Oversight including Impeachment

Impeachment Process is Oversight Process

I started this Post around June. I was listening to Representative Jerry Nadler, who heads the Judiciary Committee that would become an impeachment inquiry, and he was talking about "time constraints" and the difficulty of impeaching the President. It made me think, it really is difficult to impeach anyone. And that degrades the power of impeachment and attenuates its potential effectiveness. But:

Is that a real problem or an example of bad process? In this era of gigantic government, where too much power is already delegated to the executive, aren't these matters of "bad constitution" rather than things we can't address? If so then they reflect antiquated process and that should be dealt with. In this post I include a few suggestions on how to modernize that process without a new constitutional amendment.

What are the benefits if the House impeaches anyway?

What Would Impeachment Accomplish Now?

The benefits of the House impeaching the President anyway are:

1. Doing so will Document Trump's crimes.
2. This will provide input evidence for prosecutions once he's out of office.
3. Doing this will hammer home to the general public the depth of Trump's perfidy.
4. This will rebuke and may even shame the shameless Republicans in the House and Senate.
5. This may help us defeat him electorally.

For this reason, impeachment articles are worth doing, even with the knowledge that they'll get to the Senate and be ignored or tabled. It is my belief that each Article should focus on one set of infractions, document the criminality and abuse of power and why they are reason for impeachment. The reason for separate articles is that they should result in separate prosecutions, changes in law and impeachment/prosecution of co-conspirators. I personally like the "Drip Drip of investigations" idea. There are at least 8 or 9 articles needed, by my count, and each of them embraces several to hundreds of counts. For more on this see:

Impeachment Articles

Meanwhile this post addresses ideas for improving our antiquated process:

Antiquated Process

We see the results of antiquated process in the reaction of outsiders to the impeachment hearings going on. Each committee would give every member 5 minutes to question witnesses. The result was 50% of the questions were deliberately obfuscatory or defensive and the other 50% ranged from pedestrian to off topic. Professional questioning occurred occasionally but often witnesses skated or were able to evade questions. Outsiders were calling "the Democrats" feckless. And it was half true. The process was feckless.

(in September 2019), Nadler:

• Updated his committee to make the effort a formal impeachment inquiry,
• Hired a Professional Prosecutor to ask questions of witnesses,

Nadler needs to go further:

• He needs detention rooms in the basement of the Capital or one of its satellite buildings.
• He needs to bring in a judge to assist in his efforts to investigate criminal behavior.
• He probably should get that judge to convene a Grand Jury.
• These last 2, maybe not now, but the permanent process should be an updated independent counsel under Nadler's supervision but loaned from the Judiciary, maybe under Chief Justice Roberts and with an enabling law.

Good Process requires Separation of roles

Separation of powers isn't about simply labeling one official a judge and another a prosecutor. It is about setting up the incentives so that the judge is expected to be neutral, the prosecutor to seek the truth, and the defense to vigorously defend the defendant without anyone sacrificing integrity or the virtues of their role.

A Judicial Process

Even though the constitution rests the impeachment power with the house and senate, it is still a Judicial process. Which means that even the house process should hire and use a judge to supervise it, a prosecutor to pursue evidence and defense lawyers to defend the integrity of the process and protect the rights of those being investigated. Nadler's new prosecutor provides one of these three things. The Republicans would be wise to provide a professional lawyer for the defense. But Nadler needs to put a Judge in charge of the proceedings. Impeachment is necessary to be under house rules, but it need not be an arbitrary process.

Three Oversight Functions

1. Executive Oversight
2. Judicial Oversight
3. Legislative Oversight, includes impeachment

Impeachment is part of the legislative oversight process. The current process is rarely successful, because it is not either a purely executive process where people should be subject to performance reviews and judged on performance, nor a purely law enforcement process where people are arrested and tried at law. To fix it we have to disambiguate it from its related executive and Judicial forms

Executive Oversight

Executive Oversight process is top down. It relies on written and existing law and depends on officers who take the virtues of rule of law seriously. It is useful to enforce the power of hierarchy and bureaucracy. When the executive is virtuous it amplifies his virtues. However, because executive power amplifies the power of hierarchy, it also amplifies the vices of leadership as well. Under executive oversight, people are fired when they fail to perform, and prosecuted when they violate the law or regulations. Executive oversight fails when the criminals are at the top of the hierarchy. Instead of abuses being called out by whistleblowers they are fired and/or prosecuted. Executive power when corrupted can become worse than mob power, because they can use the power of the law to punish the innocent.

Judicial Oversight

Judicial Oversight is when someone challenges executive or legislative power in the courts. The entry for judicial action is that:

1. the people complaining have standing.
2. The law or behavior violates the constitution or standing law.

In either case judicial oversight is limited to enforcing existing law or executing legal authorities. Most oversight still depends on the executive for enforcement. Judges can find someone in contempt of court and give orders for enforcement of their orders. It gets dicey when the executives are the ones violating the law as prosecutors are usually executive officers.

Corruption

As we are learning from foreign examples like Putin's Chaika or those of nearly any other dictator, A Prosecutor General or an Attorney General can engage in unjust law. The Judiciary has to be involved in judicial oversight because someone has to be able to tell Attorney's no and make a judgement based on law. It breaks down when the accused is in the executive or even a Judge or an Attorney. When the executives and judges are corrupt, they respond to the personal authority of the President rather than the law.

Entry point for impeachment

Impeachment comes in when executive and judicial oversight start to fail. Normally, Congress can enforce its will with the good will and virtue of the executive. When the executive no longer obeys the laws of congress or spends the money sent by congress as appropriated, then congress normally can go to the judiciary for remedy. When that starts to break down, congress must use its inherent powers.

Impeachment As oversight

Normally congress can call administration officers or judges to testify and they'll testify truthfully about what they are doing and the problems they face. Congress can then work with the executive and judiciary to improve its laws. When politics gets heated, there is lack of consensus. When executives misbehave, usually the executive magistrates (President and his officers) can discipline the miscreant. The problem comes when the country gets something it hasn't really had too often, an executive determined to thwart or ignore the legislature. When the fights are about policy, then the courts can hold the executive to "stare decisis" (precedent), to what is already the rule of law and policy, when the law and policy is spelled out in law and appropriations. When the two are at loggerheads, the courts normally will settle the dispute based on those principles. No one will be happy, but its not a constitutional crisis.

Impeachment as the Iron Fist in a Velvet Glove

Impeachment starts when ordinary oversight has become ineffectual and the executive starts ignoring rule of law. When disputes over money and law boil over into conflict. Impeachment oversight has two main purposes,

1. Impeachment as Rebuke: As a means to investigate Administrators and Judges to ensure that they are adhering to law, and in the case of judges, that they are engaging in “good behavior.” Regular oversight as policing is necessary. Impeachment usually not. Bad executives can be removed by their bosses. We don't impeach bad judges as often as we should, but they usually can be induced to resign in order to avoid the embarrassment of impeachment, if they are bad enough. The impeachment function stands behind the ordinary oversight like an iron fist in a velvet glove. It hasn't been necessary, almost entirely because it is there.
2. Impeachment as Removal becomes necessary when defiance starts becoming a threat to the survival of the republic.

Impeachment as Rebuke

One of the lessons of Harding, Nixon and Trump is that without an effective oversight process, executives will abuse their power. A further lesson is that unless there is effective oversight that power tends to corrupt the legislature too. There have been a number of Presidents and a larger number of executives and judges, who should have been impeached and never were. The reason is that Congress has not always done an effective job of oversight. When Congress doesn't do its job then:

• Bad Judges will keep their jobs
• Bad Cabinet Officials will keep their jobs
• The Corrupt will sometimes abuse their office knowing they'll be able to get beyond reach of the law when their executive term is up.

However, when transgressions accumulate eventually large numbers of people run against the corrupt and deceitful and drive them out of the legislature. When that happens Congress starts to take its oversight role seriously. Sometimes the Senate wakes up first, often the house does. In either case they start holding hearings about what is going on.

The Power of Inquiry

The constitution doesn't spell out how Congress will do it's job of inquiry. It simply states that the House of Representatives:

“shall have sole power of impeachment”

To impeach, congress has to have inquiry powers, power to subpoena, sufficient judicial power to enforce order and compel testimony. All these limited judicial powers necessary to impeach officials who violate law, abuse power or commit those “high crimes and misdemeanors” associated with corrupt power, including treason and bribery.

The Iron fist of Removal

The mere availability of such powers to congress is what gives congress the power to check the executive. The threat of impeachment is only backed by giving congress such limited judicial powers. In a mostly law abiding country, the executive will remove malfactors, put them up for trial, and there will be no need for congress to impeach them. Congress may have to remove judges from time to time, as the executive might be able to lock them up for crimes, but not to remove them from office, but the iron fist of impeachment as removal from office, is there mostly to remind the executive, under normal circumstances, that they serve the people and the law. They are not overlords.

Removal requires Consensus and that usually requires dire circumstances

The fact that impeachment is not always intended to result in removal is illustrated by the fact that:

“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.”

The Senate can hold hearings and call out bad officers. If they want to remove them they can ask the house to vote articles of impeachment and vote on them. But even if the house wants to remove officers, they can't do so easily. There has to be exigency. Corrupt judges must be demonstrably corrupt. The executive must be in defiance of the law and flagrantly enough that a super majority of the Senate will convict them. That is a high bar. It really requires near complete consensus that the officer must be removed from office.

For that reason the impeachment process, "iron fist" of removal, is intended to be in the background of oversight process. It's not a remedy for policy disagreements. It's not a means to express rage against an annoying executive. It is meant to punish severe infractions.

The Velvet glove of Regulatory Oversight

Thus the oversight function grows out of the impeachment power, rather than the other way around. Every inquiry of Congress is intended to result in legislation or policy designed to improve the “more perfect” function of the Union. It's not intended to be a forum for candidate posturing for reelection, or legislators to emote. It is intended to enforce better law, regulation and function of the government. Impeachment and conviction are intended as a last resort not a first resort. Oversight thus represents the velvet glove over impeachment for a reason. The Government is expected to function in harmony, not in conflict.

Limited Disciplinary Process

When the Constitution prescribes that:

“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.”

The limits on impeachment are meant to ensure that congress doesn't over-reach its powers. The Judiciary is supposed to decide who is guilty or innocent. The legislature only needs this "iron fist" of removal to enforce its prerogatives and to stop tyrants, tyrannies and criminals from abusing their power by removing them from power. If they are guilty of crimes, the courts can take care of the rest. The velvet gloves are only intended to come off when there is evidence of high crimes, misdemeanors, abuse of power, and no other means is available to check the executive.

Therefore the purpose of impeachment is to deal with abuse of power, violations of trust, corruption, self dealing and incompetence [though they argued on this last one]. It is mean to apply when the Executive or judiciary is unwilling to discipline their own or are themselves criminal. It's explicitly not intended to allow Congress to throw people in jail, hang them or otherwise punish them.

House Process analogous to Grand Jury Session

The House process is more analogous to a Grand Jury session. If we want it to work better, we should include more of the Grand Jury process. True the House doesn't have to do that. They can have 5 minute questioning and play political games. But the results are less than effectual. Few impeachments have resulted in removal from office because of this.

Senate Process is a Trial

The Senate process is already analogous to a trial.

Making Impeachment a Regular part of Oversight Requires Grand Jury Function

Thus Making Impeachment a regular part of Congressional Function means that the entry points for seeking removal needs to be serious infractions, defined in law, and the house needs to investigate such infractions systematically. The lesson of the velvet glove is that the House (and/or Senate) can usually remove malfactors without the extreme of a Senate trial if only they make the case iron clad enough that it could go to trial in an ordinary court as well.

Serious Impeachment

Our examination so far suggests that ordinary oversight is backed by the threat of impeachment. So when is it necessary for Congress to go beyond threat and actually remove officers?

Normally Congress can write laws, general regulations and entrust the definition and enforcement of those laws and regulations to bureaucrats and political appointees. When congress asks them to behave themselves they do. So the entry point for seeking impeachment as removal should be when the infractions are high crimes and misdemeanors, treason, bribery and the executive seeks to put themselves beyond the reach of congress and fails to respond to Congressional demands and inquiries.

Removal is the Iron fist necessary for Congressional Power to Enforce its prerogatives

Ultimately, when the velvet glove of regulation starts to fail, it is time for a serious impeachment inquiry to determine whether or not to remove the malfactors. When the Executive refuses to punish his officers and enforce the law, then the executive must be rebuked, stopped, and if that fails, removed.

Removal is not Always successful

Past impeachments can provide guidance about this. The threat of conviction and removal was able to force some compliance with law and directives for Andrew Johnson, Richard Nixon, and Bill Clinton, even if they never were removed. The case of removal was not always made clearly however. And that had a lot to do with the way that they were impeached in the house. It was never clear that Bill Clinton had committed high crimes or misdemeanors of sufficient vileness to justify removal. Nixon would have been removed if it had gone to trial, but resigned. Andrew Johnson was impeached but not removed by a few votes. The impeachment did rebuke his administration however.

If We can't Remove Why Impeach?

In none of these cases have we experienced an executive like Trump. But like some of those previous cases, there is little likelihood that the Senate would convict. So why impeach?

Impeachment as an Educational Process

The reason we should impeach Trump, even if it fails to result in his removal is that while removal is the iron fist behind the impeachment process. The real purpose of impeachment is regulation. As I listed at the beginning of this post:

1. Doing so will Document Trump's crimes.
2. This will provide input evidence for prosecutions once he's out of office.
3. Doing this will hammer home to the general public the depth of Trump's perfidy.
4. This will rebuke and may even shame the shameless Republicans in the House and Senate.
5. This may help us defeat him electorally.

Documenting Trump's High Crimes

Impeachment is the judicial process necessary to enforce legislative oversight and power. However, removal isn't the only power that is granted to congress when it engages in an oversight/impeachment inquiry. The power to impeach grants the house three avenues to enforce its subpoenas, inquiries and the testimony of witnesses. It gives Congress, ultimately the power to find malfactors in contempt of Congress.

Criminal Contempt of Congress

The first power, the power to refer malfactors to a court of law for prosecution, is the one that, while it derives from the impeachment power, is usually the most powerful power of Congress. It rests on Statute and requires executives and judges who respect laws written by congress. The Constitution Center tells us that:

“The first type of contempt power is a citation of criminal contempt of Congress. This power comes from a statute passed by Congress in 1857. Once a committee rules that an act of criminal contempt has occurred, the Speaker of the House or Senate President refers the matter to the appropriate U.S. attorney’s office,&rdquo:

The US Attorney then has the:

“...duty it shall be to bring the matter before the grand jury for its action.”

Thus the article is describing the most powerful option that the Congress has under ordinary circumstances. However, the Article then notes that:

“However, the Executive Branch in prior situations has claimed that it has the discretion to decide if a grand jury should be convened to hear the charges. But if the case goes to a grand jury, fines and a jail term could result from the ensuing criminal prosecution.” [Constitution Center]

If the House passes a citation for criminal contempt and the Attorney General or his minions refuses to take the citation to a grand jury. That first kind of contempt is out the window. Fortunately there are two more types of Contempt Congress can use.

Civil Contempt

The Constitutional Center notes that congress can seek contempt via civil lawsuit:

“The second type of contempt power comes in the form of a civil lawsuit brought by the House or Senate, asking a court to enforce a subpoena. The Senate and its committees are authorized to bring such a lawsuit under a federal statute. There is no similar statute that applies in the House, but the federal district court in Washington, D.C. has decided that the House can nevertheless authorize its committees to bring a similar civil suit for enforcement of a subpoena.”

The Article then goes on to note that the executive branch can contest the subpoena:

“based on a governmental privilege or objection the assertion of which has been authorized by the executive branch of the Federal Government,”[Constitution Center]

If the Government refuses to comply with subpoenas, which is what is happening now. The Congress needs to bring criminal contempt against the officers. If the Government refuses to prosecute criminal contempt than the subpoenas need to be enforced using “inherent contempt powers.”

Inherent Contempt

The final remedy for the House, is one that they haven't had to executive since the Harding Administration, but is one that Congress needs to execute now.

“The third type of contempt power—Congress’s dormant inherent contempt power—is rarely used in modern times. Inherent contempt was the mode employed by Congress to directly enforce contempt rulings under its own constitutional authority until criminal and civil contempt statutes were passed, and it remained in use into the twentieth century. Under inherent contempt proceedings, the House or Senate has its Sergeant-At-Arms, or deputy, take a person into custody for proceedings to be held in Congress.”[Constitution Center]

It was used in dealing with banking corruption in 1927:

Justice Willis Van Devanter made perhaps the most famous statement of these powers in McGrain v. Daugherty, a 1927 Supreme Court decision about Mally S. Daugherty, the brother of former Attorney General Harry Daugherty. A select Senate committee issued a subpoena for Daugherty to testify and to also surrender records from an Ohio bank. When Daugherty refused to comply after a second subpoena, the Senate passed a resolution issuing a warrant and authorizing a Senate deputy to take Daugherty into custody. Daugherty filed a habeas petition against his detention. A lower court ruled that the Senate exceeded its powers by detaining Daugherty, freeing him. However, the Supreme Court upheld his conviction, holding that under the Constitution, Congress has the power to compel witnesses and testimony “to obtain information in aid of the legislative function.”[Constitution Center]

The Courts upheld that:

“Each house of Congress has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution,” Van Devanter said. “This has support in long practice of the houses separately, and in repeated Acts of Congress, all amounting to a practical construction of the Constitution.”[Constitution Center]

Congress has to do this again, because once again the executive is denying that power to them.

Inherent Contempt use as an Entry Point

The House should have fitted out locks, bunk beds and a privy, to one of its more secure rooms, a long time ago. When Congress has to use its inherent contempt powers, it is time to impeach people, because ordinary regulation is failing.

When Inherent Contempt Powers become necessary so is Impeachment

The need to use inherent contempt is an entry point into a necessity to generate articles of impeachment.

When the executive is obstructing justice, engaging in bribery, extortion, corrupt practices, self dealing, etc... and it starts putting itself beyond the reach of congressional oversight, then inherent contempt is needed to enforce an inquiry, and that inquiry needs to result in articles of impeachment. It is either document the perfidy and lay out the case in impeachment articles, or the legislature is going to become superficial and democracy is gone. That may happen anyway. In that case the articles will demonstrate that Congress at least resisted.

When Self Regulation Fails

The second entry point for Impeachment is when the executive defies rule of law. Congress created posts like the Inspector General and regulatory agencies, for a reason. The time of representatives is valuable and so it is appropriate that they delegated to regulatory agencies much of the work assigned to them under their impeachment/regulation powers. Congress created these offices to bring in experts to ensure that general guidelines be detailed out and executed. Under normal circumstances, these executive offices can do their job and even regulate the executive. However, when the executive asserts dictatorial powers, those agencies and their officers go from fulfilling a promise to carry out law to using that law to carry out the whims of their boss. That is a clear case where impeachment is necessary. Officers swear an oath to uphold the law, not the whims of a mob boss. When the executive ignores rule of law, it is time for articles of impeachment to clearly state what that rule of law is and why the executive should be removed. Offices for this. These offices should be independent of purely political, personal or arbitrary decision making. Restoring that. Or as the Republicans said:

“Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.”

Impeachment is oversight

Congressional oversight is all the more necessary in this time. Donald J. Trump is asserting dictatorial powers under the “unitary state theory.” Even if Congress can't get the Senate to convict and remove Donald Trump, the combination of subpoena, contempt and impeachment powers, can get to the truth.

House of Representatives Impeachment Inquiry Analogous to Grand Jury

Hiring professionals is following the principle of separation of powers:

Because an Impeachment inquiry is more analogous to a grand jury process than Congresses ordinary duties. It would be a good idea to use the Grand jury process that means:

Hire:

• Separate Judge, Jury, Prosecutor, Defense and Jury.

While congressmen can do all these things and congress should be involved in the process, following the grand jury process to examine the evidence would take the partisan quibbling out of it.

This post has some raw ideas, and just a little thinking outside the box. But I hope people will think about what I'm saying. And I wish Congress would.

Sources:

Most of the sources for this post come from public records, the Constitution and the following website:

https://constitutioncenter.org/blog/the-houses-contempt-powers-explained

Plus other URLs if embedded. an influences from internet and twitter discussions.