Impeachment…

Chucky Schumer

Veritas Omnia Vincit has taken some time from his busy schedule to give us a write up on the how’s and why’s of the evolution the impeachment process, who was for and who against. Losing the term “Maladministration” for “Misdemeanors” was in my opinion a wise move, as any administration can be accused of bad performance. Even Administrators *cough* here at TAH…

…as envisioned by the founders.

VOV

AW1ED had suggested the Federalist Papers as a series of articles when I finished the first ten amendments this past summer, it’s a worthy project and one I hope to get to at some point in the future. For now my random attempts at revealing the thoughts of the founders on some current events will have to suffice, although for those Federalist Paper fans impeachment is indeed Hamilton’s subject in number 65 for those interested.

It should be noted that Governor Morris and Charles Pinckney both hated the idea of impeachment originally. For Morris it was a concern that the process of impeachment if abused could force a president to feel beholden to the body which had the power to impeach him and thus render the Executive as nothing more than a tool of a faction in that body. An interesting perspective at that time and perhaps one that resonates a bit today. Hamilton and Madison both found the idea of impeachment an absolute necessity to prevent the abuse of presidential power. When questioned on the subject Benjamin Franklin was rather frank in his support of the impeachment clause, he stated it was far more preferable to the traditional way of removing of removing those who abuse power which was death in Britain and Europe and, to be honest, most of the world.

Eventually Madison would sway Morris to change his thinking and support the process largely due to the concept that no man, including a president, should be above the law in a nation to be founded on law and orderly transition of power. It’s interesting to note the original draft used the term “maladministration” and was written as Treason, Bribery, or Maladministration. That last word was unsettling to many of the founders and George Mason borrowed from the English proceeding to alter that to the ratified version of Treason, Bribery, and High Crimes and Misdemeanors.

Also interesting to note that the Supreme Court was considered as the place of trial originally and that was altered for a couple of reasons, the first being that something as important as removal of the Executive should rely on more than a few justices, and second that after removal those same judges might find themselves also ruling on the subsequent criminal trials of that Executive who had been removed clearly creating a serious conflict of interest which would damage the public trust. Hamilton was the primary voice driving the shift from the Supreme Court to the Senate which he also felt by requiring a two thirds majority would tend to negate purely politically motivated impeachment trials from destroying a presidency.

The Founders truly believed that by and large the voting public would hold their elected officials accountable on Election Day. Removing those they felt no longer represented the public interest or those who no longer held the public trust. I suspect they could not have envisioned the effect of mass media on creating what should be an important exercise of the intellectual capacity of the electorate into nothing more than a popularity contest driven largely by candidates offering a variety of “free” benefits to various elements of our society. Because they had risked everything to create this nation they did not necessarily anticipate the apathy of those who for over a century have risked nothing to maintain their freedom or the integrity of their nation and its politicians. They anticipated a nation of interested, concerned citizens intent on pursuing the type of government that represented the majority of societal views of the day as opposed to the power of money to drive single issue politics as a wedge to disrupt society into smaller elements incapable of unseating incumbents on their own.

Today, almost two hundred and forty four years later, we find ourselves in a uniquely political scenario where the legal concepts on both sides will perhaps define the future use of impeachment for generations.

As someone often more interested in the process than the particular participants I find this current process absolutely fascinating. The House subpoenas at the center of the obstruction charge were subpoenas issued that directly prohibited agency counsel from appearing with the witnesses and only granted those witnesses the presence of personal counsel. That’s an interesting aspect of this case as at the end of the 2016 Obama presidential term the Office of Legal Counsel noted that in the case of Congressional subpoenas the prohibition of agency counsel raised serious constitutional concerns that undermined the President’s power to assert executive privilege where appropriate as the personal counsel of those witnesses would have no idea which areas of agency information were classified or inappropriate in a public forum.

How the Senate now chooses to consider the witnesses, those House subpoenas, and the OLC opinion become very interesting and might be litigated should they choose to allow the witnesses without agency counsel. Not that it changes the likely outcome of any Senate proceeding, but it might set some precedent for future impeachment proceedings.

The next few days should prove most interesting.

For those interested in the legal concepts Lawfare has an excellent piece on all of them at this link: Lawfare Blog: Impeachment and Constitutional Conflict

It’s most interesting and worth your time if you are bored, or need something besides Ambient to help you sleep….

As always thanks for reading, I appreciate your thoughts.
VoV

Thanks again, VOV. Looking forward to your next effort.

Category: Guest Post, Politics, The Constitution