Sunday, May 6, 2018

Impeachment Properly Understood

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Impeachment Properly Understood
P. Schultz

            Below is a link to an article considering, among other things, the impeachment process embedded in our constitution. And it is illuminating, at least up to a point. But the article contains one rather important inaccuracy, concerning what kinds of presidential acts are impeachable. The article claims:

“From this point of view, it seems most persuasive that prosecutors should be able to charge a sitting president with ordinary crimes. Insofar as it restricted impeachment to “high crimes,” the Constitution did not directly address a circumstance like this one.”

            The error here is the claim that presidential impeachment is “restricted . . . to ‘high crimes’.” Presidential impeachments include but are not limited to “high crimes and misdemeanors,” which is an error commonly made. This error is related to another, more important error, viz., that impeachment is about removal from office and only about removal from office. Rather, as the early history of impeachments illustrates, impeachment is a means of holding office holders accountable for their actions and accountability need not dictate removal from office. The Constitution should be read as saying that, only in cases of high crimes and misdemeanors, may a president be removed from office. For other instances of abuse or misuse of power, presidents may be held accountable via impeachment without necessarily being removed from office. They may be punished or dealt with in other ways, such as fines or censure. [Andrew Jackson was censured by the Senate and he argued not that this could not be done but that it could only be done via the impeachment process. Jackson was correct.]

            So, for example, in the case of Bill Clinton’s impeachment and trial, he could have been held accountable for his behavior, censured by the Senate and, perhaps, be required to apologize to the American people for his behavior, without being removed from office. And, of course, this would have made more sense than thinking that Clinton’s actions constituted “high crimes and misdemeanors,” when clearly they did not. To say that “obstruction of justice” is always a “high crime and misdemeanor” is unconvincing, especially when the obstruction was not in the service of hiding a political abuse of power, such as undermining the Constitution via illegal actions like funding a war against congressional wishes or conducting secret bombings of a country the nation is not at war with.

            To me, while I don’t support impeaching Trump, this is not to say that he could not be, constitutionally, impeached, tried, and held accountable for his behavior without being removed from office. As Gerry Ford said a long time ago, it is up to the Congress to decide what is an impeachable offense and whether the alleged offense or offenses constitute “high crimes and misdemeanors.” The men who wrote the Constitution knew that they were creating a dangerous office when they created the presidency and, via the impeachment process, tried to adopt a way of holding its occupants accountable as well as making them removable. We would do well to follow their constitutional procedures.