compared to those great purposes.

— This commentary was broadcast on WAMC Northeast Report, April 3, 2018.

 

 

[1] U.S. Const., Art. II, §4. Strictly speaking, impeachment refers to the charges voted by the House of Representatives for trial in the Senate. Removal is the result of conviction by the Senate. Art. I, §2, ¶5 and §3, ¶6.

[2] See Records of the Federal Convention of 1787, vol. 2 at 550 (Max Farrand, ed., Yale U. Press, 1966); Peter Charles Hoffer and N.E.H. Hull, Impeachment in America, 1635-1805 (Yale U. Press 1984).

[3] Alexander Hamilton, James Madison and John Jay, The Federalist, No. 65 (Hamilton) at 396 (Clinton Rossiter ed., New American Library 1961).


The Central Issue of Trump

March 20, 2018

Trump says and does so many things which are parts of much bigger issues, that it’s nearly impossible to keep up.

  • He has us discussing whether he’s going to fire one guy or the other, who does or doesn’t deserve to go;
  • Whether Trump will make war or peace and what country deserves our friendship or enmity;
  • Whether we will honor or dishonor treaties that he claims other countries violate, though no one else shares that view;
  • Whether he has a policy about infrastructure based on his saying things should be built or does not have a policy based on the empty line in his budget;
  • Whether he has conspired with an enemy of the United States, and whether the Special Counsel’s investigation should be shut down because he tells us that he did nothing that should be investigated, and whether it matters that he didn’t give Hillary that privilege.

It makes the head spin.

We’re heading in just a few years to an economy in which most of us won’t have steady jobs, pensions or unions to support us. Instead it’s everyone for himself all the time in the gig economy. Republicans insist that government and regulation are almost always bad. Who’s left to have our interests at heart? Reminds me of pastor Martin Niemöller on being sent to the concentration camps by the Nazis, “Then they came for me—and there was no one left to speak for me.” Is Trump for or against the workers when he says nothing about union rights and supports no change in working conditions other than tariffs for a couple of industries. And is Trump for or against a livable environment when he takes every possible action to degrade the earth, air and water?

We have been at war since 2003 but what do we have to show for it but body bags and amputees. Will Trump send more troops to die in the Middle East, or is he just bluffing to make people back down? But attempted bluffing will be ignored by people across the globe who have all lost confidence in what he tells us because we need only wait a short while for him to say the opposite.

Trump wants the Special Prosecutor, Robert Mueller, to stop investigating whether Trump or his campaign collaborated with the Russians in order to win the White House, or wants to fire Mueller and hire someone else who will close the investigation? Does it matter whether criminal defense lawyers may want their accused clients to have a right to choose their prosecutors and put a time limit on investigations, especially for such difficult prosecutions as those of organized crime, corporate finagling and international financial transactions. Can they cite the president for that right?

It’s enough to make one’s head spin. But there’s a way to simplify it. Forget all the separate issues until we have a president that actually cares about them, and focus on impeachment. Every one of those issues bears on impeachment, either because they relate to obstruction of justice, selling America out, self-dealing in foreign affairs or rewarding his favorite autocrats and wealthy friends at the expense of the people he swore to protect. His high crimes and misdemeanors easily exceed what Clinton was impeached over, threaten more damage to the republic than the misbehavior for which Andrew Johnson was impeached, and for which Richard Nixon resigned before the House could vote on articles of impeachment. Bring all these issues back to the fundamental question of impeachment. Dirty Donald, lock him up.

— This commentary was broadcast on WAMC Northeast Report, March 20, 2018.


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