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.
