(Photo courtesy of Times of Israel)
by Diane Rufino, February 9, 2020
For the past months, we have watched as President Donald J. Trump was impeached in the House by rabid partisan politicians, then tried in the Senate, and ultimately ACQUITTED. We have been utterly disgusted at the depths to which Democrats were willing to go to tarnish the name of this president, to somehow remove him from office, to undue the legitimate election of 2016, and at the very least, to smear his legacy and help derail his changes at re-election in November. We will never forget how the wicked witch of the House, Nancy Pelosi, said these words at the podium “He is impeached forever.”
Now we know that Trump’s popularity increased steadily and impressively during the entire process of impeachment and that his campaign took in record donations. We also now know that history will record Trump’s impeachment as nothing more than the desperate act of the most angry group of House Democrats in our country’s history. It was distinctly partisan, it was highly prejudicial to the Republicans and to Trump (they were all excluded from the testimony phase of the inquiry), and it was profoundly bitter and angry. History will record Rep. Adam Schiff as a conniving clown who fabricated charges, fabricated testimony, interpreted Trump’s conservation with Ukrainian president Volodymyr Zelensky using his own personal and political slant, and essentially fabricated the two articles of impeachment without any actual crime committed (not that it is absolutely necessary) and in the most ambiguous and undefined terms. It was truly a “Schiff Show.”
So let’s take a look at this most solemn and serious of government processes – Impeachment of a US President.
Impeachment is the process whereby we can attempt to remove a president of the United States, other civil officers, or federal judges because of some egregious conduct.
As we’ll see, the term egregious conduct is what is and MUST BE the standard and the basis to legally attack a sitting president of the United States, or the other officers and judges, and then to remove him (or her) from office. So rabid were the House Democrats in their quest to destroy President Trump that their articles included a provision that he not be eligible to hold any other official public office.
Article II, Section 4 of the US Constitution provides:
“The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
First, we must notice which class of government officials the Constitution reserves the process of “Impeachment” for. The provision specifically identifies “the President, Vice President, and all civil officers of the United States.” LectLaw defines “all civil officers of the United States” this way: “All officers of the United States who hold their appointments under the national government, whether their duties are executive or judicial, in the highest or the lowest departments of the government, with the exception of officers of the army and navy.” [See: https://www.lectlaw.com/def/c236.htm].
Clearly, members of Congress are not subject to the Impeachment process. Each house of Congress has its own set of rules to govern conduct, breach of conduct, and punishment.
Justia US Law explains even further what the drafters of the Constitution and our Founders envisioned with Impeachment:
“During the debate in the First Congress on the “removal” controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the government from his post, but Madison and others contended that this position was destructive of sound governmental practice, and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.” While the language of Section 4 covers any “civil officer” in the executive branch, and covers judges as well, it excludes military officers, and the precedent was early established that it does not apply to members of Congress. [See: https://law.justia.com/constitution/us/article-2/48-persons-subject-to-impeachment.html].
Also notice that the operative words in Article II, Section 4 are “shall be removed from office.” And that’s what it’s all about, right? It’s about removing such an officer (and here we are specifically referring to the President of the United States) because of some horrendous conduct that is so shocking and repulsive as to erode general confidence, on a bi-partisan basis, in his ability to continue as the Chief Executive of the United States.
The provisions in the Constitution, which as we shall see, are written in simple and plain language, and without any detail, were designed to mirror the process of removal that was followed in Great Britain in the 14th century. Alexander Hamilton explains this in his essay, Federalist No. 65.
The purpose of Impeachment, therefore, is not to shame the president, insult him, demean him, tarnish his name or his legacy, diminish his likability with the American people, or to erode his chances of re-election. And it most certainly isn’t the process to use to undue a legitimate and constitutional election – to reverse the decision of the American people and the Electoral College at the ballot box, the sacred venue of the people to exert their voice in government. The purpose is to address a most serious and egregious violation (criminal or otherwise – “treason, bribery, or other high crime or misdemeanor”) and remove him from office because of it.
Democrats, as always, ignore the Constitution.
The Constitution gives the US House of Representatives the sole power to impeach the president (that is, to bring charges against him) and it makes the Senate the sole body to try him on those impeachment charges. That is, the Senate alone has the power to convict or acquit the President on the charges.
So what is the “process” of Impeachment? Clearly, and expressly, it is a 2-step process that takes place in the most powerful branch to counter the Executive – the Legislative branch.
Article I, Section 2 of the Constitution provides: “The House of Representatives shall have the sole power of impeachment.”
Article I, Section 3 provides: “The Senate shall have the sole power to TRY all impeachments.”
This latter provision necessarily implies something extremely important – it implies that Due Process is required in the Senate “trial.” In other words, the President, like any other civil officer of the United States who has impeachment charges brought against him (or her), has the right to address the charges, the right to address those who brought the charges against him, and in general, the right of Due Process.
Due Process is one of the essential cornerstones of our American society. It passes down from the British system which hails a sordid history where kings abused the rights of their subjects and in fact, targeted their political opponents to silence them. “Due Process” guarantees that before depriving a citizen of life, liberty or property, government must follow fair procedures. Citizens are entitled to have the government observe or offer fair procedures to secure said rights of life, liberty, or property (or other rights offered to citizens). Action denying the process that is “due” would be unconstitutional. Here is an example we can all appreciate: Suppose, for example, state law recognizes the right of every student to exercise the tenets of their religion (as long as it doesn’t interfere with or burden the learning environment). Before the state could deny, for example, a student from wearing a cross or using a backpack that displays an image of the crucifixion, it would have to provide fair procedures, i.e. “due process.”
The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” And the Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law and provide fair procedures.
Regarding the recent impeachment of Donald Trump, he clearly had a right at stake. He campaigned for the office of the presidency (like no other candidate ever did, by the way) and he won. He was duly and constitutionally elected to the office by the American people and our Electoral College system.
In short, Trump had a right to the Presidency.
And House Democrats, out of hatred, political ambition, and extreme anger and desperate frustration, tried to deny him this right by passing two ridiculous Articles of Impeachment – (1) Abuse of Power, and (2) Obstruction of Congress.
According to the Impeachment process, according to the Constitution, the Senate was obligated to give President Trump his “day in court,” so to speak. And his legal team (including the esteemed attorneys Jay Sekulow, Pat Cippolone, Kenneth Starr, Alan Dershowitz, Pam Bondi, Pat Philbin, and Robert Ray) did an absolutey brilliant job.
I was lucky and honored to have been ale to sit in the Senate chambers to observe the proceedings. What an experience to observe such a historical event.
The Constitution doesn’t provide much detail or insight into what constitutes a “high crime or misdemeanor” sufficient to warrant removal from office, so we look to our nation’s history to see what past attempts at impeachment have taught us.
First, we should note that Impeachment was always intended as a process that was hardly ever to be used. It was to be reserved for the most egregious of behavior. Ken Starr addressed this in the remarks he delivered to the Senate. He explained that Impeachment was intended to be used, if ever, maybe every century. But something happened in the latter part of the 20th century to “weaponize” impeachment. He described it as “The Age of Impeachment.” It began, he explained, with Richard Nixon and the Watergate Scandal cover-up that he engaged so aggressively in.
President Richard Nixon was not impeached, as it turned out, but he was threatened with it. Congress was getting ready to bring articles of impeachment against him, including, of course, “Obstruction of Justice.” Nixon was convinced that too many representatives and senators, from both sides, were so disgusted and repulsed by how aggressively he obstructed justice during the Watergate investigation (obstructed the Starr investigation, as Independent Counsel), that they would have easily voted to impeach and then remove him. And so he decided to reign – to save face.
That would have been an actual and authentic exercise of the Impeachment process. Richard Nixon clearly used terrible judgement and used the full power of his office and the power of the federal government to cover up some illegality perpetrated by others (ultimately for his benefit in the upcoming presidential election).
Impeachment of a President has occurred in our nation’s history only three times – with Andrew Johnson (1868), Bill Clinton (1998), and Donald Trump (2019). None of them were removed from office, even though impeachment charges were brought against them by the House. Johnson came the closest to being impeached, and we’ll look more closely into how that happened.
First, let’s look at the impeachment of President Bill Clinton to see what it teaches us about the kinds of crimes that warrant removal from office. As mentioned earlier, Kenneth Starr, a brilliant and respected attorney, was appointed as the Special Counsel to investigate the charges that stemmed from Clinton’s sexual conduct (that is, misconduct) and especially from the sexual harassment lawsuit brought against him by Paula Jones, a former Arkansas state employee who was sexually assaulted by then Arkansas Governor Clinton. Ken Starr found eleven felony charges that Clinton was guilty of and, as he summed up in his famous Starr Report: “The President has pursued a strategy of (i) deceiving the American people and Congress in January 1998, (ii) delaying and impeding the criminal investigation for seven months, and (iii) deceiving the American people and Congress again in August 1998.” His repeated false statements to the American people about his relationship with Ms. Lewinsky “represents substantial and credible information that may constitute grounds for an impeachment.”
The House of Representatives took up Starr’s Report and compiled the felony charges into four Articles of Impeachment. The House only approved of two of them: (1) Lying Under Oath (“perjury”), and (2) Obstruction of Justice. The charges stemmed from the sexual harassment suit filed by Paula Jones, and specifically, arose out of Clinton’s testimony before a grand jury. The testimony addressed his harassment of Ms. Jones and his relationship with Ms. Monica Lewinsky. Clinton was impeached by the House by bi-partisan support: He was impeached on the “Perjury” charge (228-206) and on the “Obstruction of Justice” charge (221-212). His presidency was saved in the Senate. All 45 Democrats in the Senate voted “not guilty” on both charges, and were joined by Republicans as well. He was acquitted by the Senate.
I didn’t agree with the Senate’s vote regarding President Clinton’s conduct. I saw him perverting his obligation to the Office of the Presidency and subjugating it in order to hide his sexual misconduct and to hopefully continue it. I interpreted the results of the Senate’s vote either of two ways: (1) First, I assumed the Senators didn’t believe Clinton’s conduct – as bad and derelict as it was – was serious enough and of the type to warrant removing him from office. Sure, it was bad conduct… very bad. It evidenced a lifetime of poor judgement and sexual predation, but it was of a personal nature and the Senate should understand that and excuse it. I didn’t buy that. It was of a serial nature. He simply had no will power or any other power to decline his sexual urges, even when it touched on his work in the White House Oval Office. (2) Second, I assumed the Senators were simply voting along partisan lines, which clearly the Democrats did. As I mentioned above, none of the Senate Democrats voted to convict.
But Clinton did face some degree of justice. Being a notable attorney, a state Governor, a US president, a Rhodes scholar, he proved his skills were more adept at lying. He was immediately disbarred and his license to practice before the Supreme Court was taken away.
So, whether it was politically partisan or not, it appears that Democrats didn’t believe that conduct as willfully deceptive and sexually predacious as Clinton’s was of a nature sufficient to remove a president from office.
Next, let’s look to see where Impeachment was first used as a “weapon” for strictly political reasons. That would be the impeachment of President Andrew Johnson in 1686.
In 1864, Abraham Lincoln won re-election. He had run as the Republican Party’s first presidential candidate in 1860, but he was looking to expand his base in 1864. Adding Andrew Johnson to the ticket was just the way he would do so.
Johnson proved to be a sharp and independent thinker. This was most evident following the 1860 election of Abraham Lincoln when Southern states began to secede. While the secession convention met in Charleston, South Carolina in December 1869, Johnson addressed the Senate and proclaimed his allegiance to the Union. He was born in North Carolina to a poor family but when he was still young, he and his family moved to Tennessee. Johnson was a Democrat and didn’t necessarily see eye-to-eye with Lincoln.
Tennessee seceded in 1861, but Johnson decided to remain in Washington.. In March of 1862, President Lincoln rewarded Johnson’s loyalty with an appointment as military governor of Tennessee. When Lincoln sought a second presidential term in 1864 and needed the support of “Union Democrats” (as opposed to “Southern Democrats”), he chose Johnson as his running mate. He chose a Democrat as a running mate. Johnson became Vice-President on March 4, 1865, and just forty-two days later, after Lincoln was assassinated by John Wilkes Booth, he was sworn in as President of the United States.
At first things went well. It appeared, from the Radical Republicans, that President Johnson was a god-send. Relations between he and the Republicans was quite well. However, soon Johnson’s views on mending the Union and on Reconstruction became clear and they were not in line at all with the Republican plan. Johnson opposed political rights for freedmen and called for a lenient reconstruction policy, including pardoning former Confederate leaders. The president looked for every opportunity to block action by the Radical Republicans and freely used his veto power.. It became obvious that had no interest in compromise. When Johnson vetoed the Civil Rights Act of 1866 and then vetoed the Freedmen’s Bureau bill in February of 1866, he officially broke any final ties with his Republican opponents in Congress. They responded with the Fourteenth and Fifteenth Amendments to the Constitution, promising civil rights to freed slaves and then guaranteeing them the right to vote. In March of 1867 Radical Republicans also passed, over Johnson’s presidential veto, the Tenure of Office Act which was designed to limit the president’s ability to shape his cabinet by requiring that both appointments and dismissals be approved by the Senate. The bill was a clear unconstitutional exercise of legislative power – as violative of the Separation of Powers doctrine.
Johnson’s biggest point of contention was with a particularly nasty hold-over from Lincoln’s cabinet – Edwin Stanton, Secretary of War. Stanton was a bad guy – a very bad guy. He supported total war against the South, supported General Sherman’s devastating treatment of the southern states, supported his “scorched Earth policy (as Lincoln did), and supported his “March to the Sea” (an overt act of supremacy and over-kill). Stanton supported strong punishment of the former Confederate States and demanded total control of the those vanquished states. According to Stanton, they would not be permitted a seamless transition back into the Union.
When Johnson tried repeatedly to remove Stanton, Congress responded quickly by passing the Tenure of Office Act. Stanton, a Radical Republican, was critical to the Republican plan to re-make the Union after the Civil War.
By mid-1867, Johnson’s enemies in Congress were repeatedly promoting impeachment. Johnson would have to go. The precipitant event that resulted in a third and successful impeachment action was the firing Stanton. Stanton was not aligned with the President and persisted in opposing his Reconstruction policies. Johnson hoped to replace him with Ulysses S. Grant, whom Johnson believed to be more in line with his own political thinking. In August of 1867, while Congress was in recess, Johnson suspended Stanton and appointed Grant as secretary of war ad interim. When the Senate opposed Johnson’s actions and reinstated Stanton in the fall, Grant resigned, fearing punitive action and possible consequences for his own presidential ambitions. Furious with his congressional opponents, Johnson fired Stanton and informed Congress of this action, then named Major General Lorenzo Thomas, a long-time foe of Stanton, as interim secretary. Stanton promptly had Thomas arrested for illegally seizing his office.
Johnson believed the Tenure of Office Act to be unconstitutional [and Congress must have ultimately agreed. It repealed the law in 1887 and the US Supreme Court, while evaluating the constitutionality of a similar law in the case Myers v. United States (1926), stated that the Tenure of Office Act was likely unconstitutional] and so he didn’t take it seriously as a bar to him getting rid of the pesky Stanton.
And that’s all Congress needed to finally bring, in their minds, a solid case of impeachment against Johnson. In 1868, Congress brought eleven articles of impeachment against him, most of them stemming from his suspension of Stanton – his alleged violation of the Tenure of Office Act. Article 1 stated that Johnson ordered Stanton removed with the intent to violate the act. Articles 2, 3 and 8 alleged that the appointment of Thomas, to replace Stanton, without the advice and consent of the Senate was a further violation of the Constitution. And so their political assassination of Johnson proceeded.
In the Senate, the vote fell short by one. The votes of all Senators was carefully noted and it was clear that Johnson would have been convicted. But at the last minute, Senator Edmund Gibson Ross of Kansas, decided not to vote to convict but rather to acquit. And thus, Johnson was acquitted and allowed to remain in office by one vote. The reason given by those who voted to acquit was that they “could not agree to destroy the harmonious working of the Constitution for the sake of getting rid of an unacceptable President.”
In other words, to convict Johnson on the specious charges brought by the rabid Radical Republicans in the House would be to plunge the country in a constitutional crisis.
That was 1868.
History repeated itself these past two months. As it was done with Andrew Johnson, angry and desperate political opponents weaponized the impeachment option for purely partisan political purposes.
In our history, twenty government officials have been impeached – including the three presidents I mentioned. Eight of them have been found guilty and have been removed from office – ALL FEDERAL JUDGES.
“Civil Officer,” in Lectlaw. Referenced at: https://www.lectlaw.com/def/c236.htm
“Persons Subject to Impeachment,” in Justia US Law. Referenced at: https://law.justia.com/constitution/us/article-2/48-persons-subject-to-impeachment.html
“Due Process,” in Cornell Law School. Referenced at: https://www.law.cornell.edu/wex/due_process
The Starr Report (Full report submitted to the House of Representatives by Special Counsel Kenneth Starr on September 9, 1998 – https://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/srprintable.htm
The Impeachment of Andrew Johnson (1868),” United States Senate. Referenced at: https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Johnson.htm