With all the loose talk about impeachment in the media and elsewhere, I found the recent review of two expert opinions in the New York Review of Books to be quite illuminating. Allan Lichtman’s The Case for Impeachment makes the extreme case that the president can be impeached for just about anything. To quote Gerald Ford, “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” A very loose, and, I would argue, undemocratic and dangerous view indeed. The idea that Congress might be allowed to exceed the Constitutional strictures, as open to interpretation as they may be, is frightening. Feldman and Weisberg judiciously suggest that while even though the language may be broad to allow unfettered political justification for impeachment is wrong. Can a president be impeached and thrown out of office for offenses committed before taking office? And what kind of offenses?
Richard Nixon tried to manipulate the outcome of his election to a second term, but he was a sitting president while those offenses were committed and in any case his other actions constituted obstruction of justice. If Trump was indeed involved with the Russians in an attempt to sway the election in his favor, or at least against Clinton, he might be excused. But since then he has condemned himself numerous times in assorted tweets that are prima fascia attempts to thwart justice. Lichtman really goes off the rails when he suggests that Trump could be impeachment for his policy (or lack thereof) regarding global warming and climate change. Impeachment, as James Madison noted, should never be used to correct perceived “maladministration.” That vague term, if implemented, would result in a president serving at the pleasure of the Senate, not what the Framers intended I’m sure.
Article II, section 4 Treason, Bribery, and “high” crimes and Misdemeanors. “High,” the authors note, has an archaic meaning, that is, “when they relate to the president’s exercise of the distinctive duties of his office.” In other words, “presidential actions that contradict, undermine, and derogate democracy and the rule of law. They are actions that weaken the liberty and equality of individuals and the capacities of other branches of government.” Alexander Hamilton wrote in the Federalist #65 that impeachment was reserved for “offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.”
Treason has a well-defined meaning in the Constitution and can only take place during time of war, so one might ask, whether anyone’s actions in a conflict where Congress has not declared war could possibly ever be considered treason. But bribery is really tricky for Trump. If a foreign country wanted to influence the president into making a favorable foreign policy decision, and by staying in the Trump hotel Trump’s income goes way up, does that constitute a form of bribery? Or is it a violation of the emoluments clause when a foreign official stays at a Trump resort thereby increasing Trump’s personal income? (Membership fees at his properties have gone up considerably since he took office.) His lawyers claim they are just a business transaction but no such exemption or exception is mentioned anywhere in the Constitution. The reviewers cite several examples of interactions that could easily be considered quid pro quo. It’s the kind of corruption that is endemic to Italy, among others.
Two other concerns that could lead to impeachment are his subversion of the democratic process should it be found that he encouraged Russian interference in the election. The other is his challenge to the independence of the judiciary by questioning their independence, and we won’t even mention his comment that the role of Congress is to defend him!
Impeachment is a last resort process and no president has ever been removed from office because of it. These two books bring out a myriad of reasons and examples from several points of view and may become essential reading.
Books discussed in the NYRB article: The Case for Impeachment by Allan Lichtman and Impeachment: A Citizen’s Guide by Cass R. Sunstein Read the original long article in the September 28, 2017 issue.
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