Opinion / Politics

Abuse of Process Makes Impeachment Illegitimate

impeachment

Much ink has been spilled defending House impeachment hearings, noting the process is “political” not “legal.”  The unspoken argument is that “legal” norms need not apply.  This is dead wrong.

Article 1, Section 2 of the US Constitution provides that “sole power of impeachment” resides in the US House, while “sole power to try all impeachments” is controlled by the Senate under Article I, Section 3, clause 6.  To this extent, the process is political – that is, conducted by politicians. 

This does not mean the political process can abandon legal norms, definitions, and procedural guarantees in a search for the truth.  Yet that is what is happening.  Impeachment is being misused – as political payback for Democrats’ 2016 loss of the presidency. 

At no time did our Founders believe or intend that impeachment should be used for political payback.  Nor did they believe that an impeachment inquiry could abandon constitutional standards, such as 5th and 14th Amendment guarantees of procedural due process, 6th Amendment guarantee of confrontation and cross-examination of the accuser, or judicial norms such as objective fact finding and avoiding conflicts of interest.  To have believed that would have undermined the entire republic.

Accordingly, Congress is not allowed to invent facts or assist in creating a “high crime,” not allowed to secretly convict in a “star chamber,” not allowed to press a “bill of attainder” legislating guilt in a one-sided proceeding against one person, not allowed to abandon rules of procedure, not allowed to pursue malicious prosecution for political reasons.  Yet this is happening. 

Let’s unpack the present impeachment, in context of history.  Legislative history surrounding impeachment makes clear what we are witnessing is both unprecedented and illegitimate.  

The Founders never intended impeachment to be a used as a political penalty for winning an election, or to remedy election loss.  This goes without saying but must – apparently – be said again. 

They also did not expect disagreements over policy, when and how to investigate crimes – even by former officials in foreign countries – to trigger impeachment.  Their concern was over a future president who aggregated power to act like a king.  That is not happening here.

Impeachment was an extreme remedy for an extreme abuse of public trust.  The notion of “high crimes and misdemeanors,” inserted by George Mason, was aimed at incontrovertible abuses of power, such as the misappropriation of money, threatening a grand jury, falsely arresting a political opponent, dereliction of duty, and expressly “treason” or “bribery.”

While the Founders were on guard against another king, even James Madison – who thought impeachment necessary – was wary of impeachment being used for political purposes.  He vetoed other terms, saying “so vague a term will be equivalent to a tenure during the pleasure of the Senate.”  He could have added, or the House.

Even the liberal Harvard Law Review, in October 2019, concluded “high crimes and misdemeanors” is a term reserved for “intentional, evil deeds” that “drastically subvert the Constitution and involve an unforgivable abuse of the presidency.”  Needed is a heinous, indisputable and evil crime – not disaffection and resentment at losing an election.

The reason impeachment cannot become political payback is that the cycle would be unstoppable, and enormously damaging to the constitutional balance of powers between the three branches. 

If every act that offended an opposing party triggered impeachment, Madison’s fear would be realized.  Any time the US House was held by the other party, a president would turn hostage to impeachment; when both chambers were controlled by the opposing party, impeachment could reverse the election. That is one reason why this sham must be shut down.

A second concern is more serious.  House Democrats are voiding due process.  They appear willing to destroy constitutional norms in a headlong rush for impeachment.  Led by House Speaker Pelosi and Intelligence Chair Adam Schiff, this turn toward lawlessness is reprehensible. 

Process due is not a mystery.  In the House, centuries’ old procedures govern.  Examples are illustrative. The House Intelligence Committee has no jurisdiction to conduct impeachment proceedings – yet has done so in secret.  The Committee has no jurisdiction over the White House, as their website confirms – yet they have asserted it. 

Why is Intelligence running the impeachment show?  Answer:  To hide facts unfavorable to the finding of guilt.  Is that right?  Obviously not.  What costs does this abuse of process impose? It deliberately hides from public view exculpatory testimony – favorable to the president.  So, the Star chamber is back.  The public right to know is no more.  That fact alone delegitimizes this inquiry.  But there is more.

The counterargument by Chairman Schiff is that secrecy exists in a grand jury proceeding. But this not a grand jury.  Moreover, grand jury secrecy is justified on only two bases – protection of witness identity and protection of the target.  Mr. Schiff has revealed the witness identities – and their testimony, which is a crime for a grand juror.  He also makes no secret of his target – the president.  So, the analogy is inapt – and secrecy was illegitimate.

Likewise, fairness requires material witnesses be heard.  That is the only way to assure a fair and impartial finding.  Yet Democrats bar examination of the Bidens, the so-called “whistleblower,” and other hearsay sources.  These witnesses are critical for establishing credibility and motivation.

Without them, the inquiry is one-sided.  President Trump’s request of information on public corruption from Ukraine is defensible under the US-Ukraine Treaty of 2000 – if there is reason to believe a former official was selling influence.  That implicates federal statutes.  Being a candidate is not a defense to those federal charges. That is why both Bidens must testify. 

Similarly, motivation of the whistleblower is material.  Key is knowing who he spoke with, who helped draft the complaint, whether he was employed by a presidential candidate, and whether this was a planned political attack.  All would undermine impeachment’s legitimacy.

In the committee room, due process is also undermined.  As the Congressional Research Service confirms, “any Member who has been recognized in debate may ‘yield to’ another Member for a question or comment.”  That is a 200-year-old rule.  Mr. Schiff disallows it.

Most egregious was a November 13th spectacle, when the female Republican Congresswoman from New York, Elise Stefanik, was silenced by Schiff – for the fifth time.  She finally objected.  Without eye contact, he dismissed her outright.  He disallowed her questions during time yielded by the Ranking Minority Member. Where is the accountability? 

In short, impeachment is “political,” but worse it violates legal and constitutional norms. It is a sprint to frame a president, create an impeachable offense, wrest payback for the 2016 election.  It is being conducted in ways that upend history.

This is exactly what the Founders did not want to see.  They did not want impeachment to become a way for reversing elections or penalizing the opposing party.  That is why abuse of process makes this impeachment illegitimate. 

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jmbirk
1 year ago

As a retired, 65-year-old limited jurisdiction judge of 18 years, I am terrified by the illegitimate proceeding currently underway in the United States Senate. In a legitimate trial the jurors are given an oath requiring that they not discuss the case with ANYONE until the case is given to them for sequestered deliberation. They are admonished not to give weight to opening statements, arguments by counsel, or testimony objected to and sustained by the court. They are encouraged to consider a witness’s character and motivation behind testimony given, and are allowed to disregard all testimony given by a person who has demonstrated a bad character for truthfulness. They are to fully and fairly weigh the evidence received and are allowed to accept and believe or completely disregard testimony which they believe to be false. They are not allowed to speak to the press during the course of the trial, read newspapers or other opinion material that might taint their objectivity, and must vow not to form an opinion until such time as the defense rests its case and the case is given them for deliberation, which takes place in sequestered chambers and outside interference or pressure from other jurors is forbidden.
The depth to which those hearing this case have been groomed, badgered and brainwashed to do Schiff’s and Pelosi’s bidding is cringe-worthy. I have never witnessed such evil at work in my entire life. I am seriously concerned about my children’s and grandchildren’s constitutional rights going forward.
In this “trial” the person at the helm has a TERRIBLE character for truthfulness, compounded daily with additional lies and blatant fabrication. He has denied the accused due process which demands the accused be allowed to face his accusers, that he is entitled to counsel during all proceedings, some of which were held in secret; has been repeatedly denied cross-examination of witnesses and the presentation of rebuttal witnesses for the defense during the original period of testimony. The word, “railroaded,” comes to mind when I attempt to find any semblance of fair trial structure in this entire sham circus proceeding.
Pelosi’s admission that they, the Democrats, have been working on this impeachment for 2 ½ years, well before the alleged offense occurred, is one of the most telling remarks made, thus far. When one lays out the motivation for this entire sham in black and white it is abundantly clear that this is nothing more than a feeble attempt to reverse the 2016 vote of the people, in abject violation of the appropriate use of our impeachment process. If the defense fails to move for dismissal of the Articles of Impeachment in their first breath of the presentation their case, they lend a thread of validity to the Democrats’ clearly political attempt to reverse Trump’s election. They have NOTHING and should be exposed with lightning-speed for their unforgivable abuse of this previously inviolate process, waste of taxpayer dollars while neglecting our country’s important business, malicious prosecution of our duly-elected president and treasonous attempt to sham the American people. I see term limits on the horizon, and rightfully so! These politicians are too damn comfortable manipulating all of us. It simply cannot be tolerated.

thumpers dad
1 year ago

Democrats are “all-In”, when it comes to impeaching President Trump. I watched small amounts of hearing, fully expecting the theme “Twilight Zone” to provide background. If ever there was a “parallel universe”, that’s where I felt I was during the hearing. No real evidence exists, despite the “media” assurances of “bombshell”. The Democrats need to keep pushing it, otherwise they will have wasted more than a year, and not a single item of importance has been accomplished.

Shirley Cook
1 year ago

When are these Representatives….called with tongue in cheek” going to be brought up on charges against the American citizens and made to pay for this misuse of power. When indeed are they going to be removed from their seats for unlawful use of funds and process????

Melanoma
1 year ago

Why hasn’t this been filed in the Supreme Court

Wes
1 year ago

If impeachment is a remedy for abuse of power then Adam Schiff and Nancy Pelosi should definitely be impeached.

Bob
1 year ago

Socialists want to change the Constitution to reflect their twisted views. Socialists want to eliminate the Electoral College. Drain the swamp while we can and get rid of these dirt bags. VOTE TRUMP!

Jack Thomas
1 year ago

Facts do not matter to House Intelligence Chairman Adam Schiff or to Speaker Nancy Pelosi and their minions. Due process doesn’t matter; they’ve done everything to undermine the rule of law mandated by our Constitution and by congressional precedent. Truth doesn’t matter to them or to their willing media co-conspirators because their only interest is promoting lies. The damage the Democrats are doing to the integrity of the Constitution and to public confidence in our republican form of government doesn’t matter to them. They’re drunk with a thirst for power, and for winning in 2020 by whatever clandestine means necessary. For them, the sun rises and sets with that goal always in mind. Their attempted impeachment of President Trump is a travesty and should make all of us more acutely aware that, “Absolute power corrupts absolutely.”

Jim Cook
1 year ago

THIS IS A COUP! THERE SHOULD BE CHARGES DUE TO THE INTENT. THUS AN ACCOUNTING IN THE REALM OF LEGAL COURTS.

Margaret Amador
1 year ago

It’s obvious: This is a political farce and I among many, many others am SICK and TIRED of it!
Thank God we don’t always agree totally with other people. that is what gives us more ideas and discoveries. You like or don’t like our duly elected president Trump, no problem. This is a free country . Just don’t forget to vote in 2020 :)

Dale Nelson
1 year ago

Why can’t someone in authority force these facts upon the Democrats? Why does the AG not do something about this? Is there no one who can stand up and let the country know these facts? Why doesn’t Trump go on the air for all America to hear and read this article? Please, someone has to have the balls to stand up the this corrupt inquiry. I think we are getting close to the point of a revolution. Where the people march on Washington and physically remove Shiff, Pelosi, and other Democrats. Oh and lest not forget to remove the RINO Romney.

Jeanette
1 year ago

love this. so right!

Corbin L Douthitt
1 year ago

I was trying to understand how Schiff could sit there with that blank look on his face while every bit of testimony he presents is shredded. It dawned on me- IT DOESN’T MATTER!! He is going to Impeach Trump no matter what the testimony is. He has the power to use whatever testimony he chooses and to ignore the rest. Will he be held accountable? Time will tell.

‘Nonymus
1 year ago

If no one defends or enforces the due process rules then it doesn’t matter, tyranny wins! Who’s going to step up and arrest this kangaroo court and put a stop to it? Seems both parties are in agreement to the take over of the United States and overthrow the existing constitution for their own power trip!

Jerry
1 year ago

Power corrupts, absolute power corrupts absolutely

Dan F
1 year ago

What I don’t understand how can the low life Schiffless be running this proceeding, when we all have seen what a liar and slime he is. He said that there was proof of the Trump collaboration with Russia, a lie and then makes up what was said on the phone conversation. Passed time for term limits.

Marian Farina
1 year ago

This illegal impeachment must be stopped! This is a waste of Americans money and time! This must be stopped!

Liz
1 year ago

Where is the Senate. What a bunch of mealy-mouths. Maybe if they would refuse to go along with this sham it would have to move forward one-sided. The House is loving the put down of any Republicans that ask unwanted questions. Why go along them?

Edgar
1 year ago

This is the best critique I’ve read, more citizens need to read this. A crime is taking place within our halls of justice, namely these impeachment proceedings. A travesty if you will, by those so drunk with power that they have lost their way and are willing to subvert our beloved Constitution. God save us from this evil.

Susan Perry
1 year ago

So where is AG Barr to put a stop to this sham?? Missing in action.

Roberta Rose
1 year ago

I believe that this means war. Schiff believes that ha is KING ! This is very scary and we all need to protest This CAN NOT HAPPEN IN OUR COUNTRY!!!.

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