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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Read more articles by Robert B. Charles

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Baja-Ron

I don’t think the ‘Reasonable’ democrats (if that can even be said with a straight face), ever expected to actually impeach the president. What they are trying to do is IMPUGN him. They want to damage Trump, pummel him until America no longer wants him in office. The left can’t beat Trump at the polling booth (even with their extensive cheating system in place). Nor can they deny, though they try valiantly, his long list of great accomplishments. Many, of which, the left has been telling us for years are ‘Not Possible’. The left has become so accustomed to competently controlling the narrative and the flow of information through their cohorts, the Main Stream Media. That they just can’t help making a fool of themselves… AGAIN! While the wrangle, President Trump is putting Constitutional minded judges on courts, Putting the American people back to work, fixing the economy. Reigning in… Read more »

Martha Clark

This is a travesty of justice.

If DemonRats think that impeachment, or in this case nothing more than a criminal abuse of Congressional power, will draw voters to their side, they have another thing coming!

This farce has convinced me never to vote DemonRat ever again! There are NO moderate DemonRats any more. They stick together like glue. They’re ALL ‘Extreme Leftists’ and ALL need to be voted out of office!

Linda Hutson

I see this whole sham as a deliberate attempt to destroy the Constitution which many democrats have voiced their intentions to do so! Does anyone remember, I do, early on in the 2016 election, many went on news and talk shows declaring that it was outdated and should be replaced to reflect “today’s “ ideology! Which means “their” ideology alone!

Nancy

Convention of States – the government does what ever it wants we disagree, we voice out displeasure, nothing changes – we have given them the power! It’s time to take it back NOW!! CONVENTION OF STATES

Al Taylor

I don’t understand that if this is against the constitution, then why are they allowing this to happen at all. they should all be arrested for what they are doing. so why is this not happening ???????? why is it being allowed to go on ?????????

Anna Petrocelli

We all read articles such as this and we allow the writer to fill in the blanks. I recommend that each one who is reading this article makes the consented effort to also read the US Constitution under Articles — Article I, Section 2 and Article I, Section 3, clause 6 as outlined by the author of this article. Then we can all be vested with the truth in whatever the Dems are trying to feed us. All I can say is, Wake up America. The Left is trying to impeach your President for no reason.

Nancy Lipkins

impeachment of Peloise, and shriff is to be done and they need to be put in jail along with mad maxie watters

R shoemaker

They had the votes for the Inquiry but as this farce has proceeded, I don’t think they will even have enough votes in the House to actually vote for impeachment. In the unlikely event they do, this is dead on arrival with the Senate.

Patriot Will

The Salem Witch Trials served as a strong reminder to history buffs. Do not allow hysteria to rule over critical thinking. However, the Trump haters are so filled with negative emotions that they are blind to their own form of political hysteria. Most of the progressives, socialists, communists, anarchists, etc. do not have the will or desire to be fair. Their horror and anger must be satisfied by destroying the most capable US president since Ronald Reagan. Hopefully, our country will recover from the actions of these treasonous buffoons.

Mike B.

It is obvious Chairman Schiff and Speaker Polosi are undermining our legal system and our Constitution. If they are allowed to continue this farce they will do severe damage to our system of laws. The Constitution demands that an individual is guaranteed “Due Process” and is considered “innocent until proven guilty”. The democrats in the House are turning these standards upside down. This needs to be taken to the Supreme Court where it will be judged un-constitutional.

Ruth Kidney

This is a sad day for our Republic and I fear the Democrats and their allies in the media have put together this plan as an alternative when the Russian hoax didn’t ‘take’. I remember right after Trump won the election in November 2016 that George Soros flew to DC and met with high level persons where I suspect this was all scripted out. Now that President Trump is getting close to who actually was responsible for the Russian hoax, they are panicking because he is getting close to the source which I believe was Soros. To bring him to justice or to declare him as a person non-gratis would be fitting.

Burton Pauly

This so-called impeachment is really a farce and Adam S. is a clown leading the dummocRats down the road of idiocy.And Pelosi only adds to the stupidity of the democRats. We will vote for Trump in 2020.

Brenda Blunt

Congress seems to think they are above the law!! Nope! Time to vote them out!! No raise! No benefits!!

Jack

Lock’em all up. Attorney General needs to bust a move. Do nothing Rinos hide in the dark just to keep their position. SCOTUS needs to step up and put an end to the lunacy. I guess they are all drinking the Koolaid. Democrat stands for dimensional

Lauren

We are fully aware and infuriated as to what’s going on. The question at this point is what can WE do?

Bec

I WILL TELL YOU THE TRUTH! THE WHOLE TRUTH, NOTHING BUT THE TRUTH!! This all started before 2007! SATAN ENTERED OUR USA GOVERNMENT, OUR CONSTITUTIONAL GOVERNMENT, TO BE DESTROYED COMPLETELY! WE KNOW WHO “THAT PERSON IS!” it has been well publicized over the last several years!! HE ENTERED OUR COUNTRY UNDER FALSE PRETENSES!! BECAUSE HE WAS THE FIRST, HE GAINED MOMENTUM! WE KNOW FULL WELL WHO HE IS!! Very obvious! SO DOES OUR GOVERNMENT!! WHY MUST WE BE SO QUIET AND UNPRETENTIOUS!! WHY MUST WE HIDE FROM EVIL AND CORRUPTION IN AMERICA?? THAT PERSON KNOWS WHY, THAT PERSON HIDES BEHIND THE WEAK, THE SICK, THE MERCIFUL!! THAT PERSON IS SATAN IN PERSON!! WE KNOW THAT PERSON!!

Sondra Winthrop

What can we do? Who can stop this ? Is there no oversite over the House ?

Stephen Russell

& now anyone in WH cant make phone call for fear of use or abuse against person in office etc
Thanks Dems works Both Ways & whole process is wrong done as is now vs prior uses.

Josephine pooley

Great explanation of the travesty going on in Washington!

Thumps Dad

And don’t forget that the Chief Justice of the Supreme Court is “the judge” if/when the Senate decides to have “trial”. Thankfully, even though I detest J. Roberts, I think even he has enough character to make the right calls as pertains to such things as HEARSAY, INNUENDO, ADMISSIBILITY OF ACTUAL EVIDENCE, etc. (which constitutes 99.99% of Dem’s “CASE”)
Make no mistake about it though—This is BOTH POLITICAL and LEGAL, with EXTREME CONSEQUENCES that could conceivably destroy America as we know it!