This Impeachment Subverts the Constitution
By: David B. Rivkin Jr., Elizabeth Price Foley
This article is right on. It points out why we must resist in the House and fight this effort everywhere to subvert the constitution of the United States of America and the separation of powers. The arguments below are correct and iron clad.
S E E D E D C O N T E N T
Speaker Nancy Pelosi has directed committees investigating President Trump to “proceed under that umbrella of impeachment inquiry,” but the House has never authorized such an inquiry. Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense. Lawmakers and commentators have suggested various possibilities, but none amount to an impeachable offense. The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.
The impeachment power is quasi-judicial and differs fundamentally from Congress’s legislative authority. The Constitution assigns “the sole power of impeachment” to the House—the full chamber, which acts by majority vote, not by a press conference called by the Speaker. Once the House begins an impeachment inquiry, it may refer the matter to a committee to gather evidence with the aid of subpoenas. Such a process ensures the House’s political accountability, which is the key check on the use of impeachment power.
The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.
Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.
Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. The executive is also a coequal branch of government. Thus any attempt to remove the president by impeachment creates unique risks to democracy not present in any other impeachment context. Adhering to constitutional text, tradition and basic procedural guarantees of fairness is critical. These processes are indispensable bulwarks against abuse of the impeachment power, designed to preserve the separation of powers by preventing Congress from improperly removing an elected president.
House Democrats have discarded the Constitution, tradition and basic fairness merely because they hate Mr. Trump. Because the House has not properly begun impeachment proceedings, the president has no obligation to cooperate. The courts also should not enforce any purportedly impeachment-related document requests from the House. (A federal district judge held Friday that the Judiciary Committee is engaged in an impeachment inquiry and therefore must see grand-jury materials from special counsel Robert Mueller’s investigation, but that ruling will likely be overturned on appeal.) And the House cannot cure this problem simply by voting on articles of impeachment at the end of a flawed process.
The Senate’s power—and obligation—to “try all impeachments” presupposes that the House has followed a proper impeachment process and that it has assembled a reliable evidentiary basis to support its accusations. The House has conspicuously failed to do so. Fifty Republican senators have endorsed a resolution sponsored by Judiciary Committee Chairman Lindsey Graham urging the House to “vote to open a formal impeachment inquiry and provide President Trump with fundamental constitutional protections” before proceeding further. If the House fails to heed this call immediately, the Senate would be fully justified in summarily rejecting articles produced by the Pelosi-Schiff inquiry on grounds that without a lawful impeachment in the House, it has no jurisdiction to proceed.
The effort has another problem: There is no evidence on the public record that Mr. Trump has committed an impeachable offense. The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” The Founders considered allowing impeachment on the broader grounds of “maladministration,” “neglect of duty” and “mal-practice,” but they rejected these reasons for fear of giving too much power to Congress. The phrase “high crimes and misdemeanors” includes abuses of power that do not constitute violations of criminal statutes. But its scope is limited.
Abuse of power encompasses two distinct types of behavior. First, the president can abuse his power by purporting to exercise authority not given to him by the Constitution or properly delegated by Congress—say, by imposing a new tax without congressional approval or establishing a presidential “court” to punish his opponents. Second, the president can abuse power by failing to carry out a constitutional duty—such as systematically refusing to enforce laws he disfavors. The president cannot legitimately be impeached for lawfully exercising his constitutional power.
Applying these standards to the behavior triggering current calls for impeachment, it is apparent that Mr. Trump has neither committed a crime nor abused his power. One theory is that by asking Ukrainian President Volodymyr Zelensky to investigate Kyiv’s involvement in the 2016 U.S. presidential election and potential corruption by Joe Biden and his son Hunter was unlawful “interference with an election.” There is no such crime in the federal criminal code (the same is true of “collusion”). Election-related offenses involve specific actions such as voting by aliens, fraudulent voting, buying votes and interfering with access to the polls. None of these apply here.
Nor would asking Ukraine to investigate a political rival violate campaign-finance laws, because receiving information from Ukraine did not constitute a prohibited foreign contribution. The Mueller report noted that no court has ever concluded that information is a “thing of value,” and the Justice Department has concluded that it is not. Such an interpretation would raise serious First Amendment concerns.
Equally untenable is the argument that Mr. Trump committed bribery. Federal bribery statutes require proof of a corrupt intent in the form of a quid pro quo—defined by the Supreme Court in U.S. v. Sun-Diamond Growers (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. Mr. Zelensky has said he felt no pressure, and the purported quid (military aid to Ukraine) was not contingent on the alleged quo (opening an investigation), because the former materialized within weeks, while the latter—not “something of value” in any case—never did.
More fundamentally, the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds. Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities.
Thomas Jefferson impounded funds appropriated for gunboat purchases, Dwight Eisenhower impounded funds for antiballistic-missile production, John F. Kennedy impounded money for the B-70 bomber, and Richard Nixon impounded billions for highways and urban programs. Congress attempted to curtail this power with the Impoundment Control Act of 1974, but it authorizes the president to defer spending until the expiration of the fiscal year or until budgetary authority lapses, neither of which had occurred in the Ukraine case.
Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it. Lyndon B. Johnson used the promise of financial aid to strong-arm the Philippines, Thailand and South Korea to send troops to Vietnam. The General Accounting Office (now called the Government Accountability Office) concluded that this constituted “quid pro quo assistance.” In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counterterrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.
Further, there is credible evidence that Ukraine interfered in the 2016 presidential election at the request of senior Obama administration officials. The Justice Department is investigating this as part of its broader inquiry—now a criminal investigation—into efforts to target the Trump campaign in 2016 and beyond. It is certainly legitimate for the president to ask Ukraine to cooperate.
In addition, the president’s constitutional duty to “take care that the laws be faithfully executed” implies broad discretion to investigate and prosecute crimes, even if they involve his political rivals. Investigating Americans or Ukrainians who might have violated domestic or foreign law—and seeking the assistance of other nations with such probes, pursuant to mutual legal-assistance treaties—cannot form a legitimate basis for impeachment of a president.
It’s legally irrelevant that a criminal investigation may be politically beneficial to the president. Virtually all exercises of constitutional discretion by a president affect his political interests. It would be absurd to suggest that a president’s pursuit of arms-control agreements, trade deals or climate treaties are impeachable offenses because they benefit the president or his party in an upcoming election.
Using a private party such as Rudy Giuliani to carry out diplomatic missions is neither a crime nor an abuse of power. While the State Department’s mandarins have always lamented intrusions on their bureaucratic turf, numerous U.S. presidents have tapped people to conduct foreign-policy initiatives whose job—whether in the government or private sectors—did not include foreign-policy experience or responsibility. George Washington sent Chief Justice John Jay to negotiate the “Jay Treaty” with Britain. Woodrow Wilson used American journalist Lincoln Steffens and Swedish Communist Karl Kilbom as special envoys to negotiate diplomatic relations with the Soviet Union. A close Wilson friend, Edward House, held no office but effectively served as chief U.S. negotiator at the Paris Peace Conference after World War I.
Nor is it illegal or abusive to give a diplomatic assignment to a government official whose formal institutional responsibilities do not include foreign affairs, such as the energy secretary. JFK relied on Attorney General Robert F. Kennedy to negotiate with Moscow during the Cuban missile crisis.
Although the impeachment inquiry has been conducted in secret, what we know suggests it has become a free-ranging exploration of Mr. Trump’s foreign-policy substance and process, with the committees summoning numerous State Department witnesses. Congress could properly undertake such an inquiry using its oversight authority, but by claiming that it is proceeding with an impeachment inquiry, it has forfeited this option.
If the House impeaches Mr. Trump because it disapproves of a lawful exercise of his presidential authority, it will in effect have accused him of maladministration. The Framers rejected that amorphous concept because it would have allowed impeachment for mere political disagreements, rendering the president a ward of Congress and destroying the executive’s status as an independent, coequal branch of government. If the House impeaches on such grounds and the Senate concludes it has jurisdiction to conduct an impeachment trial, it should focus first and foremost not on the details of Mr. Trump’s foreign policy, but on the legal question of whether the conduct alleged is an impeachable offense.
Alexis de Tocqueville observed in 1835: “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.” What House Democrats are doing is not only unfair to Mr. Trump and a threat to all his successors. It is an attempt to overrule the constitutional process for selecting the president and thus subvert American democracy itself. For the sake of the Constitution, it must be decisively rejected. If Mr. Trump’s policies are unpopular or offensive, the remedy is up to the people, not Congress.
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There is plenty to criticize Trump for, but the Democrats and the media routinely go beyond honest criticism to scandalizing ordinary behavior. This Ukraine drama is just the latest example.
It sounds like you're say that the actions documented in the whistleblower complaint is ordinary behavior. What lead you to that conclusion?
Multiple precedents as outlined in this article. What leads you to believe it's not? Or that it warrants impeachment?
The 'precedents' you cite are all based on goals to benefit the US, NOT the POTUS. So they aren't precedents for Trump's withholding either a WH meeting or military aid for his own PERSONAL benefit.
The examples in the article that prove that the other POTUS used quid pro quo for the benefit of the country, NOT themselves.
See above.
Your objection is addressed in the article.
No it doesn't because that statement utterly ignores the FACT that Trump withheld a WH meeting and military aid to motivate that investigation.
It doesn't what? And what is "it?"
Withheld from whom and why is that important to the point being discussed?
How is that relevant to the observation that "Virtually all exercises of constitutional discretion by a president affect his political interests?"
Obtuse.
And this, like most of your comments here is trollish and non-responsive.
And like most of your arguments with me, you invariably get personal.
If you think my comment is 'trollish', rather than whining about it, flag it.
Coming from you that's hilarious.
There doesn't have to be.
Trump will likely be charged, convicted and serve time in prison once he is out of office.
The Congress shall have Power... To constitute Tribunals inferior to the supreme Court
Article 1, Section 8
What's subversive about that?
So when the Republicans do it to the next Democratic President for what the hell ever, since the Dems are impeaching for purely political reasons, you will be fine with it?
This part of your comment is pure bullshit. There is a solid case against Trump and if Obama had been caught doing this kind of shit there is zero doubt in my mind that Republicans would have been moving to impeach.
Trump has already admitted his crimes.
Republicans Enabled The Impeachment Process They're Now Criticizing
They don't want to hear it lady.
I doubt they'll even read it.
I know...really sad
More bullshit. Did the Republicans ever call their investigations impeachment inquiries? Just once. We will all wait for the moronic answer, because that is all the left has.
The House of Representative can put forward articles of impeachment without any investigation. The Constitution does not require investigation prior to deliberation on articles of impeachment. The House has not started the Constitutional procedure for impeachment because there has been no deliberation on articles of impeachment. And part of that deliberation would include an investigative process to answer questions and objections by members of the House. The impeachment process begins with House deliberation on articles of impeachment.
What is happening is a political abuse of Constitutional authority for legislative oversight. The abuse of investigative authority is where the Constitution is being subverted. That abuse consists of undermining the Constitutional authority of the executive branch. Joseph McCarthy's House Un-American Activities Committee was a high profile example of abuse of legislative authority for oversight and investigation that attempted to subvert the Constitutional separation between branches of government for solely political purposes.
But the biggest problem with Republican critiques is that Democrats in the House are following a playbook for investigations that was first written by Republicans in large part over the past several years.
Depositions held behind closed doors? That’s what happened with the congressional investigation into the 2012 attack on a U.S. diplomatic facility in Benghazi, Libya.
“Of the 50-some odd interviews we have done thus far, the vast majority of them have been private,” said Rep. Trey Gowdy, R-S.C., who chaired the House Select Committee on Benghazi, in 2015.
The Benghazi investigations were conducted under the Constitutional authority for legislative oversight. And the Benghazi investigations were conducted by a special committee (House Select Committee on Events Surrounding the 2012 Terrorist Attack in Benghazi) established with a floor vote by members of the House. The vote to establish the select committee was bipartisan.
Whatever process the Democrats are following, the Democrats are not following the process used by Republicans to investigate Benghazi.
Actually they are since the rules that allowed the Benghazi 'process' are the same that govern the Committees of jurisdiction.
Again, more bullshit. When were those investigations tied to impeachment? The article won't even make that claim; because it doesn't exist.
Then you should be able to provide the vote by the House for the special committee by Pelosi and the Democrats. There was no vote, period.
The committees and their jurisdictions are established by the legislative body through deliberation and a vote. The 'process' is not law; the separate legislative chambers cannot impose rules on each other and cannot impose rules on succeeding Congresses. That's why those abusing the legislative authority for oversight have been citing precedent.
The legislative branch has the authority to enact laws but does not have the authority to enforce laws. Grand juries, criminal indictments, and criminal prosecutions are within the jurisdiction of the executive branch. Senate and House committees do not have any authority to criminally prosecute anyone, including the President. That's why a Special Counsel, such as Robert Mueller, can only be authorized and established by the Dept. of Justice; criminal investigation is within the jurisdiction of the executive and not the legislative.
Impeachment is a civil proceeding and not a criminal proceeding. The legislature does not have the authority to criminally prosecute anyone (that's the jurisdiction of the executive) and the legislature does not have the authority to criminally convict and punish anyone (that's the jurisdiction of the judiciary).
The separation between branches of government is that the legislative enacts the laws, the executive enforces the laws, and the judiciary convicts and punishes violation of the laws.
The House committees are attempting to engage in criminal investigation, prosecution, and punishment. That is outside the jurisdiction and Constitutional authority of the legislature.
No vote is required. There is no 'special committee'.
That makes absolutely NO sense.
That statement is utter bullshit. Well done.
Perhaps. But that is reality. The current House controlled by Democrats isn't the first to abuse authority for legislative oversight.
The Constitutional process for impeachment begins with House deliberations on articles of impeachment and a vote by the members of the House to put forward articles of impeachment. The Constitutional process for impeachment has not even started yet.
House investigations into obstruction of justice makes NO sense because that is outside the legislature's authority. The House engaging in criminal investigations subverts the Constitutional separation between branches of government.
How are they abusing the authority for legislative oversight? Be specific.
Per the Constitution, the process begins whenever the fuck the House says it does.
Seriously, read a history book. Multiple laws were enacted after Watergate to ensure that Nixon's obstruction of justice and abuse of power couldn't happen again. Hopefully, we'll do the same after Trump is gone.
What utter bullshit. Seriously, are you claiming that if the Congress uncovers crimes they should just stay mum? That would mean that neither Clinton or Nixon could be investigated for perjury. How's that work for you?
The legislative authority for oversight is being abused by conducting criminal investigations. Congress does not have Constitutional authority to conduct criminal investigations.
Per the Constitution, the process begins with articles of impeachment. No committee can begin the process of impeachment without a vote by members of the House. Investigation is not a requirement for articles of impeachment; the committees are citing precedence but are not citing the Constitution.
And Congress does not have Constitutional authority to enforce any of the laws enacted by Congress.
It isn't the job of Congress to perform the function of a special counsel or prosecutor to uncover crimes; that's the job of the executive branch.
Congress could not indict, prosecute, or convict Nixon or Clinton for perjury. Congress cannot indict, prosecute, or convict Trump for obstruction of justice.
Congress only has authority to remove a President from office; just as Congress has authority to remove members of the legislature and judiciary from office. Using legislative authority for oversight to conduct criminal investigations is an abuse of that Constitutional authority. If there is to be a criminal investigation, a special counsel must be appointed. And the investigations conducted by a special counsel are administered by the executive branch.
If the House committees believe sufficient evidence warrants a criminal investigation then a special counsel should be appointed to conduct that criminal investigation. Impeachment is not a criminal proceeding that results in conviction and punishment for crimes that have been committed. Impeachment is similar to civil proceedings involving breach of contract, gross negligence, or dereliction of duty. And the only punishment that can be imposed by impeachment proceedings is removal from office.
That is a clueless comment.
The Constitution Impeachment clause:
So WHERE does the evidence come from for those charges?
If a POTUS can't be indicted as the OLC claims, your scenario would mean that NO POTUS would be Impeached because without an indictment, the POTUS cannot be convicted of ANYTHING.
The ONLY avenue left then is a Congressional investigation of the POTUS for crimes he/she may have committed while in office. Anyone who would claim that the Constitution would give a sole mandate to Congress without also allowing them the tools they need to meet that mandate is clueless.
Cite the clause to support that BS. I won't hold my breath.
Thanks for the irrelevant information.
The Congress didn't uncover a crime, the whistleblower REPORTED one.
Oh and BTFW, the DOJ [Barr] took a pass, TWICE, on investigating the facts within the complaint.
So is it your posit that the Congress should just ignore criminality if the DOJ refuses to investigate?
We're talking about INVESTIGATIONS. Stay on topic and stop deflecting.
The topic of OUR discussion was INVESTIGATIONS. Do you have anything to add to the discussion?
Republican complaints about process is a non-starter. The rules adopted by prior Congresses does not apply to subsequent Congresses. The House of Representatives must adopt rules and procedures every two years; the rules of the preceding Congress only applied to that preceding Congress. Generally the rules of the preceding Congress are adopted by acclamation but that is not a requirement.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Article 1. Section 5.
They do if the current congress wishes to keep them.
That's what I said.
False.
False.
Again, false.
If you insist on repeating that BS, PROVE IT.
Something tells me they forgot that, "Three Co-Equal Branches of Government" thingy.
co equal? LOL not a chance.
try this instead.
there are 3 separate but equal branches of government.
separate as in: one branch of government does not have to put up with bs from another branch just because the left and a few neo-cons have TDS
As has been pointed out dozens of times, there are 46 republicans that are in the meetings as well. But good job repeating the talking points of trumps cockholster.
Thanks for agreeing with me.
Why don't you set about trying to prove that it's BS? The author actually explains why he holds the opinions he does. Perhaps you could show how he is wrong beyond simply calling it BS. That might actually make for interesting reading if you put in the effort.
The author stated the three comments that I block quote as FACT, not opinion. The seeder now insists that they're 'all true' and takes on the burden of proof too.
If you want some interesting reading try this.
That the secret impeachment process has been a disaster for Democrats has been obvious to anyone who doesn't simply parrot whatever the Maddow approved daily "talking point for far left partisan democrats" is. Hard to imagine so many on NT would stand up against transparency and a fair and open process when potentially removing a President, but bedrock principles don't really mean much to the unthinking, knee-jerk progressive crowd.
The Democratic leadsrship has realized they've taken a beating because of their star chamber tactics and that to keep proceeding as they have would destroy any chance of actually removing the President. They have announced they will formally vote for a more open process. Sucks for those who've spent a week defending the indefensible, all you did was make asses of yourselves. Even Pelosi has abandoned you for common sense.
And almost daily we have the specter of Adam Schiff running before camera's characterizing testimony. Today he even assumed what a witness who failed to appear would have said. More ominous and all but unnoticed was Schiff implying that he would hold those not appearing in contempt. He may actually be able to circumvent the issue from going to Court, which would be a travesty of justice.
Is that a Halloween reference?
What makes you think that Schiff will somehow be stifled from addressing the press and or characterizing testimony?
Link?
Link?
What issue would Schiff be circumventing?
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