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The Perils Of Impeachment

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Posted: Friday, November 1, 2019 4:20 pm

In America, the citizens get to choose their president by participating in free elections every four years. The Constitution gives this power to the people. It also seeks to protect them from a president who commits impeachable offenses, defined as high crimes and misdemeanors such as treason and bribery, by giving Congress the power to impeach him. The authors considered but rejected including mal-administration as a cause for impeachment, fearing that it could too easily be used by Congress to remove a president over political or ideological differences, thereby giving one equal branch of government an ultimate advantage over another.

While a number of this president’s actions could reasonably be viewed as mal-administration, there is no general agreement that they amount to the high crimes and misdemeanors the founders had in mind or, indeed, that they were even illegal. If President Donald Trump’s implication that he would withhold aid to Ukraine unless certain conditions were met is considered bribery, then plenty of his predecessors would be guilty of the same thing.

The founders were extremely cautious in setting conditions for impeachment because initiation of that process by the House of Representatives is a gravely serious matter in that it could result in the removal of a president duly elected by the people. And when that branch of congress is controlled by the opposition party and the impeachment process is initiated just a year before a presidential election, the public is justified in suspecting that Congress is intruding upon their rights to select their president. The impeachment process should, therefore, be as transparent and open as possible, starting with a full vote of the House, not just a decision during a press conference by its Speaker, a strident critic of the president. Each of the three impeachments to date was initiated by a full vote of the House. Thus far, this impeachment process has been anything but open and transparent.

Once a vote to begin an impeachment inquiry is obtained, a committee may be tasked to gather facts and interview witnesses but that process should be open as well. It’s true that committees often meet in closed session but this is not just another committee hearing. It’s part of a process that could result in the removal of a president duly elected by the people, shortly before an election that would give them a choice in the matter. Moreover, the hearing is centered around the allegations of an unnamed whistle blower and consists of hearsay and the president, as the accused, is not even permitted to question his accuser or interview witnesses. House Intelligence Committee Chair Adam Schiff defends this secrecy by likening it to a grand jury process which is conducted in secrecy by law. But a House committee is not a grand jury and is not provided such secrecy by law. Transparency should outweigh secrecy in matters as grave as this.

A federal judge has ruled that Schiff’s committee is engaged in an impeachment inquiry, in spite of the fact that the full House did not authorize it. Speaker Nancy Pelosi departed from this precedent by not requiring a vote before turning Schiff’s committee loose. Perhaps such a vote would have failed. It’s too late now so we’ll never know. This process is, therefore, flawed from the very start.

Constitutional law experts David B. Rivkin, Jr. and Elizabeth Price Foley, in a Wall Street Journal op-ed, observed that the Senate has not only the power but the obligation to try all impeachments but this pre-supposes that the House followed a proper impeachment process. It did not. Why was a full vote of the House not taken to initiate it as has been done in all previous impeachment efforts? What gives the Speaker the right to shortcut this process? And the process being thus flawed, what’s to prevent the Senate from declining to try this case if, that is, the House is even able to come up with articles of impeachment that constitute high crimes and misdemeanors.

This is not just another political disagreement of passing interest to voters. It should be a matter of immense concern to all of us who care about the Constitution and our democracy. This unseemly rush to turn Mr. Schiff’s committee loose without a House vote in an effort to remove a duly-elected president in the midst of a presidential campaign was a colossal mistake on the part of Speaker Pelosi and seems like the act of a desperate party that doubts that any of its candidates for the nomination has what it takes to defeat Donald Trump in a fair election.

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