October 10, 2019
We now move into uncharted territory, with a president claiming that impeachment proceedings – one of the things spelled out more explicitly than most in the US Constitution – are “unconstitutional.” Unconstitutional mainly, and for lack of any better cogent explanation, because they are being brought against him and not someone else.
Pundits now speak of the “oversight” function of Congress, turning a strongly worded Power into a weakly understood function. Some commentators talk of “coequal” (how does that differ from “equal” except to diminish it? Equal already carries its own symmetric properties) branches of government, implying that Congress might be on a par with the executive branch.
A review of some basics:
It is clear from the Constitution that Congress was intended to be the most equal branch, the highest and ultimate law of the land. The Constitution created Congress first. It gives Congress the right to remove the President. It does not give the President the right to remove Congress. It requires the President from time to time to report to Congress; and not the other way around. It thereby establishes a clear pecking order.
Congress was also given a little fiefdom called the District of Columbia, known more popularly as Washington, D.C. , over which Congress has exclusive jurisdiction.
In an era of increasingly imperial views of the Presidency, the attitude of the Executive toward the Legislative branch has been more and more dismissive – “go legislate” – implying that all action is entirely the purview of the former and that they can effectively ignore the latter, even its subpoenas. How would Congress enforce its will? Would it send its Sergeant at Arms to Pennsylvania Avenue, as some have snidely suggested?
No, it wouldn’t need to. It could send the Metro Police, who, ultimately, work for Congress. The White House might then move camp to Escondito, or some other town not established as the Capital of the United States. Good luck to y’all. Warrants will be issued to wherever that might end up being.
Degraded to personal lawyers, the President’s Roy Cohn if you will, the Justice Department, having opined that a sitting president cannot even be indicted, has now raised the Barr to cannot even be investigated. So great are his powers as the Chosen One. Possessed of Great and Unmatched Wisdom. And more than a little madness.
The President can be arrested. Right? I mean, if he had actually, as he once boasted, shot someone in the middle of Fifth Avenue, he would be arrested. Right? Probably found cowering in Trump Tower like Saruman under attack by the Ents. The people who would arrest him would be the NYPD, since that is their job when crimes occur in that city.
The President can be arrested. Right? If someone were stabbed on Pennsylvania Avenue and a blood trail led to the Oval Office, where the President was sitting, cackling, knife in hand, he would be arrested. Right? The people who would arrest him would be the DC Metro Police. Because that is their job in that city which, as noted, also happens to be run by Congress, not the Executive, as a founding principle. The Secret Service would be unwise to risk a shootout under the circumstances.
The Constitution is clear about the process of Impeachment, which it refers to as a “Power” with a capital P, not as an “oversight function.” Article I, Section 2, Paragraph 5, gives the House the sole Power of Impeachment. Article I, Section 3, Paragraph 6, gives the Senate the sole Power to try all Impeachments. And by “all” they didn’t mean just Presidents (more on this below). The Constitution gives Congress broad housekeeping power to remove criminals from the Executive branch.
The large amount of space devoted in the Constitution to impeachment suggests that its writers anticipated the process might be used often – not unwise in an early republic where candidates emerged from the wild and woolly frontier with God knows what kind of baggage in tow. The presence of the Chief Justice is in place to ensure that the process not become overly political, or a beauty contest, when impeaching the President, the most solemn case. And all cases require a two-thirds majority. But, we reiterate, it was anticipated that the unfit could be fairly routinely removed. Although it is unclear whether the Oval Office is now occupied by the Unfit or by the Incubus, it certainly appears to be one, the other, or both. The best we can hope for is just manifestly Unfit. Any employer would have long ago called the Unfit into his office and said “Don, this is just not working out. You’re not who you said you were on your application.” In the Constitution, the country’s by-laws, that little conversation falls under the heading of Impeachment.
Article I, Section 3, Paragraph 7 makes clear that Impeachment speaks only to removal from office, no more or less, and that the impeached is still subject to all the laws of the land (“…the Party convicted shall nevertheless be liable to Indictment, Trial, Judgement and Punishment, according to law.”) One could, I suppose, for the sake of argument, take the position that the use of the (sort of) past tense “convicted” (which is in this case a noun, not a verb) implies a certain order of events. No debater steeped in any logic would chose to defend that position. As noted, a noun, “the convicted” refers to the one removed from office, but that isn’t, from the language itself, necessarily exclusive to impeachment, or a required precedent. The Framers were, if nothing else, good with words. If they had meant “only after conviction shall the Party convicted be liable…” or, perhaps, “upon Conviction by the Senate the Party shall be liable…”, they could very easily have done so. But they didn’t say that; so they didn’t mean that. A better explanation is that they meant impeachment and removal from office, should it come first, is not a basis for a double jeopardy defense.
A good place to have said the above would have been Article II , Section 4 where it is made clear that impeachment is not just for the President, but also for “…the Vice President and all civil officers of the United States…” Would those who claim absolute immunity for the President, except after impeachment and removal, also claim it for all civil officers of the United States? Have any civil officers been found guilty of anything but not impeached before it? I suspect they have.
So, it is clear that impeachment is not reserved for the President. “…And no Person shall be convicted without the concurrence of two thirds of the members present.” The only distinction the Constitution seems to draw between impeachment of the President, which would of course be the most momentous, and other civil officers is that the former gets the benefit of having the Chief Justice preside. (Article I, Section 3, Paragraph 7). This would have been another good place for the Framers to define further procedural items which applied to the special case of the President, if it were indeed a special case. But they declined to do so. The President is to be treated essentially like anybody else.
But the above begs the obvious question. How would the House know that high crimes and misdemeanors had been committed if the laws of the land had not already been brought to bear on the issue. The current administration now insists that a sitting president cannot even be investigated. Even by Congress! Wouldn’t want to have to play that hand. (Note to the file and the DOJ: is there any other kind of president that matters? I mean other than sitting? Drop the unnecessary modifier. Removal from office isn’t that vital an issue for people not in office. Piling on adjectives only shows that you find your own argument thin and want to use goo to thicken it).
No, the above would fly in the face of the concept of a Citizen President, so central to the country’s founding and reinforced by the First President when he asked to be called “Mister” President, not Excellency, or Your Majesty.
But beyond that, the Impeachment process implies that the high crimes and misdemeanors before the House for its consideration are already in some way manifest, obvious. Surely Congress should remove a president from office who was in jail, or standing trial somewhere outside Washington. How could he do his job?
MOE
M.I.C.H. – Modernity, Intelligence, Complexity, Humanity