By John F. Di Leo -
The news of the week, possibly the news of the year, in a way, is that the United States House of Representatives has impeached President Donald Trump, sort of (at this writing, the House hasn’t forwarded the package to the US Senate, and it is rumored that it may never do so, making it unclear whether it counts as an impeachment at all).
It doesn’t mean he’s leaving office, of course… Since there is zero chance of his conviction in the Senate, due to the unprecedented process violations by the House, President Trump is more likely than ever to enjoy his remaining five years in the White House, with continued success, and perhaps even more fun than he had in his first three.
… But it is still significant, not only because impeachment is so rare, but also because this one is such a throwback to the birth of the Democratic Party, over two centuries ago.
The Framers carefully designed a government with checks and balances built into it… The states had checks on the federal government, each branch of the federal government had checks on each other… those delegates at the Constitutional Convention truly crafted a masterpiece, that long-ago summer of 1787.
But despite all of these internal checks, they knew that there would be times, hopefully rare, when an elected official would need to be forcibly removed from office. And to accomplish this rare need, they provided for impeachment.
As the Federalist Papers remind us, there was a great concern among the Framers in creating impeachment. They did not want it abused… a partisan impeachment was one of their greatest fears, as elections would be meaningless if one body could just remove another body at will, merely by having the numbers.
So they set the bar high, requiring a super majority in the Senate after passing the House… But they left the conditions up to Congress, merely stating that removal required “high crimes and misdemeanors.”
What does that term mean? Well, it was up to Congress, under the assumption that we would elect statesman who would take it seriously. This wasn’t to be the only time the Framers’ trust of future generations turned out to be misplaced.
Note: the Framers did not even say that we have to remove a president or supreme court justice for high crimes and misdemeanors; they merely said that we could, if we felt it appropriate. So it is entirely possible that we might elect a president, discover that he had committed high crimes, and still choose to not remove him from office, because the legislature decided that those particular high crimes did not rise to the level of meriting removal.
The Clinton impeachment in the 1990s is a perfect example. The House proved that President Clinton had both committed perjury himself and suborned perjury in other witnesses. These are severe crimes for anyone, but especially for a licensed attorney serving as the chief law-enforcement executive of the nation. Despite it being proven that he committed these crimes, the Senate decided not to remove him for them. (They might well have removed President Clinton for other crimes, but these perjury charges were the charges they had to use, and they let him off.)
This brings us to one of the key misunderstandings of the impeachment debate in recent decades.
For a long time now, commentators have repeated the mantra that “impeachment is a political process, not a legal process.”
Wrong.
Impeachment actually has components of both. First, there is a legal process, and then there is a political process.
First there are crimes, which must be proven, and then, there is the political decision of whether they merit removal.
The House Charges
In the current Trump impeachment, since three years of investigations have not revealed a single crime, the House Democrats made up two charges that have never actually existed before, as crimes:
“Abuse of Power” and “Obstruction of Congress.”
Now, both of these could certainly be considered “families” of crimes – no problem there – but they aren’t actual crimes in themselves; they still need genuine crimes underpinning them.
What might constitute an abuse of power?
Easy: Allegations that a president directed the IRS to deny deserved privileges to opposition groups, perhaps… Allegations that the president had used the FBI or CIA to harass or entrap political enemies… Allegations that a president took bribes, or sold policy positions to the highest bidder, either domestically or internationally… Allegations that he used US tax dollars to fund cronies’ sham businesses or worse, to fund enemy governments. All these would certainly be crimes underpinning a charge of abuse of power.
But President Trump has never committed any of these crimes, although his predecessor certainly did.
Rather, President Trump has used his power to tweet out messages that are usually funny, often insulting, and generally effective at circumventing the biased main stream media. It has driven the left crazy, but it’s not a crime.
The second charge is even stranger: obstruction of Congress. An actual obstruction of Congress would require using the police powers of the executive to block Congress from meeting in the capitol building… Or to deny Congressmen access to their offices or computer systems… or to arrest Congressmen on trumped-up charges so that they could not conduct the business of the House and Senate. Many foreign heads of state have done such things in other countries, and these would certainly be grounds for impeachment here. But there’s one problem: Neither President Trump – nor any other president in our history – has ever done such things. Presidents have annoyed Congress, insulted Congress, fought with Congress… but none has ever really obstructed Congress.
The House claim justifying this “obstruction of Congress” charge is merely based on the President’s refusal to subject his staffers to a Congressional witch hunt through sham subpoenas.
It is true that the President has refused numerous such demands, but he has dealt with this problem through the proper channels: in the courts. He has sued and countersued; his objections to the inquiry and hIs declaration of executive privilege have both been supported by judges and have tons of precedent supporting them through the centuries.
The Supreme Court said as much a week before the impeachment vote, confirming that the president has the right to contest such witch hunts in the court system.
In short, what we have here is not a proper impeachment, based on actual crimes, at all.
Rather, it is a throwback to the very dawn of the Democratic Party, and in fact, one of the greatest fears of the Framers: that impeachment would merely be used as a partisan political tool.
The Strange Case of Samuel Chase
Samuel Chase was one of Maryland’s greatest patriots. He served the colonial legislature in Annapolis, participated in the Continental Congress both during and after the war, and served as a Maryland judge and state justice for a number of years, before President Washington appointed him to the Supreme Court. At one point during the War of Independence, Samuel Chase was serving on thirty separate war committees. This was an indefatigable patriot.
While Chase had started out an anti-federalist (an opponent of the Constitution’s ratification), he gradually moved over to the Federalist party’s side in the 1790s, as he saw the Jeffersonians becoming ever more extreme In both their opposition to the Washington administration, and their intentional foundation of the very political parties that our Framers had hoped so desperately to keep from developing in the first place.
It is important to remember how the Democratic Party began: Thomas Jefferson was a member of the Washington administration, serving as Washington’s secretary of state, while simultaneously founding informal local groups up and down the coast, to agitate against the Washington administration.
For example, Jefferson and his partisans were so reflexively supportive of the French Revolution, even long after the Reign of Terror was widely known, that they flocked to the side of Citizen Genet, France’s rogue ambassador to the United States during the early/mid 1790s. These clubs supported Citizen Genet’s work to illegally recruit Americans to the French Revolutionary cause, to pull our country into their war with England, against our will. President Washington had wisely issued a neutrality proclamation, declaring that we would not support either France or England in the war, as part of his commitment to forever keeping the United States out of such foreign entanglements.
Unfortunately, Jefferson’s partisans delighted in their disregard of America’s foreign-policy, and took part in plenty of illegal activities on France’s behalf, from volunteering on French ships to outfitting privateers, to even grabbing British ships on US waters – acts of war under any definition!
It took all the restraint and diplomacy Washington and Adams could muster to keep America from getting pulled into that war as a result.
Such dangerous radicalism drove Samuel Chase (and countless other sane people) into the arms of the Federalist party, and he became an outspoken opponent of the Jeffersonians (then known as the Republicans or Democratic-Republicans, who later settled into the name of Democrats). A lifetime politician, Chase continued to make political speeches while serving as an associate justice on the high court (remember, at that time, there was no rule, or even tradition, discouraging political activity by federal judges).
Well, when Thomas Jefferson won the White House in 1801, he turned his attention to Samuel Chase, as the most vocally partisan Federalist on the Supreme Court. Jefferson’s party eventually brought up charges of impeachment in the House, and by the end of Jefferson’s first term, Samuel Chase, one of the greatest patriots of the Founding era, was on trial in the Senate for impeachment, due to the most partisan of reasons: The president didn’t like seeing such eloquent and committed opposition from a member of the independent judiciary.
Well, the impeachment effort failed, and Chase was acquitted in the Senate, rightly so.
This started two traditions: that upon joining the judiciary, judges and justices would temper their partisanship in public speech, and that impeachment would never be used for partisan purposes.
The Jefferson administration had learned its lesson on impeachment. When they later decided to impeach Aaron Burr, they made sure there were at least some real crimes alleged, however difficult they may have been to prove.
Unfortunately, it has now been 200 years, and the Democrats have forgotten such lessons. The Democratic Party has tasted blood: by driving Richard Nixon out of office on the mere threat of impeachment, ever since, they have wanted to wield such power again. Democrats have in fact brought impeachment charges against every Republican President since Ford; this isn’t so unique. It’s only the first time that it made it to a vote.
The Democratic Party has come full circle: having started out as a nascent party, politicizing the impeachment process, they may now be closing out their long history the same way. Rather than the banging of a gavel, that sound we hear from the Speaker’s podium might be the death rattle of a party that long ago lost its connection to the founding principles of this great nation.
Copyright 2019 John F Di Leo
John F Di Leo is a Chicagoland-based trade compliance manager, writer and actor. His columns have appeared regularly in Illinois Review for over ten years now.
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