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Sunday, October 27, 2019

Impeachment as Regulation

Dear Speaker Pelosi:

The other day you were talking about impeaching Donald Trump. And you said that not all impeachable offenses should be impeached. That may be true tactically, even strategically, but morally is another matter. Impeachment is a regulation tool for dealing with corrupt, criminal and abusive officers of the executive or the courts. It has a purpose that is separate but parallel to the courts and the founders put it in the constitution to serve that purpose.

For a long time congress has been loathe to use its impeachment powers. But, if anything we need to expand the toolbox of remedies for corruption and abuse of power, and systemetizing impeachment for disciplining the government. With William P. Barr, and some of the recent judge appointments, a mean has to be created for removing unfit officers.

  • Clearly defined Entry points
  • Clear Guidance on what is impeachable.
  • For Judges, codifying "during good behavior."

We Democrats have erred in not using the impeachment power when high crimes were committed in the past. An argument can be made that what is going on with Donald Trump, is a direct consequence of past abuses:

  • Precedents were established when the country failed to stop past abuses of power and people got away with outrageous behavior.
  • Faulty doctrines were created in the shadows and continue because they weren't established at inception.
  • *** examples are the unitary state claims.
  • While it might not be expedient to impeach a President, impeaching officers engaged in bad behavior sends an important message to those who might be in a position to be tempted to commit the same crime later.
  • Also, while removing from office and barring from future office might not seem a sufficient punishment. In the case of corruption, it can prevent people like William Barr from a life of corruption.

  • Censure and rebuke is necessary along with impeachment, when important constitutional principles are under assault.
  • Such disagreements are not merely “policy matters” they are serious.
  • Impeachment can be analogous to losing one's bar license. Indeed, lawyers should lose their bar license on conviction in an impeachment.

If the President Does it, it's legal

This pernicious doctrine, advanced by Richard Nixon, demanded impeachment, censure and rebuke. Yet, he was allowed to resign, pardoned, and as a result many of his co-conspirators were able to go on to long careers continuing to cause mischief. I know that President Ford felt he was saving the country and that that in itself was, maybe, understandable, even virtuous. However, this doctrine of “If the President does it, it's legal” remained underground. Worse the notion that the President is above law was written into an Office of Legal Counsel opinion and has corrupted efforts to hold President's accountable ever since.

Iran Contra

The conflation of national security with personal enrichment remained an underground project among a faction of politicians and operatives, and during the Reagan Administration we had the Iran Contra Scandal, which involved the same disregard of checks and balances and the powers of the Congress. Eventually the abuses of power involved in Iran Contra came out, and the Walsh investigation. However, a gross injustice occurred when George H.W. Bush pardoned everyone involved.

Pardons as Gross Injustice

When we didn't conduct an impeachment inquiry into the Bush Administration in 1992, William Barr, the current Attorney General, was able to go to President George H.W. Bush and induce him to pardon the perpetrators of the Iran Contra Scandal. They were able to obstruct Walsh's investigation completely. Barr would go on to make millions lobbying for piratical monopolies and then re-enter politics to become Trump's AG and do the crimes he is doing now. Barr firmly believes Nixon's doctrine that "if the President does it, it's legal" and we see this pernicious and unconstitutional doctrines being argued before the courts. The people involved in Iran Contra avoided jail time, and there was no rebuke of them.

Impeachment is About Accountability

The people involved in Iran Contra, were scoundrels. Maybe George H.W. Bush didn't deserve impeachment, but the reprehensible conduct needed to be rebuked formally and the perps barred from further office unless they recanted doctrines like "Unitary State" and Presidential Immunity. These doctrines, themselves, are more dangerous than the particular actions that people like Trump and Giuliani carry out. They need to know that if they abuse their power, they will be held to account. Congress should rebuke the behavior.

It's not expedient to impeach the President sometimes. But a formal system for disbarring people from public office for such behavior is needed. Judges serve on "good behavior." Executives, will repeat behavior, or others take lessons from prior abuses. If we successfully impeach Trump for what he did in Ukraine, that will still leave a host of violations that may go unpunished because they are not illegal, but impeachable.

An example of what happens if you don't impeach abuse of power, is what William Barr is doing investigating the "origins of the Russia Investigation." It is also what happened to Bill Clinton when Democrats decided to "move on" after the Reagan/Bush years. Failure to be strict in enforcing law, emboldens criminals to abuse their power to strike back anyway. The Republicans flipped the script after years of impunity and criminality to investigate everything about Bill Clinton and his administration.

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