Above the Law

The Trump administration’s latest ploy, in its letter to Congress on Tuesday, October 8, is a stunning document, in a month of stunning events. But this one takes the cake. That’s because what it says, in effect, is that the president, or this president* at least, is above the law. He cannot be legally indicted, because a sitting president cannot be, according to his Department of Justice’s OLC. And now his legal team is saying that he cannot be impeached either, because he is being denied due process. The Constitution, of course, doesn’t provide for due process in bringing impeachment charges by the House of Representatives, because the actual trial is held by the Senate. That’s where due process, if it’s relevant at all to impeachment (which is not a court of law but a political process), would come in. 

            But first, it’s important to remind ourselves what impeachment is, and isn’t. Article 1 Section 2 of the U.S. Constitution says that the House of Representatives “shall have the sole Power of Impeachment” and that “the Senate shall have the sole Power to try all Impeachments…[but] no person shall be convicted without the Concurrence of two-thirds of the Members present” (Article I, section 3.) That is all. In the Senate trial, a two-thirds vote of all members is needed to convict the person impeached by the House. In the actual impeachment proceedings, the House of Representatives charges an official by approving, by majority vote, Articles of impeachment (these articles must be gathered from an inquiry made beforehand). Representatives, called “managers,” act as prosecutors before the Senate in the trial. Senators listen to their evidence and witnesses, and then vote to convict or acquit.

            This whole process was adopted from English law. As the framers of our Constitution  saw it, 

this congressional power is a fundamental component of the constitutional system of “checks and balances.” Through the impeachment process, Congress charges and then tries an official of the federal government for “Treason, Bribery, or other high Crimes and Misdemeanors.” (www.Senate.gov).

The penalty for an impeached official is not any legal punishment, as in a regular courtroom trial, but solely removal from office. This clearly proves that impeachment is a political process, its sole aim being precisely to step in where the normal political process is seen to have erred by putting into office someone who abuses that office in some way. As noted above, it is part of the system of “checks and balances” that the framers saw as necessary to keep the three branches in balance. That is to say, impeachment is the means to keep any one branch from consolidating too much power. The Founders feared specifically that a president might assume, without those checks on his authority, the powers of a king or dictator. 

            Now we add to this the policy of the Justice Department, as made highly visible by Robert Mueller’s explanation of why he did not indict this president* for obstruction of justice, i.e., that a president cannot be legally indicted while in office because according to the Office of Legal Counsel (OLC):

The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions. (Vox.com, 7/24/19).

This means, in effect, that there is no way that a president can be held legally accountable for his actions. No matter how heinous (this president has boasted that he could shoot someone on 5^thAvenue in New York and not be held accountable by his voters) these actions might be, a president cannot be legally held accountable while in office. As Richard Nixon famously said, “Well, when the president does it, that means that it is not illegal.” 

This is precisely why the impeachment process is so critical. If, as has plainly happened with the actions of president* Trump with respect to Ukraine, the president abuses the powers of his office (here, for personal gain), the constitutional remedy—the only remedy—is impeachment. The House of Representatives conducts an inquiry into the alleged abuse(s), and if it finds that some violation has occurred (this does NOT have to be a legal violation but only a violation of the conduct expected of a president), then it refers its finding to the full House for a vote. This is the vote to impeach. If a majority so votes, the matter goes to the Senate for a trial, with representatives serving as managers or prosecutors.

What Trump’s legal team is trying to do is throw a monkey wrench into this process by claiming that the president must be allowed to face (and, he hopes, intimidate) witnesses before the trial even begins. This is legal nonsense. They are saying that the House has no right to make inquiries necessary to buttress its impeachment process, and that therefore the White House team is refusing to comply with subpoenas or requests for documents or witnesses. This is to essentially say that the president, or this president* at least, cannot be impeached. Because, for another very important thing, it will illegally reverse the results of the 2016 election.

But that is precisely what impeachment is for: to remove from office an elected (or appointed) official who has demonstrated his unfitness for office—by committing “high crimes or misdemeanors.” More than that, the administration’s position would mean that a person—in this case president Trump—would be able to set himself above the law. He could not be held legally accountable. Neither could he be impeached. He would be, in effect, a king or a dictator. 

 If this perversion of all they stood for doesn’t make the Founding Fathers roll over in their graves, I don’t know what would. 

Lawrence DiStasi