Nahmod Law

Like families, nations can be dysfunctional. And indeed, the United States, this great Republic, now appears to be dysfunctional. Political parties, as well as individuals, speak past one another, neither trusting nor even listening to the other. This ideological polarization both reflects, and adversely affects, the politically accountable branches of government, the House, the Senate and the Presidency. It even taints the federal judiciary, including the Supreme Court. The President in particular is polarizing: many individuals either love him or hate him, with no in-between. The electronic media—TV, radio, cable –don’t seem to help very much: to the contrary, there are far too many conspiracy theories and far too many attacks on so-called “fake news.” There is far too much opinionating and there are far too few facts discussed by the talking heads on MSNBC, CNN, Fox News and other platforms. Indeed, some of the most misguided, and perhaps most dangerous, talking heads even question whether there can be facts independent of politics. Don’t believe them. Objective reality exists.

Some Historical Background

We have been dysfunctional before. The most extreme example of national political dysfunction was the Civil War, which was preceded by vicious political battles over slavery and states’ rights, and culminated in hundreds of thousands of deaths and much destruction. But I want to suggest that Presidential impeachment proceedings are also an indication of a dysfunctional United States, although thankfully they are less extreme examples of such dysfunction than the Civil War was. For example, President Andrew Johnson (Johnson was the assassinated President Lincoln’s Vice President and was a racist as well as a drunk)  was impeached by the House in 1868 but he escaped removal from office in the Senate by one vote. His impeachment reflected a profound national political split over the recently freed slaves and Reconstruction, as well as deep Congressional distrust of him. In 1999, President Clinton’s impeachment by the House, controlled by Republicans, similarly reflected national political dysfunction (Democrats v. Republicans) as well as deep-seated personal hostility toward the President. He escaped removal on political party lines in the Senate because there was not a 2/3 vote to remove him.

President Nixon’s impeachment proceedings resulted in a vote by the House Judiciary Committee in 1974 to adopt three Articles of impeachment. But there was never a formal vote to impeach by the House itself (with a Democrat majority) because the President resigned shortly after he made the Watergate Tapes transcript available to the public and was told by Republican leaders that he would not survive impeachment. Fortunately for the nation, the Nixon proceedings were accompanied by the desire of many members of Congress of both parties to get at the facts about the President’s alleged obstruction of justice, abuse of power and willful disobedience of subpoenas issued by the House Judiciary Committee. This is not to say that there was not political polarization at that time as well, both in Congress and among individuals. There was, as many of us remember. But there also seemed to be an emerging national bipartisan consensus to discover the truth.

With this as historical background, I want to say some things about the current House hearings about impeachment involving President Trump, and about impeachment in general. I do not plan to get to the substantive merits of possible charges against the President. It is too  soon to do that because (as I write this)  there has not as yet been an official report from the House Intelligence Committee.

But I would like to set out some legal background in plain English so that we as Americans can better understand the process. I firmly believe that as citizens we have an individual and collective responsibility to do so independently of all of the rabid opinionating surrounding us that threatens to overwhelm us and to distort our thinking. My takeaway message: respect the process regardless of your political views.

The Impeachment Process

It starts with the Constitution which provides as follows in Art II, sec 4 of the Constitution: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” In 1970, then House Minority Leader Gerald Ford said that this means whatever a majority of the House of Representatives says it means at a given moment in history. But this is simply not correct: the historical and legal consensus is that this means an abuse of the power of the office that violates the public trust and runs counter to the national interest. So impeachment is not a criminal trial: criminal conduct is not required, although certain criminal conduct may amount to Treason, Bribery or other High Crimes and Misdemeanors.

Is impeachment political in nature? You bet it is, although not necessarily in the partisan sense. It was intended by the Founders to be the political equivalent of a grand jury indictment. It is definitely not illegitimate. Is it to be taken seriously? You bet it is. It was intended by the Founders to be taken very seriously as a vital component of Separation of Powers and Checks and Balances. It is an extreme means of removing from the Presidency any President who is a despot. At the Constitutional Convention in Philadelphia, the Founders made clear that a President should not be impeached merely for incompetence or because of merely personal or political hostility. It is the purpose of Presidential elections, not impeachment, to deal with these problems.

The Constitution provides for a two-part impeachment proceeding. The first part, in Art. I, section 2,  is investigative and takes place in the House of Representatives pursuant to whatever rules the House puts into place. The House is the sole entity in charge of impeachment and its decisions cannot be reviewed by any federal court, including the Supreme Court. The recently televised investigative proceeding was run by the House Intelligence Committee, with questioning of witnesses first by Democratic Representatives (the majority) and their attorneys, followed by questioning by Republican Representative and their attorneys. Thereafter, the members of the House Intelligence Committee, together with any other House committees investigating Presidential behavior, will issue its report to the Judiciary Committee which will then decide whether or not to recommend Articles of Impeachment to the full House. The full House will then consider whether any of the Articles of Impeachment charge a “High Crime and Misdemeanor” and, if so, will vote on any such Articles. As I mentioned earlier, a President’s refusal to comply with the House’s subpoenas or other requests for information has historically been considered by the House to be an appropriate basis for an Article of Impeachment for obstruction of justice.  If a majority of the House votes in favor of one or more Articles of Impeachment, these go to the Senate for trial: this is the second part of an impeachment proceeding: trial and possible removal.

Senate trials are exceedingly rare. Over the past 230 years there have apparently been only eighteen impeachment trials (including for federal judges) in the Senate, and only two of a President, Andrew Johnson (1868) and Bill Clinton (1999).  Procedurally, after the House impeaches a President, the matter proceeds to trial in the Senate, with the Chief Justice presiding as set out in Art. I, sec 3. The Senate has the sole constitutional responsibility for such a trial. Just as is true for impeachment in the House, the federal courts, including the Supreme Court, play no role whatever except insofar as the Chief Justice of the United States presides. But the Chief Justice does not run a criminal trial in the Perry Mason sense: what he does instead is ensure that the Senate trial properly follows its own Senate rules and procedures. There is thus is no trial by jury. Rather, a two-thirds majority of those Senators present is required to convict and thereby remove the President. Once a President is removed, he is disqualified from any other federal office. And if his conduct was illegal, he can thereafter be sued or prosecuted.

This process was enshrined in the Constitution by the Founders and is a crucial part of Separation of Powers and Checks and Balances under which each branch of the federal government has its own constitutional responsibilities. It deserves our respect and attention, whatever our politics and whatever our view of the political motivations involved. It is not entertainment. Instead, it is a national teachable moment. The impeachment process is never pleasant for anyone, regardless of the result.

Our Responsibility as Citizens

At the very least, each of us should make up his or her mind based on the facts as developed by the overall impeachment process, and not based on what the talking heads have to say about it. And certainly not based on Facebook, Twitter or any of the other social platforms with their personal attacks and their conspiracy theories that influence far too many Americans and cloud their thinking. If we didn’t  watch any part of the House Intelligence hearing itself, let’s try to get our facts from respected print media such as the Wall Street Journal and the New York Times (but not necessarily from their editorial or op-ed pages). This is our minimum obligation as citizens of the United States.

The great Supreme Court Justice Louis Brandeis said 100 years ago: “Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. [They were] courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government….”

The United States will recover from its current national dysfunction when we Americans engage in “free and fearless reasoning.”

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