- - Saturday, May 20, 2017


Impeachment of the president has returned as a topic of conversation among the chattering class.

Precipitating events have included the firing of FBI Director James Comey; and, President Donald Trump’s alleged attempt to obstruct the FBI’s investigations of former National Security Adviser Michael Flynn and Russian collusion with the Trump campaign to influence the outcome of the 2016 presidential elections.

The following may serve as an impeachment vade mecum or reference manual to assist in understanding and appraising the unfolding events pivoting on President Trump, former Director Comey and the ongoing investigations of Special Prosecutor Robert Mueller and five congressional committees.

What is the purpose of a presidential impeachment and conviction resulting in removal from office? Impeachment is intended as a rule of law substitute for tyrannicide if the President can no longer be trusted with the stewardship of our liberties. The impeachment process is not criminal. The maximum sanction is removal from office and ineligibility to serve again in a position of trust or honor under the United States. A sitting president cannot be criminally prosecuted, unlike sitting members of Congress or federal judges, because it would shut down an entire branch of government indefinitely.

What are impeachable offenses? Article II, section 4 of the U.S. Constitution defines impeachable offenses as “treason, bribery, or other high crimes and misdemeanors.” Alexander Hamilton in Federalist 65 elaborated: “[They are] offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.” At the constitutional convention, maladministration was rejected as an impeachment standard, which was generally reserved for attempts to subvert the Constitution. Articles of impeachment for obstruction of justice were voted by the House Judiciary Committee against President Richard Nixon and by the full House against President William Jefferson Clinton. Nixon resigned in lieu of facing certain conviction in the Senate, and Mr. Clinton was acquitted by a 50-50 vote in the Senate on the obstruction of justice count. The impeachment concept of “high crimes and misdemeanors” is sharply and narrowly defined. The Constitution’s authors did not wish to have the outcome of a presidential reversed for light and transient causes. Representative Gerald Ford wrongly asserted in 1970, seeking the impeachment of Supreme Court Justice William O. Douglas, that “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Which presidents have been impeached? President Andrew Johnson was impeached by the House in 1868 but acquitted by one vote in the Senate. He was impeached substantially because he was reviled by the Radical Reconstruction Congress. One impeachment count pivoted on Johnson’s defiance of the Tenure of Office Act of 1867, which limited his authority to remove Cabinet officers without Senate consent. The statute was later held unconstitutional by the U.S. Supreme Court in Myers v. United States.

In 1974, three articles of impeachment were voted by the House Judiciary Committee controlled by Democrats against President Richard Nixon: obstruction of justice, abuse of powe, and defiance of a House subpoena.  Nixon resigned on August 8, 1974 to avoid the stigma of certain conviction and removal from office by the Senate.

In 1998, a Republican House of Representatives voted two articles of impeachment against President William Jefferson Clinton: perjury; and, obstruction of justice. He was acquitted of both counts by the Senate.

Articles of impeachment against the president have never been voted by the House when controlled by the same political party — i.e., impeachment is nine-tenths political and one-tenth legal.

How does the impeachment process work? The House of Representatives enjoys the “sole” power of impeachment. It exercises the power by simple majority vote. The Independent Counsel statute that directed IC Ken Starr to report to the House substantial and credible information that he determined might be impeachable offenses was an unconstitutional delegation by the House of its “sole” power of impeachment. Mr. Starr should have informed the House that it could seek evidence assembled by the grand jury through a motion under Rule 6 (e) of the Federal Rules of Criminal Procedure as was done in the impeachment proceedings involving President Nixon. There, a Watergate grand jury report was disclosed to the House Judiciary Committee in Haldeman v. Sirica.

If the House votes one or more articles of impeachment against the President, the case moves to the Senate for a trial presided over by the Chief Justice of the United States. The chief justice makes evidentiary rulings, subject to override by the Senate. House managers selected by the House prosecute the case before the full Senate. In Nixon v. United States (1993), the Court upheld use of a Senate panel to hear impeachment evidence as a predicate for a full Senate vote to remove a federal judge. A two-thirds majority of the Senators voting is necessary for conviction.

Is there convincing evidence at present that President Trump has committed the impeachable offense of obstruction of justice in the FBI investigations of Mr. Flynn or Trump campaign collusion with Russia? No.

The evidence to date largely consists of a putative memorandum of former FBI Director James Comey’s alleging Trump said regarding Flynn, “I hope you can let this go;” and, Trump’s explanation for firing Comey: “And in fact when I decided to just do it I said to myself, I said, “You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should’ve won.”

Decisions to drop criminal investigations to advance non-criminal justice goals are not obstructions of justice. On January 11, 1953, for instance, President Harry Truman ordered the termination of a grand jury investigation of possible antitrust violations by major oil companies for national security reasons. Prosecutors every day decide to drop investigations for extenuating circumstances pursuant to prosecutorial discretion—a cornerstone of Anglo-American jurisprudence for centuries.

Comey’s tardiness in indirectly disclosing Trump’s alleged remarks after his firing suggests he did not interpret them as alarming — i.e., an attempt to obstruct justice. Nothing President Trump has done has impeded the FBI’s investigation of Flynn or Russian collusion with the Trump campaign according to Acting FBI Director Arthur McCabe—including the firing of Comey himself. Trump has done nothing like President Nixon in the “Saturday Night Massacre” when he abolished the office of special prosecutor and sealed the files of the Watergate Special Prosecution Force.

On the other hand, the President, like Caesar’s wife, should be above suspicion. Trump’s erratic behavior and contradictory statements regarding Comey, Flynn, and his campaign’s collusion with Russia justify congressional investigations. President Trump himself should be summoned to testify to clear the air and enable the nation to move forward. The Nixon precedent established that presidential defiance of a subpoena bearing on impeachment is itself an impeachable offense. And President Gerald Ford volunteered to testify before a House Judiciary Committee in 1974 to dispel suspicions that he had made a corrupt bargain to pardon President Nixon in exchange for his resignation. President Trump should follow the Ford example.

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