The fictional setting for National Lampoon’s Animal House (1978) is mythical Faber College, in 1962. A largely traditional small college set in suburbia, near a small town, staid Faber is turned upside down by the raucous, party-crazy students at Delta fraternity. They perpetrate outrageous stunts, scoring with the ladies whilst scorning their studies. In response, the Dean and his right-wing troglodyte stooges scheme to expel the miscreants. They succeed, only to see the Deltas uproariously turn the tables on them during the nearby town’s annual parade. A savage satire, blending social mores, politics, and college-life hijinks, the film remains a baby boomer classic.
Welcome, then, to a 2019 real-life Faber College psychodrama. Nancy Pelosi bids fair to emulate the film’s Dean Vernon Wormer, while serial fabulist attack-dog Adam Schiff seeks to emulate the fictional student BMOC point man Greg Marmalard, who enlists his fellow Omega fraternity brothers. Add President Trump, who not infrequently lapses into fraternity-brat verbal sallies, seemingly channeling John Belushi’s Bluto Blutarsky. Trump, at least, is often, like Belushi, funny. The same cannot be said for Pelosi, Schiff, or the rest of their party’s Constitution-busting wrecking crew.
The “official” House impeachment inquiry, in its open contempt for even basic due process, makes the Faber trial climactic scene (3:18) seem like “déjà vu all over again.” The White House’s October 8 letter to key House leaders lists the due-process rights denied the president: (a) to be apprised of laws allegedly violated and all evidence produced, including exculpatory evidence, plus being given full access to evidence that impeaches the credibility of prosecution witnesses; (b) to confront and cross-examine prosecution witnesses; (c) to call defense witnesses and introduce defense evidence; (d) to make objections to witness examinations and admissibility of prosecution evidence introduced; and (e) to obtain assistance of counsel at the hearing. The WH letter sums up: “The Committee’s current procedures provide none of these basic constitutional rights.”
Buttressing the White House’s position is a recent op-ed by Harvard law professor emeritus Alan Dershowitz. He notes that at the 1787 Constitutional Convention the Framers decided that impeachment should not operate as a British parliamentary “no confidence” vote:
The Framers wanted an independent president who could be removed only for genuine wrongdoing. So they agreed to the criteria that became part of the Constitution: “treason, bribery, or other high crimes and misdemeanors.”
In Federalist No. 65, Alexander Hamilton elaborated on the meaning of “high” crimes: “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.”
Hamilton didn’t say the process of impeachment is entirely political. He said the offense has to be political. He continued: “The prosecution of [such offenses] 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 greater danger, that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
In sum, writes Dershowitz:
The Framers, by rejecting open-ended criteria such as “maladministration” and substituting more specific and criminal-like criteria, sent a message to future generations: Impeachment should not be a political measure governed by “the comparative strength of parties.” It should be based on “the real demonstration of innocence or guilt” of “the accused.”
A “real” demonstration of guilt, needless to say, cannot be produced via the procedural abuses currently planned by Democrats.
Dershowitz’s view was echoed by the late Harvard law professor Raoul Berger, whose magisterial 1973 book, Impeachment: The Constitutional Problems, provided the underpinning for the Nixon impeachment inquiry in 1974.
Berger also emphatically made a point about presidential entitlement to disobey an unconstitutional law. He cites Alexander Hamilton in Federalist 78, for affirming the “clear” principle that “every act of a delegated authority, contrary to the tenor of the commission, under which it is exercised, is void.” To that Berger adds what James Wilson, one of the leading Framers of 1787 and one of the original justices of the U.S. Supreme Court, stated in 1791: “[W]hoever would be obliged to obey a constitutional law, is justified in refusing to obey an unconstitutional act of the legislature.”
Finally, Berger cites an opinion authored by America’s sixth Supreme Court chief justice, Salmon P. Chase, whose tenure (1864–73) encompassed the 1868 presidential impeachment and trial of Andrew Johnson (with the chief justice presiding over the Senate trial):
Nothing is clearer in my mind than that acts of Congress, not warranted by the Constitution, are not laws.… [W]here a law passed by Congress “directly attacks and impairs the executive power … [it is] the clear duty of the president to disregard the law.… How can the president fulfill his oath to preserve, protect and defend the Constitution, if he has no right to defend it, against an act of Congress, sincerely believed by him to have been passed in violation of it?
Thus, Donald Trump’s refusal to participate in the seditious charade to be conducted by the House is not only lawful; it is in the view of the above authorities a positive presidential obligation to refuse to obey any act by Congress (in this case, the House impeachment cabal) that he considers unconstitutional.
This is especially true when for the three presidential impeachment inquiries — into the conduct of presidents Johnson, Nixon, and Clinton — all were authorized by a formal floor vote of the entire House of Representatives. The Constitution provides that the House “shall have the sole power of impeachment” (Art. I, sec. 2, cl. 5), and the Senate “shall have the sole power to try all impeachments” (Art. I, sec.3, cl. 6). The speaker of the House is one of 435 members of the House; even adding her co-conspirators in due process violations, combined they are a small subset of the entire House; Article I refers to “the House” — not any subset of same — being tasked with voting; of course, on voting day some members may be absent, but all have the right to vote should they wish to do so. Likely they all would do so on what would be an historic, fateful, hugely consequential vote.
Bottom line: No vote taken by the members of only four House committees in what Speaker Pelosi has called an “official” impeachment inquiry can be constitutionally valid. Any “official” impeachment inquiry must be authorized by a full floor vote. The federal courts presumably will agree on this, given the plain, unambiguous language of the Constitution plus the blatant kangaroo-court procedure the Democrats have proposed to pursue. If the lower federal courts falter, almost certainly even this often divided Supreme Court will strike down the proposed farce. There is a good chance that on the current facts the Supremes would rule unanimously. Should they uphold this travesty it will inflict irreparable harm on the reputation of the Supremes for judicial fidelity to the Constitution.
Or perhaps the Democrats will find a way around such procedural niceties? Perhaps Pelosi & Co. plan to put President Trump on Animal House “double-secret probation” (2:16). Perhaps the Framers added a hitherto unknown codicil (legalese for an addendum to a legal document — usually, a last will and testament) to their 1787 masterpiece. Perhaps it confers upon the speaker of the House what was in a codicil to the constitution of the fictional Faber College, giving the Dean “unlimited power to preserve order in case of campus emergency.” Or perhaps eventually, facts and law, based upon credible evidence and reason, will ultimately prevail.
Or perhaps, once again, the Germans will bomb Pearl Harbor.
John C. Wohlstetter is author of Sleepwalking With the Bomb (Second Edition 2014).