21st Century Regicide: The House Votes
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The December 18 House votes (230-197 on abuse of power and 229-198 on obstruction of Congress) to impeach President Trump, one day shy of 21 years since Bill Clinton was impeached, followed one of American history’s most delicious ironies: the very date, December 10, that the House Judiciary Committee began formal debate, there was a reminder of the Ghost of Impeachments Past, none other than one Jerrold Nadler, who exactly 21 years earlier, in his opening statement in the Clinton vote, said,

The effect of impeachment is to overturn the popular will of the voters as expressed in a national election. We must not overturn an election and remove a president from office except to defend our very system of government or our constitutional liberties against a dire threat. And we must not do so without an overwhelming consensus of the American people and of their representatives in Congress of the absolute necessity.

There must never be a narrowly voted impeachment or an impeachment substantially supported by one of our major political parties and largely opposed by the other. Such an impeachment would lack legitimacy, would produce divisiveness and bitterness in our politics for years to come. And will call into question the very legitimacy of our political institutions. 

The December 13 via twin 23-17 party-line votes by the House Judiciary Committee, chaired by the selfsame Jerrold Nadler, that sent to the House floor articles of impeachment were voted in flagrant contradiction of Rep. Nadler’s strong 1998 stance. And on the very day that the HJC voted came another XMAS present for the GOP: a 1999 campaign sally (1:35) by Adam Schiff, running to unseat James Rogan, one of the House managers of the Clinton impeachment:

I think impeachment for most people in this district is only the most graphic illustration of an incumbent who has put the national partisan, ideological fights ahead of representing his district, Jim Rogan is in trouble for reasons that have nothing to do with impeachment. I think a lot of people are unhappy that Jim Rogan has ignored the district for five years.

As comedian Dave Barry used to say, you can’t make this stuff up.

“Abuse of power” is a vague catch-all, unsupported by a solid foundation of evidence. “Obstructing Congress” runs counter to what impeachment historian Raoul Berger noted is the obligation of presidents to defend the office’s constitutional prerogatives under Article II. If promiscuously used, aimed at policies or personalities the majority dislikes, House impeachment and Senate conviction can become in practice much like the “no-confidence” vote in parliamentary systems, as nonviolent forms of executive removal by legislative bodies. And as I recently wrote, basing impeachment in major part on an anonymous accuser invites civil war, and will never be widely accepted under the Nadler 1998 standard.

Harvard Law Professor Emeritus Alan Dershowitz noted on the same day that the impeachment articles were voted that the Supreme Court, by agreeing to hear two Trump appeals of subpoenas issued by Congress, undercut the “abuse of power” article: the very fact that the nation’s highest court took the appeals shows that the president can challenge a congressional subpoena in court. Even if the court ultimately rules in favor of Congress, its taking the cases negates any legal charge of obstructing Congress. Add to that, as noted above, the obligation of presidents to defend presidential powers.

The White House weighed in with a December 17 letter from President Trump to House Speaker Nancy Pelosi, stating that more due process was afforded defendants in the Salem Witch trials and that the Democrats are mounting an illegal attempted coup, with the House serving as a Star Chamber of partisan persecution.

Senate Majority Leader Mitch McConnell delivered a scathing floor speech (31:11) the morning after the impeachment vote. His key points:

  1. A partisan faction promised from the moment Trump was elected that they would impeach him.
  2. Whereas Nixon got 14 months of congressional hearings, plus the special prosecutor’s criminal case, and Clinton was investigated for years, the House process this time took three months.
  3. The House thus engaged in an unprecedented “subjective, political” impeachment.
  4. Both the Nixon and Clinton cases led to court adjudications.
  5. Schiff openly stated that if the Democrats went to court, they might not be able to finish impeachment before the 2020 elections — “Any action that forces us to litigate or to have to consider litigation would be considered further evidence of obstruction of justice.”
  6. One of Schiff’s committee members said this week, “If the president asserts his constitutional rights, it is that much more evidence he is guilty.”

Nancy Pelosi has indicated that Democrats may sit on the articles, delaying a Senate trial until they can force Republicans to get senior White House officials to appear. This should — and likely will — fail. Harvard law professor Noah Feldman, one of the three legal panel witness who testified before the HJC, points out that impeachment is a process, not a vote; until charges are formally filed by duly designated House managers with the Senate, impeachment is not legally complete. Although the Constitution is silent as to the time between House adoption of impeachment articles and Senate adjudication of them, Feldman writes,

If the House votes to “impeach” but doesn’t send the articles to the Senate or send impeachment managers there to carry its message, it hasn’t directly violated the text of the Constitution. But the House would be acting against the implicit logic of the Constitution’s description of impeachment.

A president who has been genuinely impeached must constitutionally have the opportunity to defend himself before the Senate. That’s built into the constitutional logic of impeachment, which demands a trial before removal.

This comports with the distinction in law between a “ministerial” and “discretionary” act; the former are required to carry out legal actions. Thus, this from ace former prosecutor Andy McCarthy:

In the law, there are many situations in which an outcome is known, but it is not a formal outcome until some ministerial act is taken. A grand jury can vote an indictment, for example, but the defendant is not considered indicted until the charges are filed with the clerk of the court. A defendant can be found guilty by a jury, but there is technically no conviction until the judgment is “entered” by the trial court, usually months later when sentence is imposed. An appellate court can issue a ruling that orders a lower court to take some action, but the lower court has no jurisdiction to act in the case until issuance of the appellate court’s “mandate” — the document that formally transfers jurisdiction.

Further, if Democrats wanted to get senior Trump White House officials to appear, all they had to do was issue subpoenas. They could have done so two months ago, and with expedited appeals, a final judicial ruling would have been issued by now.

They did not do so, because they know that the courts would have upheld executive privilege. A little history helps: When, in July 1973, the existence of the Nixon White House taping system was revealed, both the special prosecutor and the Congress filed suit seeking release of the tapes relevant to the Watergate investigation. It being a first-time legal issue, Judge John Sirica gave the administration many months to comply. In the end he ordered relevant tapes released to the special prosecutor, but not to Congress. The appeals process then took three months, as novel legal issues had been raised. In July 1974, the Supreme Court decided U.S. v. Nixon, in which a narrow exception to executive privilege was established: the need for specific evidence relevant to an ongoing criminal case.

There is no ongoing criminal case of any kind as to matters between the Trump administration and Ukraine. Nor is there any predicate for instituting one. Such an investigation cannot be commenced on hearsay. With Watergate, a grand jury had sat for nearly two years by the time the Supreme Court decided the issue. Investigations cannot be opened on mere suspicion; fishing expeditions are not sufficient either. Jurisdiction cannot be bootstrapped. Before the government prosecutes and, in doing so, subjects defendants to the immense physical and emotional burden of formal legal process and huge expenditure, there must be a genuine legal basis to proceed.

Democracies: Peaceful Transfers of Power. The great democracies pride themselves on effecting peaceful transitions of government, in a world where most transitions are the product of violent revolution or dictatorial succession. Above all, forcible removal of a leader is a traumatic event where peaceful change is the norm. The impact of forced removal is amplified immensely today by pervasive media coverage, making a nation witness — live — to such events. So long as removal is accomplished without coercive violence or clandestine fraud, impeachment and removal operate as a form of peaceful regicide.

Thus the assassination of JFK had a far greater impact than previous presidential assassinations, save that of Abraham Lincoln, days after the Civil War. America’s most consequential conflict ended in a Virginia courthouse at Appomattox. Of the Kennedy assassination, Patrick Moynihan captured the moment when, as a White House aide, he responded to a comment from a member of JFK’s inner circle that “We will never laugh again” by saying, “We will laugh again; but we never will be young again.”

Most democracies are parliamentary systems in which a “no-confidence” vote triggers a new election. But America’s Constitution, as befits the world’s oldest constitutional democratic republic, provides emergency alternative mechanisms (besides death or resignation) to supplement the Constitution’s fixed terms: impeachment by the House of Representatives (Art. I, sec. 2. cl. 5) and conviction by the Senate (Art. I, sec. 3, cl. 6), for “treason, bribery and other high crimes and misdemeanors” — closely modeled on English parliamentary procedures dating back to the 14th century; and, per the 25th Amendment, in event of presidential disability, voluntary (sec. 3) or involuntary (sec. 4) removal. Both presidents Bush invoked sec. 3 when they underwent surgery under anesthesia; sec. 4 remains unused (save in Hollywood, e.g., Air Force One.)

In the debate at the 1787 Grand Convention, Benjamin Franklin supported putting impeachment in the new Constitution, noting that it would be preferable to assassination as a form of removal:

What was the practice before in cases where the chief magistrate rendered himself obnoxious? Why, recourse was had to assassination in which he was not only deprived of his life but of the opportunity of vindicating his character. It would be the best way therefore to provide in the Constitution for the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.

Bottom Line. The early centuries saw the foundations of impeachment laid down, and guiding principles established that held for the 20th century, as refined in two presidential impeachments. But the 21st century has now seen a sinister, dangerous turn in the practices attendant to repudiating the choice made by the voters at the ballot box.

In this regard, consider the dissent filed by Justice Robert H. Jackson in the 1944 Japanese internment case, Korematsu v. United States. The majority opinion — authored by noted civil libertarian Hugo Black — upheld detention of Japanese Americans in certain designated western areas. Dissenting, Jackson warned (my emphasis),

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

By voting for two defective articles, adopted without offering even a semblance of basic due process, the House has put its impeachment imprimatur on an even more dangerous precedent. McConnell said in his floor speech, “The moment the Framers feared has arrived. A political faction in the lower chamber has succumbed to partisan rage.” He finished with this:

It could not be clearer which outcome would serve the stabilizing, institution-preserving, fever-breaking role for which the United States Senate was created, and which outcome would betray it.

The Senate can — and likely will — reject the House’s articles — assuming that they are sent over to the Senate, which depends on how Democrats feel stalling for tactical advantage plays politically. One unilateral option for Senate Republicans is to pass a simple Senate Resolution, condemning House Democrats for rank opportunism in rushing to pass articles of impeachment but then refusing to send them to the Senate, so as to avoid a likely acquittal of the president.

Newt Gingrich said (5:35) that Pelosi’s ploy will look silly to most voters, and she will cave. A Senate trial and acquittal will limit the damage in the instant case. But the principle will endure, so that the next time the House considers impeaching a president — or even a Supreme Court justice — the proponents will not be making an abstract legal argument; they will be able to weaponize a formal legal precedent, to lend weight to their argument.

John C. Wohlstetter is author of Sleepwalking with the Bomb (2014).

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