Wednesday, July 24, 2019

My only post on impeachment

The question of the President's impeachment is on my mind.  I write here not to advocate, but to process.

The only "Jewish" issue involved is the morality and ethics of one who is charged with a legitimate duty fulfilling that duty in their private lives.

Can someone who breaks shabbat teach shabbat (yes)?
Can someone who eats treife supervise kashrut (no)?
Can a president who breaks the law enforce the law (not objectively, no)?

The question of k'tocho ba'aro - one's inside should be as one's outside speaks to trust and hypocrisy.  Nevertheless, I write here to put it down - and perhaps to leave it behind - in my own thoughts.


The Power of Impeachment.

United States Constitutional sources:

Article 1, section 2:  The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article 1, section 3:  The Senate shall have sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Article 2, section 4: 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.


History of actual impeachments voted by the House:

1868 - Andrew Johnson, for violating an act of Congress in how he fired a member of his cabinet.
1998 - Bill Clinton, for lying under oath and obstructing justice in an investigation, both about his personal sexual life.

Both were tried in the Senate, and not convicted by the 2/3 majority required.  No president has ever been removed from office by this power of Congress.  Under threat of impending impeachment, President Richard Nixon chose to resign and be pardoned by his immediate successor, President Gerald Ford.

That's it.  No other president of the United States has ever been impeached by the House and (therefore) tried in the Senate.


My feeling about the Presidency and impeachment:

What are "High Crimes and Misdemeanors?"  I believe that either a high crime, or a misdemeanor can be sufficient for legitimate impeachment.  When Clinton lied under oath, and attempted to obstruct justice, he was a legitimate target for impeachment.  Why?

A sitting President is the chief executive for the enforcement of the law.  He/She must be beyond reproach in observance of the law.  But, if he/she commits a misdemeanor (let's say, shoplifting or possession of a small amount of marijuana), should he/she be removed from office?

A sitting president may not be tried by any authority other than impeachment.  The DOJ has a firm policy that the sitting president may not be charged with crimes or misdemeanors in any setting other than the House.

Therefore, while I supported President Clinton politically, I believed that his impeachment was both petty and legitimate.  Before asking if it was necessary, I will comment on Trump.


My feeling about President Trump and Impeachment. 

I believe that, objectively speaking, it is absolutely clear that President Trump attempted to obstruct justice regarding the Mueller investigations.  I also believe that he did so in a manner that is both similar to, and more serious than the second article of impeachment against Bill Clinton.  As such, he is also legitimately subject to impeachment by the House of Representatives.

Now, words really matter here, because the constitution says the President "shall be" removed upon impeachment and conviction.  Does that mean that the House shall impeach?  I.e. the House must impeach?  Not, it doesn't.  Article 1, Section 2 affirms the House's "sole power," which means it is entirely within their prerogative to do it or not, regardless of the preponderance of the evidence.  That means, to re-use Trump's example from his January 23, 2016 campaign speech, he could stand in the middle of 5th Avenue as a sitting president and shoot somebody and the House would not be forced to impeach him.

My own conclusion is that any president who is accused to have obstructed justice should be impeached and tried in the Senate.  Like any other accusation of wrongdoing, there is a process by which the accused is exonerated.  In this case, that can - and should - only happen in the Senate.  I also believe that this will not occur.


What I don't like.  I don't like that Nancy Pelosi is making this a hedge bet for the political future.  I recognize that the current situation in the United States is polarized and "everyone" believes that "everyone else" is acting only out of political/tribal loyalty.  Pelosi is politically astute and knows that the Republicans will not convict Trump of any article of impeachment in the Senate.  Therefore the only reason to impeach him in the House would be for political gain, and it is not clear that the Democrats would gain politically from that.  Therefore, for political reasons, she is not supporting impeachment.  I really don't like that point of view.

Is she right? Yes.  Is she politically right?  She probably knows a lot better than me. But I believe that she is wrong as a matter of ethics.  I believe that there is an ethical mandate to bring the matter forward to trial. It is serious and it is real.  It should be recorded in history as such.  Sometimes the right thing to do has nothing to do with probable outcomes.

So that's it.  I believe obstruction of Justice is a legitimate cause for Articles of Impeachment.  I believe that Trump has clearly met the criteria for obstruction of justice. I believe he should be impeached, and then tried.  And if he is not convicted, the rule of law will have been observed. Sometimes guilty people are not convicted.  Of course, as I said, it won't happen.


Having gotten it off my chest, moving forward I support those who call for impeachment, because it is the right ethical stance.  But our leaders in government will not act on it, and time is precious.  I will work on other things.

1 comment:

  1. With the additional accusation that the President used his office for personal benefit by encouraging the President of Ukraine to investigate Trump’s political opponent, the bribery clause cited above comes into play. Legally bribery does not require monetary benefit, nor an actual agreement to commit bribery. The attempt to use the office for personal gain is sufficient for conviction of bribery. The framers of the constitution were tremendously concerned with potential abuse of power in the new presidency. We don’t have all the facts yet, but witholding the whistleblower report from congress is illegal, and the original conversation may be bribery. As such, it must be investigated at the very least. That process is tedious, expensive and time consuming. It is likely to be unpopular. But it is the only legal mechanism to force the investigation. My own hope is that it will go quickly, as the outcome is predetermined in the Republican Senate.