Citizens Must Determine What Acts We Will Tolerate: Guest MINDSETTER™ Schoos
Tuesday, November 26, 2019
In his essays supporting the ratification of the Constitution, Alexander Hamilton, in discussing the process of impeachment related to the jurisdiction of the Impeachment “Court” (i.e. The Senate) wrote:
The subjects of its jurisdiction are 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 the nature which may with peculiar propriety be denominated POLITICAL as they relate chiefly to injuries done immediately to the society itself.
Federalist 65, March 8, 1788
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTThose who have been following the news know that over the past few months we have engaged in an impeachment inquiry. On November 21, the public hearings concluded and now it’s for the House Intelligence Committee to write its report of findings and refer it to House Judiciary to determine whether Articles of Impeachment be drafted and, if so, for what. And then it’s on to the full House for a vote. An affirmative vote on any or all Articles will trigger a trial in the Senate.
This is the structural process of impeachment as detailed in Article I, Sections two and three.
Let’s face it, for the second time in my lifetime (Nixon doesn’t count because he didn’t go the distance) and for the third time in our history we are headed for an impeachment trial of a president. The political passions and reaction thus far will be seen as minor as events unfold over the coming weeks and months. Hamilton, in the same Federalist #65, anticipated this when he wrote, “…
[T]he prosecution of them (the charges), for this reason, will seldom fail to agitate the passions of the whole community, and divide it into parties, more or less friendly or inimical to the accused. In many cases it will connect itself with pre-existing factions, and will inlist [sic] all their animosities, partialities, influence and interest on one side, or on the other; and in such cases there will always be the greatest danger, that the decision will be regulated more by the comparative strength of the parties than by the real demonstration of innocence or guilt.
Geez, it’s almost like he knows us!!!
Impeachment is a means by which the community, or nation if you will, can cleanse itself of corrupt acts committed by public officials. As indicated above, President #45 is now subject to impeachment in the House and trial by the Senate. In our hyper-partisan age, the battle lines are already drawn, with both sides seeming to be firmly dug in. That said, we’d all do well to remember the admonition of too long ago, “nobody’s right if everyone is wrong.”
Impeachment in our constitutional system was derived from the English common law. Article II details the grounds of impeachment to be for “treason, bribery, or other high crimes and misdemeanors.” The first two grounds are fairly obvious in that we have at least a rudimentary understanding of what treason and bribery mean. It’s the last two grounds that have people flummoxed. For example, what is a high crime as compared to an ordinary not so high crime? And does misdemeanor mean a public official can be charged, tried, and removed from office for jaywalking or littering?
To answer the first question, the grounds for impeachment do not have to be grounded in a criminal act. Indeed, it doesn’t require any violation of the criminal code. To the second question, public officials are safe to jaywalk and litter all they want, but politically in this age of the cell phone and social media, it wouldn’t be a good look.
I think it’s best to regard “other high crimes and misdemeanors” as a broad catch-all phrase, a very broad and non-specific catch-all. That said, it shouldn’t be taken that there needn’t be specific acts performed by the accused that violate the public trust.
For example, as discussed by Law Professor Raoul Berger in his 1973 book, Impeachment: The Constitutional Problems, in England a public official could be impeached and removed for misallocation of funds, abuse of official power, neglect of duty, and encroachment on the legislature’s prerogatives. Public officials were impeached for using their offices to obtain things of great value for themselves and their sovereign. One official was impeached for appointing his brother to manage government finances for the benefit of the official and the brother.
In the United States, impeachments have been brought against judges and presidents. The grounds for these impeachments included perjury, obstruction of justice, acceptance of a bribe, tax evasion, contempt of Congress, general corruption, and general abuse of power. Like all charges brought against defendants some resulted in conviction, other defendants were acquitted, and a fairly large number of defendants resigned when things got hot.
In short, these were not merely statutory crimes, they were political crimes as well. According to Madison’s Notes on the Constitutional Convention, although there were debates and divisions over the grounds of impeachment and the locus of an impeachment trial, one thing comes through. All were concerned with an out-of-control executive who would use his office for his own personal political benefit. Few had any problem with the grounds of treason and bribery as treason was defined within the body of the Constitution, and the concept of bribery was well known to all. The concern centered on other “crimes” and their enumeration. After much discussion and debate, Mason’s language of “other high crimes and misdemeanors” was adopted for inclusion in the final document.
And here lies the rub – what are other high crimes and misdemeanors? It’s clearly catch-all wording, but what does it catch? Obviously acts violating Constitutional provisions and statutory laws qualify, but in truth anything else is a political judgment based on an act deemed to damage the foundations of and faith in our democracy.
In the last analysis this is the “political” component of the process, not the partisan sideshow we’ve seen too long, but a defense against threats from within and outside our country. So here is one more thing the founders agreed on. Citizens, directly and through their representatives, must determine what acts we will tolerate and what acts we deem threatening to our democracy.
Make no mistake, this is one of the most serious undertakings in our democracy, one foreseen by the framers and provided for in the Constitution. This is a process that must not be taken lightly. We must demand sober and responsible discussion and debate. We must look at whatever evidence of wrongdoing that may be offered and try to objectively analyze this evidence. As John Adams once said, “Facts are stubborn things.” Facts are sometimes clear and can stand alone; other times they exist in context and can only be understood in that context. Context is important. A mosaic piece seen alone, while still factually a mosaic, is pretty meaningless. However, when it’s placed in context with the other mosaics pieces, a true and clear picture emerges. Beware of those who want you to focus solely on the one mosaic piece so that you miss the entire picture.
Doris Kerns Goodwin writes this in her book, Leadership in Turbulent Times. In an address to the Young Men’s Lyceum of Springfield (Ill), then state legislator Abraham Lincoln exhorted his audience, in what he saw as the turbulent society of his day where passions ruled and people resorted to violence and murder to promote or defend a particular ideology, to resort to the rule of law, the courts, and the Constitution. He reminded them that the framers built a constitutional government allowing people to govern themselves. He further warned that the chaos of his times could result in men, whose ambitions were divorced from the peoples,’ assuming high office and tearing down what the framers had built.
Lincoln closed then, as I do now, with a simple admonition. It was up to his, and our, generation to preserve what he called “this proud fabric of freedom.”
Geoffrey A. Schoos, Esq is the President of the Rhode Island Center for Law and Public Policy
Related Slideshow: Transcript of President Trump’s Call With Ukraine - September 25, 2019
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