Three points need to be made with respect to the ongoing impeachment saga; constitutionality, precedent and high crimes.
The Constitution assigns “the sole power” of impeachment to the House of Representatives. That is, going forward from a majority vote of the whole House, not from a press conference by the Speaker. It is that simple. The full House vote is a key constitutional check, provided by the framers on the impeachment power. Constitutionality gets an “F” from the get-go.
Second point, precedent: 1868 impeachment of Andrew Johnson, House vote 126-47. Richard Nixon, House vote, 410-4. Bill Clinton, 258-176. Following the full House vote, a committee is then designated to gather evidence.
Representative Schiff, Chairman of the Judiciary Committee has the investigative lead. His process has been to conduct unclassified hearings in a closed, secure facility questioning witnesses in secret then selectively leaking information to the supportive media. House Republicans are being denied subpoena authority and access to full transcripts of the hearings.
In graphic contrast to the procedures being used today by Rep. Schiff, during the Nixon impeachment, as explained recently by Robert Doar, the Democrat Chairman of the Judiciary Committee, Rep. Peter Rodino, assembled a unified staff. The Republicans were granted joint subpoena authorization. President Nixon’s counsel attended depositions, had access to all documentation and could cross examine witnesses and present his own witnesses. The American public was kept fully informed throughout. As Newt Gringrich recently explained, during the Clinton impeachment, the Republicans “adopted every single rule Rodino had used in 1973.”
Total disregard for procedural precedent also gets an “F”.
Third, where are the “high crimes”? The president is accountable to the people and the Founders recognized the risks to democracy and the importance of protecting separation of powers by limiting Congressional powers to improperly remove a duly elected president. The Founders considered authorizing impeachment for “maladministration”, “neglect of duty” and “mal-practice”. In their seemingly infinite wisdom, the Founders rejected these issues as giving Congress too much power and the potential to turn impeachment into a political circus.
The current impeachment proceedings are centered on a single conversation President Trump had with Ukrainian President Zelensky. “The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it.”
Several points to be made about that conversation. One, federal bribery laws require proof of corrupt intent in the form of quid pro quo, defined by the Supreme Court in 1999 as a “specific intent to give or receive something of value in exchange for an official act”. There was no quid pro quo in the call; i.e. zero mention of the pending military aid. The alleged quid (military aid which was delivered within weeks) was not contingent on the alleged quo, opening an investigation. The quo was never “something of value” and furthermore never consummated.
The U.S. is the most benevolent nation in history. We routinely give about $50 billion a year in aid around the world. There are historical examples of most presidents asking for quid pro quo.
I have been in nearly every US State Department Embassy in the Pacific region. Quid pro quo is daily fare; it’s what they do, be it a license to do business, port access, military facilities, shutting down terrorists’ banking, it covers the gamut. U.S. congressmen know and understand all of this.
Finally, a point about Rudy Giuliani, the president’s personal attorney. Using a private person to carry out specific duties overseas is not a crime, not abuse of power, and has been done frequently throughout US history by multiple presidents.
So, on the third point, where are the high crimes, there aren’t any; another “F”.
I believe the above is a reasonably strong case that what is going on in Washington is not impeachment. So, what is it? In retrospect, we can now see a conscious, phased operation to prevent/overturn the 2016 Trump election.
Phase one was pre-election 2016 which could soon be enumerated as criminal proceedings.
Phase two: Within minutes of the inauguration the Washington Post published that the “campaign to impeach President Trump has begun” without any identifiable crime.
Representative Al Green’s first motion to impeach was introduced in the House of Representatives December 2017, again no crime.
Phase 3: Special Council Mueller’s exhaustive investigation of Russian collusion was to have been the coup de grace in 2019. No crime.
Phase 4: Emphasis has now shifted from removal from office to ensuring Trump will have to campaign for reelection next year as a non-convicted but at least an impeached President.
Much of what happens in government is predicated on precedent. The House abuse of power described above has the potential to set a precedent that will allow the congress to take down future administrations without just cause. And where does that leave us?
What follows is a quote from a blog by Mollie Hemmingway on 25 October. She is a very bright and insightful gal.
“What we are facing now is not partisan warfare, it’s not a mystery novel, it’s not politics-as-usual. We are facing an attempt to tear down the foundations of our republic by corrupt, unelected bureaucrats who have decided the will of voters is subordinate to their will to power. It represents a fatal threat to our system of government, and if this coup succeeds — whether through impeachment proceedings, or through an election that (if the last three years are any indication) the other side is clearly willing to steal by hook or by crook — the nation will cease to be a constitutional, democratic republic. This isn’t about Trump, or Republicans, or conservatives. It is about Washington needing to learn that political differences have to be settled at the ballot box lest they instead be settled with an undermining of our constitutional norms and institutions.”
Marv Covault