Awake in Class
Did you sleep through your American History class? What about American Government; awake in those first long months as “we” dragged through the Constitution? Or was it just about “old, dead, white dudes”, and talking about “stuff”? You dreaded the long test at the end.
First of all, you were right about a couple of things. They are all dead, for sure. And they were all white, and all “dudes” (no dudettes). But they weren’t all that old. Madison, the primary author of the Constitution, was in his mid-thirties. Hamilton, the man with all of the ideas (some good, some bad) was still in his twenties. But they all listened to the “elder statesman” of the group, Benjamin Franklin, just past eighty years old. And George Washington, the chairman and “head referee” was in his mid-fifties, already “the man, the legend,” that no one in the room wanted to cross.
You probably had two shots at the Constitution, one in eighth grade history, and one in your senior year Government class. Like that “damn” Algebra II class; the Constitution unit was one of those times when you thought: why are they teaching us this – when will I ever need to know it?
I’ve got the answer to that question, at least concerning the Constitution (I can’t speak for Algebra II). It’s today. Today is the day you need to know the Constitution of the United States. It would help if you remember the granular details; but even the big concepts of separation of powers and Federal versus State are in play. It’s every day right now, every time you catch the news. We all need to be Constitutional lawyers, but if not that, at least Constitutional scholars. Here’s why.
Seal Team Six
“Can a President who ordered Seal Team Six to assassinate a rival, be held for trial on a criminal offense?” That’s what a United States Appeals Court judge asked a lawyer in her court yesterday. Sure, it was a hypothetical question, a dreaded “what if” scenario that those of us who spent a little time (one semester) in law school remember so well. And the answer the lawyer gave: only if the President had been impeached in the House, and convicted in the Senate. Otherwise, the LAW could do nothing to that President, in office or out.
All of us old history/government teachers “took flight”. Well then, the President could order the assassination of the Senators who might vote to convict them, and therefore avoid any criminal responsibility. And that’s the definition of a dictatorship: when the “leader” can kill their opposition with impunity. Think of all of those Russians who took the big leap from the 14th floor window at the “behest” of Vladimir Putin.
Reality check: we fully expect that Seal Team Six would never carry out such an order. They too, have an obligation to defend the Constitution, and such a mission would be completely illegal. But that’s not the point.
Richard Nixon
The point is that a real, live, $1000 an hour lawyer; tried to make that argument in the DC Appeals Court yesterday, claiming that the Federal case against Donald Trump for trying to stop the lawful transfer of power should be thrown out. He didn’t see the absolute foolishness of the position. He got cornered; and the scary part is, there are other lawyers, and one particular twice-impeached, multiple felony charged former President, who believes that’s true. It’s not much of a stretch from “shooting someone on Fifth Avenue” to sending Seal Team Six to do your bidding. As Richard Nixon infamously said: “If the President does it, it can’t be illegal.” That’s the basis of the argument the Trump lawyers are making.
You think that’s what young Hamilton and Madison, middle-aged Washington and elderly Franklin wanted? They were fresh off of a nine-year war for freedom from a monarch, King George III of Great Britain, who claimed that kind of Royal Sovereignty. Do you think those guys, those “old, dead, white dudes” would have created a new form of Sovereign immunity for their own Chief Executive?
Civil War Revisited
And then there’s all the Civil War talk. First it was the definition of an Insurrectionist. Did Donald Trump commit or support Insurrection on January 6th? And if he did, is he disqualified from the Presidency, just as if he was too young or not born a citizen? There’s a famous Justice Potter Stewart quote about pornography: “I know it when I see it”. (That quote always brings to mind the once-a-month “porn” showings in the basement of the Supreme Court, to see movies so they “knew” which to ban. Those weren’t so popular with the Justices, but the Clerks, then an all-male club, enjoyed it).
Does the 14th Amendment require some legal “finding”, or is it like Stewart’s view of porn; we know it when we see it. That seems to be what the authors of the 14th thought: they didn’t put any kind of “due process” proviso. Either you supported the Confederacy, or you didn’t. Is that the legal definition to be applied to Trump? Colorado and Maine think so, and the Supreme Court is going to weigh-in too. Were you awake when they were going over the Amendments? (Admittedly, even when I was teaching the 14th, I emphasized the first section. The second and third were left-over Civil War business, at least that’s what I thought then).
And now Trump is bring back the old “Birther” argument. He’s “rumoring” that his distant Republican rival, former South Carolina Governor Nikki Haley, wasn’t born in the United States, and therefore isn’t eligible to be President. It’s the same line he used on Barack Obama. Haley, the daughter of Indian immigrants, was born in the USA (Springsteen); Bamberg, South Carolina in fact. But facts have never been part of the Trump campaigns.
Spinning in Their Graves
When I first started learning about government, impeaching a President was an historic anomaly. Andrew Johnson was impeached, and avoided conviction and removal from office by one vote, back in 1868. In modern times, no one seriously tried to remove a “sitting” President. That was, until my senior year of high school, 1974. Then there was the very serious possibility that Richard Nixon would be removed, so serious that Nixon himself resigned to avoid the permanent stain.
No one then thought Nixon had some kind of absolute immunity from prosecution. In fact, many of us, looked forward to the “Trial of Richard Nixon”, for obstruction of justice, abuse of power, and offering bribes. The new President, Gerald Ford, ended all of that with a pardon. But we all knew then that Ford was avoiding criminal action against Nixon.
Since then there’s been three impeachments, and three trials in the Senate. Bill Clinton once, and Donald Trump twice; have faced the possibility of being the first President convicted by the Senate. Both avoided removal. The last time (Trump’s second), one of the excuses used was – we can always prosecute him in Court (Republican Minority Leader Mitch McConnell). Even Trump’s impeachment lawyers said the same thing.
Now “Trump World” is looking for every opportunity to avoid responsibility for his actions. They are telling us, and America, we were all wrong about Nixon’s fate. Once a President; if you’re not impeached and convicted, you are always immune.
There’s a rumble under Wall Street in New York, and in Montpelier, Virginia. Hamilton and Madison are spinning in their graves. And it’s time for all of us to “bone up” on our Constitution.
