IMPEACHMENT OF A PRESIDENT DOESN’T WORK AS THE FRAMERS INTENDED. HERE’s WHY

Framers

^^ the Framers misjudged the exportability of English impeachment method

Impeachment by the House of Representatives rests upon very few words : “…and shall have the sole power of impeachment.”

The duties given the Senate are much more spelled out :

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

The punishments are dire. The Framers intended they be dire. Yet as we have seen, when a President is to be impeached nd then tried in the Senate, the impeachment powers fall short. Few of the President’s political party will vote to impeach, and almost none will vote to convict.

Why so ? Why can a President who has committed impeachable offenses not readily be impeached and, if impeached, not convicted ? Three factors impede the process : importation, election, and religion

The Framers adopted impeachment from English parliamentary practice. In 1787, it was parliament’s way of ousting public officials who committed “high crimes and misdemeanors,” a phrase which our Framers defined as “breaches of public trust.” Unhappily, America’s Congress lacked the political substructure that underpinned Parliament. Parliament was elected, the king and his officials not. Parliamwent was the voice of religious localism; the king, of religion centralized.

The parliamentary party had, from about the 1590s to 1649, been powered by a Puritan, congregational religious movement strong in the English middle class, which had gradually come to dominate elections to both parliament and local parish ministries. Meanwhile, the unelected Sovereign had committed itself to a highly centralized church led by appointed bishops, and demanding its version of the Christain catechism.

In effect, England of the 1590-1649 period had two separate goverments, operating upon two entirely separate theories of power supported by two entirely distinct establishments.

Parliament during that era did not have an impeachment mechanism (although impeachments had occurred in parliaments before that period. All they had were attainder — loss of property — and bills of treason. Thus the parliament of 1640-1649 used, to King Charles’s discomfiture. Our Framers wanted, for good and just reasons, to not make conflict between Congress and President a matter of life and death. After all, both Congress and the President were to be elected, and neither Congress nor President represented a religion in a religious war. Thus the Constitution saw impeachment as the voice of the entire electorate — as Alexander Hamilton put it, “a national inquest.” It might well have worked .

Because there is no war of religion afoot, wedded to either Congress or President, Congress has no need for institutional solidarity, and no sense that it as an institution is a necessary, primary opposition to the President. Indeed, our Congress is elected by all the voters of a District, who may include a large number of Presidential adherents, or even a majority thereof, whereas — to reiterate — the English parliaments of 1590-1649 were elected almost entirely by the squire class of property holder who were the chief supporters of congregational religion and thus chief opponents of the Sovereign and his religious enforcers.

The framers were well aware of party faction and of its danger to the working of their republican system. I do not think, however, that the framers realized that their impeachment power was an historical anachronism lacking, here, the conflict conditions that gave it force in English practice. If we have learned anything from the two impeachments of President Trump, it is that the impeachment power in our Constitution does not conform to the imperatives of American politics.

England in the 1590-1649 period was beset by the war between Catholics and various Protestant sects, and of wars among Protestant sects, going on all over Europe at that time. By 1787, men had decided that religious war and a politics arising from it were well discarded. Unhappily, when granting the impeachment power, they did not see that politics without religion would have to rest on some other power foundation, oaths of office and personal principle not being sufficient. Hamilton’s “national inquest” can’t be assembled when the inquesters are divided by parties, to one of which the President belongs. We would all like oaths of office to be the only support that Congress members need when being asked to impeach a President. Yet it is not the case. The President and members of Congress are elected on the same ballot on the same day, and they are thus bound together.

In today’s America, the only foundational power upon which politics of impeachment can rest is the law. Which means legal punishments which, in our nation, are imposed by legal systems — the Courts. Add to this the power of public opinion, an unwritten movement and thus beyond the restrictions in a written Constitution.

It will have to be the Courts that decide the political fate of President Trump, and public opinion, which will decide not only his political fate and is doing so already: a power more drastic than what is written and which is more drastic and less civil than the framers intended a “national inquest” to be. It will be public opinion that ousts Mr. Trump from the respect and honor due honorable public men. It will not be pretty, and the ouster is more than richly deserved. Mr. Trump called for, organized, marshalled, planned, and led an insurrection against our democracy built upon lies and more likes. The nation, if not the Congress, will have its say unchecked by writings. And this is where we are.

—- Mike Freedberg / Here and Sphere

THERE MUST BE PUNISHMENT FOR THOSE WHO DID THIS

TRUMP

As I write, the House is debating an article of impeachment whereby the current President of the United States is charged with orchestrating and instigating an insurrection, a coup to overthrow our democracy and Constitution.

Impeachment will be voted, and conviction in the Senate looks likely as well as disqualification from holding future offices of our Federal republic.

Why the individual I write of instigated this coup, is for historians to speculate about. I really don’t care what his motives were. The deed was done. Now come the consequences f or those involved, all who assisted him in launching this insurrection.

That said, there are degrees of culpability. The punishment must be fitting and just, not driven by revenge, though the passion for revenge runs deep and not without good reason. The following are my recommendations:

For those members of Congress who, AFTER the insurrection ended, still objected to acceptance of the electoral votes duly certified by the States : censure by the House or Senate.

For all the insurrectionists themselves, including their organizations, criminal prosecution to the fullest extent of the law.

For the members of Congress — there appear to have been three — who, from inside the Capitol, aided and abetted the insurrectionists by tweet, text or other communication : expulsion from Congress and criminal prosecution where proven.

For Senators Cruz and Hawley and Congressmen Mo Brooks, Andy Biggs and Paul Gosar, who spoke at the pre-insurrection rally and whipped up the crowd to do its worst, expulsion from Congress

For immediate aides of the President, who helped organize the rally — and there were several — and/or who spoke at the rally and encouraged the mob to “kick ass” or the like, knowing full well that the mob included known militias including Proud Boys, criminal prosecution for abetting and aiding incitement to riot.

Do I include Donald Trump Jr in that category ? Possibly so. If so, then the same punishment as I ask for the others applies to him as well. You don’t get a pass from insurrection because you love your insurrectionist Dad. That said, it does not appear that Trump Jr specifically incited mob violence. In addition, during the Georgia Senate runoffs, while his Dad was trying to extort State officials, Trump Jr stuck to normal campaigning. Mercy may well be shown him, and justly: but punishment first, before moving to temper it with mercy.

And what of Mr. Trump himself ? Impeachment, conviction, and disqualification, of course. But also prosecution at law and severance of business ties between any of his companies and entities they have a business relationship with. Mr., Trump must be cut off from the normal course of things. He is damn lucky to be living in 21st Century America. What he has done is no less than Charles the First attempted in 1640-1649 England, and for wreaking insurrection and dictatorship upon his kingdom, King Charles was convicted of treason and sentenced to an ultimate punishment. In America today, we do not do that, cannot do that, shouldn’t do that. Mr. Trump’s punishment, other than those rendered b y the Senate’s conviction, should be social. Impose upon him pariah status wherever feasible.

The insurrection is NOT over. Far from it. A substantial number of Americans support a coup, support Trump, consider him a god. As I have written, religious fascism abounds in parts of our nation, a fascism that wants to abolish our democracy and our Constitution and impose its religion on all of us. The fanatics of this fascism will stop at nothing, as we have seen, and I doubt that many will disavow the obsession merely because the coup failed.

As for the insurrection’s bigots — fascist gangs like the Proud Boys, various militias, lone-wolf anti-Semites, and disgruntled veterans — they too are unlikely to dial it down. Many of them have criminal records, some of it ongoing; they are outlaws, and by connection with one another appear to revel in outlaw status. Curiously, many Proud Boys are Latino. Their bigotry is not as universally “white supremacy” as some on the left want to tag them. Nonetheless, the Boys stand shoulder to shoulder in insurrection with anti-Semites, neo-nazis, and haters of Black Americans, and I give them, no pass at all for being “inclusive fascists.” We will have to fight all of these folks by all means legal and social, and maybe worse, for quite a while before the stench of Trumpism is cleaned from our national wardrobe.

—- Mike Freedberg / Here and Sphere

“WHY DOES AMERICA NOT LOVE US BACK ?”

warnock

One wants not to allow that the color of a person’s skin ranks one in American society. Yet as Curtis Mayfield, America’s greatest poet of the past 60 years, wrote, “if you had a choice of colors, which one would you choose, my brothers ?”

Mayfield was not wrong to write that line, or to sing it in that plaintive voice of moral force. He was an American; and here, in America, the federal republic framed upon the equality of all, the color of a person’s skin has more often than not been an exception to foundational principles. I do not talk of slavery, an obvious derogation — one which occupies the minds of far too many reformers who prefer basking in past wrongs to a hard-fought future — because slavery was abolished for good 155 years ago. I speak of the situation since that time. The equality of all is written into the Fourteenth Amendment, a covenant affirmed by the Civil War deaths of hundreds of thousands of us. Either we keep our solemn promises, or we fail ourselves and those to whom these promises were made. That the Fourteenth’s promises were made 153 years ago, by our great-great-great grandfathers who we never knew, is no excuse for evasion now. The Constitution continues to exist, and all who seek office under it, or to be licensed as a lawyer, swear an oath to uphold those promises. I get that honoring Constitutional promises is constant work, every minute of every day, because the Constitution provides no time-outs. Its promises can’t take a bye week. Understandably some of us slack, just as the Jews of Biblical times, so we read in the Bible, constantly backslid on their covenants with God. Covenants of any kind are hard to keep.

And so I come to the question asked in my headline. It is one that Black friends of mine often pose in online discussions. “Black Americans have so often done the grunt work of lifting America up. We love this country. We prove it every day. Why doesn’t it love us back ?”

Why, indeed. My own view is that the honor roll, of heroes who have dark skin is long, very long, very honorable, very inspiring; just last week we saw a Black Capitol policeman, Eugene Goodman, face down a mob — a vulgar racist mob — all by himself and thereby saved our democracy. I would place him high on that honor roll, alongside tens of thousands of Black veterans and political leaders, thousands of pillars of society despite every obstacle, indeed just about every Black American, including those who toil for inadequate wages or who risk their lives as health care workers; because every Black American either has been disrespected — often — or knows that he or she, even if never yet disrespected, can be disrespected at any time, in any place. We see it happen, and brutally, now that online brings daily wrongs against Black Americans virally into every news feed. Were these sorts of loveless encounter to happen to the rest of us, we would rise up in anger, and justifiably. Crap is crap, and if you lay crap on another, do not be surprised if you get a face full of spit in return. And if you nod agreement with what I wrote, why is a Black American not fully entitled to the same degree of anger at being dissed ?

That said, of course we cannot go around, not any of us, wreaking anger upon one another. That does no one any good. We have to tough it out; to bear the unbearable, using the vote to oust from power those who abet or tolerate violations of Constitutional promises.

All of the above is easy to write. The actual situation is far from easy. In an America harshly polarized by political party, 85 to 90 percent of Black voters choose one party, a majority of white Americans the other. And so partisan politics segregates despite the written promises we have made to each other. Observers accused Trump supporters of trying to void the votes of Black voters, but what they were seeking to void was the votes of Democratic voters. Trump people were, I am sure, quite happy to have Black voters vote for Trump, and some in fact did so. Party polarization is the new segregation.

Can we surmount this last bar to the equality we have promised to one another ? I think we can. I think we are doing it. The election of Ralph Warnock as a Georgia Senator, with the votes of at least 38 percent of white voters is one such kept promise. so has been the election and re-election of Tim Scott as a South Carolina Senator — in his case, winning majority of white voters. Here, too, we see that the actual division is not skin color but political party. (The same was true of Barack Obama’s wins as President.) I do not expect angry political division to weaken any time soon; yet as ever more Black public persons win major elections, perhaps more and more Americans will become accustomed to respecting, even loving, more and more Black Americans, regardless of partisan axes to grind.

We are very close now to fulfilling our equality promises. I see no reason why with tons of conclusive effort we cannot win the final battle over skin color disrespects.

— Mike Freedberg / Here and Sphere

IT’S NEVER TOO LATE TO DO THE RIGHT THING WHEN THE TIME IS RIGHT TO DO IT

Congress Electoral College

In this image from video, Sen. Lindsey Graham, R-S.C., says “Count Me Out !”  as the Senate reconvened to debate the objection to confirm the Electoral College Vote from Arizona, after protesters stormed into the U.S. Capitol on Wednesday, Jan. 6, 2021. 

All during yesterday’s mob attack upon the nation’s Capitol, I read comments on social media about those Republicans — and it was Republicans they were judging — who finally turned against Mr. Trump[ and refused his overturn-the-election gambits. “too little, too late” said many. “Oh but you had the chance last year to impeach him,” said others, “so no points,”: Yet others wrote “you’re no hero” about the many Senators and a fair number of House Republicans who rejected Mr. Trump’s coup shots.

It is oh so easy to be judgmental when you’re ass is not in line to become grass.

Think of Senator Lindsey Graham, of South Carolina, who from 2018 to just a few weeks ago became the bete noire of Trump haters. Having to face re-election in a Trump State, with Trump; enjoying 85 to 90 percent support among his State’s Republicans, what realistic choice did Graham, have but either to not seek re-election or to use Trump for all it was worth ? Avoiding being “primaried” and thus being easily re-elected and therefore on hand, as he was yesterday, to shut the door upon Trump-supporting dead-enders in a Senate that had decided to isolate them, as it did, with Graham’s merciless support. More about Graham later.

Perhaps no Republican in Congress was more often spat upon than Senator McConnell: yet McConnell’s announcement, on December 14th, that the votes had all been State-certified and Joe Biden was the winner, that drew the line between what is right and what was seditious; drew the line and drew it irrevocably. After McConnell made that declaration, on the floor of the Senate, and carried with him almost all Senators, the game was up for Mr. Trump. No longer could he with impunity cow or bully the Republican legislators. Now there was an equally powerful option, perhaps a more powerful one. And Mr. Trump knew what had happened. He immediately spat upon McConnell — and on McConnell’s second in command, John Thune of South Dakota — but his spit had no force : McConnell had just been re-elected for six years, well beyond the reach of any threat to “primary him,” while Trump himself was a month from gone.

McConnell made it very clear that day, and every day thereafter, that he was going to follow the Constitution to the letter and that nothing Trump might say or do could move him.It worked, because McConnell knew that almost all Republican Senators supported his stance; and as the President has no Constitutional power over a Senator, or all of them,. McConnell knew that he had — finally — broken with Mr. Trump at the right time: the time when he could break and keep his caucus support. Almost everything that was done yesterday by the Congress was successfully done because McConnell now held the power, just as our Constitution devised: the Congress is our primary branch of government. It is established by Article One, after all, the Presidency only in Article 2. Nor was there a Congressional escape route for Trump, as the House is controlled by the opposing party.

McConnell had waited until he had an unshakable case to make : the Constitution and the will of the people. Some have asked, “why didn’t he vote to convict Trump at the impeachment trial back in January ? Certainly he knew — they all knew — what Trump was, just as Adam Schiff, the lead impeachment manger, passionately spoke. So why did conviction not happen then ? I think we know the answer : back in January, Mr. Trump’s utter disregard had not been shown in full cry; it was known to political people — who understood the import of Trump’s infamous phone call to Ukraine’s President, in which Trump extorted him to “do us a favor though” in exchange for badly needed weapons to fight Russian aggression — but not to ordinary people, who don’t breathe or drink politics every minute; and that Trump received some 74,000,000 votes on November 3rd emphasizes the point. But if most voters did not grasp the impeachability of that phone call, every voter knows what an election is and what it means, because everyone values his own vote and will NOT have it denied. And when Trump made it clear that would move heaven and earth to overturn the election results, no matter what or how, this the average voter fully understood. Many Republic an voters believed Trump’s lies about election fraud, but some did not; and upon that opt-out group of Republicans, about 40 percent in number, McConnell took his stand. And his gambit succeeded. Elections were over, nobody could be “primaried.” Thus his move did NOT come too late. It came at exactly the right time.

As McConnell, so the many other Republicans who took his cue, or even preceded it, as did Mitt Romney and Senator Ben Sasse (Nebraska). In the House, Adam Kinzinger stepped up — full tilt and every day. His twitter posts drew tons of comments “where were you back in January ? you voted against impeachment.” Yet why vote for impeachment if you know that the impeached cannot be convicted because the votes are not there ? When the political and Constitutional grounds shifted, however, Kinzinger stepped up. And several Hose Republicans joined him. too late ? i say no. I say they stepped up at the right time, when their objections to trump COULD WIN; could have an effect rather than merely making a point and losing.

I do not mean to suggest that I applaud such artistry and calculation; much about politics is craft, very little of it is heroic. Yet I am grateful for craft exercised in the service of our Constitution’s ideals, and I am always mindful that in politics, when the chips are really, really down, you HSVER to win, there are no second chances at such junctures, and if a Congressman or a Senator waited until the moment when his or her craft could nail it — as masterfully as Tom Cotton of Arkansas nailed it three days ago, mortally after Senator Hawley of Missouri made his fatal mistake, and as Lindsey Graham, of South Carolina nailed it yesterday — then I am glad, very glad, for crafty nailings.

—- Mike Freedberg / Here and Sphere

THE DEPARTMENT OF JUSTICE’S POLICY TO NOT PROSECUTE A SITTING PRESIDENT SHOULD BE RESCINDED. HERE’s WHY.

Mueller

As we all know from Special Prosecutor Robert Mueller’s investigation of Russian interference in the 2016, he could not bring any charges against President Trump because the Department of Justice has in place a long-standing policy of not prosecuting sitting Presidents.

We now ask that the Department rescind its policy as to Presidents. Our reasons follow :

Most importantly, we now see, by Mr. Trump’s conduct, that the policy allows a President pretty much to break the law wherever he likes, his only worry being that after he leaves office he loses any immunity from criminal responsibility and might be charged ,

A significant motive for his current lawless, unConstitutional conduct and his hurricane of lies, purposing his being able to remain in office, arises from his knowing that is immunity will end once he leaves office. Here he is no doubt correct. Little wonder that he is violating every oath and contemplating mad stuff. as long as he remains President, he is safe. Leave office, and all hell breaks lose.

Such a prospect might make far less guilty Presidents than Trump think twice about conceding election defeat.

Were the immunity policy rescinded, every President taking office would know that there was zero to be gained from his fighting against conceding election defeat, he would be chargeable every day in office already. Not immune under the law, a President might even temper his desire to “do what I want,’ as Trump once famously said a President could do. Not immune, she might seek advice of counsel before acting, rather than asking her lawyer after the fact to explain it away. Yes, the spectacle of a President in criminal court seated at the defense table with his lawyers, would demoralize many; and yes, undergoing a criminal trial would occupy may of his work hours. Yet is the difficulty here that much more burdensome than the job of President already is ? I think not.

Prosecutor Mueller clearly would have charged Mr. Trump with several crimes of collusion and subornation, also conspiracy, had the Department of Justice policy NOT been in place. But maybe, had no such policy existed., Mr. Trump would have been restrained from his impeachable conduct by the immanency of prosecution ?

Granted, that no Federal policy maker anticipated such a lawless figure as Mr. Trump ever coming close to winning the Presidency. Perhaps we were naive about human nature, even when politicking under a marvelously crafted Federal Constitution. Perhaps we just didn’t think things negatively enough. But now we know. Now we can see that the non-prosecution policy almost guarantees a bad Presidential end. Time top rescind it.

—- Mike Freedberg / Here and Sphere