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.