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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TRIAL MEMORANDUM
OF THE UNITED STATES HOUSE OF REPRESENTATIVES
IN THE IMPEACHMENT TRIAL OF PRESIDENT DONALD J. TRUMP

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

Iowa's Judiciary and Hamilton's Warning

Iowa's Judiciary Must Remain Independent
Nicholas Johnson
The Gazette, March 13, 2019, p. A6
Water quality. Education budgets. Healthcare. Opioid epidemic. Workforce development. Tax cuts. All important, all debated under the Golden Dome and in our not-so-golden homes, all appropriate subjects for a democracy’s discussions.

So how are changes in how Iowa appoints its judges different? Because a truly independent judiciary is one of the “columns of democracy” – institutions without which there is no democracy. The court system was deliberately created by our founders as a non-political institution to check the legislative and executive branches and protect citizens’ constitutional rights.

Turning the judiciary into a third political branch of government is like removing one leg from a three-legged stool. A democracy wobbles, falls, and ultimately dies without the supporting columns of democracy, such as the checks and balances of three branches of government, independent judiciary and media.

Many true conservatives are members of the Federalist Society. They’ve read the Federalist Papers, written by Alexander Hamilton, John Jay and James Madison in 1787 to promote the ratification of the new United States Constitution. [Photo credit: Wikimedia Commons; Alexander Hamilton portrait by John Trumbull, 1806.]

They are familiar with what Hamilton wrote in Federalist 78. All Iowa legislators should read it as well. Here are some excerpts:

"There is no liberty if the power of judging be not separated from the legislative and executive powers. Liberty can have nothing to fear from the judiciary alone but would have everything to fear from its union with either of the other departments.”

“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of … designing men, or the influence of particular [circumstances which] sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

“No man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.”

“If the power of making [judicial appointments] was committed either to the Executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either.”

It is as if Alexander Hamilton had arisen from the dead and walks among us. He was spotted on stage in Des Moines’ Civic Center last June, and his Federalist 78 speaks to us today as if he wrote it yesterday.

True conservatives, who look to the “original intent” of those who wrote our State and federal constitutions, will resist the current lure of instant additional political advantage. They will read Hamilton’s words over again, understand that without a non-partisan independent judiciary there can be no democracy, and do all in their power to oppose those who would further politicize our courts. _______________
Nicholas Johnson of Iowa City is a three-time presidential appointee and author of, most recently, "Columns of Democracy." It will be discussed at Iowa City's Prairie Lights Books, March 30, 4 p.m. Comments: mailbox@nicholasjohnson.org

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