Lamar Alexander’s Statement is Full of Historical Problems

lamar-alexander

If Lamar Alexander wants to oppose witnesses in the Donald Trump impeachment trial he has that right.  But spare us the “history” lesson.

Alexander statement says:

I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.

So it sounds like Alan Dershowitz’s “absurd” and “baffling” argument convinced the senior Senator from Tennessee.  In embracing the Dershowitz argument, Alexander has chosen to reject the consensus of legal scholars and American historians.

Alexander continues:

“There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence.’ There is no need to consider further the frivolous second article of impeachment that would remove the president for asserting his constitutional prerogative to protect confidential conversations with his close advisers.

“It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.

So what is the difference between an “impeachable” offense and an “inappropriate” offense?  Again, Alexander has been swayed by Dershowitz’s argument.  Alexander believes that the president is guilty, but he does not believe that Trump committed an impeachable offense.  (Dershowitz doesn’t think Trump is guilty of anything). This is also clear from the next part of Alexander’s statement:

“The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.  

“The Senate has spent nine long days considering this ‘mountain’ of evidence, the arguments of the House managers and the president’s lawyers, their answers to senators’ questions and the House record. Even if the House charges were true, they do not meet the Constitution’s ‘treason, bribery, or other high crimes and misdemeanors’ standard for an impeachable offense.

Alexander goes on:

“The framers believed that there should never, ever be a partisan impeachment. That is why the Constitution requires a 2/3 vote of the Senate for conviction. Yet not one House Republican voted for these articles. If this shallow, hurried and wholly partisan impeachment were to succeed, it would rip the country apart, pouring gasoline on the fire of cultural divisions that already exist. It would create the weapon of perpetual impeachment to be used against future presidents whenever the House of Representatives is of a different political party.

“Our founding documents provide for duly elected presidents who serve with ‘the consent of the governed,’ not at the pleasure of the United States Congress. Let the people decide.”

On the issue of “partisan” impeachments and the founders, here is historian Joanne Freeman:

Moreover, as historian Kevin Kruse has been reminding us, there were no political parties when the founders wrote the Constitution:

Alexander also suggests that the “founding documents” teach that “the people” should decide whether to move a president.  Here he is connecting “impeachment” with the vote and will of “the people.” But the Constitution makes no such connection.

First, as James Madison made clear in Federalist 39, “The President of the United States is impeachable at any time during his continuance in office.” In other words, the president can be impeached during an election year.

Second, the framers were skeptical about trusting the people to make decisions about important matters such as impeachment.  The framers did not trust the “ballot”on impeachment.  Read the Constitution as it was written in 1787.  Senators were not directly elected by the people.  They were appointed by state legislatures. This is precisely why the framers believed that the Senate was best suited to serve as judges in an impeachment trial. The “people” in the House of Representatives brought charges in the president (impeachment), but the Senate, those so called “gods on Mount Olympus,” would decide whether or not the people were right (removal). As Madison wrote in Federalist 10, the passions of the people needed to be filtered through “a medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”  In fact, the framers of the Constitution had such a mistrust of the people that they did not allow them to vote directly for the president.  It is worth noting that they did not even record the popular vote in presidential elections until 1824.

In the end, Lamar Alexander can oppose impeachment trial witnesses for all kinds of reasons, but please don’t appeal to the founders.

Alexander’s sketchy use of the founding-era is particularly troubling considering that he has always been a strong advocate for more history and civics in public schools.

“They come for the power for power they stay”

Song of the Day (HT: Dan Cohen):

It’s built to impress you and it works like that
All that white marble and the guards at the door
The metal detector, the following eyes
Geometric patterns covering the floor
The symbols of power, eagles and flags
Attendants, assistants moving like sharks
Through crowds of citizens, patriotic souls
Visiting the capitol and National Parks
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear
I wonder what they say, say to each other
How do they think, what do they feel
When they come out of those rooms
And put on their faces
Is anything they say to the cameras real?
They come for the power for power they stay
And they’ll do anything to keep it that way
They’ll ignore the constitution
And hide behind the scenes
Anything to stay a part of the machine
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear
And the votes are just pieces of paper
And they sneer at the people who voted
And they laugh as the votes were not counted
And the will of the people was noted
And completely ignored
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear

On John Roberts and Pettifogging

Pettifogging

Watch Chief Justice John Roberts here.  (For some reason You Tube will not let me access its embedding codes today).

Pettifogging: “worrying too much about details that are minor or not important.”  It was often used a derogatory statement about lawyers.

Charles Swayne was a U.S. District Court judge for the Northern District of Florida.  He was appointed by Benjamin Harrison in 1889 and confirmed by the Senate in 1890.  The House of Representatives impeached him on December 13, 1904 for “filing false travel vouchers, improper use of private railroad cars, unlawfully imprisoning two attorneys for contempt outside of his district. (Sounds like pettifogging to me! 🙂 ) Swayne admitted to the charges and called his lapses “inadvertent.” The Senate found him “not guilty” on February 27, 1905.

You can read the excerpt from the trial, including the use of the word “pettifogging,” here (p.188).

You can also read an edited excerpt of the proceedings from Hinds’ Precedents of the House of Representatives.

A few thoughts:

First, we can always use more civil discourse.  Of all the House Managers, Nadler is the most obnoxious.  Cipollone and Sekulow seems to be performing for Donald Trump.

Second, John Roberts came to the Trump impeachment trial prepared.  He anticipated this kind incivility and was ready with the “pettifogging” quote from the 1905 Swayne trial.  Nice work.  We will see what he has up his sleeve today.

Third, is Roberts right when he says that the Senate is the “world’s greatest deliberative body” because “its members avoid speaking in a manner and using language that is not conducive to civil discourse?” This is how the framers may have envisioned the Senate, but American history suggests that Roberts may be too optimistic about this legislative body.  Here is Yale historian Joanne Freeman in Field of Blood: Violence in Congress and the Road to the Civil War:

…the Senate was generally calmer than the House.  Smaller in size, with its acoustics in working order and its members a little older, more established, more experienced, and sometimes higher on the social scale, it was a true forum for debate….Debate in the Senate was thus more of a dialogue–long winded, agenda-driven, and something of a performance, but a dialogue just the same. That doesn’t mean the Senate was a haven of safety.  It wasn’t  There were plenty of threats and insults on the floor. Henry Clay (W-KY) was a master.  His attack in 1832 on the elderly Samuel Smith (J-MD), a Revolutionary War veteran and forty-year veteran of the Senate, was so severe that senators physically drew back, worried that things might get ugly.  Clay called Smith a tottering old man with flip-flopping politics; Smith denied it and countered that he could “take a view” of Clay’s politics that would prove him inconsistent; and Clay jeered “Take it, sir, take it–I dare you!”  Smith defended himself, but when he later sought the advice of John Quincy Adams (clearly Fight Consultant Extraordinaire), Smith was do deeply wounded that he was on the verge of tears.

What Did the Founding Fathers Say About Impeachment?

House Managers

House managers in the impeachment trial of President Donald Trump filed their brief to the Senate today.  The brief describes Trump’s behavior with Ukraine “the Framers’ worst nightmare.”

So what did the Framers of the United States Constitution say about impeachment?

Here is a nice summary from the United States Constitution Center:

One of the most hotly debated clauses in the Constitution deals with the removal of federal government officials through the impeachment process. But what did the Founders who crafted that language think about the process and its overall intention?

The need for the ultimate check, and in particular the removal of the President, in a system of checks and balances was brought up early at the 1787 convention in Philadelphia. Constitutional heavyweights such as James Madison, Benjamin Franklin, James Wilson and Gouverneur Morris debated the Impeachment Clause at the convention, and Alexander Hamilton argued for it in The Federalist after the convention.

Today, impeachment remains as a rarely used process to potentially remove the “President, Vice President and all civil Officers of the United States” if Congress finds them guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”

In all, 19 federal officials have been brought up on impeachment charges by the House of Representatives since 1789, with eight people convicted after a Senate trial. Two Presidents – Andrew Johnson and Bill Clinton – faced Senate trials but were not found guilty by a two-thirds majority of the Senate.

The threat of impeachment remains a power check, at least in theory, against the abuse of power, and it is sometimes discussed in times of political controversy, as well as in cases where there is a clear issue with personal conduct in office. Of the eight persons impeached and convicted in Congress, all were judges who faced charges including perjury, tax evasion, bribery, and in one case, supporting the Confederacy.

At the 1787 convention, delegate Edmund Randolph quickly brought up the subject as part of his Virginia Plan. William Patterson’s rival New Jersey Plan had its own impeachment clause. National Constitution Center scholar-in-residence Michael Gerhardt explained the differences in his book, “The Federal Impeachment Process: A Constitutional and Historical Analysis.”

Read the rest here.

Was Donald Trump Impeached?

Cassidy-ImpeachmentGOPMemo

Noah Feldman of Harvard Law School is one of the legal scholars who testified before the House Judiciary Committee.  He was one of the three (of four) lawyers who concluded that Trump’s phone call to Ukraine and his obstruction of Congress were impeachable offenses.

In his most recent column at Bloomsberg News, Feldman argues that the House has not yet impeached Donald Trump.

Here is a taste:

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.

Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.

For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.

Read the entire piece here.

The Johnson, Nixon, and Clinton Articles of Impeachment

Impeachment

With two articles of impeachment against Donald Trump set to be released tomorrow (Tuesday), I thought I would offer some historical context by providing the articles of impeachment for Clinton, Nixon, and Johnson.  (Only Clinton and Johnson were impeached.  Nixon resigned before the Senate trial).

Clinton Articles of Impeachment:

RESOLVED, That William Jefferson Clinton, President of the United States, is impeached for high crimes and misdemeanors . . .

Article One: In his conduct while President of the United States . . . in violation of his constitutional oath to faithfully execute the office of the President . . . has . . . undermined the integrity of his office . . . betrayed his trust as President . . . and acted in a manner subversive of the rule of law by:

  • willfully corrupting and manipulating the judicial process of the United States for his personal gain and exoneration
  • willfully committing perjury by providing false and misleading testimony to the grand jury in relation to his relationship with an employee
  • willfully committing perjury by providing false and misleading testimony to the grand jury in relation to prior perjurious testimony in a civil rights action brought against him
  • allowing his attorney to make false and misleading statements in the same civil rights action
  • attempting to influence witness testimony and slow the discovery of evidence in that civil rights action

Article Three: . . . has [in the Paula Jones Case] prevented, obstructed, and impeded the administration of justice by:

  • encouraging a witness to give a perjurious affidavit
  • encouraging a witness to give false testimony if called to the stand
  • allowing and/or encouraging the concealment of subpoenaed evidence
  • attempting to sway a witness testimony by providing a job for that witness
  • allowing his attorney to make misleading testimony
  • giving false or misleading information to influence the testimony of a potential witness in a Federal civil rights action
  • giving false or misleading information to influence the testimony of a witness in a grand jury investigation

 

Nixon Articles of Impeachment:

RESOLVED, That Richard M. Nixon, President of the United States, is impeached for high crimes and misdemeanors. . . .

Article One: [for] making false or misleading statement to delay, cover up, or conceal evidence relating to the Watergate break-ins by:

  • making false and misleading statements to the government and the people
  • withholding information
  • allowing/encouraging witnesses to give false or misleading statements
  • attempting to interfere with FBI and other investigations into the break-ins
  • allowing secret payments to influence witnesses
  • attempting to misuse the CIA
  • leaking information about the investigation to help the accused
  • insinuating that people who refuse to testify against him or who give false testimony will receive favors

Article Two: . . . [for having] engaged in conduct violating the constitutional rights of citizens . . . and impairing the due and proper administration of justice . . . by:

  • using confidential tax return information to initiate tax audits in a discriminatory manner
  • misusing the FBI, Secret Service, and other government employees by allowing their information to be used for purposes other than national security or the enforcement of laws
  • allowing a secret investigative unit within his office
  • using campaign contributions and the CIA in an attempt to sway the fair trial process
  • has failed in faithfully executing the law
  • knowingly misusing the executive power by interfering with agencies within the executive branch

Article Three: . . . has willfully disobeyed the subpoenas of and failed without lawful cause or excuse to produce papers and information for the House Judiciary Committee . . . assuming to himself the functions and judgments given to the House of Representatives by the Constitution.

Andrew Johnson Articles of Impeachment

Read all 11 articles here.

Trump’s Lawyer Writes to Jerry Nadler

Pelosi

Speaker of the House Nancy Pelosi announcing that the House will move forward with the impeachment of Donald Trump

Yesterday Donald Trump’s White House lawyer Pat Cipollone sent a letter to Jerry Nadler, chair of the House Judiciary Committee.  Here it is:

Dear Chairman Nadler:

As you know, your impeachment inquiry is completely baseless and has violated basic principles of due process and fundamental fairness. Nevertheless, the Speaker of the House yesterday ordered House Democrats to proceed with articles of impeachment before your Committee has heard a single shred of evidence.

House Democrats have wasted enough of America’s time with this charade. You should end this inquiry now and not waste even more time with additional hearings. Adopting articles of impeachment would be a reckless abuse of power by House Democrats, and would constitute the most unjust, highly partisan, and unconstitutional attempt at impeachment in our Nation’s history. Whatever course you choose, as the President has recently stated: “if you are going to impeach me, do it now, fast, so we can have a fair trial in the Senate, and so that our Country can get back to business.”

Several thoughts:

1.  House Democrats have heard plenty of evidence.  The suggestion that there is not a “single shred of evidence” is disingenuous.  It actually sounds like Trump wrote that sentence.  Moreover, this impeachment is not “baseless.”  Even Jonathan Turley, the GOP-chosen lawyer who testified earlier this week, agreed that there were things uncovered by the hearings that needed to be explored more fully.  But how can the House go any further when Trump won’t let people like Bolton, Pompeo, Giuliani, and others testify?  This is obstruction of justice.  Last time I checked, obstruction of justice was a crime.

2. While Cippolino is technically right when he says that “House Democrats” are impeaching Trump, it is actually the House of Representatives as a body that will impeach the president. The Constitution says that the House of Representatives have “the sole power of impeachment.”  It does not say that “House Democrats” or “House Republicans” have the power of impeachment.  There will be a vote and the results of that vote will represent the will of the House of Representatives on impeachment.   Plain and simple.

Many pro-Trumpers are saying that the impeachment process is undermining or delegitimizing the 2016 election.  There are many, many problems with such a suggestion.  For example, if you want to talk about undermining elections, one could say that such a belief undermines the midterm elections of 2018.  Let’s face it, in November 2018 the people spoke.  Now the member of the House of Representatives who were elected by the people are doing what they think is best for the republic.

3.  Cippolino complains that this impeachment is the most partisan impeachment in U.S. history.  However we rank the level of partisanship in this impeachment, it is important to remember that partisanship characterized the Johnson and Clinton impeachment as well as the attempt to impeach Nixon. Hamilton even commented on the partisan nature of impeachment in Federalist 65.  I encourage you to read it.

4. Cippolino says that the impeachment of Trump is “unconstitutional.”  This is impossible.  All impeachments are constitutional. The House always has the constitutional right to impeach the president.  It is part of their job description.

5. Let’s face it,  Donald Trump will be the third U.S. president to be impeached.  He will join Andrew Johnson and Bill Clinton in the history books.  He will be named in future classroom lectures and multiple choice tests.  There will be no asterisk next to his name.  Whether or not he is removed from office or not, this will be his legacy.

Four Scholars Will Testify Before the House Judiciary Committee in Tomorrow’s Impeachment Hearing

Turley

Jonathan Turley will be testifying tomorrow before  the House Judiciary Committee

Tomorrow the Judiciary Committee will hear from four witnesses, all constitutional scholars.  They are:

Noah Feldman of Harvard University.  He is also a Bloomberg News columnist and the author of a biography of James Madison.

Pamela Karlan of Stanford University.  She was the U.S. Deputy Assistant Attorney General for Voting Rights in the U.S. Department of Justice Civil Division during the Obama presidency.

Michael Gerhardt of the University of North Carolina.  He is on record saying that the impeachment inquiry is “fully legitimate.” Gerhardt is Scholar in Residence at the National Constitution Center.

Jonathan Turley of George Washington University.  He is a prolific blogger.  He is probably the most familiar face among the four law professors testifying because he is often on television news programs.

Three of these witnesses were selected by Democrats, and one by Republicans.  Based on what I know about Turley, I am guessing that he was chosen by the Republicans.

This should be fun, but why won’t any historians be testifying?

Impeachment Report: The Executive Summary

Congress

Read the entire impeachment report here.

The “Executive Summary”:

The impeachment inquiry into Donald J. Trump, the 45th President of the United States, uncovered a months-long effort by President Trump to use the powers of his office to solicit foreign interference on his behalf in the 2020 election. As described in this executive summary and the report that follows, President Trump’s scheme subverted U.S. foreign policy toward Ukraine and undermined our national security in favor of two politically motivated investigations that would help his presidential reelection campaign. The President demanded that the newly elected Ukrainian president, Volodymyr Zelensky, publicly announce investigations into a political rival that he apparently feared the most, former Vice President Joe Biden, and into a discredited theory that it was Ukraine, not Russia, that interfered in the 2016 presidential election. To compel the Ukrainian President to do his political bidding, President Trump conditioned two official acts on the public announcement of the investigations: a coveted White House visit and critical U.S. military assistance Ukraine needed to fight its Russian adversary.

During a July 25, 2019, call between President Trump and President Zelensky, President Zelensky expressed gratitude for U.S. military assistance. President Trump immediately responded by asking President Zelensky to “do us a favor though” and openly pressed for Ukraine to investigate former Vice President Biden and the 2016 conspiracy theory. In turn, President Zelensky assured President Trump that he would pursue the investigation and reiterated his interest in the White House meeting. Although President Trump’s scheme intentionally bypassed many career personnel, it was undertaken with  the knowledge and approval of senior Administration officials, including the President’s  Acting Chief of Staff Mick Mulvaney, Secretary of State Mike Pompeo, and Secretary of  Energy Rick Perry. In fact, at a press conference weeks after public revelations about the  scheme, Mr. Mulvaney publicly acknowledged that the President directly tied the hold on military aid to his desire to get Ukraine to conduct a political investigation, telling Americans to “get over it.

President Trump and his senior officials may see nothing wrong with using the power of the Office of the President to pressure a foreign country to help the President’s reelection campaign. Indeed, President Trump continues to encourage Ukraine and other foreign countries to engage in the same kind of election interference today. However, the Founding Fathers prescribed a remedy for a chief executive who places his personal interests above those of the country: impeachment. Accordingly, as part of the House of Representatives’ impeachment inquiry, the Permanent Select Committee on Intelligence, in coordination with the Committees on Oversight and Reform and Foreign Affairs, were compelled to undertake a serious, sober, and expeditious investigation into whether the President’s misconduct warrants that remedy.

In response, President Trump engaged in an unprecedented campaign of obstruction of this impeachment inquiry. Nevertheless, due in large measure to patriotic and courageous public servants who provided the Committees with direct evidence of the President’s actions, the Committees uncovered significant misconduct on the part of the President of the United States. As required under House Resolution 660, the Intelligence  Committee, in consultation with the Committees on Oversight and Reform and Foreign Affairs, has prepared this report to detail the evidence uncovered to date, which will now be transmitted to the Judiciary Committee for its consideration.

American History Finds Its Way Into the Impeachment Report

2b571-hamilton

 Alexander Hamilton

Read it the entire impeachment report here. A taste (in bold):

The Framers of the Constitution well understood that an individual could one day occupy the Office of the President who would place his personal or political interests above those of the nation. Having just won hard-fought independence from a King with unbridled authority, they were attuned to the dangers of an executive who lacked fealty to the law and the Constitution. 

Here is Alexander Hamilton in Federalist 75:

But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. 

In response, the Framers adopted a tool used by the British Parliament for several hundred years to constrain the Crown—the power of impeachment. Unlike in Britain, where impeachment was typically reserved for inferior officers but not the King himself, impeachment in our untested democracy was specifically intended to serve as the ultimate form of accountability for a duly-elected President. Rather than a mechanism to overturn an election, impeachment was explicitly contemplated as a remedy of last resort for a president who fails to faithfully execute his oath of office “to preserve, protect and defend the Constitution of the United States.”

Accordingly, the Constitution confers the power to impeach the president on Congress, stating that the president shall be removed from office upon conviction for “Treason, Bribery, or other high Crimes and Misdemeanors.” While the Constitutional standard for removal from office is justly a high one, it is nonetheless an essential check and balance on the authority of the occupant of the Office of the President, particularly when that occupant represents a continuing threat to our fundamental democratic norms, values, and laws.

Alexander Hamilton explained that impeachment was not designed to cover only criminal violations, but also crimes against the American people. “The subjects of its jurisdiction,” Hamilton wrote, “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.”

This comes from Federalist 65.  Read it here.

Similarly, future Associate Justice of the United States Supreme Court James Wilson, a delegate from Pennsylvania at the Constitutional Convention, distinguished impeachable offenses from those that reside “within the sphere of ordinary jurisprudence.” As he noted, “impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.”

This paragraph comes from James Wilson‘s “Lectures on Law.”

Wilson James

James Wilson

 

Federalist 65

Context

To the People of the State of New York:

THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its 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 prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The 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 prepetual 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. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?

Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.

Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.

But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole commuity, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.

PUBLIUS.

Source

For more context I recommend this book.

Historian Joanne Freeman Delivers the Tweet of the Day

In case you missed it, a bunch of pro-Trump Republican members of the House of Representatives tried to barge into a closed-door deposition conducted by the House Intelligence Committee.  The committee was preparing to interview Deputy Assistant Defense Secretary Laura Cooper as part of the Trump impeachment inquiry.

Watch it all here:

This is a pathetic political stunt.

Here is Arizona representative Andy Biggs:

And here is Yale historian Joanne Freeman:

Addendum:  The GOP members of the House Intelligence Committee are: Devin Nunez (CA), Mike Conaway (TX), Mike Turner (OH), Brad Wenstrup (OH), Chris Stewart (UT), Rick Crawford (AR), Elise Stefanik (NY), Will Hurd (TX), and John Ratcliffe (TX).

759,935 American Voters Pulled a Lever for Members of “The Squad” in 2018

Squad

In 2018:

110,318 voters in New York’s 14th Congressional District voted for Alexandria Ocasio-Cortez.  This district is 18.41% white.

267,703 voters in Minnesota’s 5th Congressional District voted for Ilhan Omar.  The district is 67.39% white.

165,355 voters in Michigan’s 13th District voted for Rashisa Talib. The district is 33.4% white.

216,559 voters in Massachusetts’s 7th District voted for Ayanna Pressley.  The district is 33.69% white.

The President of the United States says that these four women of color should leave the country because they don’t love America.  Would he say the same thing about 759,935 people who voted for this members of the House of Representatives?  These women were duly elected by their constituencies.  Unless, of course, the elections were rigged.  🙂

Conservative Evangelicals Defend Steve King and Want Kevin McCarthy to Apologize

King and trump

Perhaps some of you missed it.  Iowa congressman Steve King, in an interview with the New York Times, said this: “White nationalists, white supremacist, Western Civilization–how did that language become offensive?”

King later tried to back away from the statement, but it was too little, too late.  House minority leader Kevin McCarthy removed King from the House Judiciary and Agriculture Committees earlier this week and he was almost censured.  King’s remarks were the latest in a long career defined by racist and nativist comments.

Not everyone is happy with what McCarthy, the House Republicans, and Congress have done to King.  Right Wing Watch has brought to my attention news of a group of Christian Right leaders who are supporting King.  The group is led by Janet Porter, a Christian Right activist who served as the spokesperson for Roy Moore’s 2017 Alabama  Senate race.  Porter is asking Christian Right leaders to sign a letter to Kevin McCarthy.  Here is the text of that letter:
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Dear Leader McCarthy,

We are appalled that Republican leadership would choose to believe a liberal news organization famous for their bias over an outstanding member of Congress who has served the people of Iowa and the United States honorably and faithfully for 16 years.

If Congressman Steve King believed and stood by the outrageous misquote of the New York Times, then the actions taken against him would have been warranted, but the opposite is true.

Unlike North Korea, we in the United States are “innocent until proven guilty” and hold to the principles of Western Civilization, as Rep. King so admirably does. The foundational principle begins with the self-evident truth that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” These are the principles to which Rep. King was referring and which he has championed for more than two decades of public service.

Don’t make the fatal mistake of turning the reins of the U.S. Congress over to the liberal media, allowing them to target, misquote, and falsely brand any member of Congress they wish to remove. 

We call on you to do the right thing as Minority Leader: issue a public apology and reinstate Rep. King to his committee assignments.  If we don’t stand with this good man against the media-manufactured assault today, none of us will be safe from it tomorrow.

The Christian Right leaders who signed this letter include:

  • The scandal-ridden former House Majority Leader Tom DeLay
  • Court evangelical and family values radio host James Dobson
  • Court evangelical and charismatic media mogul Steven Strang
  • Paul Blair, president of an organization called Reclaiming America for Christ
  • Rick Scarborough, a conservative Southern Baptist political activist
  • Lance Wallnau, a court evangelical who claims to have prophesied Donald Trump’s election.
  • Rena Lindevaldsen, a law professor at Liberty University
  • Jim Garlow, a pastor and prominent court evangelical who recently co-authored a book with David Barton.
  • Cythnia Dunbar, a member of the Republican National Committee who is probably best known for trying to bring Christian nationalist ideas into American history books in Texas.  (She also claimed that Barack Obama, if elected POTUS, would work with terrorists to attack the United States within his first 6 months in office).
  • William Federer, a Christian nationalist known for collecting quotes about the founding fathers

I discuss Dobson, Strang, and Wallnau in Believe Me: The Evangelical Road to Donald Trump.

This letter may be more revealing for the people who DID NOT sign it, including Jerry Falwell Jr., Robert Jeffress, Ralph Reed, Gary Bauer, Franklin Graham, Paula White, Johnnie Moore,  Eric Metaxas, and other court evangelicals.

Penn Live Endorses George Scott in Pennsylvania’s 10th Congressional District

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George Scott

A lot of his here in south central Pennsylvania are following the congressional race in the 10th District.  Trump loyalist and incumbent Scott Perry (R) is running against Lutheran clergyman (ELCA) George Scott (D).  Because of the newly redrawn congressional maps in Pennsylvania, the district that includes my hometown of Mechanicsburg is now up for grabs for the first time in decades.

Last week Penn Live (the online version of the Harrisburg Patriot News), endorsed Scott:

Here is a taste of the endorsement:

Scott, who aspires to be a “servant-leader,” is a political moderate at a time when American politics is badly in need of some moderation. 

He impressed the board with his views on healthcare, women’s reproductive rights and his commitment to increasing the minimum wage and expanding Medicaid coverage, among other issues. 

Unlike Perry, who has marched in lockstep with the House’s most conservative faction, Scott has said he will not support current House Minority Leader Nancy Pelosi, D-Calif., for House speaker should Democrats retake the majority on Election Day. 

His aspiration to bipartisanship in an institution where that tradition is a dying art was also refreshing. He told the board that “it all starts with personal relationships … not just with people in my party, but with folks on the other side of the aisle … who want to solve tough issues.”

He shares Perry’s commitment to the Second Amendment right to keep and bear arms.

But unlike his Republican opponent, Scott also believes that right must be balanced with better regulation, including background checks for all gun sales and bans on products like bump stocks and high-capacity magazines.

Scott has also called for a strong federal policy to address climate change, and says one that has caught his eye is a carbon fee-and-dividend proposal advanced by the Citizens Climate Initiative that would tax fossil fuels at production or point of importation, according to the carbon dioxide (one of the top greenhouse gases)  produced.

The idea is to get business, industry and government to more quickly convert to conversion to renewables and other cleaner fuels.

After three terms in Congress, Perry has emerged as a sharp-elbowed partisan and loyal conservative foot soldier of the hyperpartisan Freedom Caucus, a coalition of GOP lawmakers whose main priority often seems to be less about effective governance and more about ensuring a permanent state of legislative paralysis on Capitol Hill. 

Perry has voted repeatedly to repeal the Affordable Care Act, without approving legislation that would have replaced former President Barack Obama’s signature legislative achievement.

In 2017, he voted in favor of the GOP-authored alternative, the American Healthcare Act. Despite recent attempts at Republican white-washing, the bill would have made it harder and much more expensive for people with pre-existing conditions to obtain insurance coverage.

Perry voted against a carbon tax proposal and has said his preference is to let market forces continue to attack the problem. He pointed to large emission reductions that have occurred organically in recent years as American power plants have moved from coal to natural gas as a fuel source.

Perry’s assertion to a constituent that he didn’t want to pay for maternity care for other women because “I have two children, and we’re not having any more,” is dangerously short-sighted and a profound violation of the social contract between Americans.

Perry joined with the Freedom Caucus to call for the impeachment of the Rod Rosenstein, the senior U.S. Department of Justice official, who oversees Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election. 

And he made the bizarre assertion, without providing any evidence, that ISIS was behind the mass shooting in Las Vegas that wounded hundreds and resulted in the death of 59 people. Asked by the board to substantiate that claim, which he still stands by, Perry declined, saying he’d been given access to confidential information he could not share.

The Nov. 6 midterm offers central Pennsylvania voters a chance to forge a new direction, in a new district, with someone who truly represents their values. George Scott is that candidate.

Read the entire endorsement here.

Blame Gingrich

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According to McKay Coppins, Newt Gingrich “turned partisan politics into bloodsport, wrecked Congress, and paved the way for Trump’s rise.”  Here is a taste of his piece at The Atlantic, “The Man Who Broke Politics”:

There’s something about Newt Gingrich that seems to capture the spirit of America circa 2018. With his immense head and white mop of hair; his cold, boyish grin; and his high, raspy voice, he has the air of a late-empire Roman senator—a walking bundle of appetites and excesses and hubris and wit. In conversation, he toggles unnervingly between grandiose pronouncements about “Western civilization” and partisan cheap shots that seem tailored for cable news. It’s a combination of self-righteousness and smallness, of pomposity and pettiness, that personifies the decadence of this era.

In the clamorous story of Donald Trump’s Washington, it would be easy to mistake Gingrich for a minor character. A loyal Trump ally in 2016, Gingrich forwent a high-powered post in the administration and has instead spent the years since the election cashing in on his access—churning out books (three Trump hagiographies, one spy thriller), working the speaking circuit (where he commands as much as $75,000 per talk for his insights on the president), and popping up on Fox News as a paid contributor. He spends much of his time in Rome, where his wife, Callista, serves as Trump’s ambassador to the Vatican and where, he likes to boast, “We have yet to find a bad restaurant.”

But few figures in modern history have done more than Gingrich to lay the groundwork for Trump’s rise. During his two decades in Congress, he pioneered a style of partisan combat—replete with name-calling, conspiracy theories, and strategic obstructionism—that poisoned America’s political culture and plunged Washington into permanent dysfunction. Gingrich’s career can perhaps be best understood as a grand exercise in devolution—an effort to strip American politics of the civilizing traits it had developed over time and return it to its most primal essence.

Read the entire piece here.

Coppins is probably right about Gingrich, but let’s be careful making too many grandiose claims about Newt as the originator of political bloodsport. As I read Coppins’s piece I was reminded of Yale historian Joanne Freeman’s new book The Field of Blood: Violence in Congress and the Road to the Civil War.

The Faith of Alexandria Ocasio-Cortez

Cortez

Alexandria Ocasio-Cortez pulled off a major upset in yesterday’s Democratic primary race in New York’s 14th District.  She defeated Joe Crowley, the 10-term member of the U.S. House of Representatives who many believed would be the heir-apparent to Nancy Pelosi as the House Minority Leader.  Ocasio-Cortez is a 28-year-old Democratic Socialist who ran on universal health care and the abolition of ICE.  She is also a Catholic.

On the day after her victory Ocasio-Cortez started writing, but not for The New York Times or The Progressive or The Nation or Jacobin or In These Times.  Nope. She turned to the web pages of the Jesuit magazine America.

Here is a taste of her piece, published today:

Discussions of reforming our criminal justice system demand us to ask philosophical and moral questions. What should be the ultimate goal of sentencing and incarceration? Is it punishment? Rehabilitation? Forgiveness? For Catholics, these questions tie directly to the heart of our faith.

Solutions are already beginning to take shape, which include unraveling the War on Drugs, reconsidering mandatory minimum sentencing and embracing a growing private prison abolition movement that urges us to reconsider the levels at which the United States pursues mass incarceration. No matter where these proposals take us, we should pursue such conversations with an openness to change and an aim to rehabilitate our brothers and sisters wherever possible and wherever necessary. By nature, a society that forgives and rehabilitates its people is a society that forgives and transforms itself. That takes a radical kind of love, a secret of which is given in the Lord’s Prayer: Forgive us our trespasses, as we forgive those who trespass against us.

And let us not forget the guiding principle of “the least among us” found in Matthew: that we are compelled to care for the hungry, thirsty, homeless, naked, sick and, yes—the imprisoned.

Read the entire piece here.  She apparently disagrees with her church, however, on abortion and marriage.

Allen Guelzo on Why History Shows Impeachment May be a Bad Idea

Andrew_Johnson_impeachment_trial

Abraham Lincoln and Civil War scholar Allen Guelzo reminds us what happened when Andrew Johnson was impeached.  The subtitle of his recent Wall Street Journal piece is “Many members of Congress in 1868 hoped to remove a president they merely disliked.  It didn’t go well.”  Here is a taste:

If the Democrats win the House in November, they’ll come under pressure to impeach President Trump. Even if Robert Mueller fails to turn up some astounding surprise, many Democrats want to impeach Mr. Trump because they simply don’t like him. Since the Constitution specifies that a president can be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors,” such a move would mean Democrats consider being disliked by the House majority to be a disqualifying crime.

That is precisely what many members of Congress thought 150 years ago this week, at the conclusion of the first impeachment of a sitting president, Andrew Johnson. The 17th president’s impeachment offers the important lesson that although the mechanism for impeachment is easy, the subsequent process of trial, conviction and removal from office is not. A failure at that stage of the process covers everybody with embarrassment—impeachers and impeached alike.

 

Read the rest here.

Guelzo seems to be preparing for the Democrats to take the House.  It is definitely a possibility.