While we wait let’s understand the impeachment process. President Donald Trump is only the third president to be impeached. Impeachment is a rarely used tool.
Founders intent was for it to be a serious and fair process. Trump hasn’t gotten the due process we all deserve constitutionally. Impeachment will continue to overtake the news and even Congress. Even though this is something we’ve been hearing about for four years, what should Americans know about this impeachment that maybe they’re not hearing on mainstream media?
The House
What we saw in the House of Representatives was really a sad display. It was a one-sided show trial. It was the culmination of three years of hatred and partisan venom. House Democrats had been calling to impeach the president literally since Election Day 2016. This impeachment was not driven by facts. It was not driven by evidence. It was driven by partisan rage because the far left hates the president.
What we saw in the House was a one-sided show trial. The White House was denied the opportunity to cross-examine witnesses. Republicans were denied the opportunity to call witnesses. Even after setting up a kangaroo court of only one-sided prosecution witnesses, House Democrats’ case fell apart.
Compare what the Democrats were saying in November to the ridiculous articles they ended up voting on. In November, you had House Democrats all saying, “Bribery, bribery, bribery. We’re going to prove bribery… we’re going to prove obstruction of justice. We’re going to prove all these crimes, extortion.”
What does the constitution require for impeachment?
Bribery, obstruction of justice, extortion, those are serious crimes. Then, they actually heard evidence. The evidence didn’t back up any of that. Everything they alleged, they got to and said, “Well, we can’t.” And there’s a reason. All of those are federal crimes. Federal crimes have things called elements, elements of the crime.
If you’re a prosecutor, and you’re proving a crime, you’ve got to prove the elements. The testimony came in and they couldn’t prove the elements of a crime. Bribery requires agreement. Testimony was undisputed. Ukraine didn’t even know this was going on. You can’t have agreement if the testimony is clear the other side doesn’t even know about it.
The Democrats’ problem was everything they’d promised collapsed. But they hated the president. They wanted to impeach him anyway. They voted on articles of impeachment that, on their face, don’t meet the constitutional standards.
The Constitution specifies what has to be proven for impeachment of a president. That is the House has to prove treason, bribery, or other high crimes and misdemeanors. On its face, the House articles of impeachment don’t meet those criteria.
The Senate
There is some good news. In the Senate, we’re going to see a very, very different proceeding. We’re going to see a fair trial in the Senate. What is a fair trial? It means both sides are going to have the chance to present their case. The House managers are going to be allowed to present their case. They can argue whatever they want to argue. They can rely on whatever evidence they can. But the President is going to get to present his case, which he wasn’t able to do up until now.
.The senate will respect due process. They are going to give the president an opportunity to present a full defense on the merits, on the facts. And then at the end of that process, this entire charade is going to be thrown out. Why is it going to be thrown out? It’s going to be thrown out because it doesn’t meet the constitutional standards. On its face, the House didn’t even allege high crimes or misdemeanor. The result of the fair trial, if hearing both sides, will be that the case will be thrown out at the end of the trial.
The Framers on impeachment
This is something actually the Framers of our Constitution worried about a great deal. They didn’t want to see impeachment just used as a political weapon. There is constitutional history of where the language of treason, bribery, or other high crimes and misdemeanors came from. There were a couple of early iterations. Then, going into the Convention, the language for impeachment of the president just said treason or bribery.
George Mason, one of the most well respected of the Framers, stood up and he made a motion to add the word “maladministration” so that the phrase would have read “treason, bribery, or maladministration.” James Madison widely recognized as the Father of the Constitution, stood up and objected to Mason’s suggestion. He said, “This is a bad idea because maladministration is such a general, such a broad and capacious term.”
Madison said, “What it would mean is any time Congress disagreed with the president, they could impeach the president, so let’s not put maladministration in there because this shouldn’t be a tool just when you have a political or policy disagreement with the president. How about instead of maladministration, let’s add ‘other high crimes and misdemeanors.’” That’s what they ended up doing.
What the future holds
The consequence of the Democrats doing this is, if this is the standard for the House of Representatives, every president from now to eternity will be impeached any time the House is of an opposing party. The media will never point this out. Barack Obama was president for eight years. Republicans disagreed profoundly with him. He advocated, he implemented policies that were enormously damaging to this country that hurt Americans.
Yet, despite very strong disagreements with Obama, Republicans didn’t advocate impeaching him. They weren’t out there arguing they should impeach Obama. Why? Because, if you disagree with someone on policy or politics, the Constitution has a remedy for that. You go and win at the ballot box. You go make the case to the American people the policies this guy is implementing are bad policy.
Here’s the Democrats’ problem. We’ve got a roaring economy. We’ve got the lowest unemployment in 50 years. We got the lowest African American unemployment ever recorded. We had the lowest Hispanic unemployment ever recorded. They can’t make the case on policy. They’re looking at it and saying, “Well, if we actually have to argue on substance, we lose, so let’s impeach him.” That’s an abuse of the Constitution. Sadly, it is where today’s extreme, radical Democratic Party is.
Differences with past impeachments
There are deep factually based differences between the Clinton and Trump impeachments. Most fundamentally, Bill Clinton was impeached for committing high crimes and misdemeanor. In particular, he was impeached for perjury and obstruction of justice. It’s quite clear that perjury and obstruction of justice are high crimes and misdemeanors. They’re felonies. They’re serious felonies. If you or I commit perjury or obstruction of justice, we could face years in prison.
The House Democrats haven’t alleged that, and it’s interesting if you contrast. There are two articles that the House Democrats voted on. First, where they were threatening bribery, extortion, they didn’t impeach on any of that. They made something up called abuse of power and their argument is they don’t have to allege any violation of criminal law. They don’t have to allege any federal law whatsoever was violated. That they don’t have to argue, in their view of the world, that Donald Trump had a speeding ticket. They just disagree with his foreign policy and how he implements it. That’s Article 1.
Then, as weak as Article 1 is, Article 2 is orders of magnitude weaker. Why is that? Because Article 2 is obstruction, but it’s not obstruction of justice. It’s obstruction of Congress. It’s interesting, because for months Democrats have been saying that Donald Trump committed obstruction of justice. Obstruction of justice is a high crime or misdemeanor… but the facts don’t back it up. They couldn’t meet the elements and prove obstruction of justice.
Where does that leave us?
So, they backed away, and here’s their argument. Their argument is: because administration officials claimed various forms of privilege, primarily executive privilege, that the mere act of claiming a legal privilege is obstruction of Congress, and it is a high crime or misdemeanor that is impeachable. That is a ludicrous, laughable standard. If that were a standard every single one of the 45 presidents we’ve had would have committed high crimes and misdemeanors that can be impeached. Going back to George Washington, every president has asserted executive privilege and other privileges.
If you dive down a little bit more you’ll see just how ridiculous this is. Let’s take the case of John Bolton. John Bolton was the national security adviser to President Trump for a year and a half. House Democrats wanted John Bolton to testify in the House. John Bolton did something I think very clever and very wise. Through his lawyer, he went to federal district court in D.C. and he went to the judge and he said, “Judge, I’ve got a demand from the House of Representatives to testify, and I’ve been instructed by the White House not to testify, based on executive privilege.”
And John Bolton said “Judge, you tell me what to do. I’ll follow the law. I’ve got two conflicting legal obligations here, so I’m going to you, judge, asking for what is the right answer under the law.” You know what House Democrats did? They said, “Never mind.” They literally just said, “Never mind. OK, we’ll go away… The fact that you went to court to ask for an answer, that’s obstruction, going to court.” That’s their position.
Nixon
Contrast that to the Nixon case. With Nixon, there was a grand jury subpoena for the White House tapes. Richard Nixon had a secret tape-recording device in the Oval Office, very stupid, by the way, bad, bad idea, but he did. The grand jury issued a subpoena. That was litigated all the way to the U.S. Supreme Court. The U.S. Supreme Court issued an order to the Nixon White House, “Handover those tapes.” Nixon resigned, a couple of days later.
That’s actually how these issues typically reach resolution. If the House wants to get testimony, they could issue a subpoena. They can go litigate it, take it to the court. They could take it to the Supreme Court. Their position is, “Nope, we’re not going to do any of that. Any president who asserts any privilege, that is “obstruction of Congress and impeachable.” It is difficult to find a more ludicrous argument and support of impeachment.