Chapter Five -- Part D Application and Implications of this Constitutional Theory |
How would this Constitutional Theory work in today’s Environment?
The next four sections consider both procedural and political questions concerning how the Constitutional theory of this book would work in today’s environment. The first three sections are only regarding removal of the President. The fourth section considers the implications of this Constitutional theory for other Federal civil Officers.
Regarding the political context for removing the President, the primary danger is the continuation of a bi-polar Constitutional power struggle between Congress and the Presidency. The best way to avoid this danger is by public discussion and debate on the proper Constitutional role of the Presidency, and by freeing both the President and Congress from Corporate and special interest dominance. Procedural questions are considered first, before considering the political environment.
We have already seen that the Senate can try any impeachment in a specialized kind of trial called an impeachment trial. One of the aspects of such a trial is that it is decriminalized: the only penalties are removal from office and disqualification. Before considering the Judicial venue of Criminal trials commencing on Presentment of House Articles of Impeachment, let’s consider briefly the issue of whether a President or any Federal civil Officer can be compelled to testify against themself in a Senate impeachment trial.
The Constitution provides that a person impeached and convicted by the Senate is still "liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." This establishes that the Senate’s trial, in and of itself, does not exempt an impeached person from these liabilities. If an impeachment is brought on grounds of a criminal violation of a Federal statute, it appears that because the Senate trial itself is not a criminal trial, the Senate has Constitutional power to compel anyone, including a President, to testify against themself in a Senate impeachment trial. Therefore, one major advantage of conducting a Senate impeachment trial is the ability of the Senate, and the House managers, to question anyone to get at the truth, and to determine if there is or has been corruption or illegality in the executive branch. If an impeached person testified before the Senate during the Senate’s impeachment trial, they would also be liable for prosecution if they gave perjured testimony. It may be entirely appropriate for both a Senate impeachment trial and a Judiciary criminal trial to proceed independently if the House passes Articles of Impeachment on criminal grounds. Because it is decriminalized, the Senate trial can probably proceed both faster, informally, and publicly, to get at the truth and to remove an impeached person from office if it seems warranted based on the scope and limitations of a Senate impeachment trial. However, at the same time, a Judiciary criminal trial may be proceeding, more slowly, but more thoroughly. The judges in such a criminal trial would almost certainly be restricted against considering the impeached person’s testimony, but they would have access to all the other evidence. If it appears an impeached person gave perjured testimony to the Senate, then further Judiciary criminal procedures could commence when and if a sufficient basis emerged for such proceedings.
Procedure: Removal by Impeachment and Judicial Conviction on Criminal grounds
As we have seen, according to the Constitutional theory of this book, removal from office of a President or any civil Officer can be an automatic consequence of House Impeachment and Judicial criminal conviction. The Constitution seems to strongly imply, although it does not seem to absolutely require, that the events should occur in order: first impeachment, then conviction. Specifically, the idea of Articles of Impeachment serving as a Presentment suggests an impeachment first sequence. Regarding procedures, let’s assume this is the sequence of events. The Constitution also specifies Congress "may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and the Vice President".
Regarding impeachment by the House of Representatives, if the House of Representatives is contemplating an impeachment for criminal violation of a statute, that is, an impeachment that the House anticipates would be a Presentment to commence a Judiciary trial, the House should have at least as strong a basis to proceed as a grand jury would have to indict. Naturally, this issue would be considered in detail by the Judiciary Committee, with a recommendation to the full House. Debate in the House on Impeachment on criminal statutory grounds should be centered on two questions. First, does the evidence meet the standard that would be required for a grand jury to indict? Second, if it does, based on the circumstances of the case and the severity of the alleged offense, is removal from office an appropriate consequence of Judiciary conviction? I think the House could reasonably conclude in some cases that the answer to this question is no. The House should also make clear in the Articles of Impeachment whether or not an impeachment is intended to serve as a Presentment to commence a Judiciary trial. The Senate can try any Articles of Impeachment in an impeachment trial. The House can impeach on the theory that there has been serious wrongdoing, but it is of the kind where the Senate is in the best position to discover the law and the justice of the situation. In this case, the House should specifically state in its Articles that the impeachment is not based on any specific charge of a violation of a Federal criminal statute, and is not intended to serve as a Presentment to commence a Judiciary trial. Rather, the intent of the impeachment is to commence a Senate trial to remove a dangerous office holder.
Regarding the procedure of the Judiciary trial of a crime in a Case of Impeachment, Congress has the power to specify by Law how such a trial would proceed. One basis for this is the already noted provision: Congress "may by Law provide for the Case of Removal...". A second basis is in Article Three, Section 2 of the Constitution, regarding original or appellate jurisdiction of the Supreme Court: "...the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Regarding impeachment of the President for criminal violation of a statute, it seems both reasonable and appropriate that this case should be assigned to the supreme Court for immediate trial. One reason alone is sufficient to support original jurisdiction of the supreme Court: because the Court’s decision is final and unappealable, the verdict to convict or not convict immediately resolves the question of removal from office. The Congress may make further specifications about how Judiciary trials are to proceed in Cases of Impeachment, or the Congress may leave to the Judiciary almost complete discretion with regard to procedure. Granted, a Supreme Court trial of as much as a month or two is somewhat disruptive, but the disruption wouldn’t come close to the disruption caused by the Senate trying to function as a criminal court.
Because Congress has authority to pass a Statute of Inquest of Office, Congress can specify certain kinds of criminal violations, or statutory categories, where the violation is designated a Federal Crime of Removal from Office. That is, Congress can use its legislative power, requiring either Presidential signature or passage by 2/3 of each house, to make a decision in advance regarding the severity of Federal criminal violations. The provision could be as simple as: All Felony Convictions are automatically Federal Crimes of Removal from Office. It is possible that Congress may want to exempt some kinds of Criminal violations for various reasons, including a perception that for certain categories of Felony it would be dangerously easy to "trump up" a case against a President. It is also likely that as part of such a statute, Congress would want to address the question of what the President can and cannot do regarding commitment of U.S. military forces, in the context of the Constitutional power of Congress to declare war. The important point is that Congress should resolve definitively by law the issue of what is or is not a Crime of Removal from Office. It is preferable for Congress to pass this kind of a law, signed by a sitting President, when no impeachment is pending.
Having such a law on the books would make the rules clear to everyone, and would help in that way to depoliticize any future impeachment proceeding. If such a Law of Removal were to be passed, it should also specify that the supreme Court would only have original jurisdiction over Federal Crimes of Removal from Office as specified in the Statute of Inquest of Office. Judicial conviction by the supreme Court of an impeached President of a Crime of Removal from Office, in a trial that commenced on Presentment of House Articles of Impeachment, would have the consequence of immediate removal from office under Article Two, Section 4. In addition, for any alleged Federal criminal violation not specified in the Law of Removal from Office, it would be understood that in the event of such an alleged violation, only a Senate conviction in an impeachment trial could cause the President to be removed. Sending trial of crimes other than Crimes of Removal from Office to a lower court would be a further means to ensure that a President could not be removed from office by Judiciary conviction, even in the event of a House impeachment on Criminal grounds for anything other than a Crime of Removal from Office. Because original jurisdiction for such a criminal trial would be other than the supreme Court, the fact that a verdict could be appealed to the supreme Court on Constitutional grounds, would make it unlikely that the House would attempt impeachment and removal by Judiciary conviction for anything other than a case that was clearly within the scope of the Statute of Inquest of Office. Even in the event of a conviction by a lower court, it would put the supreme Court in a position to declare judicial conviction did not have the consequence of removal from office, based on the Inquest of Office statute.
Regarding Judicial proceedings in Criminal cases against a President, there has been a long standing Justice Department policy that no criminal indictment will be pursued against a sitting President. [33] In light of the Constitutional theory of this book it seems that this Justice Department policy must now be reviewed. It seems that for any criminal case against the President, such a case should first be presented to the House of Representatives to consider the question of impeachment. If the House declines to impeach for any reason, including their view that the alleged crime is not a Crime of Removal from Office under the Statute of Inquest of Office, I don’t see any compelling basis why independent Judiciary criminal proceedings should not occur at least up to the point of evidence gathering and Grand Jury indictment. Although I also don’t see a compelling reason not to proceed with a Judiciary criminal trial of a sitting President in the absence of House impeachment, it seems to me that absent House Articles of Impeachment, it might be reasonable to provide for delaying such a trial until the end of a President’s term of office. Regarding the question of delay, a criminal trial obviously would, or could, consume a lot of a President’s time and energy. However, we must consider two further points. First, it is undesirable to have a President serve when there is doubt over the question of whether he is guilty of a Federal crime. Second, a President may want to have an immediate trial to eliminate such doubts and questions, to clear the air by obtaining an acquittal.
Procedure: Removal by Judicial Conviction of Treason
A crucial question here is: who are our enemies? If we are not at war, does the United States have any enemies? If we have no enemies during peacetime, and this seems to me to be a reasonable assumption, then Treason regarding the Constitution’s Article Three provisions would always be moot as long as the United States was not in a declared state of war with any nation, and as long as no one was levying war against the United States. I think this is the case, and the Constitution’s specific Article Three language regarding Treason does not apply when the United States is at peace and there is no on-going civil war.
If we are in a declared state of war, or in the unlikely event of a President leading a civil war against the United States by force, then Article Three provisions would be operative. In this situation, if the President were to commit Treason as defined by Article Three, the Judiciary could hold a Treason trial, and if a conviction resulted, Congress could by an act of both houses, effect an immediate punishment including removal from office, with no impeachment procedure required. If this theory is correct, it appears that a Judiciary Treason trial of the President would be a Case of Removal. Because Congress "may by Law provide for the Case of Removal...", the procedural issue here appears to be that Congress can, and should, pass a law specifying that the Supreme Court shall have original jurisdiction in any Case of Treason where the charge of Treason is against the President. Congress should also specify by law the procedure for Congress to decide the punishment in a Case of Treason according to the Article Three provisions.
The main question regarding the Constitutional theory of this book is regarding removal by Judicial conviction in a case of Impeachment for an alleged criminal violation of a statute. If a national debate occurs on this theory, and it begins to prevail, a fuller consideration can be given later to the Constitutional provisions regarding removal of officers after Judiciary conviction of a Case of Treason. It seems the question of removal from office of a President based on Article Three Treason provisions is very illuminating regarding how the Founders both thought about and provided for removal from office — but today and in the future it seems to be the least likely venue for any action against a President.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.