July 13, 2017

A Political Solution for a Political Problem

In yesterday's Wondering on Wednesday post, I mentioned that a California legislator had submitted an article of impeachment against president Trump.  And, I quoted (in a second-hand way) Gerald Ford, who said that "an impeachable offense is whatever the majority of the House of Representatives considers it to be at a given moment in history."

I'm not alone in thinking that there be some consistent definition of what's impeachable, or that there might be something in our voluminous criminal code that would make this less a 'flavor of the day' kind of thing, right?

Well, not so fast. This morning, one of my news feeds directed me to an article by Andrew McCarthy, who's a senior fellow at the National Review Institute - meaning, he's a conservative, not a liberal. The article on The National Review's website directs me to "Look to the Constitution, not the statute books."

McCarthy notes that there are two sides to this argument. Well, three actually.
The tepid-on-Trump camp is aghast at revelations of the extent and nature of the Trump clan’s ties to a murderous anti-American regime — and, speaking only for myself, humbled by analysts who were more troubled by the circumstantial evidence in the absence of smoking guns.
Trump fans, to the contrary, are doing the full Clinton: doubling down on the absurd insistence that Trump-Russia is a big ol’ “nothingburger.” “Look at the U.S. penal code,” they scoff, defying outraged Americans to identify a single criminal-law violation that has been established. There is no crime, they maintain, in colluding with the Russian government to collect and broadcast damaging information about an opposition American candidate.
On the Left, meanwhile, are the legal beagles. They are busily squirreling through the law books and straining their creative brains to come up with an offense — some novel prosecution theory under which the Trump-Russia facts can be pigeonholed into a campaign-law violation, a computer-fraud crime, or maybe even misprision of a felony (i.e., a failure to report one).
One side is mulishly determined not to see outrageous misconduct. The other side is inadvertently trivializing it.
The thing is, he tells us, it's not about criminal conduct - that's not what our founding fathers were concerned about.
Nothing caused the Framers greater anxiety than the new office they were creating, the presidency of the United States. They were rightly convinced of the need in a dangerous world for an energetic executive able to act swiftly and decisively in times of crisis. But... they were equally worried that the enormous powers attendant to the office could be abused, that they could fall into the hands of an unfit incumbent, or that they could come under the influence of foreign powers. 
(Which, of course, is why we're spending so much time talking about and thinking about and stewing about the many ethically-challenged and questionable actions of Trump's inner circle.)

As McCarthy explains things, how we handle impeachment - including that it could in fact be subject to the flavor of the day in the House - makes sense.
The standard for impeachment, the commission of "high crimes and misdemeanors," is not concerned with criminal offenses found in the penal statute books and suitable for courtroom prosecution. It relates instead to the president's high fiduciary duty to the American people and allegiance to our system of government.
And, this position is supported by none other than Broadway's favorite Founding rapper, Alexander Hamilton. In Federalist 65, McCarthy tells us Hamilton says that impeachable offenses 
...proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.
That's why ethics matter, and telling the truth matters, and messing around with a foreign country matters. Fitness for office matters. 

Impeachment was designed to be hard, and it was designed as a political solution to a political problem, not a criminal solution to a criminal - or political - problem. 

I want to mention that McCarthy's article is interesting not only for its look at how impeachment was designed to work, but for how it actually works, in practice. He references some less than flattering stuff about not only Trump and the gang, but also Obama and the gang. 

It's a good read, for a variety of reasons.