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Essays

House Speaker Nancy Pelosi’s Dilemma

U.S. Constitution, Article II, Section 4:  “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.”

 

In an interview with the Washington Post on March 11, 2019, House Speaker Nancy Pelosi said this about impeaching President Trump:

“Impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country. And he’s just not worth it.”

As to Speaker Pelosi’s requirement for something “compelling and overwhelming,” potential offenses are easy to identify. Some of these are violations of law and others could be considered “High Crimes and Misdemeanors,” and defined by Congress and some are yet to be proved.

Obstruction of Justice (not inclusive)

·       Attempting to derail Flynn investigation

·       Attempting to fire Mueller

·       Attempting to get AG Sessions to take over the Mueller investigation

·       Ordering Don McGahn to deny his attempt to fire Mueller

·       Attempting to influence the jury in Manafort trial

·       Threatening Michael Cohn to lie during his trial

Abuse of Power

·       Authorizing security clearances to unqualified persons

·       Shutting down the government without cause

·       Attempting to investigate and prosecute his political opponents

·      Intervened in a plan to relocate the F.B.I.’s Washington headquarters

           to protect his hotel

Incitement to Violence

·       Telling people at his rallies he would pay their legal fees if they

            engaged in violence against protesters.

 ·      Three protesters who claim they were roughed up by Trump supporters

             filed a federal suit against Trump for inciting violence.

 ·      Trump implied that police to be more violent in handling potential offenders

Making False Statements

·       Denying making payments to cover up extramarital affairs

·      Making more than 10,000 lies to date, including misrepresentations,

            false statements, and erroneous facts

Corruption in Office

·       Using his office to leverage his business transactions

·       Increasing prices at his golf clubs and hotels over fair market value

·      Failing to acknowledge federal intelligence agencies reporting the attempt by

           Russia to interfere with the presidential election.

·      Failing to launch an investigation into said interference

Violating Campaign Finance Laws

·       Using campaign funds to pay women involved in his extramarital affairs

·       Accepting contributions in violation of limits on amounts and sources

·       Using campaign funds for things unrelated to the campaign

 

Violating the Constitution’s prohibition against Foreign Domestic Emoluments

·       Accepting gifts and benefits from a foreign government

            without Congressional approval

·       Benefitting from foreign visitors staying at Trump hotels and golf clubs

·       Using position to minimize competition from other privately-owned facilities

Failure to “take care that the laws be faithfully executed”

·      Failing to produce papers and testimony as duly directed by Congress,

            including inquiries relating to his  taxes, business records, the Mueller

            investigation, and other matters

·      Instructing current and former White House staff and others to refuse

            Congressional subpoenas without  cause

·      Attempting to misuse his emergency powers to spend funds on a border wall

            that Congress did not appropriate.

Destruction of Evidence

·      Deleting relevant communications during the Mueller investigation using

            applications that feature encryption or that do not provide for long term

            retention of data or communication records

(Note that as of this writing, with the Mueller Report having been released, Trump is still involved in 16 other investigations, the findings of which may reveal more illegal activities thereby adding more impeachable offenses such as tax fraud, money laundering, and violating the law governing charities.)

It should be noted that more than 1,000 current and former federal prosecutors agree that they wouldn’t hesitate to indict any citizen for the ten instances of Obstruction of Justice mentioned in the Mueller report. (A policy of the Justice Department says a sitting president can’t be indicted.)

Since the nation’s founding, there have been 19 impeachments of federal officers. Of these, 15 were federal judges: 13 district court judges, one court of appeals judge, and one Supreme Court Associate Justice. Of the other four, two were Presidents, one was a Cabinet secretary, and one was a U.S. Senator. Of these 19, 11 were acquitted by the Senate and eight were convicted

Of the two presidents who were impeached, Andrew Johnson was charged with 11 articles of impeachment (https://www.nps.gov/anjo/learn/historyculture/the-articles-of-impeachment.htm) most of which dealt with post-Civil War Reconstruction. The Bill of Impeachment for President Clinton had only two articles — Perjury and Obstruction of justice. Both were tried in the Senate and acquitted. Although President Nixon resigned before he was impeached, there were three articles being considered: Obstruction of Justice, Abuse of power, and Contempt of Congress.

But perhaps most offensive of all is Trump being unfit for the job of president. To that point, Alexander Hamilton wrote in Federalist #68:

“The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.”

A majority of voters seem to agree that Trump is not exactly known to be “pre-eminent for ability and virtue.”  After all, the majority of us voted for Hilary Clinton in 2016. Furthermore, if you believe the polls, more than half of us have consistently disapproved of Trump’s performance in office.

The president’s unfitness for office is also underscored by what might be considered a moral hazard that he brings to American values such as:

·          Insulting our allies and lowering our standing in the world

·          Disrespecting the Constitution

·          Lacking empathy, compassion, and simple human decency

·          Attacking Freedom of the Press

·          Attacking Freedom of Religion

·          Declaring National Emergency when no such Emergency Existed

·          Shutting Down the Government that was not in the national interest

In addition to possible violations of federal law, Trump directed certain departments and agencies to violate International Humanitarian Law as well, especially the Convention Relating to the Status of Refugees (1951) of which the U.S. is a signatory. The convention provides, among other things that,

All possible measures must be taken to ensure that displaced civilians have satisfactory conditions of shelter, hygiene, health, safety and nutrition, and that members of the same family are not separated.”

As this is written, six children have died while in custody of the United States and there are unknown hundreds, if not thousands, of children separated from their parents.

Trump and those in charge of foreign affairs may also be at odds with some other treaties.

With respect to the current conflict with Iran and Venezuela, Trump has clearly violated the UN Charter, Article 2(4), which reads:

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Another consideration, one that will no doubt be highly charged, is the opinion of some in the psychiatric community that Trump has a psychotic narcissistic personality disorder (see DSM-5). This mental illness, combined with his behavior as an authoritarian who would believe a foreign dictator over the U.S. intelligence community, and replace highly qualified personnel with blatantly unqualified personnel, among other things, should be enough to keep him or anyone else with similar traits from being president. I’ve written about Trump’s mental illness in this blog a couple of years ago.

Before I begin to address some other concerns with regard to impeachment, I think it might be worthwhile to remember some thoughts by the acknowledged father of the Constitution, James Madison in Federalist #57:

“The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.”

It’s that last phrase that’s important here – taking the most effectual precautions to keep them (presidents) virtuous while they hold the public trust. And one of those “effectual precautions” is the ever-present cloud of impeachment hanging over a president’s performance while in office. (See “Respecting the Constitution” herein.)

As to Speaker Pelosi’s bipartisan issue, well, that’s just wishful thinking. The country is divided politically and it will no doubt stay that way for some time whether impeachment goes forward of not. If the Republicans oppose impeachment in the face of overwhelming evidence, then they will have broken their oath to support and defend the constitution and the rule of law. They will have implicitly condoned the president’s malfeasance. They will be saying, in effect, that they would be comfortable having an obviously indictable criminal as president.

And doing nothing until the 2020 election so voters can decide the president’s fate is a copout. I mean what would the Speaker do if Trump is reelected? Impeachment would foreclose that possibility. Passing the duty to act from the Congress to the voters is irresponsible and just flat wrong.

Pelosi should also consider the precedent she would set by refusing to act. Impeachment will send a loud and clear message to all those in the future who will sit in the Oval Office – that the president, any president, cannot pervert the power of the Presidency to avoid accountability and responsibility or break the law. We as a nation must not allow such behavior to continue unabated.

In an article in the March 2019, issue of the Atlantic, “Impeach Donald Trump,” there is a pertinent quote from the House Judiciary Committee during the 1974 Watergate investigation:

“The purpose of impeachment is not personal punishment; rather, its function is primarily to maintain constitutional government.’  Impeachable offenses, it found, included “undermining the integrity of the office, disregard of constitutional duties and oath of office, arrogation of power, abuse of the governmental process, adverse impact on the system of government.”

The real constitutional crisis, then, is to not impeach President Trump. That would clearly be a failure of the proper functioning of one of the oldest republics in the world.

There is no Constitutional crisis. In fact, the Constitution gives us a remedy for this exact situation. The crisis is in Congress and the oval office. To borrow from John Dean, they would allow a cancer on the presidency to metastasize and affect our trust of every future president.

So, Madame Speaker, having addressed your concerns, impeachment is surely in order. The evidence of High Crimes and Misdemeanors is overwhelming. We the people deserve it. And the constitution demands it.

 

This a revised and expanded version of the author’s Op-Ed in the Joplin Globe on May 20th, 2019.

 

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