Is Our Republic Form of Government on Trial This Week?

I have a deep sense of foreboding about what actions we will see from our Senators during the Impeachment Trial of President Trump beginning next week.  I’m not sure that we have had a majority of Senators approach the hearings of Impeachment articles with the objectivity that we might have the right to expect from such a serious proceeding.  Each Senator has taken an Oath of Office to “Preserve, Protect and Defend” the Constitution matters to them, and a subsequent Oath as Impeachment Trial jurors to “do impartial justice according to the Constitution and laws”.  Both oaths end with the affirmation, “So help me God”.

Given these oaths, might we expect the Senators of both parties to approach the impeachment trial process looking for facts and truth about the charges being considered about the President’s behavior? Or will we sadly witness a majority of Senators putting loyalty to their party’s interests and the interests of the current President above loyalty to their multiple oaths?

This leads to a very important question that will emerge from these proceedings: “If our leaders no longer value their oaths, do we still  have a Republic?”

Let’s simply look at the language of the Constitution regarding the Impeachment process:

Article 1, Section 2

The House of Representatives shall chuse (choose) their Speaker and other Officers; and shall have the sole Power of Impeachment.

There is no further definition or discussion of how to exercise the power of impeachment.  As this process leads to a “trial”, it has traditionally meant that impeachment is considered as an “indictment”.  Importantly, this is not trail with due process. It thus mirrors the traditional steps leading to an indictment:  the indication that an offense might have happened; the investigation to develop the evidence about the alleged offense and the President’s role via the usual way evidence before a trial is gathered:  collecting documents and other relevant physical evidence, conducting interviews of relevant witnesses and reviewing the relevant elements of the law.

In this process, there is no requirement to interview the alleged perpetrator; every person under investigation for any illegal action has the Constitutional right to “remain silent”, and not to make any statements to authorities. They have the right to have an attorney present in all meetings and discussions they have with authorities.  But their attorney is not present in the actions taken by the investigative authorities to gather documents or to interview relevant witnesses. The evidence gathered is then presented either to a Grand Jury to determine if a formal indictment, leading to a trail is appropriate or not.  Or, the evidence is presented to the Prosecutor’s office to determine if they agree the basis for an indictment exists.

It should be noted that the standard used to move from investigation to indictment is not guilty or innocent beyond a reasonable doubt.  That is the standard of a trial.  The standard to move from investigation to trial is that either a Grand Jury or the Prosecutor conclude that there is reasonable evidence to suggest that (a) the illegal action as charged has been committed, and (b) the person charged has likely committed the action. This is  exactly what is fair “due process” in our current system of justice.

In the House’s conduct of an Impeachment process, either a special prosecutor or a House subcommittee will usually conduct the investigation process. These investigatory steps are often conducted in public, where the issue of national security confidentiality of the content is not otherwise a consideration.  As noted above, these steps involve gathering relevant physical evidence and conducting interviews with potentially relevant witnesses. In the House, these interviews involve equal time for members of each party to question witnesses and review physical evidence, whether conducted in public or in private.  But neither the President or their attorney have the right under due process to be present and participate in this step, as the process is not a trial to determine guilt or innocence.  These steps simply conclude with a determination of whether a majority of the full House members believe the evidence gathered indicate that (a) an action rising to the level of an impeachable offence as defined by the Constitution has been committed, and (b) the President has likely committed the action. 

If a majority of the House members so vote, then the Constitution in the section below defines the action by the Senate to determine if a majority agree that these charges have or do not have merit as impeachable offenses, that the President did or did not commit them, and that the President should or should not be removed from office.

Article 1, Section 3

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.

Note that the language in this area of the Constitution clearly and unambiguously requires a trial: “The Senate shall have the sole Power to try all impeachments”, and “When the President of the United States is tried, …”.  The Constitution does not define what is meant by a “trial”.  While the Constitution in Article 1, Section 5 provides that “Each House may determine the Rules of its Proceedings …”, is it logical to presume that this section should permit the Senate to make Rules for an Impeachment Proceeding that does not include the basic elements of a trial?  Doesn’t this require a biased interpretation of the Constitution’s language?  Doesn’t an unbiased reading of the Constitution’s language require that the Senate’s Rules for an Impeachment Proceeding must include the basic elements of a trial, and must not eliminate any of the basic elements of a trial, or it is not a trial, as required by precedent and by the laws and rules of the Justice Department.  It is not reasonable to expect or argue that the Constitution would have to have defined the specific elements of evidence and witnesses in an Impeachment trial for them to be required in the Senate rules.

In addition, note the language specifying that “When the President of the United States is tried, the Chief Justice shall preside;”.  Again, the Constitution does not define what is meant by “preside”. However, there is a common definition in the laws and rules of the Justice Department for what roles relate to the “presiding judge” in a trial.  These include, but are not limited to, determining which evidence, witness or testimony is allowed under the rule of relevance; making judgements on the application of laws and trial proceeding rules in resolving objections raised by counsel; and in providing instructions on the Constitution and the law to the Senators at appropriate points in the trial and after closing arguments before the Senators vote for guilt or innocence of the charges.

This section of the Constitution concludes with a discussion of the outcome of the judgment in Impeachment cases:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This portion of the Constitution simply indicates that any official removed from office by Impeachment in a Senate trial, is not excused from accountability in a future legal proceeding if their actions violated any civil or criminal laws.

Article 2, Section 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Finally, the Constitution addresses the nature of which actions by the President represent the basis for conviction of an Impeachable offence and resulting removal of a duly elected President from office.   The issue of what actions constitute “other high Crimes and Misdemeanors” is one that is not otherwise more clearly defined in the Constitution.  But in the Federalist Papers, where the Founders recorded their beliefs and discussions about the choices they made in writing the Constitution, the phrase of “other high Crimes and Misdemeanors” is explained to be actions that are uniquely political in nature, that arise from the unique political powers and position of persons holding “high” public office.

Alexander Hamilton wrote in Federalist #65 about the nature of “impeachable” offenses as follows:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself …

This is where the concept of “Abuse of Power” and Position comes from.  Elected officials, especially the President, are given “high powers” by the public with the trust that these powers would be used solely for the benefit of the nation and it’s citizens, not for the benefit, current or future, of the person holding the position.   That is the very nature of corruption, violation of public trust and abuse of power and position of the high office of the President.

It has also been mentioned by some Constitutional academicians that the charge of Abuse of Power is too vague to have been chosen by the Founders to be included in the Constitution.  However, the writings above indicate that the abuse or violation of public trust is precisely what the Founders intended in choosing the language of “high crimes and misdemeanors”.  But any charge of the commission of a “high crime or misdemeanor” must include the specific action or behavior that is the abuse of power or violation of the public trust inherent in his office. 

In the current Impeachment charges and trial of President Trump, the definitions in the Constitution of a “high crime” such as abuse of power and violation of public trust are based on the following specific actions:

(a) the violation of several laws such as the withholding of appropriated funds by Congress, for a reason not authorized by law;

(b) the soliciting of “something of value” from a foreign source in an upcoming election; and

(c) the total obstruction of the Congressional role of oversight, without expressly citing specific documents requested by Congress and elements of testimony from requested witnesses as being subject to Executive Privilege.

The action described in (a) above was clearly indicated as a violation of law by a recent report from the non-partisan Government Accounting Office (GAO). 

The action described in (b) above was clearly indicated as a violation of Federal Law in a separate letter released by Chair Ellen Weintraub which confirmed that the law specifically prohibits “soliciting, accepting, or receiving anything of value from a foreign national in connection with a US election.” 

The law further states that “investigations or political dirt that benefit a particular campaign” counts as “things of value” under these prohibited actions.

The action described in (c) above was clearly determined to be an unlawful assertion of Executive Privilege by a unanimous decision of the Supreme Court in the decision regarding President Nixon’s attempt to withhold releasing the tapes of his discussions with advisors in the Oval Office during the Watergate investigation.  The basis cited by the Supreme Court in that decision was that Executive Privilege cannot be used to hide potentially illegal action by the Executive that it is the Congressional duty to investigate.

Taken together, these actions would seem to represent an adequate level of evidence to support the charge of an impeachable offense.  It is not a determination of the guilt or innocence of the President, which is the role of a trial in the Senate.  However, it is merely the basis for a referral to the Senate for a trial to determine the guilt or innocence of the President of those charges, under the “impartial justice” oath the Senate has taken.

But Alexander Hamilton also foresaw that an Impeachment of a sitting President would be perhaps the greatest challenge to the non-partisan execution of their Oaths of Office by members of Congress. He foresaw that the challenge would be to act without partisan bias in the evaluation and judgment of a political action, as he wrote the following:

… and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

In justifying the nature of the Impeachment and Trial process included in the Constitution, Hamilton justifies placing the responsibility for judging the innocence or guilt of a President charged with an Impeachable act with the Senate, as opposed to the Justices of the Supreme Court.  He wrote the following:

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

In the discharge of this awesome responsibility to “do impartial justice according to the Constitution and laws” as required in their Oaths that the Senators take, Americans will learn whether in our current highly partisan political environment, we have Senators who can put their Oaths to the Constitution and to their roles in the Impeachment Trial above partisan loyalties and personal interests, or not.  If they fail to do “impartial justice” according to the requirements of the Constitution for a trial and the laws of the United States, which the President’s Oath requires him/her to faithfully execute, by refusing to admit relevant evidence, and if admitted, ignoring the impact of the evidence, then we may learn that in today’s environment, Americans cannot count on the confidence of Alexander Hamilton in the “dignity and independence of the Senate”  in this important role in our Republic.

In that outcome, Americans may be left to justly wonder if the strength of our Republic, which depends on the power of our Constitution to determine the actions of our elected or appointed officials in all branches of government, is almost certainly in dire jeopardy.