A farce eclipses a crime

Republicans exploited historical ignorance to kill impeachment

Philip Bobbitt

The framers of the US Constitution who met in Philadelphia in 1787 eventually coalesced around a few fundamental structures for the “more perfect union” they were creating to replace the Confederation. There would be three branches of government, legislative, executive and judicial, with separate powers but linked and shared responsibilities. With very few exceptions, no act of the US government can be enforced without the cooperation of all the branches.

One of these exceptions is impeachment, which is wholly given over to Congress. There is no appeal to the courts, removal from office is self-executing, and the president cannot pardon an impeached offender. Nevertheless, impeachment is not a legislative power. Rather it is a juridical power with indictment (the bill of impeachment) adopted by the House investigating in a manner similar to a grand jury, and trial by the Senate, similar to a petit jury in a criminal proceeding but in fact acting as a panel of judges trying issues of both law and fact.

It was agreed early on in the Constitutional Convention that treason and bribery would be grounds for the removal from office of any federal official. But some of the delegates thought this did not go far enough. Like their cousins in Britain, the Americans followed closely the impeachment of Warren Hastings for his behaviour as Governor-General of India. Hastings, one delegate observed, was not being tried for treason or bribery; perhaps a broader, catch-all phrase should be added. “Maladministration” was proposed.

This was promptly rejected by James Madison, one of the principal architects of the new governing structure, as being incompatible with the American model. It would mean, he said, that the president would serve at the pleasure of the Senate and thus would convert the US constitutional structure into a parliamentary one in which the executive is integrated with the legislature. “Maladministration” was withdrawn. In its place, the drafters substituted the phrase, “high crimes and misdemeanors”, drawing perhaps from Edmund Burke’s prosecution of Hastings in which Burke had said that the charges “were crimes, not against forms, but against those eternal laws of justice, which are our rule and our birthright: his offenses are not informal, tactical language, but in reality, in substance and effect, High Crimes and High
Misdemeanors”.

Republicans defending President Trump have seized upon the general unfamiliarity with this history to throw sand in the eyes of the public and even members of Congress, arguing that the import of the phrase “high crimes and misdemeanors” is that a statutory  criminal act must be shown to have been committed in order to obtain a conviction, that the standards of proof of an ordinary criminal proceeding—evidence beyond a reasonable doubt—must be shown, that flaws in the preliminary investigation taint an impeachment such that the indictment must be thrown out, and much more nonsense.

They succeeded, as successful criminal defence attorneys can do, in casting enough doubt on the prosecution to permit the Republican caucus in the Senate to prevent a conviction of the president for behaviour that almost certainly merited his impeachment. At present, his approval ratings have significantly increased and his theatrical poses as the maligned innocent have attained even greater heights of pained
oppression.

Was there anything the House managers, the prosecutors, could have done to avert this farce?

Perhaps they should have gone to the courts to enforce a subpoena against the president’s former national security adviser, John Bolton, who is reported to have confirmed in his unpublished book that Trump did indeed withhold military assistance to Ukraine in order to compel the Ukrainian government into announcing a baseless investigation into former Vice-President Joe Biden, at the time Trump’s likeliest opponent in the upcoming presidential election. But such a resort to the courts would have been time-consuming and might have pushed off impeachment proceedings into the summer, interfering with the election campaign.

Certainly the House managers should have focused more clearly on the constitutional crime—for so it is—of impounding congressionally appropriated funds. By resting the case on vague “abuses of power” the prosecutors left room for doubt whether the charges were too broad and would remove a president for self-serving but ordinary politics.

Or perhaps the bill of impeachment should never have been sent to the Senate where the majority leader, who controls the docket there, had already said, “I’m not an impartial juror. This is a political process. There is nothing judicial about it. I would anticipate we will have a largely partisan outcome in the Senate. I’m not impartial about this at all.”

In 1841, following the death of President William Henry Harrison, Harrison’s vice-president John Tyler succeeded to the presidency. He quickly alienated many members of Harrison’s party when he vetoed two important pieces of legislation. The following year an impeachment resolution was introduced in the House and a House select committee, headed by former President John Quincy Adams, was formed. Though Adams was convinced of the grounds for impeachment, he refused to propose an impeachment resolution on the grounds that it would be defeated in the Senate. Perhaps Speaker Nancy Pelosi, who was wise to pause before sending the Trump impeachment to the Senate, should have simply tabled it [in the American sense, meaning to stall it] in the House.

In any case, the matter will now be sent to the American people—in yet another example of a popular referendum replacing the rule of law. 

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