Chapter Five -- Part E Application and Implications of this Constitutional Theory |
Politics: Removal by Impeachment and Judicial Conviction on Criminal grounds
Any impeachment proceding inevitably occurs in a political context. Part of the political context is how widely known and understood the Constitutional theory advanced in this book becomes. If it does come to be widely accepted, it is still almost inevitable that areas of uncertainty and disagreement will remain. Many of these can be resolved by Congressional passage of a Statute of Inquest of Office, as already discussed.
Discussion of the Constitutional role of the President may be the biggest benefit that could result from widespread consideration of the Constitutional theory of this book. If the Constitutional Convention had in mind the removal of the President in the ways presented in this book, this indicates the Founders never thought of our President as even approaching the status of an irreplaceable person. As a group, the Founders thought corrupt Presidents are both possible and dangerous. Recall the 1974 House Judiciary Committee’s apparent position: "...a majority of the committee, including a number of Democrats, believed that Congress could only impeach for actions against the government and against the political system - in a sense ‘public’ crimes - and that while Nixon might be guilty of the felony of tax evasion or misuse of government funds, these were personal and private crimes, not crimes against the Constitution or the nation." [34] According to the Constitutional theory of this book, for impeachment based on criminal violation of a statute the Founders provided a lower political hurdle, House impeachment only, and removal based on a fair and impartial criminal trial in a Judiciary court, where criminal trials belong. This suggests the Founders did not in any way intend that "private" criminal wrongdoing of a President should be accepted. This is the point where we come full circle to the Nixon-Clinton impeach as one continuous event — a tragedy.
If the Constitutional theory of this book is correct it has two fundamental implications. First, no office holder is indispensable, Presidents included. Second, corruption in high public office holders is dangerous to the Republic. If anything, there should be a bias against tolerating corruption in the Presidency, rather than in favor of tolerating such corruption.
The importance of Federal candidates taking specific positions on the questions of Presidential removability and the proper Constitutional role of the President cannot be overstated. The best way to ensure that a President stays within Constitutional boundaries is to have a Statute of Inquest of Office on the books as Federal law. The next safeguard should be signed affidavits and a recorded signing by each candidate, as a candidate, stating their own understanding of exactly what the Constitutional boundaries are, and pledging to stay within these boundaries. If there is any deviation between what a candidate states as their understanding of the law, and the language of a Statute of Inquest of Office, this should be an issue in the campaign. There is a corollary to this rule that applies to Congress. The best way to ensure any future impeachment is as non-partisan as possible is to have Members of Congress on record in advance, stating their understanding of the terms of the Statute of Inquest of Office, their view of the proper relationship between the President and Congress, and their own understanding of how and when a President should properly be removed from office by the Senate.
The ultimate and final assurance that the President will operate within our Constitutional structure must come from the American people. If a future administration treats the Presidency as a base of operations rather than a Constitutional office, it is up to Congress to protest loudly and clearly, and it is up to the American people to elect a Congress that will resist any illegitimate usurping of Congressional power by the President. If Congress continues to be too much under the control of Corporations and special interests, it is up to Presidential candidates to both challenge each wrong action, and to fight for Campaign Finance reform that will prevent Corporations and special interests from dominating either the Congress or the Presidency.
If the Constitutional theory of this book is correct and we have another administration using the White House as a base of operations, we will probably have another impeachment. It is better to avoid this situation if at all possible. However, if push comes to shove, it would be preferable for Congress and the Judiciary to use the checks and balances provided for in the Constitution to prevent a future President from abusing the Constitutional role of the Presidency. If our Constitutional system of checks and balances is to continue to work in the long run, Congress must maintain the leading role in both setting the action of the Federal government in motion, and in regulating the actions of the Federal government to the benefit of the American people. If Congress can operate free of special interest domination, four hundred and thirty five individual, elected House members, each in close contact with the people of their district, working with a Senate that functions along similar lines, is the best institution for the Federal government to accurately gauge the effect of actions of the Federal government on the nation. Two things can prevent Congress from functioning as it is intended to function: 1) domination by Corporations and special interest, and 2) an on-going battle with an Administration intent on using the Presidency as a power base, ignoring and trampling on the Constitutional system of checks and balances, and limited, shared power and responsibility.
Removal by House impeachment and Judicial trial of other Federal Civil Officers
The focus of discussion of the Constitutional theory of this book has been on removal of the President. If a public debate over the thesis of this book results in a widespread conclusion that the thesis is Constitutionally correct, it will become important to consider the implications of this new understanding of the Constitution regarding removal of other Federal civil Officers.
One of the most disturbing aspects of the Clinton administration is the apparent fact that a widespread conspiracy of silence in the executive branch seems to be succeeding in preventing a thorough investigation of a number of scandals, including the 1996 campaign finance scandal. You might want to re-read the "Too many scandals?" section, pages 21-30. After considering this section, please ask yourself: does there appear to be an on-going executive branch cover-up?
If the Constitutional thesis of this book is correct, the House of Representatives can impeach any executive branch civil Officer, and can forward their Articles of Impeachment to a Judiciary Court as a Presentment to commence a Judiciary trial. There are several points to consider here. The most obvious point will be considered last: the ability of the Judiciary to root out corruption by conducting criminal trials. Before considering the Judiciary trial, there are several important points regarding the House of Representatives: specifically the ability of the House to subpoena evidence, to compel witnesses to testify, including Federal civil Officers, and to exercise an oversight role over the executive branch to ensure it is free of corruption.
Regarding the House’s ability to compel witnesses to testify in an impeachment proceeding, we have seen that a Senate impeachment trial is a specialized kind of trial, and is not a criminal proceeding. However, if House of Representatives Articles of Impeachment can serve as a Presentment to commence a Judiciary criminal trial, it follows that a House impeachment proceeding would in some cases serve the same function that a Grand Jury serves in commencing a Judiciary criminal trial. For this reason, it appears likely if not certain that a person who is the subject of a House impeachment proceeding can not be compelled to testify to the House or to a House committee in that proceeding. Other than this restriction, there appears to be no Constitutional restriction on the ability of the House to subpoena any Federal civil Officer to testify regarding anything they knew about the actions of any other Federal civil Officer. Regarding the power of the House of Representatives to subpoena other evidence in an impeachment proceeding, because the House has the sole power of impeachment, and because the Constitutional provision of the power of impeachment is specifically for the purpose of ensuring that the Federal executive branch can be kept free from corruption, it seems there is a strong burden on the executive for showing why any House subpoena in any impeachment proceeding, including an initial inquiry, can be disregarded.
It may be that the fundamental problem with the independent counsel law has been that the House of Representatives was lulled by it into a false sense of security. Because it has been at least officially assumed that investigation of possible wrongdoing in the Federal executive branch is being properly handled, either by the Justice Department or, when appropriate, by an independent counsel, the House role in impeachment proceedings has been seen as one of waiting for anything appropriate to be presented to them. In view of all the recent scandals, it seems reasonable to conclude that the House of Representatives should give careful consideration to this question: because the Constitution provides for impeachment, doesn’t the Congress, specifically the House, have a proper oversight role to ensure the executive branch is not corrupt? The House has the sole power of impeachment. This is a crucial Constitutional check in the system of checks and balances — to keep our government, and specifically the executive branch, free of corruption. It seems to follow that the House of Representatives should maintain a permanent staff, and possibly a standing Committee, dedicated to investigating and considering whether specific Federal civil Officers should be impeached. Both houses of Congress already have standing Ethics Committees. If the thesis of this book is correct, it would seem logical for the House to have a standing Impeachment Committee. If allegations of wrongdoing by specific Federal civil Officers are made to the Impeachment Committee, this might result in a Committee vote to recommend to the full House either Articles of Impeachment intended to serve as a Presentment in a Judiciary criminal trial, or, probably more rarely, in Articles of Impeachment intended primarily or exclusively for a Senate impeachment trial. Naturally, as already stated, the Senate can decline to try any impeachment, and can also independently try any House Articles of Impeachment, even if intended by the House for Judiciary consideration.
Regarding the Judiciary criminal trial, if the Constitutional theory of this book is correct, Judiciary criminal trials are a legal proceeding to root out corruption of Federal civil Officers, and a deterrent — to encourage Federal civil Officers both to refrain from wrongdoing, and in some cases to resign if it is likely they have committed criminal acts. As a procedure to root out corruption, because a Case of Impeachment is tried without a jury, it can go to a panel of Judges, who can convict on criminal grounds and as an automatic consequence can cause removal from office, by majority vote of the panel, and with consideration of questions of equity. It appears such a judicial panel can conduct a proceeding including direct questioning of witnesses by the Judges. If there is a disagreement on whether an action is or is not criminal, a civil Officer can both argue to the House that it is not, and if the House disagrees and impeaches, make the same argument to the Judges. In such a case, one option for the Judges would be: to convict, but to either impose no sentence, or to stay the sentence. The conviction would result in automatic removal from office, but there may be no further legal consequence. In a genuine dispute on principle, this may be an acceptable outcome for everyone.
If the thesis of this book is correct, it appears there are two major consequences regarding House impeachment and Judiciary criminal trial of Federal civil Officers other than the President and vice-President. First, the House of Representatives has the power and authority to oversee the executive branch, to ensure that the power of federal officers isn’t being used corruptly to steer favors and benefits to individuals and groups. Second, House impeachment and Presentment of Articles of Impeachment to a Judiciary court can be used to thoroughly investigate civil Officers whenever there is grounds to suspect they are participating in illegal activity that involves the President or vice-President. This threat is a strong deterrent against high government officials cooperating with the President or vice-President in illegal activities.
Conclusions should not be drawn about the Clinton Impeachment based on this theory
The actual Clinton impeachment proceeding and the resulting impeachment should not be viewed in the context of the Constitutional theory of this book. At the time of the Clinton House impeachment, the assumption was that removal could occur only by Senate conviction. It seems likely that many in the House anticipated that an actual Senate conviction was highly improbable, if only because the process had become so partisan. Many in the House may have thought that Clinton’s impeachment would simply stand as a scarlet "I", a powerful rebuke of his actions. If the House of Representatives had been presented with exactly the same fact situation, but with the understanding that their vote to impeach would have resulted in a Judiciary trial of Clinton on charges of perjury, some members of the House may have both viewed Judiciary conviction as probable, and concluded that in spite of this, the facts and the circumstances of the case simply did not warrant Clinton’s removal from office. It is equally possible that if the Constitutional theory of this book had been the common understanding at the time, the House would have still voted for impeachment, possibly by an even higher margin, based on a belief that a Judiciary trial would not disrupt the government, and also believing that a Judiciary trial would be fair, and on the legal merits, rather than a political trial. However, regarding these "what if" questions, we should also keep in mind a third "what if": that if this Constitutional theory had been known and accepted at the time of the Nixon impeachment, the 1974 House Judiciary Committee would probably never have tempted Bill and Hillary Clinton in the first place, with the dangerous doctrine that Presidential wrongdoing, even crimes, is not impeachable if the wrongdoing is "essentially private" and not egregious. If the Constitutional theory of this book had been known and widely accepted at the time of the Nixon impeachment, the lives of President Clinton, Mrs. Clinton, and many others, may have been completely different. Who can say? Again we come full circle to the Nixon-Clinton impeachment as a single, continuous historical event, and in this case a tragedy. We can learn lessons from the fabric of history, but we can’t unravel it and reknit it into something else.
Copyright © 2000, Robert S. Carney Jr., 4232 Colfax Ave. So., Minneapolis, MN 55409. All rights reserved.