- - Tuesday, December 2, 2014

The impeachment power of Congress designed to remove a tyrannical president is dead.

It must be revived promptly to prevent the nation from degenerating into de facto monarchy.

Both former House Speaker Nancy Pelosi, California Democrat, and incumbent John Boehner, Ohio Republican, have taken impeachment off the table for political reasons.

Congress has shied from impeachment in part because unschooled pundits have wrongfully likened it to a Latin American coup d’etat. To the contrary, impeachment is a civilized and careful process for removing a president who has proven an untrustworthy steward of our liberties.

Under the U.S. Constitution, a majority of the House must approve articles of impeachment for alleged “high crimes and misdemeanors” within the meaning of Article II, section 4 of the Constitution. If approval is forthcoming, an impeachment trial is held in the Senate presided over by the chief justice of the United States. House managers present evidence against the president, who has an opportunity to respond and to present a defense. A two-thirds Senate majority is necessary for conviction.



The sanction for an impeachable offense is not the guillotine. It is not imprisonment or a fine. It is not banishment to Siberia. It is nothing more than removal from office, like the firing of a chief executive officer in a Fortune 500 company.The case of President Richard M. Nixon is informative about the mildness of the impeachment remedy. He resigned on Aug. 9, 1974, after the House Judiciary Committee voted three articles of impeachment, and he had been informed by Sen. Barry Goldwater, Arizona Republican, Sen. Hugh Scott, Pennsylvania Republican, and Rep. John Rhodes, Arizona Republican, that he would be convicted in a Senate trial.

Nixon lived the remainder of his life as a respected elder statesman. At his funeral, tributes came from former Presidents Gerald Ford, Jimmy Carter, Ronald Reagan and George H.W. Bush, and then-President Bill Clinton proclaimed a national day of mourning five days later.

Further, Nixon’s resignation was not a political coup. Ford, the vice president at the time, succeeded to the Oval Office, and largely followed Nixon’s foreign and domestic policies, and granted him a full pardon for suspected crimes.

In other words, impeachment and removal of a president for high crimes and misdemeanors epitomizes moderation, not overkill. It should not be employed casually, but neither should it be shunned as if it were a nuclear bomb.
Reviving the impeachment power is made dicey by recent history and the imperatives of fair warning and evenhandedness.

Both Republican and Democratic presidents have committed impeachable offenses with impunity for decades. Among other things, they have usurped congressional war powers, killed or detained American citizens without due process, spied without court orders or warrants in criminal violation of the Foreign Intelligence Surveillance Act, and appended signing statements to duly enacted laws indistinguishable from unconstitutional absolute line-item vetoes.

This pattern of non-enforcement has created the reasonable expectation among presidents and their supporters that impeachment has become de facto a dead letter. Thus, any effort to invoke it against an incumbent would provoke cries of partisanship and deprive the process of legitimacy. It would carry the earmarks of selective prosecution with ulterior political motives.

In addition, the House has never attempted to define impeachable high crimes and misdemeanors to provide fair warning to presidents as to what misconduct will expose them to removal. Contrary to then-congressman Ford, an impeachable offense is not whatever the House of Representatives wants it to mean at a given moment in history. The Constitution’s architects did not want the president to serve at the whim of Congress. They rejected “neglect of duty” or “maladministration” in lieu of “high crimes and misdemeanors” as too broad. Impeachable offenses were intended as crimes against the Constitution that injured society itself.

To provide fair warning and to prevent selective prosecution, the House of Representatives should pass a resolution effective upon the inauguration of the next president in January 2017 that defines presidential crimes against the Constitution that will trigger articles of impeachment. The definition should include, but not be limited, to the following:

* Initiating war without express congressional authorization;

*Killing American citizens abroad who are not engaged in active hostilities against the United States on a battlefield or its equivalent without due process;

*Failing to superintend subordinates who guilty of chronic constitutional abuses;

*Spending monies that have not been appropriated by Congress for that purpose;

*Intentionally lying to Congress to obtain an authorization for war;

*Failing to take care that the laws be faithfully executed through signing statements or otherwise;

*Substituting executive agreements for treaties;

*Intentionally lying under oath to a federal judge or grand jury; and,

*Misusing federal agencies for partisan purposes.

A House resolution is urgent.

Impeachment is the only thing standing between a president and a monarch.

For more information about Bruce Fein, please visit Brucefeinlaw.

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