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Wednesday, March 6, 2019

Why the House Must invoke it's impeachment Powers

Impeachment is for stopping misuse of power

Impeachment as a tool of Oversight

There is a lot of talk of impeachment among those of us in the rank and file of our country. Much of it is emotional, hasty or based on exaggerated expectations of the powers of the House of Representatives. The impeachment power is assigned to the House. However, Trying impeachments is assigned to the Senate. Impeachment isn't solely to punish petty criminality. It is meant to punish "high crimes and misdemeanors." Early uses of the impeachment power included impeaching a Federal Sea Captain for wrecking his ship. Impeachment was:

“designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves?”[Fed 65]

A Well Constituted Impeachment

It wasn't intended to be solely a last resort, nor a tool for disrupting the judiciary or executive, but a tool for oversight and regulation for use when dealing with naughty, corrupt, treasonous, or reckless officers – who abuse their power. Hamilton insisted that a well constituted impeachment involve the maximum number of jurors to minimize its use for trivial or purely partisan purposes. It was designed as difficult to do as it was intended to be a remedy against tyrants:

“The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.”[Fed 65]

Impeachment is about Fitness for Office and tyranny

Impeachment was limited, because impeachment is about the officers of the United States and their fitness for office and limited to:

“removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States:” [COTUS Article 1, Section 3, last par]

The Judiciary has a duty to indict and bring to trial

Impeachment doesn't preclude an obligation of justice to bring lawbreakers to justice, no matter how high their office. Article 1, Sec 3 last paragraph makes it clear that no one should be above the law or the "ordinary courts." Impeachment is also not a substitute for the courts except in producing evidence.

“but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” [COTUS Article 1, Section 3, last par]

Impeachment is DESIGNED to limit the Pardon Power

The founders envisioned the impeachment power to limit the pardon power. Both impeachment and trial for crimes were explicitly envisioned to apply to the President, absurd guidelines to the contrary or not. Federalist 69 emphasized that the Pardon power applied:

EXCEPT IN CASES OF IMPEACHMENT;”[fed69]

A Check on the Executive

The Constitution gives the grounds of:

“treason, bribery, and other high crimes and misdemeanors.”

A quick look at the history of impeachment is that:

“The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve.” [crf]

Malfeasance, Recklessness and Incompetence

Misdemeanors was intended to cover things like malfeasance in office, gross recklessness or incompetence as well as abuse of power.

The President Cannot Shelter Offenders!

The author, Alexander Hamilton, elaborated that the law was designed to limit the President's ability to “shelter” offenders!

“A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction.”[fed69]

Dangling Impeachment Should be Impossible

It is as if the founders anticipated what Trump would try to do by dangling impeachments. Hamilton, was even referring to the chance that a President might seek to use force of arms, and that people would be hesitant to back him on the fear that such a revolt might miscarry:

“Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry? Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity?”[fed69]

Presumption of a Limited Government

Of course Federalist 69 also presumed a Country where only a small portion of the militia was in the President's hands and that we had no standing army. So our situation now is much worse than it was in the time of George Washington. Still the power to impeach the President and his offices was intended as a check on the usurpation of Article 1 and 3 powers by a venal and corrupt President. And that is born out by even a cursory reading of Federalist 69.

Use it or lose it

Of course the other two checks on the President; a limited standing army and the fact that the legislature has to declare war are no longer enforced either. The British Monarch:

“possesse[d] that of DECLARING war, and of RAISING and REGULATING fleets and armies by his own authority.”[fed69]

Now Congress has ceded the rights to wage war, given the President powerful military and police powers. Impeachment is all the people have left. We need to use it or lose it.

Related Posts:

Congress Must Impeach
Giving the President Immunity from Prosecution is unconstitutional
Iran Contra and Bill Barr's Pardons
The Southern Empire Strikes Back

Sources

Federalist 65
http://avalon.law.yale.edu/18th_century/fed65.asp
Federalist 69:
http://avalon.law.yale.edu/18th_century/fed69.asp
http://www.crf-usa.org/impeachment/high-crimes-and-misdemeanors.html

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