(note – this essay was written prior to the Intelligence Committee Report publication on 12/3/19)
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” – US Constitution, Article 2, Section 1
It’s written directly into the Constitution: preserve, protect and defend the Constitution. It was so important to the authors, that they wrote it into the oath, part of the first section about the President of the United States.
Constitutional Process
But the first step in “…preserve, protect and defend…” must be to actually respect the Constitution, an action the Trump Presidency has yet to do. The Constitution grants the House of Representatives the sole power of impeachment. There have been three Presidents in American History who have faced impeachment: Andrew Johnson in 1868, Richard Nixon in 1974, and Bill Clinton in 1998. All three used every legal and political means to avoid being impeached.
But all three respected the process, the system set up by the Constitution. They respected the legal right of the House of Representatives to raise the question of impeachment, and, in two cases, stood trial in the Senate for Articles of Impeachment brought by the House (Nixon resigned before he was impeached).
But Mr. Trump, characteristically, has treated the House and its Constitutional authority with contempt. The President’s attorney, Pat Cipollone, stated the following in his response to the House Judiciary Committee’s invitation to participate in their inquiry.
“…Regarding the purported impeachment inquiry…this baseless and highly partisan inquiry violates all past historical precedent, basic due process rights, and fundamental fairness” (WAPO).
The White House argument, echoed by the Republican House members, has been to demand that the process be altered. They demand that the committees hold a separate “trial” of the President at each stage of the investigative process, with the President’s attorneys able to call witnesses and interrogate. Their claim is that the process is un-American, and unfair to the President.
Who Investigates?
The difference between the Nixon/Clinton impeachments and the current Trump situation is the absence of action by the Department of Justice. In the case of President Nixon, Special Prosecutors Cox and Jaworski did full investigations of the Watergate break-in and the White House cover-up. In the case of Bill Clinton, Independent Counsel Starr did a four-year lead up to Congressional impeachment.
Both during the Cox/Jaworski investigation and the Starr inquiry, the President’s counsel didn’t get an opportunity to question witnesses. While Nixon was required to turn over evidence (the tapes) and Clinton was deposed (“the meaning of the word ‘is’”) they could not cross-examine during the investigative phase.
The same was true during the Mueller investigation. And that effort did NOT result in impeachment proceedings against President Trump.
Two Functions -Two Committees
But the current Ukrainian crisis is different. The President’s Attorney General, Bill Barr, refused to allow the Justice Department to investigate. He left the House of Representatives to perform two functions: investigate, then determine whether the results of that investigation rise to the level of impeachment.
In order to do both, the House used the relevant committee, the Intelligence Committee, to perform the investigatory function. They heard witnesses specific to the charges that the President demanded a “quid pro quo” from the Ukrainian government. He wanted help for the 2020 Trump Campaign in exchange for military aid for Ukraine.
Republican members of the Committee engaged in three forms of obstruction. In the beginning, they attacked the procedural basis for the investigation. When that failed, they tried to cloud the investigation with irrelevant issues. Republicans tried to bring up the actions of Hunter or Joe Biden, and the “Crowd-Strike” conspiracy theory. The President might raise these later in the “trial” phase of the impeachment as “alternate theories”. But during the investigation they were presented as distractions to finding the facts of what the President did.
The third Republican strategy was to discredit the “fact” witnesses against the President. From the honored former Ambassador to Ukraine, Maria Yovanovitch, to Lt. Colonel Alexander Vindman, the House Republicans spent a great deal of time trying to prove that somehow they shouldn’t be heard. This is all part of a larger “theme” of Republican obstruction: that the “Deep State” of career government workers somehow is trying to destroy the Trump Presidency.
Investigation to Determination
While the Intelligence Committee continues their investigation, they have gotten enough information to forward to the Judiciary Committee. Their function is to take the facts given, and apply them to the Constitutional definition of impeachable offenses. The Constitution states:
“…the President…shall be removed from office on impeachment for; and conviction of, treason, bribery, or other high crimes and misdemeanors.”
The task of the Judiciary Committee is to determine what this means, and whether the facts presented by the Judiciary Committee are significant enough to impeach.
This is similar to the judicial process of Grand Jury Indictment. A Grand Jury hears evidence presented by the prosecution. After all of the prosecutor’s evidence is heard, the Jury determines whether there is probable cause that a crime has been committed. If they reach that conclusion, then indictments are issued, and a trial begins. The “defense” doesn’t have an opportunity to intervene until the actual charges are made.
Once the Judiciary Committee concludes its hearings, it will make a recommendation to the full House of Representatives. If they recommend impeachment, the House will vote on the charges to be sent to the Senate for trial. A majority of the House could bring charges against the President.
The Defense’s Turn
President Trump and his lawyers are anxious to defend themselves against the “purported impeachment inquiry” but they aren’t that excited to involve themselves with the House of Representatives. That’s fine for them. They’ll get their opportunity to defend in a Senate trial, where the “jury” of Senators, at least fifty-three of them, is likely to be more sympathetic to their case.
But a Republican Senate will still be restricted in their actions. The Chief Justice of the Supreme Court, Justice Roberts, will preside over the trial. His goal surely will be a fair proceeding, one that will lead to a clear verdict. While a majority of the Senate could overrule the Justice’s decisions, if they do that, it will increase a perception that the President is getting favorable treatment, regardless of his guilt or innocence.
It’s a Constitutional process, one that even Bill Clinton, accused of perjury and sexual impropriety, treated with respect. President Trump has so far attacked the process. His actions further weaken the Constitutional bonds that hold our nation together.
Guilty or innocent (or somewhere in between) he needs to respect the process, and the Constitution.
