House Judiciary Committee Staff Report on Impeachment
https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/HCM%20FINAL%20v.3.pdf
House Judiciary Committee staff compiled an excellent primer on impeachment; its only 55 pp. and imminently readable. It answers many of the questions we all may have about the standards for impeachment, the rules of procedure in impeachment cases, and the standards of evidence.
On taking office, a President swears the following Constitutionally prescribed oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” We have a system of constitutionally prescribed checks and balances in place to prevent the President from abusing his powers and becoming a dictator or absolute monarch.
One of those checks and balances is impeachment (removal from office), an old English procedure, devised to assure that the King’s ministers would be accountable to the English Parliament for their actions. It has fallen into disuse in England for two reasons: 1) the King or Queen is now a ceremonial figurehead and 2) the Prime Minister is a sitting member of Parliament who can be readily removed from his position by a no confidence motion in Parliament.
The framers of the US constitution wanted an independently elected President who would be responsible to execute the laws of the United States and would operate the Executive Branch consistent with the Constitution and the laws of Congress. When the President does not obey the laws or the Constitution, the typical ways to check his behavior are a lawsuit in the federal courts, removal from office by the quadrennial vote of the people, or action by the Congress that has the power of the purse strings to secure compliance.
The need and authority to exercise the power of impeachment is rare and limited to the following: treason, bribery and other high crimes and misdemeanors. The phrase “high crimes and misdemeanors” is not about the President’s criminal conduct (from jaywalking, to paying off mistresses, to “murder on 5th Ave.”); it is about his conduct to pervert the constitutional order. In this case, it involves the effort to subvert free and fair elections on which our democracy depends by inviting the involvement of a foreign power to smear a campaign rival, using the power of the presidency for a personal benefit (to secure his own re-election), and then blocking Congress’ efforts to investigate his conduct by ordering all executive branch officials not to provide documents or testimony to the Congressional investigators.
The House does not hold a trial of the President; that happens in the Senate. The House is conducting an investigation to determine and then it must decide whether the President should be charged with impeachable conduct and held over for trial in the Senate. This is not a ministerial duty, i.e. once you find impeachable conduct you must charge the President. This is a discretionary act, Congress could choose to look the other way or say “yes, impeachable conduct, but no, we’ll impose some sort of penalty short of impeachment”; some commentators have suggested overwhelming bi-partisan censure.
However, the President’s conduct since the whistleblower uncovered the Trump/Giuliani scheme does not really open the door to less drastic remedies. One, he said his conduct was perfect and he’d do it again and encouraged publicly the Chinese and Ukrainians to do his bidding; he has shown no remorse or apology for his conduct. Two, he blocked Congress’ investigations with his orders to subordinates not to produce documents or testify. Three, he has continued to spin demonstrated falsehoods and absurdist fantasies about the Ukraine, Russia and his 2016 election and his potential 2020 election rival. Four, his Republican colleagues and their shared base have closed ranks around him. There is not much room left for any potential compromise.
It is a pretty open and shut case as to whether the President has committed “impeachable conduct”, in fact he has readily acknowledged the conduct in question and disputes whether it is grounds for impeachment. However, the President’s conviction in the Senate is fundamentally a political judgment, and the President is on strong grounds there unless and until his base support erodes.
President Trump’s articles of impeachment are just the tip of the iceberg of Congressional concerns about his conduct in office. These include the obstruction of justice found in the Mueller Report, the corrupt emoluments exemplified by the effort to hold the G 8 meeting at the President’s Doral Country Club. Underlying this are un-allayed concerns about the President’s exceedingly high proclivity for lying to Congress and the American people, his disturbingly close relationship and cohesion with Russian President Putin who appears to be the beneficiary of so many of his words and actions coupled with his estrangements from our traditional allies, an alarming disregard for the rule of law insofar as it applies to his own conduct whether in office or out, and an uncomfortable embrace of white supremacist views, rhetoric and symbols.
It is still unclear how the Senate will allow the parties to proceed. The President apparently wants a trial where he can mortify and destroy his adversaries; it is not yet clear that he has any evidence to do so. Absent any surprises, he may be far better served by a dignified presentation from the House managers, a calm rebuttal by the President’s counsel, and then allowing a quick and largely pre-determined Senate vote.
Prepared by: Lucien Wulsin
Dated: 12/10/19