Like
most of the American people, I have not been captivated by the grotesque
spectacle of this impeachment trial, and I have managed to find things to amuse
myself other than observing the attempt by one of our political parties to
destroy treasured institutions of our Republic because they don’t like the guy
who won the 2016 elections.
Nevertheless, there is one issue that has captured my imagination
because just about everybody is getting it wrong.
This is
the question of whether an impeachable offense must be an actual crime.
The
issue is important because the House articles of impeachment do not allege an
actual crime by Trump. Neither “Abuse of
Power” nor “Obstruction of Congress” appear anywhere in the statute books. They are more akin to the amorphous
“collusion” Trump was accused of and which Mr. Mueller spent two years
investigating. There too, the people who
were pursuing Trump could never cite a section of the U.S. Code for you. What Trump did, according to them, was just
“wrong” somehow.
Impeachment
is a little different, however. There
are actual consequences (removal from office), should the impeachers
succeed. The entire procedure is based
in the Constitution, unlike whatever it was Mueller was doing. Also, we have a history to refer to---three
previous impeachments (or attempts).
The
significance of this history is that on all three previous occasions, the
president was accused of a crime. In
Andrew Johnson’s case, Congress had passed a law barring Johnson from
dismissing cabinet members he didn’t like, and he dismissed one anyway. The law was almost certainly
unconstitutional, but it was a law and Johnson broke it.
In
Nixon’s case, his resignation ended all impeachment proceedings, but he was credibly
accused of having a role in the Watergate burglary. This would have been a crime even if his
role were merely as an accessory after the fact for covering up the break-in.
Finally,
Bill Clinton committed (at least), perjury for lying under oath in a
deposition. Arkansas suspended him from
practicing law for five years and assessed a $25,000 fine. He was also held in contempt by the judge in
the Paula Jones case and fined $90,686.
But since
no crime has been alleged against Trump in the impeachment articles, the
current proceeding is a case of first impression. The question is whether a president can be
impeached for conduct that is not criminal.
And the answer is nowhere near as difficult or complex as the various
partisans are making it out to be.
The
first step is to examine the controlling law, which appears in Article II,
Section 4 of the Constitution:
“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.”
In the interpretation of a statute or a contract or
other document, judges use certain established “rules of construction” to
determine the meaning of the language used.
The first, most basic, of these rules is that the plain language that is
used will control the judge’s decision unless there is some ambiguity in that
language. Here, what is the
ambiguity? Treason and Bribery are the
specific examples used, so the normal interpretation of “other high Crimes and
Misdemeanors” would be that they would have to be similar to Treason and
Bribery. The word “other” in this context
must mean that Treason and Bribery are themselves high Crimes and Misdemeanors,
and that “other” impeachable offenses must share some qualities with the
specific examples. What are those
qualities?
Since
Treason and Bribery are both crimes, the minimum requirement must be that
“other” offenses should be, at least, crimes.
And that is supposed to end the inquiry.
If the language of a statute is unambiguous, no outside commentary is
admissible.
But
despite the absence of ambiguity in the language, those who claim there is no
requirement of a criminal act nevertheless insist on bringing in outside
commentary to interpret Art. II, Sec. 4.
They should not be permitted to do this, but let’s assume they can, and
consider their argument. It’s easy to do
because there is only one piece of commentary they cite, and I have seen and
heard it cited dozens of times in the past few days. It is two sentences from Federalist Paper No.
LXV, written in 1787 or 1788 by Alexander Hamilton:
“The subject of its [impeachment] 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.”
The capitalized word appears that way in the original,
and it is apparently the only thing the anti-Trump forces like about Federalist
Paper No. LXV, because it is the entire basis of their argument. “See,” they claim, “Hamilton says impeachment
is all POLITICAL, which means the offense doesn’t have to be a crime, it just
has to be some political behavior that we deem improper.”
The
problem with that argument, however, is that these two sentences do not really contradict the words of Art. II, Sec. 4,
but can be easily reconciled with the Constitutional language. Why can’t they mean that the impeachable
behavior must be not merely a crime but a POLITICAL crime, (like Treason and
Bribery, for example)? Hamilton’s use of
the word “offenses” also supports this interpretation.
“Offenses,” when lawyers are talking about legal law things, means
activities that violate the law. It does
not simply mean something that “offends” you, or annoys Nancy Pelosi.
(We
have been here before, or at least part of the way here. During the Clinton impeachment, the issue was
not whether he had committed a crime, because he surely had, but whether his
crime was POLITICAL. When you lie under
oath about screwing the chick in the mail room, is that a “high” crime? Is it POLITICAL? The argument for Bill Clinton was that,
though he had committed a crime, it was not a crime that had anything to do
with the nation or his high office or the body politic. That was the argument made by Alan Dershowitz
on Clinton’s behalf. It was a good
argument and it must have held some sway because Clinton was not convicted.)
But
let’s not get distracted. Let’s get back
to the argument from the two sentences of Federalist No. LXV, the argument that
the offense for which a president is impeached need not be a crime. It's not very convincing to begin with, but it falls apart completely another six paragraphs into the essay.
The
criminal/non-criminal issue is settled, definitively, in the eighth paragraph
of Federalist No. LXV. Here, Hamilton describes the consequences of
conviction and its aftermath:
“[T]he punishment which may be the consequence of
conviction upon impeachment is not to terminate the chastisement of the
offender. After having been sentenced to
a perpetual ostracism from the esteem and confidence and honors and emoluments
of his country, he will still be liable
to prosecution and punishment in the ordinary course of law.” (Emphasis added.)
And
that settles it. According to Hamilton,
criminal prosecution is something that every impeached person may face, and
that could not be true unless every impeachable offense was itself a criminal
act. Note in particular that Hamilton
does not say the impeached officer “may” be liable to prosecution. He says the person “will” be liable to
prosecution.
The
analysis above is not difficult or complex.
Any dispassionate lawyer of moderate skill who spent ten minutes
reviewing the relevant texts would come to the same conclusion I have. Yet, as the leftist news media has repeatedly
trumpeted, most “constitutional experts” have concluded that impeachment of a
president does not require an allegation that the president has
committed a crime. All this means,
apparently, is that the majority of what the media call “constitutional experts”
are simply partisans and hacks who hate Trump.
Copyright2020MichaelKubacki
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