By Edwin Cooney
When a politician, regardless of party, ideology, religious conviction, or anything else warns you that a particular law or action will set a permanently damaging social and political precedent (often identified as a "slippery slope”), he or she is only guessing. Thus, when Democrats insist that failure to convict President Trump amounts to a license for permanent presidential mischief, they're merely stressing their fears, the legitimacy of which they will enthusiastically try to sell to the public. When Republicans insist that the president is guilty of something, but that his behavior falls short of impeachable redress, they are conveniently denying the legitimacy of the impeachment process.
To borrow a phrase, when the "tumult and shouting" are over, the mainspring of this process, specifically politics, will remain pretty damned healthy, if you ask me! Since the Senate trial began, what has been fascinating is how the president's legal team has sought to blend legalisms into what is constitutionally a purely political proceeding while Democrats insist that "presidential obstruction" is against the law. (As I see it, the Democrats are more right than the Republicans, but the political and legal processes have been invariably at odds throughout American history.)
Forty-six years ago at this time, the House Judiciary Committee under Democratic Judiciary Committee Chairman Peter Rodino, Democrat from New Jersey, was beginning to gather "impeachable evidence" against President Richard M. Nixon. Much of that evidence came from the trials of the Watergate defendants. By July, the committee had adopted three Articles of Impeachment against Mr. Nixon. In the wake of his resignation, many historians insisted that the idea that this is "a government of laws and not of men" had been established through the political process of impeachment. Now, nearly a half a century later, President Donald Trump's supporters find themselves arguing that the president can do anything he wants to do. Even more, so long as he believes that his re-election is in the "national interest," he can even hire a foreign country's government to investigate his political opponents since there is no specific law preventing such a transaction. Democrats, who use the mores of the Founding Fathers much less than conservatives, insist that using foreign governments to accomplish domestic political objectives is a gross violation of patriotic American tradition. The ultimate strategy appears to go something like this: when the law is against you, argue the facts. When the facts are against you, argue the process. A friend of mine found a quote from Carl Sandberg where he says: "If the law and the facts are against you, pound the table and yell like hell." So, when both the facts and the law are against you, argue the legitimacy of the process. However, in case you think this is "wild" (and I do), consider the first major impeachment proceeding, who was behind it and why, and you might see what I mean when I assert that what's going on in Congress this week means "zilch."
Two signers of the Declaration of Independence were antagonists in the spring of 1804. One was Supreme Court Justice Samuel Chase, an outspoken partisan and Federalist (and some insist a drunkard) from the State of Maryland. Appointed by President George Washington, he'd been on the high court since 1796. He was an ardent Federalist opposed to the Republican-Democratic administration of President Thomas Jefferson who was the other antagonist. Justice Chase adamantly opposed the administration's repeal of the Judiciary Act of 1801 and the elimination of the circuit judgeships it had created. In November of 1803, the House Judiciary Committee chaired by John Randolph, a friend of President Jefferson, drafted eight Articles of Impeachment against Judge Chase’s partisan opposition to President Jefferson's anti-sedition laws. Frequently, from the bench, Justice Chase had vigorously admonished the administration's judiciary policies. Once the trial got underway in February of 1805, Chase, who testified before the Senate, insisted that he couldn't be impeached for his judiciary conduct, but only for violation of the law. On the surface at least, this dovetails with the argument being made by the Trump team. Jefferson has always been regarded as a strict constitutionalist, a defender against federal encroachment of any kind. However, nettled by Chase's cantankerousness, President Jefferson insisted Chase's temperament rather than the law was the important issue at hand. Just as interesting, Richard Nixon's last attorney general, a fairly conservative Republican gentleman named William Saxbe, insisted that the House could impeach any president "just because they dislike the color of his tie.”
Finally, there are those who insist that Senators Mitch McConnell and Charles Schumer are arguing opposite to the way they argued during the Clinton impeachment Senate trial. (Of course, I'm not surprised and I invite you not to be surprised either!)
President Andrew Johnson did in fact break a law — The Tenure of Office Act. However, it was a law passed by an overwhelmingly partisan Republican Congress strictly for political advantage. The “Tenure of Office Act” required the president to get the permission of the United States Senate before dismissing a cabinet member. Johnson vetoed the law but the Congress overrode the veto. Thus when Johnson dismissed Secretary of War Edwin Stanton without the Senate’s permission, Congress passed Articles of Impeachment against him. That law would be repealed in 1887 and, in 1926, the high court asserted that the 1867 Tenure of Office Act was likely unconstitutional. However, it's important to keep in mind that at the time President Andrew Johnson defied the act, it was regarded as the law of the land. President Johnson’s opposition to the law was an act of political defiance. Even more ironic, President Reagan violated the Boland Amendment (a law making it unlawful to aid the Nicaraguan Contras during the 1980s), but no one possessed the political gonads to even suggest impeaching him!
The major difference between the 1999 Clinton impeachment and the 2020 Trump impeachment is that all of the relevant evidence for judgment in Clinton’s case was a matter of public record through the legal process including the president's testimony in court, the president's conduct before and after court, and the circumstance that by the time of the trial, the president had lost any control of the evidence. Only the president’s motives and conduct were at issue. The law already had been enforced through a financial penalty of compensation to Paula Jones. Today, President Trump controls the evidence relevant to a substantial investigation of the charges against him. To sum it all up, the main difference between today’s impeachment situation is that Donald Trump, unlike Andrew Johnson, Richard Nixon, or Bill Clinton, controls the evidence.
Another distinction that’s deliberately being fudged by the administration and its apologists is that impeachment is different from prosecution in a criminal court. The question in an impeachment isn’t whether or not there’s a reasonable doubt, the question is whether the defendant’s actions are politically injurious to our way of governing.
I originally opposed impeaching the president due to the very political aspect of the act of impeachment. It seemed to me that to impeach President Trump this early would take too much of the necessary momentum out of the political process when the time comes for judgment by the people next November 3rd.
Under the law, no person may be a witness against himself. Under the rules of impeachment, due to the purely political nature of the process, officeholders must be compelled to be witnesses as defenders of their public office and responsibilities rather than as defenders of their personal individualism and liberty at stake under the law. As for the argument that the Democrats' impeachment attempt is against the results of the 2016 electoral outcome, that is pure nonsense. Insofar as I'm aware, if President Trump were convicted, a gentleman named Mike Pence would be available to carry on his old boss's agenda.
Of course it matters whether or not President Trump is impeached, but last Friday’s Senate decision to not bother with the evidence clearly demonstrates that it will only matter when a liberal president offends a Congress controlled by conservatives.
Remember, the President of the United States of America is the head of the most dangerous force that political, social and religious conservatives insist they fear and even loathe. If you doubt me, wait until President Alexandria Ocasio Cortez pays Puerto Rico to get the dirt on her Republican opponent as she seeks a second term administrating the Green New Deal!
RESPECTFULLY SUBMITTED,
EDWIN COONEY
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