The U.S. Constitution and The Rule of Law*

The U.S. Constitution and The Rule of Law

America was founded on and has flourished by observing the Rule of Law, the foundation of democracy embedded in the Constitution and largely explained in the Federalist Papers. The Rule of Law means that all Americans, whether commoners or aristocrats, rulers or ruled, are subject to laws that are publicly promulgated, consistently applied and enforced, and independently adjudicated. America’s Rule of Law relies on the principle of even-handedness, that the law of the land – the Constitution – is supreme, that government officials are subject to the same legal standards as ordinary citizens, that the laws are applied evenly by prosecutors and judges, and that every person is held accountable for his actions – there are no free passes. Federalist Papers No. 69 and No. 78, two of the pillars upon which America was founded, make these points. In short, America’s laws and its Constitution are intended to follow the Rule of Law in ways that are clear, publicized, consistent, stable and fair.

A significant departure from that Constitutional Rule of Law occurred in 1998 when the Senate, after the House of Representatives impeached President Clinton, acquitted him – voting to not remove him from office. There was no question about Clinton’s guilt or innocence of the two Articles of Impeachment: there was more than sufficient evidence that he “provided perjurious, false and misleading testimony …,” and that he “engaged personally, and through his subordinates and agents, in a course of conduct … designed to delay, impede, cover up, and conceal the existence of evidence and testimony ….” All 45 Senate Democrats nevertheless voted “not guilty” to both Articles and the Senate accordingly failed to reach the two-thirds majority needed for conviction removal (with 10 and 5 Republicans, respectively, joining their Democratic colleagues in voting for acquittal). Even though Clinton’s perjury and obstruction were clear, the Senate justified its acquittal on the basis that he had not perjured himself with respect to matters central to serving as President, but rather over embarrassing and inappropriate consensual sexual activity. The rationale was that perjury – lying under oath – and obstruction of justice – attempting to frustrate the Constitutionally-mandated Rule of Law – should not be treated as “high Crimes and Misdemeanors,” the basis for impeachment and conviction under the Constitution. “High Crimes and Misdemeanors,” the Senate implicitly argued determined, include “only” a “serious breach of Presidential duties” that involve a grievous injury to the Constitutional system that endangers the liberties of the people, seriously damages the country’s interests, abuses the powers of the Presidency, or repeatedly, variously and feloniously obstructs justice. The Senate therefore concluded that the Constitution doesn’t prevent a President from being a perjuring, lying, lecherous, adultering, obstructing, duplicitous commander-in-chief, a conclusion about which the Federalist Papers, and their authors, would most certainly might disagree.

A question, in retrospect, is whether the Senate was correct wise in reaching that conclusion. That is, is it in the best interest of America and Americans to tolerate have as a President someone who flagrantly perjures himself and intentionally obstructs justice (leaving out the parts about lechering and adultering)? TLR previously answered that question with a “no” (in the October 4th discussion of “The Legal Precedent of Impeachment”) – TLR believes that there were good and sufficient reasons to have removed President Clinton from office. Not only have did both his actions seriously damage the credibility, as well as the moral and ethical trust, Americans had and need to have in their leaders (and the Free World needs to have in its American leaders), but each such action also undercut the Rule of Law that anchors America, its capitalist economy, and its system of democracy. Such actions by a President also undoubtedly cause other elected officials – and the public at large – to follow their President’s example lead …, which is not merely a shame a recipe for sanctioned increased lawlessness. Adherence to the Rule of Law has been America’s differentiator. It’s what has made America great. It’s the reason why American democracy is history’s most durable, why America’s economy has outperformed all others, and why America has the world’s free-est society.

The Constitution requires that impeachment by the House and conviction by the Senate not be based on a President’s competency or maladministration, but rather on conduct that is incompatible with the Presidency. That conduct, saith the Constitution, is whatever the House and Senate determine it to be. The only yardstick is that such conduct meet a definition of “high Crime or Misdemeanor” … as determined separately and independently by the House and the Senate. Article 1 of the Constitution gives the House the “sole power of Impeachment” and the Senate the “sole Power to try all Impeachments.” Each has autonomy to determine what is, and what is not, a basis to impeach and remove, respectively, a President from office. Each has autonomy to determine what is and what is not a “high Crime and Misdemeanor.” For that reason, a House impeachment and a Senate trial by definition are political … as well as Constitutional. Legal concepts, including the Rule of Law, necessarily bear on the determination of guilt or innocence, but as the Clinton impeachment demonstrated, law and the violation of law are not determinative …, and partisanship plays an undeniable role. Perhaps the best description of the impeachment process was that given in 1970 by then-House Minority Leader (and later President) Gerald Ford: “An impeachable offense is whatever a majority of the House of Representatives [and two-thirds of the Senate] considers it to be at a given moment in history.”

That has been the rationale for the House decision to impeach President Trump. It also will be the standard used in the Trump impeachment trial in the Senate.

How should might the Senate address the two Articles of Impeachment filed by the House against President Trump? The first of those Articles is for abuse of power “through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage” and the second is for obstruction of Congress in “interpos[ing] the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assuming to himself functions and judgments necessary to the exercise of the ÔÇÿsole Power of Impeachment’ by the Constitution ….” As with President Clinton, the facts surrounding the two Articles of Impeachment are not in doubt: The abuse of power cited by the House is confirmed in the partially-redacted transcript of the President’s conversation with Ukrainian President Zelensky and in the testimony of several witnesses (as well as by the admission of the President’s Chief of Staff, Mick Mulvaney), and the obstruction of Congress described in the Articles derives from the President’s public instructions to subordinates to ignore House subpoenas and not cooperate in the impeachment investigation (a violation of Article 1 of the Constitution). Nevertheless, the fact that both Articles of Impeachment rely on clear factual and Constitutional foundations does not require the Senate to agree with the House. To the contrary, as described above, it is solely within the authority of the Senate to determine what it believes should constitute a “high Crime and Misdemeanor” with respect to the actions of President Trump. Of the 35 Senate seats to be contested in 2020, 23 are held by Republican incumbents who are hellbent on getting reelected. The outcome in the Senate accordingly … and not surprisingly … will be dictated by the Senators’ self-interest …, and virtually all Republican Senators are expected to vote for acquittal, making conviction by two-thirds of the Senators a mathematical impossibility. Opposing the President would invite not only an executive backlash, but also a damaging primary challenge that would reduce a Senator’s chance of reelection. Republican Senators up for reelection in 2022 and 2024 understand the same reality. If that turns out to be Republican Senators’ calculus, the Senate will determine that this President, but in reality any President, is within his rights to solicit the governments of other countries to intervene in the American political process (rendering moot the question of whether a candidate may work with Russia or China or any other country to win an election) and, in addition, may flagrantly ignore the authority granted to Congress by Article 1 of the Constitution, including its exclusive power to remove a President from office. If so, the Imperial Presidency will take a giant step toward becoming a reality … and America’s reliance on the Rule of Law will take a step … or a number of steps … backward. That outcome would be the sole responsibility of the 116th Congress.

The July 15th TLR, “It’s Congress’s Fault,” decried the pre-Impeachment slide towards an Imperial Presidency, a slide that now appears to be accelerating. During America’s 243-year history, Presidents from time to time have tried to usurp Congress’s Article 1 powers. Two notable examples were the Korean “police action” undertaken by President Truman and the Vietnam War authorized so to speak by President Johnson, both without Congressional approval. Although President Trump hasn’t taken any war-like decisions, he has engaged in a broad range of unilateral actions that challenge the delegation of Article 1 powers to Congress, including most recently by “assuming to himself functions and judgments necessary to the exercise of the ÔÇÿsole Power of Impeachment.’” Congress thus far has been acquiescing in the whittling down of its Article 1 powers and been derelict in its responsibilities to tax and to spend, to borrow, and to protect its other exclusive Article 1 powers from Presidential encroachment. To the extent a President’s attempts to arrogate power to the executive branch create adverse consequences for America or Americans, it falls on Congress to exercise its Constitutional authority to restore the balance of power …, which it has not been doing.

That is the task that the Senate is now faced with in the pending impeachment trial of President Trump. Imperial power is something sought by virtually all politicians in all countries. President Trump’s actions represent the rule, not the exception. The quest for unlimited Presidential power therefore will not end with this President …, and that’s something that should be troublesome to all Americans.

Finally (from a good friend)

*┬® Copyright 2019 by William Natbony. All rights reserved.

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