Musings on the Impeachment – Final Observations

It took the Founders practically the whole summer of 1787 to come to a final conclusion defining Impeachable Offenses.  There was strong support for Bribery and Treason as examples, but what else?  George Mason had demanded the Constitution must include “impeachment” almost from day one of the Convention.  He came back to it time and again.  At one point he and others were recorded in the minutes as discussing “maladministration” as an example.  That was a word the participants were familiar with from Blackstone’s Commentaries on the Laws of England.  Madison objected to the term of the presidency as subject to the mere consent of the Senate.  Mason ultimately suggested to add, “And other high crimes and misdemeanors” to follow “bribery and treason”.  This construction means that other high crimes and misdemeanors must be of like-kind to bribery and treason.  Thus mere political grounds for impeachment can’t be Constitutional mandates for impeachment.  It was agreed by all.

The Senators and Chief Justice of the Supreme Court take an oath at the beginning of impeachment hearings.  It was devised by the Senate specifically for impeachments in 1798.  The oath is, “To do impartial justice according to the Constitution and laws”. This is an instruction to the Senate to treat the impeached person as if the charges applied to oneself; impartial, such as in “The Golden Rule”.  An impeachment does not seek truth, but justice to the Law.  The law of impeachment is not like any other law, and an impeachment “trial’ is not like any judicial trial.  It is truly a fact that the House of Representatives can create articles of impeachment on any basis they choose.  There is no stopping it in the Constitution!  The Founders knew this, and expected it to happen.  It is a high responsibility of the Senate, knowing that the House of Representatives would likely make intemperate charges borne of hatred.  It happened that way in 1841 to John Tyler.  Articles were drawn up, but tabled and the next Congress voted against them.  It happened again in 1868 with Andrew Johnson and its occurring again regarding President Trump.  Hatred is the common denominator in all. The Constitution charges the Senate to stop it.

Below see how the Senate’s responsibilities are different from a judicial trial.  It is clear from them that the Senate’s responsibilities are unlike a judicial proceeding.

  1. The Senate is both the jury and the judge,
  2. There is no standard for determining the truth of any facts or conclusions,
  3. There are no rules of evidence,
  4. Punishment is political; not life, liberty or fines,
  5. The outcome is not appealable.

One article of impeachment is “abuse of power.”  Did the President of the United States threaten a U.S. person? No, literally he asked for a favor from the president of a friendly country, which was interpreted by the House of Representatives as a threat to him.  Assume it is; where in the conduct of foreign affairs of our country is it not allowed for the President to make a threat to a foreign country, friend or foe? The Constitution gives the power to conduct foreign affairs to the President.  This is explicit, and is not shared with Congress!  This is not a Constitutional issue.  Other officers of the government have held up spending appropriated funds without impeachment.  Even if the hold-up of appropriated aid was a threat, it is like calling it bribery if the president gives the head waiter ten dollars to get a table more quickly.  This same issue has happened before involving the same country; Ukraine.  The House Managers knew this fact beforehand.

The second charge is “obstruction of Congress”.  The White House received an opinion from the Justice Department stating the subpoenas delivered by the House Committees were invalid. Then, White House Counsel forwarded the opinion to the Committee Chairmen.  One declined to follow up and the other did not respond at all.  This is the height of politics.  The whole purpose of proceeding by the House Committees was to obtain a “vote on witnesses.” The House Managers knew in advance a former White House official, writing a book, had discussed with the President the whole incident.  Their hope was the issue would embarrass the president’s case and be helpful in the 2020 elections.  In a nutshell, everything was based on hope; it  was all part of the charade of impeachment!  There was no hope of a conviction.  In all, the House had no case on either article and the House Managers’ performances suggested they knew it.  The Democrat Senators also failed the constitutional test.                                                                                        February 7, 2020