In my last column of this topic, I urged the President to sue the House of Representatives for malfeasance on the basis of two unconstitutional actions with regard to the recent articles of impeachment passed by the House:
1) denial of due process as protected by the Fifth and Fourteenth Amendments in a procedure which, if upheld by the US Senate, would inflict irreparable harm on the plaintiff by depriving him of his livelihood, reputation and public office, and
2) by re-defining the Constitutional designation of “high crimes and misdemeanors” as the sole rationale for impeachment to include
- a) allegations based on hearsay evidence which are too broad to be provable (“abuse of power”) and
- b) designation of the time-honored practice of Executive Privilege as “obstruction of justice”.
I have since been advised that, while these arguments may have merit, the Roberts Supreme Court has shown itself too timid to adjudicate balance of power issues if there is any other option available. In this case, such an option exists in the ambiguity of the constitutional language concerning impeachment. It is therefore unlikely to accept this case.
While I am still an advocate of testing the strategy above, it seems wise to state the case in a broader context. What follows is a case for changing the rules of impeachment – by whatever means. This case stands even if the current impeachment reaches and is resolved by the Senate. The rules must be changed for all future adventures of this kind.
- The impeachment actions of both 1999 (versus William Jefferson Clinton) and 2019 (versus Donald John Trump) have proven that both Republican and Democrat members of both Houses of Congress cast their votes primarily along party lines rather than on the merits of the case as envisioned by the Constitution.
- This fact can only be interpreted as leading to a change in the governmental structure of the United States of America from a republic to a parliamentary system, where the president serves at the pleasure of the Congress. The “will of the people” as currently implemented by the Electoral College – which follows the votes of respective states – will therefore become moot in the case where one party controls the presidency and the other the Congress. If the Congress does not agree with the President, they can impeach and convict him on any basis that is handy.
- If the president in such a case were so inclined, he might resist being removed from office by exercising his authority as Commander-in-Chief, declaring martial law and calling up the military to enforce it. Presto! The USA is now a banana republic whose government is beholden to the military and one inch away from dictatorship.
- The current rules for the impeachment process must change. Congress has again proven that it is not capable of providing a just and morally defensible procedure for impeaching a president.
- Justification: When the Constitution and the Bill of Rights were passed in the eighteenth century, none of the institutions which are now integral to our government even existed. The United States itself barely existed. There were no political parties, no Supreme Court, no Senate, no House of Representatives, and the President was the hero of the Revolutionary War, a soldier and farmer, not a politician. They had no earthly idea what an impeachment should look like.
- So, we need a new set of rules for the impeachment process. How do we get these new rules? The easiest way would be to have the Supreme Court rule AGAINST certain features of current practice – e.g. there must be proof of a crime, guilt must be established by the standard rules of evidence, disagreements about the exercise of Executive Privilege must be adjudicated by the Supreme Court (on an expedited basis), penalties for perjury must be enforced – in other words, the Clinton impeachment protocol could be established as standard.
- The other means are more complicated (e.g. a constitutional convention), less reliable (e.g. a new law passed by Congress and signed by the president), or more protracted (e.g. a Constitutional Amendment).
My concern is not to protect the current president. Rather, I am looking for a means to protect the nation from partisan usurpation of ultimate power, which this case portends if allowed to stand.
Partisanship has proven to be an effective means for limiting the power of one group or view of specific issues from dominating our government. It is not, however, a useful basis for taking over the government, and the last two impeachment cases have shown that partisan loyalty, not pursuit of justice, has governed the votes of the members of both Houses of Congress.
Our democratic elections are thus based on this very fragile foundation. A new set of rules has to be developed and adopted in order to preserve our democracy — whether by the Supreme Court, a Constitutional Convention, legislation, or a constitutional amendment. Otherwise, we could be witnessing the beginning of the end of checks and balances.
We cannot let this happen. But, if the current House impeachment process is allowed to stand as the prevailing precedent, our democratic elections are doomed to fall.