A Weblog Dedicated to the Discussion of the Christian Faith and 21st Century Life

A Weblog Dedicated to the Discussion of the Christian Faith and 21st Century Life
I do not seek to understand that I may believe, but I believe in order to understand. For this also I believe, –that unless I believed, I should not understand.-- St. Anselm of Canterbury (1033-1109)

Thursday, October 24, 2019

Impeachment and Due Process Calmly Considered

See the source image
So, we are currently in the middle of an impeachment inquiry into the behavior of President Trump-- whether or not he engaged in a quid pro quo with officials in Ukraine. Republicans are saying that Democrats in the House are not giving the President due process. Indeed, yesterday they stormed the closed door hearings to protest being shut out of the deliberations.

So, let's try to separate fact from fiction, and shed more light than heat on what is happening.

The Constitution of the United States provides for the impeachment of the President, the Vice-President, "and all civil Officers of the United States.” Article 1, Section 2.5 states,
"The House of Representatives shall chuse (original spelling) their Speaker and other Officers; and shall have the sole Power of Impeachment."
If a President is impeached (think "accused" or "indicted") then the process moves to the Senate.
The Senate shall have the 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. 
Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law. (Article 1, Section 3.6-7).
The best way to think of this is that the House acts as the Grand Jury. If, by a majority vote of the entire House, the President is impeached, then the trial moves to the Senate where the entire Senate acts as the jury. Members of the House are chosen to prosecute the case before the Senate, and the President has his own lawyers to defend him. The Constitution requires a two thirds vote to remove the official from office.

Why is the impeachment inquiry not public? Because in the impeachment process, the House acts as a Grand Jury. The fifth amendment states,
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Grand juries are private for four reasons: First, to protect the reputation of the defendant in case she or he is accused falsely. Second, to make sure witnesses are also protected from intimidation prior to a possible trial. Third, the inquiry works to establish if there is enough evidence to indict, to accuse the subject of the inquiry. Fourth, in the case of impeachment, sensitive and classified information must be protected.

Unfortunately, the problem with impeachment is that the subject of the inquiry-- in this case President Trump-- is known, as well as some of the witnesses-- but the necessity of keeping classified information under wraps is important as well as establishing whether an formal accusation is warranted.

Those who claim the President is not getting due process are simply wrong. The House is proceeding by the process passed by the Republican controlled House in 2015. Once the inquiry is over, the full House will be presented with the evidence and the defined articles of impeachment. A vote by the full House will be taken. House Republicans who want the entire inquiry to be made public are attempting to sabotage the prescribed Constitutional role of the Senate as the place of trial. Their desire to make the proceedings public now is so they can informally try the case in the House before the public in order to undermine the trial in the Senate. Moreover, Republicans are not being shut out of the inquiry process. Forty-eight Republicans are serving on the various committees working on the inquiry. Thirteen of them were involved in the storming of the closed hearing yesterday. Ursula Perano writes,
13 of the 41 Republican lawmakers who stormed a closed-door hearing Wednesday to protest an alleged lack of transparency in the impeachment inquiry sit on committees with the power to question witnesses and review documents. The inquiry is currently being led by the House Intelligence, Foreign Affairs and Oversight committees, which are comprised of 48 Republicans in total. 
The problem for these Republicans is that since the hearings are closed they know that releasing sensitive information is a felony; so they are now attempting to take control of the narrative by alleging that due process is not being followed, when indeed it is. It is reminiscent of the long time adage by Carl Sandburg, "If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell."

It also should be noted that if one studies the impeachment of President Clinton by House Republicans in late 1998 into 1999, it will be discovered that the House inquiry then followed along the same lines with some variation. The major difference was that Bill Clinton and his administration cooperated with the inquiry, while President Trump and his associates refuse to do so.

So, for those who are concerned that President Trump is not being afforded due process, which is a valid concern to be sure, rest assured that it is not the case. If the President is impeached, then he will indeed get his day in court in the Capitol's Upper Chamber.

One final note: Ben Franklin very much liked the idea of impeaching individuals he referred to as "obnoxious" chief executives, since that was a more appropriate way to remove leaders from office than the previous process of assassination.

Impeachment is not a lynching by any stretch of the imagination as our African American friends know very well, nor is it a coup. If Donald Trump is removed from office, Mike Pence becomes the President-- hardly the overthrow of an election. This inquiry may indeed be judged by some as unfair or unwarranted, but it is still the appropriate process outlined in the U.S. Constitution...

...cable news talking heads notwithstanding.


Unknown said...

I'm no attorney let alone a Constitutional scholar, but it seems tenuous that the House acting like a grand jury makes it a grand jury in fact. If not a grand jury, no involvement of the 5th Amendment. With next to no guidelines on the impeachment process. the House (especially the majority in power) can run it however it wishes. All these closed-door proceedings smack of Star Chamber. The lynch comment was out of bounds. However, I am largely convinced of the coup thing, trying to invalidate the 2016 election and not wanting to run against Trump in 2020. Most voters (including me) chose between Trump and Hilary, not their vice-presidential candidates. I don't even remember who hers was, but Pence was/is a nonentity. And in the end, the current Senate would never vote to convict and remove. So, why are they all bothering? Now... if like Nixon, real crimes suddenly emerge that demand removal, that would change everything.

Allan R. Bevere said...

Thanks for your comments. Just a brief response. First, the House is operating within the rules set by the Republican House in 2015. Second, you are right that the Senate will not vote to convict, but I am not sure why that should influence what the House is going to do. Remember that Speaker Pelosi resisted impeachment for a long-time when members of her tribe were calling for it. Third, I don't think the Grand Jury comparison is tenuous at all. In fact, given the history of jurisprudence in the U.S. and in England prior, it is not surprising that the founders would enshrine the process in this way. Fourth, while it is true that most of us do not vote for Vice-President, we are all well-aware that given unforeseen circumstances, we may get that VP as POTUS. I think the description of coup is extreme.

But we will have to see how all this plays out, and none of us knows for sure what will happen.

Thanks for engaging in the discussion.