January 27, 2020

Horse 2654 - So What Is An Impeachable Offense, If Any?

In my reading of the Federalist Papers, the anti-Federalist Papers, Hamilton's personal correspondence and the US Constitution itself, I have come to the conclusion that it is a bad Constitution. If you were going to look at other federal models other written constitutions, you would have to concede that everyone other nation which actually wants to have peace, order and good government as the outcome of the rules which a constitution lays out, has learned from the United States and every other written constitution which has followed and improved upon the system vastly.
I think that Madison who is generally regarded as the Father of the Constitution, Hamilton who was the most vigorous defender of the Constitution, and Jay who was the premier legal power of the day, never really thought about the implications of their Constitution beyond the term of George Washington. The Continental Congress was a virtually impotent body which really only had the power to lay taxes and raise armies and so I expect that they thought that the new office of the President Of The United States would be equally as benign as the President Of The Continental Congress had been. I think that they also assumed that it would be occupied by people who would at least pretend to be servants of the people.
I think that the wording of the method of impeachment is deliberately left vague because they did not think that it would be used. Power is assumed to be retained by the states, democracy was seen as dangerous, and I suspect that they never expected that a knave would be elected to the office of the President.

There are several provisions in the United States Constitution relating to impeachment, however the two which are at the core of the action are listed below:

Article I, Section 2, Clause 5 provides:
The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article I, Section 3, Clauses 6 and 7 provide:
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.

It is important to note that there are no rules whatsoever which direct either the House of Representatives or the Senate in how they are to go about with impeachment proceedings.
It is also important to note that the US Constitution itself provides that the impeachment process is purely a political one; which means that there is in fact only one set of conditions where a President might be impeached.

The President is part of X Party, while their opponent is Y Party.
X, X, X = No impeachment. Because one party controls everything.
X, Y, X = No impeachment. Because the House isn't going to draw up any articles.
Y, X, X = No impeachment. Because the Senate isn't going to pass those articles.
Y, Y, X = Impeachment.

https://avalon.law.yale.edu/18th_century/fed65.asp
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which 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. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
- Alexander Hamilton, Federalist No.65, 7th Mar 1788.

What we are currently witnessing is the condition of Y, X, X; which is one of the four which will not result in a removal of someone from the office.
It seems pretty obvious to me that Hamilton as the Junior Delegate from New York to the Constitutional Convention, was fully aware of the fact that the process would be subject to party lines and factions but nevertheless, he still argues that this is the system which should be used. I personally think that that is crazy bonkers because it bakes into the Constitution itself, the means by which a knavish President surrounded by knaves can continue to be knavish. That is inherently a bad system.

If you have a Senate which conspires to protect the President, then any Impeachment Trial will return a not guilty verdict. Even if you have a Hitler/Stalin/Napoleon character who machine gunned sixty people on 5th Avenue, then if the Senate conspires to protect this person, they will not be removed.
The great myth of the US Constitution is that it places checks and balances upon the three branches of government in the three ring circus but when you have the lions in charge of lion taming and they refuse to remove a rogue lion, then no such check on power and no such balance exists. All you have are lions which are free to roam around the rings; looking self important and acting like king of the beasts. It should always be remembered that the king of the beasts still acts beastly.

In Australia, the Prime Minister as the head of executive government not only sits inside the parliament but is answerable to the parliament, to their own political caucuses, and to the courts. If the Prime Minister of Australia were t to commit a crime, then they would be answerable to the courts. It remains an untested question at law in the United States.
If any parliamentarian had been found to be ineligible to sit in parliament, then the parliament can refer such a person to the High Court for a ruling on their eligibility. In the United States though, that referral process never leaves the Congress; which means that when you have a Senate who refuses to justly consider said referral, no check on power and no such balance exists.

What of the monarch or their representative? Suppose that we had future King  Henry IX decide that he wanted to turn rogue and only do evil all the time. Under a Westminster System, Henry can't enact legislation, he can't really summon an army, and he doesn't run the executive of the nation. The President can not unilaterally enact legislation but they do run the armed forces as Commander in Chief and the are the head of the Executive Branch. This means that the President of the United States has more actual vested power than the King Of England; who America threw off in a revolution. If you have a Senate which refuses to act after such an event, then there is no check on power and no such balance exists.

What we have now is therefore nothing more than a prime time television show, which takes place in a nice looking marble and wood paneled room. If there is no check or balance on the office of the President because the Senate refuses to place one on the office, then where exactly is that check? Is there such a thing as an impeachable offense and if so, what is it?

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