November 24, 2019

A Horse of a Different Color

The GOP can’t refute testimony from fact witnesses like Amb. Yovanovich and Dr. Hill, so they’re trying to confuse Americans by conflating impeachment with a criminal trial.

by Susan E. Stutz

asset 1

Wizard of Oz Mondo Poster

Hopefully you’ve had an opportunity to digest last week’s hearings. By now, it should be obvious to everyone, including the GOP and Trump supporters, that Trump withheld financial aid to the Ukraine because he wanted President Zelensky to appear to conduct an investigation into the son of a rival presidential candidate. A quid pro quo. It is a fact. It happened. And, no matter how much nay-saying there is on the part of the GOP, the evidence is clear — Trump committed an impeachable offense.

Now, because the GOP cannot refute testimony from witnesses like the unflappable Marie Yovanovich and Dr. Fiona Hill, they have instead looked to attack the impeachment process itself. One of the ways they are doing this is by conflating impeachments with criminal trials. This tactic has been largely successful because both processes use a lot of the same language: crimes, trials, charges, hearings and many Americans do not necessarily understand the differences between them. They are, however, a horse of a very different color.

Almost 235 years ago, 55 men from 12 of the 13 existing states came together to revisit the Articles of Confederation—the rules by which our newly formed country was to be governed. From that convention, the Constitution was born. In drafting our Constitution, the framers had not forgotten the injustices they faced when subjected to an overbearing and over-reaching monarch. Wishing never to be subjected to such rule again, they wanted to make sure that the Executive did not have unlimited power. As a check on Executive power, they set forth the means by which a governmental official could be “convicted” of wrong-doing and possibly removed from office. This process is called Impeachment and it is a political process, not a criminal process, that determines whether or not the sitting president is guilty of misconduct.

A critical debate took place on July 20, 1787, which resulted in adding the impeachment clause to the U.S. Constitution. Benjamin Franklin, the oldest and probably wisest delegate at the Convention, said that when the president falls under suspicion, a “regular and peaceable inquiry” is needed.

In my work as a law professor studying original texts about the U.S. Constitution, I’ve found statements made at the Constitutional Convention explaining that the Founders viewed impeachment as a regular practice with three purposes:

1. To remind both the country and the president that he is not above the law 2. To deter abuses of power 3. To provide a fair and reliable method to resolve suspicions about misconduct.

Clark Cunningham

Sounds like a perfect fit for the situation we find ourselves in today.

Among the differences between an impeachment inquiry and a criminal trial is that one need not commit an actual crime in order to commit an impeachable offense. In an impeachment process, it is the “crime” of offending the public’s trust that matters. And, that distinction is important. As it happens, Trump’s actions do in fact violate criminal law; however, that violation of criminal law is irrelevant and it is not the foundation upon which the impeachment process rests. A president can take many actions that do not violate any law at all and still face impeachment. The Constitution merely states “high-crimes and misdemeanors” which is intentionally vague and leaves it up to the House to determine whether or not any executive behavior falls under this heading and violates the public’s trust in him.

“In establishing a permanent national government, to insure purity and dignity, to secure the confidence of its own people and command the respect of foreign powers, it is not unfit that civil officers, and most especially the highest of all, the head of the people, should be answerable for personal demeanor.”

The Atlantic, January 1867

Whether or not to put forth Articles of Impeachment, which is the official “charging” document, against Trump rests with the House of Representatives. The House Intelligence Committee has subpoena power and has held many hearings — both behind closed doors and/or in public — during which key witnesses have provided testimony and evidence which largely supports the allegation that Trump committed an impeachable offense. Whether or not the House Intelligence Committee has finished conducting hearings remains to be seen. Interestingly, many witnesses who have been subpoenaed to testify before the Committee have instead chosen to follow instructions from the White House and ignore the subpoenae that have been issued. Regardless, at the conclusion of the hearing phase, it will then be up to the House Judiciary Committee to draft and vote to submit Articles of Impeachment to the Senate. This vote requires 21 yays in order to pass. Then, those Articles are voted on by the entire House, and assuming a vote in the affirmative, they are forwarded to the Senate.

When in receipt of Articles of Impeachment, the Senate must hold a trial, which is presided over by United States Supreme Court Chief Justice John Roberts. A finding of “guilt” requires a 2/3 majority vote. It should be noted, however, that the Senate’s finding that the Executive is guilty of an impeachable offense does not mean he will face any greater consequence other than having the word “impeached” permanently engraved next to his name for all time. The most severe punishment that the Senate may pronounce is his removal from office, that is it. While criminal charges may be levied against Trump once he leaves office, he will face no greater consequence as a result of his impeachment than his inability to hold office at any point in the future. To be sure, that is a satisfactory result for many who are watching as these events as they unfold.

The down side to all of this is that the GOP, who holds the majority in the Senate, has proven over and over and over again that they care not a bit about Trump’s behavior. More so, they are willing to look the other way or simply consider any wrongdoing as a plot by the left to disenfranchise 63 million Americans.

So it may very well fall to us to pass sentence on Trump by voting him out of office.

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