Tuesday, January 21, 2020

Impeachment: What the House Should Have Said

Trump's Conviction Should Have Been A Slam Dunk

President Trump's defenders excuse his urging Ukraine (plus earlier Russia, and later China) to interfere in our elections. They are left with the argument that he may have done it, it wasn't a nice thing to do, but it's not an "impeachable offense." 

The House Democrats' characterization of their first article of impeachment isn't much better: "Abuse of Power." Saying the president "violated his oath of office," or "the Constitution," provides little more specificity than "abuse of power" (even when supported with evidence of Trump's pressure on Ukraine).

What's an "impeachable offense"? There can be, and has been, debate as to whether individual examples of presidential bad behavior should constitute a basis for impeachment. But there are two as to which there is little or no question.

Many conservatives argue that we should be bound by what the Constitution's drafters intended. Most lawyers would at least agree "original intent," or "legislative history," are at a minimum relevant evidence to consider in defining and applying terms.

What the House Democrats should have emphasized for a confused public (and Republican Senate), is why Trump's impeachment, and Senate conviction, should be a slam dunk. It is because, unlike other behavior that has, or has not, been found to be impeachable during the 62 impeachment hearings in the House since 1789, what Trump has been doing is something the drafters had experienced, caused them great legitimate concern, and they specifically tried to prevent: namely, foreign interference in our politics, government, and especially elections, whether sought from within or imposed from abroad. [Photo credit: Constitutional Convention; original painting by Junius Brutus Stearns, painter; photo is public domain, commons.wikimedia.org.]

This assertion is supported by numerous references in the history of the time, The Federalist Papers, and notes from the Constitutional Convention. But one need go no further than the Constitution's provisions. "Treason" ("the crime of betraying one's country") is specifically mentioned as a ground for impeachment. Presidents must be born in the U.S. They are forbidden to accept any "emoluments" (gifts or titles) from other countries.

[A second specific but more general concern, tangentially related to to the drafters' efforts to avoid foreign influence, was their insisting on preventing future presidents from assuming the powers of a king. Their earlier Declaration of Independence made that clear: "The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States" -- following which they offer a long list of the Declaration's equivalent of "articles of impeachment" of the King. And then: "A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."

These concerns continued through the Constitutional Convention, ultimately taking the form of the "checks and balances" on the executive provided by the judiciary, House and Senate; the four-year limit on a president's terms of office, denying presidents the power "to declare war" exercised by kings -- and the ultimate power of the House to impeach, and the Senate to remove, a president.]

I set forth below an excerpt from the House's "Trial Memorandum" for the Senate that deals with these issues (plus the link to the entire document). This discussion of of foreign influence is well done, and documented with footnotes. Unfortunately, it is buried in the "Memorandum" where few will find and read it, and has never been elevated and emphasized for the public, House members and Senators as the most powerful argument for convicting the President.

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January 18, 2020, pp. 9-12

Fresh from their experience under British rule by a king, the Framers were concerned that corruption posed a grave threat to their new republic. As George Mason warned the other delegates to the Constitutional Convention, “if we do not provide against corruption, our government will soon be at an end.”43 The Framers stressed that a President who “act[s] from some corrupt motive or other” or “willfully abus[es] his trust” must be impeached,44 because the President “will have great opportunitys of abusing his power.”45

43 2 The Records of the Federal Convention of 1787, at 392 (Max Farrand ed.,1911) (Farrand).
44 Background and History of Impeachment: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 105th Cong. 49 (1998) (quoting James Iredell).
45 2 Farrand at 67.

The Framers recognized that a President who abuses his power to manipulate the democratic process cannot properly be held accountable by means of the very elections that he has rigged to his advantage.46 The Framers specifically feared a President who abused his office by sparing “no efforts or means whatever to get himself re-elected.”47 Mason asked: “Shall the man who has practised corruption & by that means procured his appointment in the first instance, be suffered to escape punishment, by repeating his guilt?”48

46 See id. at 65.
47 Id. at 64.
48 Id. at 65.

Thus, the Framers resolved to hold the President “impeachable whilst in office” as “an essential security for the good behaviour of the Executive.”49 By empowering Congress to immediately remove a President when his misconduct warrants it, the Framers established the people’s elected representatives as the ultimate check on a President whose corruption threatened our democracy and the Nation’s core interests.50

49 Id. at 64.
50 See The Federalist No. 65 (Alexander Hamilton).

The Framers particularly feared that foreign influence could undermine our new system of self-government.51 In his farewell address to the Nation, President George Washington warned Americans “to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”52 Alexander Hamilton cautioned that the “most deadly adversaries of republican government” may come “chiefly from the desire in foreign powers to gain an improper ascendant in our councils.”53 James Madison worried that a future President could “betray his trust to foreign powers,” which “might be fatal to the Republic.”54 And, of particular relevance now, in their personal correspondence about “foreign Interference,” Thomas Jefferson and John Adams discussed their apprehension that “as often as Elections happen, the danger of foreign Influence recurs.”55

51 See, e.g., 2 Farrand at 65-66; George Washington, Farewell Address (Sept. 19, 1796), George Washington Papers, Series 2, Letterbooks 1754-1799: Letterbook 24, April 3, 1793–March 3, 1797, Library of Congress (Washington Farewell Address); Adams-Jefferson Letter, https://perma.cc/QWD8- 222B.
52 Washington Farewell Address.
53 The Federalist No. 68 (Alexander Hamilton).
54 2 Farrand at 66.
55 Adams-Jefferson Letter, https://perma.cc/QWD8-222B.

Guided by these concerns, the Framers included within the Constitution various mechanisms to ensure the President’s accountability and protect against foreign influence— including a requirement that Presidents be natural-born citizens of the United States,56 prohibitions on the President’s receipt of gifts, emoluments, or titles from foreign states,57 prohibitions on profiting from the Presidency,58 and, of course, the requirement that the President face reelection after a four-year Term.59 But the Framers provided for impeachment as a final check on a President who sought foreign interference to serve his personal interests, particularly to secure his own reelection.

56 U.S. Const., Art. II, § 1, cl. 5.
57 U.S. Const., Art. I, § 9, cl. 8.
58 U.S. Const., Art. II, § 1, cl. 7.
59 U.S. Const., Art. II, § 1, cl. 1.

In drafting the Impeachment Clause, the Framers adopted a standard flexible enough to reach the full range of potential Presidential misconduct: “Treason, Bribery, or other high Crimes and Misdemeanors.”60 The decision to denote “Treason” and “Bribery” as impeachable conduct reflects the Founding-era concerns over foreign influence and corruption. But the Framers also recognized that “many great and dangerous offenses” could warrant impeachment and immediate removal of a President from office.61 These “other high Crimes and Misdemeanors” provided for by the Constitution need not be indictable criminal offenses. Rather, as Hamilton explained, impeachable offenses involve an “abuse or violation of some public trust” and are of “a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”62 The Framers thus understood that “high crimes and misdemeanors” would encompass acts committed by public officials that inflict severe harm on the constitutional order.63

60 U.S. Const., Art. II, § 4; see 2 Farrand at 550.
61 2 Farrand at 550.
62 The Federalist No. 65 (Alexander Hamilton) (capitalization altered).
63 These issues are discussed at length in the report by the House Committee on the Judiciary. See H. Rep. No. 116-346, at 28-75.
64 Statement of Facts ¶ 160.
65 Id. ¶ 161.

Tags: #Constitution, #Constitutional Convention, #elections, #Federalist Papers, #House, #impeachable offense, #impeachment, #original intent, #legislative history, #President Donald Trump, #Senate, #Trump, #Ukraine

Saturday, January 11, 2020

Soleimani More Dangerous Dead Than Alive

Soleimani More Dangerous in Death

Nicholas Johnson
The Gazette, January 12, 2020, p. D2

In the movie “Wag the Dog,” two weeks before a presidential election, the sitting president is accused of sexual misconduct with a young girl. Desperate for a way to suppress the story the president’s political consultant, Conrad Brean (Robert DeNiro), seeks the help of Hollywood producer Stanley Motss (Dustin Hoffman). “What do you think would hold it off?” he asks. The producer responds, “Nothing. Nothing. You’d have to have a war.” [Photo credit: still from film, used by Hollywood Reporter.]

How can a president get popular support for war? Hermann Göring understood it best: “It is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship … All you have to do is to tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.” [German General Hermann Göring, Nuremberg Trial, 1946; photo credit https://marinamaral.com/portfolio/hermann-goring-sits-in-the-dock-at-the-nuremberg-trial-1946/](fn 1)

As prior presidents predicted, our enemy, General Qassem Soleimani, has already become a far greater threat to America in death than he ever was in life. That threat will only increase over the months and years to come. [Photo credit: General Qasem Soleimani; Ali Khamenei, http://farsi.khamenei.ir/photo-album?id=29307#i, commons.wikimedia.org] (fn 2)

Nicholas Johnson
Iowa City


1. Snopes confirms the accuracy of this quote, https://www.snopes.com/fact-check/war-games/ .

2. "George W. Bush did not target him [General Soleimani] during the height of the Iraq War, when Iranian-supplied roadside bombs and Iran-backed militias were killing hundreds of American troops. By 2011, that toll had reached more than 600 and Barack Obama was the president; he too declined to hit the general. But at some point Trump, who came into office vowing to pull the United States out from Middle Eastern wars, decided to cross a line two war-president predecessors feared breaching. ...

Elissa Slotkin, a Democratic representative and former CIA analyst focused on Shia militias, said in a statement that she’d seen friends and colleagues killed or hurt by Iranian weapons under Soleimani’s guidance when she served in Iraq. She said she was involved in discussions during both the Bush and Obama administrations about how to respond to his violence. Neither opted for assassination.

'What always kept both Democratic and Republican presidents from targeting Soleimani himself was the simple question: Was the strike worth the likely retaliation, and the potential to pull us into protracted conflict?' she said. 'The two administrations I worked for both determined that the ultimate ends didn’t justify the means. The Trump Administration has made a different calculation.'" Kathy Gilsinan, "It Wasn’t the Law That Stopped Other Presidents From Killing Soleimani; The Iranian general helped get hundreds of Americans killed — through two administrations. Both declined to kill him," The Atlantic, January 4, 2020, https://www.theatlantic.com/politics/archive/2020/01/why-kill-soleimani-now/604441/ .

[Photo credit: http://alwaght.com/en/News/169779/Iranians-Hold-Massive-Rallies-to-Condemn-US-Assassination-of-Gen-Soleimani,-Demand-Revenge, January 3, 2020]

Would this picture be more understandable if we reversed roles? First off, realize that Soleimani was not just a military general, he was a national hero and the second most powerful political figure in Iran. Then consider this scenario. During World War II Dwight D. Eisenhower was a five-star general in the Army and served as Supreme Commander of the Allied Expeditionary Force in Europe. Following the war he served as Army Chief of Staff (1945–1948), as president of Columbia University (1948–1953) and as the first Supreme Commander of NATO (1951–1952). He was twice elected president of the United States in landslides, 1952 and 1956. Understand that I am not saying that the two men are moral equivalents. But imagine that another country's president, or head of state, had arranged for the successful assassination of Eisenhower in 1952. What would have been Americans' reaction? What would have been your reaction?

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Tags: assassination, Hermann Göring, Iran, Iraq, Nuremberg, President Donald Trump, Qassem Soleimani, Soleimani, Wag the Dog