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Tuesday, November 26, 2019

IMPEACHMENT: FLAWS AND FOLLY

The stability of the Executive branch of the United States has served as a hallmark of a functioning democracy since the creation of our constitutional republic 230 years ago.  The wisdom of the framers of our Constitution has not only stood the test of time, it has proved its value in comparisons with the democratic parliamentary systems in Europe and the flawed and less democratic presidential systems in other parts of the world.

 Parliamentary changes of   “government”, i.e. the executive branch,  by the mechanism of   “no confidence” votes or failed coalition governments in legislative bodies have created numerous periods of political instability, multiple divisive national elections and non-functioning governments in advanced democracies such as England, France, Israel and Italy, just to name a few.  Prime Ministers in these nations have fallen to the failure to pass core policy initiatives and to “scandals” both political and personal.  The high bar of the U.S. presidential fixed term and removal of a sitting President only through the purposely difficult impeachment process in the House of Representatives and conviction for the constitutionally mandated standard of “treason, bribery or other high crimes and misdemeanors” by a 2/3 majority in the Senate,  has spared the American people the instability and political chaos so common abroad.

The 45 Presidents of the U.S. have included both strong and weak, effective and ineffective, and popular and unpopular individuals, but only two have been impeached i.e. charged, by the House of Representatives, and neither was removed from office by the Senate. President Nixon resigned office before he would certainly been impeached and removed for the “high crime” of accessory to felony burglary and to obstruction of justice in the subsequent investigation.

The current charges and impeachment investigation being conducted by the Democratic majority in the House of Representatives has, to date, provided more heat than light and so far has proved insufficient to meet the Constitutional requirement of “treason, bribery or other high crimes or misdemeanors”. 

The Democratic effort is flawed on several levels. 

First, context and credibility:

Democratic politicians and liberal activists went into a state of shock on election night, November 2nd, 2016,, when the blustery, iconoclastic, real estate developer billionaire with no political experience defeated the pre-ordained Democratic, life long political insider and chromosome entitled Hillary Clinton.  That psychological trauma, more commonly described as
“Trump derangement” still infects a large segment of the extreme Left today and has guided their actions since that fateful night three years ago.

Overturning the election results before Trump was inaugurated in January, 2017 was the immediate emotional knee jerk response.

First came an attempt to demand a recount in enough states with close results with the hope of changing the Electoral College count.  This effort failed to meet the legal requirements regarding vote totals and was denied in federal court.

But desperation can be the mother of invention and the next ploy was to convince enough Electors in the various states which Trump won to defy state laws which require them to vote for the candidate who won that states majority.  One elector in Texas was convinced and abandoned law and principle, but the attempt on the national scale failed.

Since then, Democrats, have claimed correctly that impeachment of a President by the House is not a legal/criminal process but a political exercise. However, while ignoring the Constitutional requirements for removal of the President by the Sen, they have fallen back on impeachment as a remedy for their frustration and emotional pain.  Some demanded impeachment of Trump for alleged acts and things he said prior to winning the election  and even before he took the oath of office. 

Faced with the obvious futility of these demands, Democrats found new hope when it became apparent that the Russians had attempted to influence the outcome of the 2016 election using social media and hacking the Democratic National Committee’s computers as well as Clinton’s e-mails and making their findings public through WikiLeaks.

A Special Prosecutor was named by the Department of Justice and the two and one half year saga of the Mueller investigation into possible “collusion” between Trump, his campaign organization and the Russians stimulated a frenzy of hopes and predictions by the Left that Trump was sure to be politically destroyed.  When the Mueller report was finally released it crashed, not with the sound of an explosion of scandal and malfeasance but with the soft thud of a waste of time and public money, accompanied by the wails of despair and denial by the Democrats.  Mueller found no collusion between Trump, his campaign and the Russians, found that the Russian interference had no effect on the outcome of the election,  and took no position on possible illegal attempts by Trump to obstruct justice in the inquiry.

It is in this context of on going failed attempts to overturn the 2016 presidential election that the current Democratic  “impeachment inquiry” and partisan investigations are taking place.

The ideological/partisan personal hate that is the basis for the continuous effort to overturn the 2016 election can perhaps best be displayed by the re-emergence of former Nixon Administration White House Counsel, John Dean who is exciting the Left wing media with his “expertise” on presidential impeachment.  The 81 yr. old Dean who himself spent four months in prison for obstruction of justice in the Watergate cover up, has since tried to make a living writing books demonizing the Republican Party and its former officials.  He has written that former President George W. Bush should have been impeached, and forgetting his “expertise” on the Constitutional requirements for impeachment and removal of a President from office, he said this about the Trump impeachment “inquiry”.

- "I think this president probably should have been impeached the day he walked in," Dean said on CNN. "He's incompetent. He has a terrible attitude. He doesn't understand government. He is in there trying to build his own brand, and he's taking advantage of the office from day one.”

Fortunately, the low standards for Trump derangement syndrome haven’t replaced the high standards of Article 1 Section 2 of the Constitution.

Second:

The Democrats are divided on what the most politically advantageous charges against President Trump should be emphasized.  Politicians and pundits on the Left have argued since the “investigations”  barely started that Trump is guilty of:   abuse of power, bribery, illegal campaign donation solicitation, obstruction of justice, and illegal emoluments.  Some simply say “all of the above”.

While the impeachment process is indeed a political exercise and federal officials don’t have to break a law to be impeached (charged by the House), that is just the first stage but the standards for removal from office in the second stage of  “treason, bribery or “other high crimes” and misdemeanors”, are all statutory based crimes as their plain language describes. In fairness, it should be noted that there exists a body of thought that this language can mean more than just crimes, and bills of impeachment by the House for lesser federal officials than the President have included non-criminal charges. Even so, this wider interpretation of the Constitutional language which was applied by the House Judiciary Committee with regards to the Nixon impeachment effort, reflects the need for very serious misconduct by the President.
“The Framers intended that the impeachment language they employed should reflect the “grave misconduct that so injures or abuses our Constitutional institutions and form of government as to justify impeachment.” (Staff Report of Committee on the Judiciary: “Grounds for Presidential Impeachment”: Nixon: 1974)

These standards makes it clear that removal from office, especially of a President, is not allowed because, you don’t like him or your candidate didn’t win, or even if he engages in “troubling” or “inappropriate” but legal behavior. 

Abuse of power:

It is clear from the testimony of diplomatic and national security staff, that Trump tried to pressure the President of Ukraine to publicly announce investigations into the Ukrainian energy company Burisma and some claims that the Ukraine, under their previous president, was involved somehow in the Russian interference in the 2016 elections.  Trump also wanted the publicly announced investigations to include the possible roles of former Vice President Joe Biden and his son Hunter Biden . The pressure was in the form of a delay on Ukrainian President Zelensky’s desire for a “heads of state” meeting with Trump and on the funding of $400 million in military aid.
Internal investigations into a Ukrainian corporation based on possible corruption, which had been previously investigated by the Ukrainian government, would be perfectly legal and proper on the part of the Ukrainian President, with or without Trump’s request or pressure.   Investigations into the Bidens relation to Burisma on whose Board of Directors Joe Biden’s son Hunter had held a seat paying him $60,000 a year since 2014, though  legal, would be  politically sensitive and generally considered “improper” if initiated by the U.S. President’s request  given Joe Biden's potential candidacy in the 2020 U.S. federal election .

 The problem for the Democrats becomes the question: Did Trump's communications with the govt. of Ukraine personally in a phone call on July 24th, 2019, and through his subordinates, primarily his personal attorney Rudy Giuliani,  constitute an "abuse of power" because they referenced the Bidens,  as well as the two month delay in the funding of the military aid, and did such an effort constitute a "high crime or misdemeanor"?  Testimony by Lt. Colonel Alexander Vidman, Director for European Affairs for the United States National Security Council (NSC), who Democrats hoped would provide damaging information against President Trump, said that there had been a National Security Council opinion that Trump’s delay of the funding of the military aid was “legal” and based “on a purely legal point of view.”

Thus the weakness in the argument is obvious.  The legal temporary hold on the military aid was released on Sept. 11, 2019 and he "Heads of State" meeting desired by Zelensky, was held on Sept. 24th at the UN.  No "quid pro quo", “something for something” ever came about because Zelensky never made a public announcement of any investigations into the 2016  U.S. elections or into Burisma and the Bidens. Trump's pressure, which never met the Constitutional requirement of “high crimes or other misdemeanors” anyway, and which he characterized as “a favor” in the phone call, failed.

In addition, and specifically to the point, Ukrainian President Zelensky “has said repeatedly that he never felt extorted in his July 25 phone call with Trump.  Zelensky told journalists on Sept. 25, “nobody pushed me.” During extensive discussions with some 300 journalists in Kiev, Zelensky said on Oct. 10: “There was no pressure or blackmail from the US.”  (New York Post: 11-4-19).

Bribery:

With the weaknesses of the “abuse of power” claim becoming more apparent, House Democrats are talking up a switch to “bribery” which sounds more “criminal” and is less subjective in definition.  But such a charge in reference to the Ukrainian affair requires a redefinition of significant proportions to push the square shape of the charge into the round hole of reality.

The constitutional standard of bribery for impeachment implies an agreement between a President and another person in which, by acceptance of a  personal monetary gift to the President,  he uses his powers to provide a policy or services that personally benefits the other individual, a “quid pro quo” in reverse of the Ukrainian situation.  Zelensky didn't make an initial offer of anything to induce Trump to offer military aid, which simply continued a long term policy of military support by the Obama Administration. Trump didn't agree to a request for military aid by Zelensky in return for something of monetary or any other kind of value. The military aid in question was legislation passed by the Congress as part of the 2019 National Defense Authorization Act.  Zelensky didn’t try and “bribe”Trump with anything and on the flip side of the coin, Trump didn't try and "bribe" Zelensky. The aid was a congressional appropriation which preceded the Trump-Zelensky phone call and was going to go out at some time and it did. Trump did try to pressure Zelensky, which most people agree was "improper" given the “possible” domestic election connection to a “possible” Joe Biden candidacy.

Essentially, the big picture in which the impeachment process resides, explains the true nature of the exercise.  It is just the latest attempt in a three year effort to overturn the 2016 election. All the previous attempts failed.  This one will also fail also since it doesn’t have the support of a large majority of the American public, or even based on one recent poll, any majority.

No impeachment effort in the House of Representatives should ever be undertaken without highly serious, provable offenses to support it; a bipartisan consensus to commence the procedure (not a single Republican member of the House voted to proceed with the “impeachment inquiry”); broad based public support for the effort and a high probability that the Senate will find the charges sufficient to take the drastic step of removing the President. 

This exclusively  Democrat led process, fails to meet any of these important standards and the Democratic leadership knows this.  So the only possible explanation for their motivation is to attempt to further discredit the President in an effort to win the 2020 presidential election.
The Democratic majority has simply usurped the responsibilities and legislative functions of the House to carry out a partisan election “dirty trick”.