Thursday, December 26, 2019


Week 42: Impeachment, revisited

In Week 48, we explored the Founders’ intent related to impeachment. With the passage of time, we now have before us the Articles of Impeachment against President Donald Trump. He now stands as the third president in the history of our Republic to be impeached by the House of Representatives. Recall that President Richard Nixon resigned from office prior to being impeached. Also recall that no impeached president has been removed from office by trial in the Senate.

To provide perspective, let us examine these three impeachments, so that you, kind reader, may judge for yourself the nature of each and the fidelity of each to the Constitutional standards for impeachment.

The impeachment of President Andrew Johnson took place from 1867-1868. He came to office upon the assassination of President Abraham Lincoln, and because of his approach to Reconstruction (i.e., restoration of Confederate states to the Union) did not meet with approval of the Radical Republican faction of Congress, Congress sought to protect those in the administration who favored their approach to Reconstruction. One such protection came in the form of the Tenure of Office Act, which restricted a president’s ability to remove administration officials approved by Congress prior to the end of their term. Specifically, this law was enacted with Secretary of War Edwin Stanton in mind. President Johnson vetoed the legislation, but a two-thirds majority of Congress overrode his veto, and the law was enacted.

In defiance of the Tenure of Office Act, President Johnson wrote to Secretary Stanton and to Lorenzo Thomas, brevet major general in the U.S. Army, to inform them that he was replacing Stanton with Thomas as Secretary of War ad interim. This act precipitated Johnson’s impeachment.

The House of Representatives drafted 11 Articles of Impeachment. All but three of the Articles clearly and directly related in some manner to violations of the Tenure of Office Act. One Article related to a violation of “An Act to Define and Punish Certain Conspiracies.” Another charged the president with working to damage the respect that the American people had for Congress. Lastly, they charged the president with declaring the 39th Congress unconstitutional. Of the 11 Articles, nine are solidly founded in laws that were in effect at the time. As for a lack of respect for Congress, it is difficult to envision how this is a violation of office. It reminds me of a line from the movie “Clue.” Colonel Mustard asks the butler, “Are you trying to make me look stupid in front of the other guests?” To this the butler replies, “You don’t need any help from me, sir.” Similarly, Congress – then as now – needs little help from anyone in diminishing the respect and trust they garner from the American people.

It would not be until 131 years later that another president would be impeached. In 1998 and continuing into 1999, President Bill Clinton faced impeachment by the House of Representatives. Two Articles of Impeachment were drafted and send to the Senate for trial. The first Article claimed that President Clinton lied under oath to a grand jury, a violation of the U.S. Code, Title 18. The second Article claimed that President Clinton obstructed justice by engaging in seven instances of witness tampering, also a violation of U.S. Code, Title 18.

Paula Jones, an Arkansas state employee, accused then-Governor Clinton of sexual harassment. Endeavoring to establish a pattern of behavior, Jones sought similar experiences from other women, who claimed to have been sexually harassed by Governor Clinton. As time progressed, Clinton was elected president. Linda Tripp, a federal employee, recorded White House intern Monica Lewinsky describing a sexual relationship with President Clinton. In the Paula Jones case, Clinton denied having a relationship with Lewinsky. In an independent counsel investigation, Ken Starr found that President Clinton had lied under oath in his deposition in the Jones case. The Starr Report precipitated action in the House and subsequently in the Senate. Throughout all of this, President Clinton was encouraging people involved in the investigation, including Lewinsky, to falsify testimony. The rest – including Clinton’s penchant for philandering and the infamous blue dress – is, as they say, history.

This brings us to the present day and the third impeachment in U.S. history. The House of Representatives drafted, although is currently delaying transmittal to the Senate, two Articles of Impeachment against President Trump. The first relates to abuse of power, suggesting that President Trump sought foreign interference in the upcoming 2020 election by requesting that the government of Ukraine investigate former Vice President Joe Biden and his son, who was on the board of directors of a Ukrainian energy company. The charge is based on communications that took place between the presidents of the two nations, establishing a quid pro quo for military aid being predicated on the announcement of an investigation into Biden and his son. Such an action would clearly be a violation of the Federal Election Campaign Act, yet no reference to this Act was made in the Articles of Impeachment.

The second relates to a charge of obstruction of Congress. As in the Clinton impeachment, this would be a violation of U.S. Code, Title 18. This charge rises from the fact that President Trump instructed the Executive branch to not comply with subpoenas from Congress. This instruction was rendered so that the Executive branch could have the Judicial branch rule on the constitutionality of the subpoenas. The House of Representatives chose not to await the decision of the courts and to go forth with the charge of obstruction, essentially making it an impeachable offense for the Executive branch to avail itself of the rights and protections of the courts and of due process. After all, if the courts were to rule against the Executive branch, they would have to satisfy the subpoenas. The bottom line is whether or not this rises to the level of corruptly influencing, obstructing or impeding the House’s inquiry, the definition of which has been set forth in a variety of court cases from 1984 to 2007.

In reviewing the three cases of impeachment, it is clear that the worst of politics are alive and well, and have been for more than a century. In Johnson’s case, he was impeached for violating a law that the Congress passed specifically to tie his hands as chief executive. The Tenure of Office Act was repealed in 1887 and declared likely to be invalid by the Supreme Court in 1926, when it ruled a similar law to be unconstitutional. In Clinton’s case, he famously, and perhaps correctly in a purely technical sense, pinned his side of the story on the definition of the word “is,” an argument that neither the House nor the American people bought. In Trump’s case, the House sought to impeach him from the first day of his presidency, long before any communication with the president of Ukraine occurred between the presidents or became known by the House of Representatives.

I doubt very much that the Clinton and Trump impeachments were what the Founders had in mind, as it is unclear what “injuries done immediately to society itself” (Federalist 65) occurred in either case. It stands to reason that if the evidence were solid, a clear and convincing charge could and would be made. This has not been the case in modern times (i.e., with the Clinton and Trump impeachments).

With Trump, both he and the president of Ukraine have stated that no quid pro quo took place (as contrasted with former Vice President Biden conditioning aid on the firing of a prosecutor investigating the company on the board of which his son served as a director). Additionally, the aid was delivered. Critics point out that the aid was released only after allegations of wrongdoing came forward. The timing cannot be denied; however, it remains unclear what injuries society incurred. With regard to the defiance of subpoenas, we must look to the same language in Federalist 65. The House could have waited until the Judicial branch made its conclusions, but it did not. This seems to fail the notion of immediacy in Federalist 65.

What might this mean for an election? I think it simply calls us to weigh the Articles of Impeachment and any ruling by the Senate for what they may be worth, which is to say partisan political attempts to delegitimize a sitting president. At least with Johnson’s impeachment, connections to violated laws were evident and clearly stated. With Clinton and Trump, the connections are much more tenuous, if existing at all. Because the impeachments of the modern age are little more than political theater, I suggest it is foolhardy to consider impeachment when casting a vote for president. All such a consideration accomplishes is the affirmation of the voter’s personal love or hatred of the candidate.

I would suggest, instead, looking at the records of the candidates. Since the time of the New Deal, Democrats and other so-called progressives have extolled the promise of more government to solve the problems of society – education, healthcare, infrastructure, retirement, and so on. One would think that after nearly 80 years, some progress would be made. Many of our public schools, especially in areas in the greatest need of the benefits of education, continue to struggle and underperform. Despite a universal health insurance coverage plan (i.e., the public/private mandates of the Affordable Care Act – aka “Obamacare”), costs continue to escalate out of control, and liberal legislators complain that our healthcare system is an embarrassment on the world stage. One wonders where the trillions of dollars for infrastructure has gone when driving over the decrepit roads and bridges of this land. Insolvency looms like the grim reaper for those whose golden years require support from Social Security, Medicare and Medicaid.

Contrast that with the current administration. Reduction in regulatory burdens have freed the economy to perform more efficiently and effectively. Employment and unemployment statistics for African Americans, Hispanics and Asians are performing at historically favorable levels. No new wars have been instigated. Retirement savings are growing.

Clearly, I am a proponent of the invisible hand and its effect on society in all areas of human interaction. What I do not understand is the argument for tying this hand and its effect on society. Throw in partisan political exercises, like impeachment, and it is little wonder that people feel lost, trapped, frustrated and angry. As Saul Alinsky describes in “Rules for Radicals,” these feelings are the very ones that the left counts on to sustain support for its perpetually failing policies.

We are the heirs of Liberty. It’s time we recognize this fact and act accordingly. Let us focus on the policies and outcomes that advance our own self-interests, so that these interests may intersect with and advance the self-interests of our fellow citizens, lest we be distracted by the unseemly struggles for power by those in the halls of government.

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