Trump Threatens To Adjourn Congress

Angry that the Senate is not confirming his appointees fast enough, President Trump yesterday threatened to adjourn Congress so that he could push through recess appointments.

“As the entire US government works to combat the global pandemic, it is absolutely essential that key positions at relevant federal agencies are fully staffed, and we’re not allowing that to take place through our Congress,” Trump said at Wednesday’s coronavirus briefing. “They’re just not giving it to us. We have many positions that are unstaffed because we can’t get approval.”

The president said that there were 129 appointees “stuck in the Senate because of partisan obstruction.” Under the “nuclear option” invoked first by Harry Reid and then by Mitch McConnell, executive branch and judicial nominees cannot be filibustered but senators can still block confirmation votes for other appointees.

Majority Leader Mitch McConnell had previously announced that the Senate would hold pro-forma sessions until May 4. The president now sees this as an opportunity to try an unprecedented tactic.

“If they don’t act on getting these people approved that we need because of the, we need them anyway but especially because of the pandemic, we are going to do something that will be, something that I’d prefer not doing but which I should do and which I will do if I have to,” Trump said.

“The Constitution provides a mechanism for the President to fill positions in such circumstances,” Trump continued. “The recess appointment, it’s called. The Senate’s practice of gaveling into so-called pro-forma sessions, where no one is even there, has prevented me from using the constitutional authority we’re given.”

“If the House will not agree to that adjournment, I will exercise my constitutional authority to adjourn both Chambers of Congres,” the president explained. “The current practice of leaving town while conducting phony, proforma sessions is a dereliction of duty that the American people cannot afford during this crisis. It is a scam. What they do. It’s a scam and everybody knows it, and it’s been that way for a long time, and perhaps it’s never done before. It’s never been done before.”

The Constitution gives the president the power to fill vacancies that occur while the Senate is not in session. Those recess appointments expire at the end of the next Congress. However, if the Senate never recesses, the president cannot make recess appointments.

Other presidents have also bridled at the Senate’s pro-forma sessions aimed at preventing recess appointments. Barack Obama made several recess appointments in 2012 while the Senate was conducting pro-forma sessions. The Supreme Court ruled those appointments unconstitutional in a 9-0 decision.

Now President Trump threatens to go a step further than Obama’s overreach. The president’s word salad apparently refers to Article II Section 3 of the Constitution, which gives the president the authority to adjourn Congress in certain circumstances. The provision has apparently never been used before.

Article II Section 3 reads:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The problem with Trump’s strategy is that the president’s power to adjourn the houses of Congress is contingent upon a “Disagreement between them, with Respect to the Time of Adjournment.” The House and the Senate have not had a disagreement over when to adjourn. Both bodies have agreed to remain in session.

It is also unusual for a president to disagree with the Senate over recess appointments when his own party is in control. The Washington Examiner reported that Majority Leader Mitch McConnell had spoken with Trump about the appointments prior to the president’s threat, but, perhaps recognizing the horrible precedent that another nuclear option would set, McConnell does not want to cut Democrats out of the confirmation loop.

“Leader McConnell had a conversation today with the president to discuss Senate Democrats’ unprecedented obstruction of the president’s well-qualified nominees and shared his continued frustration with the process,” a McConnell spokesman said. “The Leader pledged to find ways to confirm nominees considered mission-critical to the COVID-19 pandemic, but under Senate rules will take consent from Leader Schumer.”

It appears unlikely that McConnell will appease the president by declaring an adjournment so that Trump can make recess appointments. Although McConnell is a Trump ally, he does have his limits.

President Trump’s shot across the Senate’s bow yesterday was similar to the threats he made to use national emergency authority to bypass Congress on funding for the wall last year. For several weeks prior to declaring the emergency on the border, Trump similarly telegraphed his belief in an “absolute right” to use emergency authority to appropriate funds where Congress had declined to act.

I have no doubt that President Trump’s threat to adjourn Congress – or to try to do so – is not an empty threat. The question is whether Senate Republicans would stand idly by while the president usurps their own congressional authority yet again and comments yet another constitutional crisis.

As I wrote earlier this week, President Trump’s actions betray the fact that he truly believes that he has “total authority” to do whatever he wants. The president’s abuses of executive power have become increasingly blatant and more serious over the past four years. His threat to force an adjournment of Congress to advance his own agenda is the stuff of banana republics and should be vigorously opposed by both parties. If Congress is not up to the task, it will be up to voters to defend the Constitution.

Originally published on The Resurgent

Executive Privilege And Impeachment

Over the course of the impeachment process, Trump supporters have argued that the White House is protected from responding to congressional subpoenas by executive privilege. The argument goes that, even if the president has nothing to hide by submitting the evidence subpoenaed by Congress, he is defending the executive’s constitutional independence from Congress.

As one commenter responded on my article from Friday, “He is defending the use of executive privilege by the executive branch so as not to place all the communications of the executive branch under the control of a random radical faction of the House that either party could exploit. There are legal and separation of powers issues at play that are bigger than Trump but the Never Trumpers can't see past their disdain for the man so they assume the worst motivations to explain everything he does.”

If that’s the case, he’s doing it wrong.

Many Trump supporters have accused me of being against executive privilege, arguing that if you aren’t for the absolute immunity claimed by the Trump Administration then you must be against any executive privilege at all. This is a logical fallacy. There is quite a lot of middle ground between unlimited congressional oversight and unlimited executive privilege. Since we live in a constitutional republic, we should ask what the Constitution and judicial precedent say about the issue.

Executive privilege isn’t specifically mentioned in the Constitution but its history in the United States goes all the way back to George Washington. One of the earliest incidents in our history that relate to the issue was in 1796 when, as legal historian Michael Dorf wrote, “President Washington refused to comply with a request by the House of Representatives for documents relating to the negotiation of the then-recently adopted Jay Treaty with England. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Accordingly, Washington provided the documents to the Senate but not the House.”

The first court case involving executive privilege dates back to 1807 when Aaron Burr was being tried for treason. Burr’s counsel subpoenaed a letter from Thomas Jefferson, who was president at the time. Presidential claimed, as Trump’s lawyers do today, that the president was exempt from subpoenas requesting specific documents. Chief Justice John Marshall shot down this argument, ruling that presidents are not immune to subpoenas and that even national security was not grounds for refusal to comply. If documents were too sensitive to be made public, Marshall ruled, the court could keep them confidential.

In 1974, the Supreme Court ruled again on executive privilege in United States v. Nixon. As with Trump, Nixon’s articles of impeachment, which were approved by House committee but never reached a full vote, also cited obstruction alleging that the president “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives….” The Supreme Court never had the chance to rule on that specific question due to Nixon’s resignation, but it did rule on his claim of executive privilege in withholding audiotapes and written records from the grand jury convened by the Watergate special prosecutor.

In the decision, the Court agreed to “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties," saying, "human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process."

Nevertheless, the Supreme Court ruled against Nixon, holding, as Dorf explains, that “the executive privilege is not absolute. Where the President asserts only a generalized need for confidentiality, the privilege must yield to the interests of the government and defendants in a criminal prosecution.” Nixon released the tapes and resigned amid the furor five days later.

President Clinton also attempted to use executive privilege to shield himself from being called to testify in the Monica Lewinsky investigation. A federal judge ruled in 1998 that executive privilege did not shield the president or his aides from subpoenas, although some of the testimony and evidence could be shielded from public view. Clinton ultimately testified under oath in a videotaped deposition.

In another blow to Donald Trump’s executive privilege claims, Dorf notes that “no case to this point holds that executive privilege applies to conversations between Executive officials and persons outside the government.” Therefore, Trump’s communications with Rudy Giuliani, Lev Parnas, and others would not be covered by executive privilege claims.

Since Giuliani was Trump’s personal attorney, the president could attempt to claim attorney-client privilege, but there are limits here as well. Exceptions to attorney-client privilege include conspiring to commit crimes or acts of fraud. Since Lev Parnas and three other Giuliani associates were indicted for the criminal acts of violating campaign finance laws and advancing “the political interests of at least one foreign official – a Ukrainian government official who sought the dismissal of the US ambassador to Ukraine” while Giuliani was on a shadow diplomacy mission for the president in Ukraine, Trump’s claim of attorney-client privilege may be on shaky ground as well. Although currently unindicted, Giuliani is reportedly under investigation by the US Attorney for the Southern District of New York for campaign finance and lobbying violations.

If the president wanted to fight the congressional subpoenas, he was within his rights to do so even though he would probably lose. Unfortunately, rather than fighting the subpoenas, he chose to instruct his subordinates to ignore them. Subpoenas can be fought but are ignored at the witness’s peril. Legally, the way to fight a subpoena is to file a motion to quash it, i.e. to ask a judge to remove it. That is not what the Trump Administration did. In fact, the White House started ignoring subpoenas back in April 2019, well before the impeachment began.

When the Administration ordered its staffers to ignore legal and constitutional congressional subpoenas, it became a criminal matter of obstruction. For those who have requested a law that Trump broke (even though criminal activity is not required for impeachment under the original meaning of “high crimes and misdemeanors”), the Congressional Research Service cited 18 U.S.C. 1505 in its 2010 report on “Obstruction of Congress.” The statute applies to “any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress.” Additionally, 18 U.S.C. 1512 also prohibits witness tampering. Under its statutory power to punish contempt, Congress has the authority to levy fines and even imprison witnesses who ignore subpoenas.

An additional argument made by Trump supporters is that House Democrats should have pursued the legal case to compel the Administration to produce witnesses and evidence. While I do agree that this would have been a smart move politically, no law or congressional guideline mandates that Congress must sue the president in an attempt to force him to do his duty before impeaching him. While the Democrats could have gone through the courts and bolstered the already strong case against Donald Trump, the proceedings were not rendered illegitimate by their decision not to do so.

Historical precedent tells us that executive privilege exists but that it cannot be used as a shield to misconduct in the Oval Office. Executive privilege is not an absolute right to ignore Congress and get out of jail free. While ignoring the subpoenas may have temporarily protected the president from embarrassing revelations about his abuses of power, his obstruction actually sped up his impeachment process in the end. Now the embarrassing information about his Ukrainian activities is coming out anyway in a slow drip that may continue through the election.

While the president is not going to be removed from office, it looks as though defying Congress turned out to be a lose-lose proposition. Once again, the maxim that that best way to handle a scandal is to get out in front of it rather than engaging in a coverup seems to be correct.

Originally published on The Resurgent

Are Democrats Really Running A Sham Impeachment Inquiry?

The main defense of Republicans in the impeachment inquiry into President Trump has been to attack what they call the secrecy of the impeachment inquiry. Trump’s defenders point to closed-door hearings and the fact that the House has not yet been allowed to vote on whether to conduct the impeachment inquiry itself. There is some truth to the charges against the way the Democrats are conducting the inquiry, but there are also examples of Republican criticisms being off base.

The fact that Speaker Nancy Pelosi has not allowed a House vote on whether to begin an impeachment inquiry has been a major complaint of Republicans. On Sept. 24, Pelosi merely said, “I am announcing the House of Representatives moving forward with an official impeachment inquiry” and the ball started rolling.

Republicans seem to be correct that no other impeachment inquiry has ever been launched without a House vote, but the bottom line is that neither the Constitution nor House rules require a vote to begin an impeachment investigation. As Keith Whittington of Lawfare pointed out, the House leadership chose to use standing committees to investigate Mr. Trump’s alleged abuses of power and were entirely within House rules to do so.

Further, neither the Constitution nor House rules require an impeachment inquiry at all. If the House wanted to bring up an impeachment vote with no investigation at all, it could do so. Such a scenario might happen if a president’s actions were either obvious to the most members of Congress or if the president openly admitted to impeachable acts.

Republicans have also complained about how they are being treated in committee. There have been claims that Republicans were shut out of committee meetings and were not allowed to be present and ask questions at depositions. Intelligence Committee Chairman Adam Schiff explained the need for some secrecy to Roll Call, stressing that the current inquiry is different from the impeachment investigations into Bill Clinton and Richard Nixon where special prosecutors had already investigated the incidents that led to the impeachment.

“In each of those cases, there were either independent counsels or special prosecutors doing the investigation, doing the initial investigative work, and that was all done behind closed doors,” Schiff said.  

Schiff explained that if witnesses were aware of what other witnesses had said, they could tailor their own testimony “either to hide the truth or color the truth or know just how much they can give and how much they can conceal.” It is a basic investigative technique to separate witnesses and to get their individual testimony without having it tainted by hearing others.

“Now, I should tell you, notwithstanding those good and sound reasons, at each of these committee interviews and depositions and when we get to open hearings — and we will get to open hearings — the Republicans are completely represented,” Schiff said.

Schiff said that all members of the Intelligence, Oversight and Foreign Affairs committees and their staffs can attend depositions and ask questions. Republicans are provided equal time for questioning with the sides alternating every 45 minutes to an hour.

“They have been largely staff-conducted interviews. They have been very professionally done, although members, too, get to ask questions and we go until the questions are exhausted so they get to ask all the questions they want,” Schiff said.

In one publicized case, Rep. Matt Gaetz was ejected from a meeting of the joint committee investigating impeachment, but Gaetz was not a member of the committees holding the meeting. Gaetz is a member of the Judiciary Committee but it is the Intelligence, Foreign Affairs, and Oversight Committees that are conducting the impeachment hearings. There is no evidence that Republicans who serve on those three committees have been excluded. In fact, Axios pointed out that, when Republicans raided an impeachment hearing this week, 13 of the Republican protesters already had access to the hearing because they were members of the committees holding the hearing.  

Republicans such as Jim Jordan (R-Ohio) don’t buy Schiff’s explanations. “We’re talking about impeaching the president of the United States in secret, based on an anonymous whistleblower with no first-hand knowledge, [who] has a bias against the president, has been reported that he worked with Joe Biden, who when he hears about the call, the next day writes a memo using all kinds of descriptors like crazy, scary, but then waits 18 days before he files a complaint,” Jordan complained. “And who does he run up to see in that interim? Adam Schiff’s staff. And now that guy says, ‘Now I’m going to be the special counsel and the independent counsel.’ That is laughable.”

Jordan’s rant actually undercuts another Republican complaint, namely that the whistleblower has not been called to testify. But if, as Jordan concedes, the whistleblower had no direct knowledge of Trump’s actions, he or she has little to add to the testimony of State Department officials who were in the loop and privy to Trump’s decision-making.

The answer is similar for Republican complaints about being denied access to transcripts of witness testimony. Republicans say that only members of applicable committees have access to the transcripts and then only under the watchful eye of Democratic minders. Democrats answer that the transcripts will be made public after the investigative phase is finished. Left unsaid is that they will be released when the possibility of witness tampering is reduced.  

House Democratic Caucus Chairman Hakeem Jeffries also pointed to the 1998 House resolution authorizing subpoena power for the Clinton impeachment investigation, noting that Democrats did not have the power to independently subpoena their own witnesses as some Republicans have claimed but had to get approval from either the chairman or the full committee. Jeffries says that the current subpoena rules for the Intelligence Committee are no different.

Many members of the Trump Administration have used their complaints about the impeachment proceedings to justify failing to comply with subpoenas from House committees. Unfortunately, this is a double-edged sword since some Republicans, including Lindsey Graham (R-S.C.), are on record that refusing to comply with congressional subpoenas is itself an impeachable offense.

A further claim by Republicans is that impeachment requires a criminal act. While the Constitution specifies treason, bribery, and “high crimes and misdemeanors” as grounds for impeachment, the original intent of the phrase included acts that were not explicit crimes. A list of impeachments on the House website reveals that, of 19 impeachments from throughout US history, eight were for noncriminal acts including three cases that specifically cited abuse of power.

A charge by Jack Langer, a spokesman for Rep. Devin Nunes (R-Calif.) that, “There are no established rules or parameters at all, the Democrats are just inventing them as they go” seems to be untrue. Democrats argue that all of the normal committee rules protecting minority rights are still in effect for impeachment-related hearings.

In fact, it was only four years ago in 2015 when the chairman of the House Oversight Committee, Trey Gowdy (R-S.C.), personally dismissed Rep Darrell Issa (R-Calif.) from a hearing during the Benghazi investigation. The reason? Issa was not a member of the committee. The Democrats are following the same rules.

Republicans do have a stronger case in their complaints about not being able to call their own witnesses and present exculpatory evidence, but the test as to whether those claims will stand up will only come when the House moves beyond the investigative phase. Democrats say that there will be open sessions and transcripts will be released after the facts have been gathered. Current indications are the impeachment proceedings might move into the open phase as early as mid-November.

“We do anticipate a time when we'll be releasing transcripts, and we do anticipate there will be a time when we will hold back some of these witnesses for open session, and we may call witnesses in open session that we haven't called in closed session. But we will do so giving the GOP members every opportunity to ask questions,” Schiff said. “We want to make sure that we get to the truth, and this is the process, I think, early in an investigation that makes the most sense.”

Democrats seem to be following established congressional guidelines for congressional hearings, even if the decision to use standing committees rather than a select impeachment committee is not how impeachments have traditionally been handled. Before an impeachment vote is taken, critics of the president should make their case to the public. Supporters of the president do deserve a chance to present their side of the story as well. Indications are that the time for public hearings is coming within the next few weeks.

Originally published on The Resurgent

We Aren't In A Constitutional Crisis. We're In Several.

House Speaker Nancy Pelosi said this week that she agrees with House Judiciary Chairman Jerry Nadler that the United States is undergoing a constitutional crisis due to Attorney General William Barr’s refusal to provide an unredacted version of the Mueller report to Congress. Pelosi is correct that the US is in a constitutional crisis – a series of constitutional crises to be exact – but not in the way that she means.

There have been many explanations of why the Democrats are off base with their contempt vote against Barr so I won’t cover that ground here except to say that Barr is following the law in his actions. Certain parts of the report cannot be released because federal law prohibits it. President Trump’s claim of executive privilege, which will most likely only last until Barr can ready a more lightly redacted version of the report for congressional distribution, is justified in this case.

When it comes to the congressional request of President Trump’s tax records, the shoe is on the other foot. The IRS code requires the Treasury Secretary to provide certain congressional officials with any taxpayer’s return and tax information. Nadler has provided a legitimate, if contrived, reason for the request, but Secretary Mnuchin has refused to comply. Since the request falls under congressional oversight of the executive branch and the separation of powers specified in the Constitution, Mnuchin’s refusal could be considered as fomenting a constitutional crisis.

Yet the congressional fishing expedition with respect to Trump’s personal financial data is transparent. Even though House Democrats are acting within the law with respect to the subpoenas of Mnuchin and Trump’s tax returns, their unspoken rationale of finding dirt, possibly criminal wrongdoing, on the president or simply using the information to embarrass him is outside the scope of congressional powers. Congress has rights to the information for certain reasons but not for the purpose of seeking revenge on the president. Nevertheless, “because it will embarrass the president” is not a legal ground to refuse a legitimate congressional request. If Congress abuses its authority to oversee the president then that is also a constitutional crisis.

A third constitutional crisis regards President Trump’s tariff war. The first salvo in the trade war was fired on March 1, 2018, when the president announced his intention to impose protective tariffs on steel and aluminum. The tariffs were imposed under section 232 of the Trade Expansion Act of 1962 which allows the president to impose national security tariffs. While the rationale was doubtful given the strength of the US steel and aluminum industries, a court did declare these tariffs constitutional earlier this year. Further, CNN pointed out that under a series of laws such as the Trading with the Enemy Act of 1917, the International Emergency Economic Powers Act of 1977, and the Trade Act of 1974, the president has almost unlimited authority to declare tariffs without congressional approval.

The constitutional crisis, in this case, is that Congress has abrogated its authority to “lay and collect taxes, duties, imposts and excises” under the Constitution. Congress has delegated this important power away to the president and the country is now feeling the effects of congressional impotence. Congress needs to reclaim this authority, if not now, then soon after President Trump leaves office.

Yet another constitutional crisis concerns the internal Department of Justice memo that prevents indictment of a sitting president. The special counsel’s decision to abide by the DOJ policy and then pointedly state that he could not say that Donald Trump did not obstruct justice left America in limbo. The claim of “no collusion, no obstruction” is obviously incorrect, but as yet there is no resolution to the president’s unethical, quasi-illegal behavior. The president should not be above the law. If he committed an act that would be a crime for an ordinary, nonpresidential American then he should be prosecuted just as they would. The DOJ memo was intended to prevent baseless persecution of the president by the opposition, but it unintentionally created a Get-Out-of-Jail-Free card for presidents without respect for the rule of law.

Next is President Trump’s decision to declare a national emergency to bypass Congress. When the emergency was announced in February it was big news, but this crisis has since been forgotten with the onset of a number of succeeding scandals. Yet the national emergency is a constitutional crisis that undermines the very existence of Congress. Under President Obama, Republicans were adamant that the House had the “power of the purse,” but now most feel that it is fine for President Trump to ignore a Congress that won’t do his bidding. Regardless of whether building the wall is a good idea or not, claiming a national emergency to procure funds for it against the express will of Congress is a horrible precedent, but one that is sure to be repeated by future presidents if it is not quashed by either Congress or the courts.  

The final constitutional crisis (at least so far) is Congress’s failure to rein in the imperial presidency. Donald Trump figures prominently in many of the ongoing constitutional crises but not all are unique to him. For example, Barack Obama’s executive decisions on DACA usurped congressional authority and his executive agreement with Iran undercut the Senate’s constitutional role of ratifying treaties. The abdication of congressional authority to levy tariffs goes back decades. The presidency will continue to become ever more powerful unless Congress takes steps to assert itself.

A major part of the problem is that congressional partisans have an attitude that the end justifies the means. Partisans of both sides refuse to hold their own presidents accountable because they like the results of their expansion of executive power. Democrats approved of Obama’s DACA deal and Republicans love Trump’s national emergency. If Congress is going to successfully limit presidential authority, it will require both sides to cross the aisle and work together to uphold the constitutional limits on the executive branch.

Reaching across the aisle is often considered traitorous these days, but the Congress has a higher duty to the Constitution than to the political parties. If Congress doesn’t act to defend the Constitution, presidents of both parties will keep chipping away at it until there is no need for the legislative body at all.

Benjamin Franklin famously said at the close of the constitutional convention that the delegates had decided on “A Republic if you can keep it.” The slow erosion of congressional authority shows that the struggle to keep the Republic must go on.

Originally published on The Resurgent

A Possible Trump Indictment And The Looming Constitutional Crises

As the Mueller investigation draws to a close, many political observers and legal analysts point to the increasing likelihood that President Trump will be implicated in criminal wrongdoing. Mr. Trump is not only threatened by the Russia probe but also the separate federal investigation by the Southern District of New York that recently led to the conviction of Michael Cohen. If investigators find evidence that the president committed crimes, it will trigger not but a series of constitutional crises.

As Erick Erickson pointed out earlier this week, “Republicans have gone mostly quiet, and their deflections are half-hearted and coupled with ‘but Hillary’ cries. This behavior is a pretty big red flag that everyone now knows Mueller has something and it is not good for the President and possibly for other members of his family.”

While the “something” that Mueller has may not be illegal Russian collusion, it is becoming more and more obvious that investigators do have something serious on the president. As Judge Andrew Napolitano said on Fox News after Cohen’s sentencing, “Career prosecutors here in New York have evidence that the president of the United States committed a felony by ordering and paying Michael Cohen to break the law. How do we know that? They told that to the federal judge. Under the rules, they can’t tell that to the federal judge unless they actually have that hardcore evidence. Under the rules, they can’t tell that to the federal judge unless they intend to do something with that evidence.”

While Napolitano said that the felony is that Trump paid Cohen to commit a felony, there are a host of other possible charges that the president could potentially face. These range from obstruction of justice to lying to the FBI. There is also the possibility that the investigations could have uncovered illegal acts committed by Mr. Trump before he became president. The Cohen investigation could have implicated Trump in anything from tax fraud to money laundering.

An accusation by prosecutors that President Trump committed a felony would trigger not one but several constitutional crises. The most obvious crisis would be whether a sitting president can be indicted. The current opinion of the Department of Justice is, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

The DOJ is concerned that malicious indictments of the president by rogue US attorneys or states could be used to subvert the will of the people. If you think this scenario is not possible, think again. It was only 10 years ago that prosecutors illegally hid evidence in the corruption trial of Senator Ted Stevens (R-Alaska). Stevens’ conviction was overturned and two prosecutors were suspended but only after Stevens had lost his Senate seat.

On the other side of the issue is the statute of limitations. The statute of limitations limits how long after a crime that the perpetrator can be prosecuted. Some crimes, such as murder, have no statute of limitations.  In the case of most federal crimes, the statute of limitations is five years. If President Trump is elected to a second term, the statute of limitations for offenses committed early in his administration would expire before he leaves office. This would effectively mean that the president could not be prosecuted if he committed nonviolent crimes in 2017.

It should be apparent to any student of American history and the Constitution that the framers did not intend that the president should be above the law and immune from prosecution. So, what is the remedy for criminal acts by a sitting president?

Most would argue that impeachment is the answer. Under this view, Congress would impeach the president and then he could be indicted in the court system. This theory has problems as well, especially in the case of Donald Trump.

The Constitution says that grounds for impeachment include “Treason, Bribery, or other high Crimes and Misdemeanors,” but does not define these terms. A 2015 report by the Congressional Research Service found that impeachable offenses don’t have to be criminal acts and not all criminal acts are impeachable offenses. Impeachable offenses would fall into three broad categories:

·        Exceeding or Abusing the Powers of the Office

·        Behavior Incompatible with the Function and Purpose of the Office

·        Misuse of Office for Improper Purpose or for Personal Gain

With respect to the current situation, another constitutional crisis would be fomented if President Trump was found to have committed crimes before becoming president. The question would be whether the president could be impeached for crimes committed before he took office. This question would be especially relevant if the statute of limitations for these crimes would expire before the president leaves office.

Many experts argue that impeachment should be limited to crimes committed while in office. The problem is that this could prevent the president from being prosecuted for crimes he committed before becoming president.

The CRS report indicates that there is precedent for impeaching officials for crimes committed before they took office. US Circuit Court Judge Robert Archibald was impeached in 1912 based on articles of impeachment that included acts committed in his prior position as a district judge. More recently, in 2010 US District Court Judge Thomas Porteous was impeached in part for acts committed before he held any federal office. These included misconduct as a state judge as well as lying to the FBI and Senate during his confirmation as a federal judge. The charges against both men also included acts related to their current office. No one has ever been impeached solely on the basis of acts committed prior to holding office.

There is also precedent for impeachment after an official has left office. In 1876, Secretary of War William Belknap resigned two hours before the House impeached him. In his Senate trial, Belknap argued that he was a private citizen and therefore not under the Senate’s jurisdiction. The Senate voted to affirm jurisdiction over Belknap but ultimately acquitted him of the charges against him.  

Impeachment is almost certainly out of the question as long as Republicans control the Senate, which they will until the end of Trump’s first term. This leads to a third constitutional conundrum. In today’s hyper-partisan environment, evidence of a very serious crime would have to be overwhelming for the president’s own party to vote to remove him from office. If there is no chance of removing Trump from office, there would be little point in House Democrats impeaching him. In the end, we may be left with a scenario in which Trump is accused of felonies by prosecutors who are prohibited by from indicting him. In Congress, Democrats consider impeachment but Republicans circle the wagons around the president and refuse to join the effort, arguing, “What about Hillary?” With the clock on the statute of limitations ticking and the impeachment effort stalled, Donald Trump could effectively use the office of president as a shield from prosecution.

The intent of the Founders was clearly not to have a presidency that is above the law. Having just fought a war to liberate themselves from a system in which the king had unchecked power, this would have been the last thing that they would have wanted, but that is the possibility with which we are confronted.

The current crisis was foreseen by John Adams, who warned, “Avarice, ambition, revenge, and licentiousness would break the strongest cords of our Constitution, as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

The best defense against a president using the office to shield himself from prosecution is for the parties to nominate people of good character and morals as their candidates and for voters to send trustworthy candidates to the White House. On that score, the country was in trouble regardless of the outcome of the 2016 election.

Originally published on The Resurgent

Why Trump's Birthright Order Would Be Blatantly Unconstitutional

Less than 10 years ago, Barack Obama wanted to change the law by Executive Order. Conservatives were rightly outraged when then-President Obama changed immigration law after saying more than 20 times that he didn’t have the authority to do so. Fast forward to 2018 when President Trump proposes to amend the Constitution by Executive Order. If there are any constitutionalists left in the Republican Party they should be similarly outraged by Trump’s proposed executive action, which is unconstitutional on its face.

The idea of birthright citizenship has become unpopular with many on the right due to the number of “anchor babies,” children born in the US to noncitizens. Under US law, these American-born children are native-born American citizens with all the rights and privileges that citizenship entails regardless of whether their parents are legal immigrants to the US or not.

Birthright citizenship, also referred to as “jus soli,” or “right of the soil,” has been US law and tradition since the ratification of the 14^th amendment in 1868. The amendment states in part, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

The proposed text of Trump’s Executive Order has not been released, but the president told Axios that he planned to release the order despite the fact that most legal scholars say that a new constitutional amendment would be needed to change the 14^th amendment, which has been upheld by the Supreme Court.

“It was always told to me that you needed a constitutional amendment. Guess what? You don't,” Trump said.

“It's in the process,” Trump added. “It'll happen ... with an executive order.”

Trump’s strategy is likely to order a new interpretation of the phrase, “subject to the jurisdiction thereof.” For several years, some conservatives have argued that illegal immigrants are not subject to the jurisdiction of the United States because they are in the country illegally.

The Supreme Court has upheld the birthright citizenship clause of the 14^th amendment. In 1898, the Court ruled in US v. Wong Kim Ark that the son of Chinese immigrants who had been born in the United States was a US citizen based on a plain language reading of the amendment.

“To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States,” the decision said. “Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can constrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment.”

The glimmer of hope that the anti-birthright citizenship faction sees comes from the fact that the Supreme Court has never addressed whether the 14^th amendment applies to illegal immigrants. At the time of Wong Kim Ark, there were few restrictions on immigration other than the Chinese Exclusion Acts. The Immigration and Nationality Act that established immigration and citizenship laws as we know them today was not passed until 1952.

Even though the Supreme Court has not directly addressed the question of birthright citizenship for illegal immigrants, the argument made by those on the right, and presumably by President Trump as well, that illegals are not under the jurisdiction of the United States is nonsensical on its face. This can be proved easily with a simple thought experiment.

Can illegal aliens be arrested and prosecuted for breaking US laws?

Of course, they can. Illegal immigrants can be and have been prosecuted for murder, theft, fraud, illegally entering the country and many other offenses. Illegal immigrants can be prosecuted for breaking any US law. They are therefore under the jurisdiction of the United States by definition.

So, why did the framers of the 14^th amendment include the jurisdiction clause? The answer is that they wanted to exclude certain people such as foreign diplomats and soldiers of invading armies from birthright citizenship. Diplomats have immunity from US laws and invading soldiers would be subject to the laws of their country and the rules of their army. Until the passage of the Indian Citizenship Act in 1924, members of Indian tribes were also excluded from birthright citizenship under the theory that they were citizens of independent Indian nations.

If the illogical nature of the anti-birthright citizenship argument weren’t enough, there is also Supreme Court precedent on who is under US jurisdiction. In 1982, Texas officials argued that illegal immigrants were not subject to the jurisdiction of the state and that education funding could be withheld from illegal immigrant children. In Plyler v. Doe, the majority ruled against Texas’ interpretation of the law, saying, “Use of the phrase ‘within its jurisdiction’ confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory.”

President Trump’s proposed Executive Order is an ill-considered Hail Mary intended to bypass Congress and have the Supreme Court issue a friendly ruling. The scheme capriciously ignores the plain language of the Constitution as well as Supreme Court precedent. This strategy is typically used by the left and is unbecoming of a party that purports to support the rule of law.

Using a re-interpretation of the Constitution that depends on twisting the meaning of the words would set a dangerous precedent. The left has already bandied about the idea of interpreting the Second Amendment in a way that would read “arms” as “guns.” Under this interpretation, ammunition could be taxed and regulated out of existence while not infringing on the right to keep and bear then-worthless arms.  

If Republicans want to reverse the birthright citizenship policy -  and there is a strong case to make that they should – the Constitution gives them the tools to do so. Embedded within the founding document are the steps to change it. These same steps were followed by the framers of the 14^th amendment. Trump-era Republicans don’t get a pass on adhering to the Constitution. Some, such as Lindsey Graham who has announced plans to introduce a bill to amend the Constitution, realize this.

Some proponents of the redefinition of “jurisdiction” argue that President Trump is playing 4D chess by kicking the issue to the courts. In reality, Trump is setting his base up for a humiliating and demoralizing defeat. The timing of the announcement is likely meant to stoke his base’s excitement prior to the midterms as well as discourage the migrant caravans, but the result is more likely to enshrine birthright citizenship with a clearly defined Supreme Court ruling. When Trump’s order is ultimately struck down, it will further deepen the national divide.

Ironically, when – not if – the president’s Executive Order is challenged and gets its hearing at the Supreme Court, President Trump’s own appointees may be instrumental in overturning his abuse of executive authority. A good constitutionalist justice owes his allegiance to the law as it is written, not to the president who appointed him.  

Allowing a president to arbitrarily redefine the Constitution is not smart policy and it certainly is not conservative. The reaction of conservatives and Republicans to President Trump’s proposed abuse of power will say a lot about what principles now guide the GOP.  

Originally published on The Resurgent

New York Ruling: Bars Can Ban Trump Supporters

A Manhattan judge ruled this week that bars in the city can refuse service to Trump supporters. On the surface this seems to be unjust, but conservatives and constitutionalists should applaud the ruling, which follows the law and small government principles.

It all started in January 2017 when Greg Piatek, a 30-year-old accountant from Philadelphia wore his red “Make America Great Again” cap to The Happiest Hour, a New York City watering hole. Piatek says The Happiest Hour staff was not happy with his headgear and eventually forced him to leave.

The New York Post reported that bartenders noticed the hat after Piatek and his friends had been served the first round of drinks. Piatek says they asked if the hat was a joke and when he was finally able to order a second round, the bartender allegedly “slammed the drinks down.” Piatek claims that the other bartenders ridiculed his hat and refused to serve him and that, when he complained about the service, the manager told him, “Anyone who supports Trump or believes what you believe is not welcome here. And you need to leave right now because we won’t serve you.”

Piatek sued the bar claiming that the incident “offended his sense of being American,” per the Post. Piatek’s lawyer, Paul Liggieri, also claimed that the MAGA hat had religious significance.

“The purpose of the hat is that he wore it because he was visiting the 9/11 Memorial,” Liggieri said. “He was paying spiritual tribute to the victims of 9/11. The Make American Great Again hat was part of his spiritual belief. Rather than remove his hat, instead he held true to his spiritual belief and was forced from the bar.”

“Plaintiff does not state any faith-based principle to which the hat relates,” the judge ruled. “Here the claim that plaintiff was not served and eventually escorted out of the bar because of his perceived support for President Trump is not outrageous conduct.”

The instinctive reaction from many on the right will be to condemn the ruling, but the judge was correct in dismissing the lawsuit. In the first place, the evidence indicates that Piatek and his friends were not upset when they left the bar. The credit card receipt indicates that Piatek’s group ran up a $186 bar tab, to which Piatek voluntarily added a $36 tip. The 20 percent tip is an indication that the group was not displeased with the service that they received.

Second, even though critics of Trump’s movement have called it a cult, support for Donald Trump is not a religious belief and Piatek did not make the case that his hat was religious clothing at the time of the incident. The claim that a MAGA hat is religious garb makes a mockery of true religious persecution.

Although many conservatives seem to have thrown free trade by the wayside, the Constitution does protect the freedom of association and, by extension, the freedom not to associate. Likewise, businesses have traditionally had the right to refuse service to patrons who break their rules. Rules might prohibit sitting at a table without ordering or they might prohibit certain types of clothing.

There are limits to the right to refuse service. Race and religion have long been protected from discrimination by both state and federal laws. New York law prohibits “public accommodations” from discriminating because of “race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status.” The New York Constitution also protects the free exercise of religion.

What the law does not do is protect patrons from political discrimination by a private business. There is no inalienable right to be served a cocktail while wearing a MAGA hat.

In fact, even the US Constitution does not guarantee the right to free speech in a private business. The First Amendment protects Americans from government censorship, not from being ejected from a bar because the patron engaged in an unpopular political expression.

While it’s tempting to try to claim the mantle of victimhood when someone on the right is ejected from a bar for wearing Republican garb, that isn’t a road that conservatives should want to go down. The inevitable result would be leftists filing a plethora of lawsuits against conservative businesses.

It would also result in a further expansion of government into private transactions between businesses and individuals. No conservative should want the government ruling on what political attire crosses the line as unacceptable. Those decisions are better left to the owners and managers of individual businesses.

Trump supporters may be justly angry that Piatek was forced to leave the Happiest Hour, but suing the bar is not the best solution. A better solution is for like-minded individuals to vote with their wallets and patronize a different establishment, one where MAGA hats are at least tolerated, if not welcomed. In a city the size of New York, with establishments that cater to every sort of clientele, there is certain to be a bar where MAGA hat-wearing, Trump-supporting visitors to the city can enjoy their drinks in peace.

Originally published in The Resurgent

Alabama Sen. Shelby Rejects Roy Moore As Another Embarrassing Statement Surfaces

The weekend before the closely-watched Alabama senatorial election, another scandal emerged for Republican Roy Moore. An audio clip surfaced from an appearance by Moore on a conspiracy-related internet talk show in which Moore agreed with the hosts that voiding all constitutional amendments after the 10^th “would eliminate many problems.”

Moore’s comments came on a 2011 episode of the “Aroostook Watchmen,” a right-wing internet talk show based in Maine. On an audio recording obtained by CNN, Moore responded to a statement from one of the hosts advocating an amendment that would void every amendment that was not part of the original Bill of Rights.

“That would eliminate many problems,” Moore replied. “You know people don't understand how some of these amendments have completely tried to wreck the form of government that our forefathers intended.”

Moore specifically cited the 17^th Amendment, which changed the process for electing senators. Originally, senators were selected by state legislatures, but the amendment made it so that senators were chosen directly by the people of the state. Following the host’s lead, Moore also criticized the 14^th Amendment, which was passed after the Civil War and includes the Equal Protection and Due Process Clauses.

“The danger in the 14th Amendment, which was to restrict, it has been a restriction on the states using the first Ten Amendments by and through the 14th Amendment,” Moore said. “To restrict the states from doing something that the federal government was restricted from doing and allowing the federal government to do something which the first Ten Amendments prevented them from doing. If you understand the incorporation doctrine used by the courts and what it meant. You'd understand what I'm talking about.”

“For example, the right to keep and bear arms, the First Amendment, freedom of press, liberty,” Moore continued, “Those various freedoms and restrictions have been imposed on the states through the 14th Amendment. And yet the federal government is violating just about every one of them saying that -- they don't, they don't -- are not restrained by them.”

There is a total of 27 amendments to the Constitution. Some other important amendments that come after the 10^th included the abolition of slavery (13^th), guaranteeing the right to vote regardless of race (15th), extending the right to vote to women (19^th), and the prohibition of poll taxes (24^th).

Moore did not specifically advocate a return to slavery, but he was previously criticized for another quote in the Los Angeles Times from September 2017 in which he seemed to downplay the institution.  An audience member asked Moore when he thought America was last great. Moore answered, “I think it was great at the time when families were united — even though we had slavery — they cared for one another.... Our families were strong, our country had a direction.”

While the clip did not specifically mention the 19^th Amendment, Roy Moore did co-author a legal textbook that argues that women should not elected to public office.

In a response to CNN, the Moore campaign denied that the candidate ever supported the repeal of 16 amendments. “Once again, the media is taking a discussion about the overall framework for the separation of powers as laid out in the constitution to twist Roy Moore's position on specific issues,” a spokesman said in an email. “Roy Moore does not now nor has he ever favored limiting an individual's right to vote, and as a judge, he was noted for his fairness and for being a champion of civil rights.”

“Judge Moore has expressed concern, as many other conservatives have, that the historical trend since the ratification of the Bill of Rights has been for federal empowerment over state empowerment,” the campaign spokesman said.

In the same episode of “Aroostook Watchmen,” Moore seems to embrace several conspiracy theories as well. Moore implied that Barack Obama was not a citizen and expressed support for “new hearings into what really happened on 9/11.” Moore has long questioned the validity of Obama’s birth certificate including a statement in December 2016.

The Moore campaign told CNN that he “believes that Islamic terrorists were responsible for the 9/11 attacks, [has] made rebuilding the military one of his key campaign purposes, and is the only Senate candidate with experience serving in a combat zone.”

The combination of Moore’s past and his embarrassing behavior have led many Republicans to reject their party’s candidate. On Sunday, Alabama’s senior Senator, Republican Richard Shelby, revealed that he did not vote for Roy Moore.

“I'd rather see the Republican win, but I'd rather see a Republican write-in,” Shelby said on CNN’s “State of the Union.” “I couldn't vote for Roy Moore. I didn't vote for Roy Moore.”

Shelby did not say who he voted for, but Lee Busby, a retired Marine, entered the race as a conservative write-in candidate in November. There is speculation that Shelby may have voted for Col. Busby.

Originally published on The Resurgent

Why Trump did not need Congressional approval to strike Syria

After President Trump ordered the US military to launch a strike on the Syrian airbase where this week’s sarin gas attack originated, many on the internet are claiming that he violated his constitutional authority as president. Only Congress can declare war, they say, so President Trump should have obtained a congressional authorization to launch his punitive attack.

This argument is based on a misunderstanding of the Constitution. While it is true that Article I Section 8 says that “The Congress shall have Power… To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water,” the focus should be on what the Constitution does not say.

For example, the Constitution does not say that the president, who it names as the “Commander in Chief of the Army and Navy of the United States,” shall obtain the permission of Congress before deploying the army and navy in combat. The Constitution also does not say that a declaration of war is required before ordering the military to attack.

That the president has the power to order the military into combat unilaterally is not a recent interpretation of the original intent of the Framers. In his excellent book, “The Savage Wars of Peace,” Max Boot details the numerous small, undeclared wars and military actions that the United States has been involved in during our short time on earth.

Proponents of declarations of war might be surprised to learn that America’s first undeclared war occurred in 1801, a scant 14 years after the Constitution was ratified. Although Congress authorized action against Tripoli in 1802, a formal declaration of war against the pirate kingdoms did not come until 1815 under James Madison. Yet if President Jefferson overstepped his constitutional authority in ordering the US Navy and Marines to go to war against the kingdoms of the Barbary coast in what is now Libya, there would have been opposition from the still-living Framers of the Constitution and authors of the Federalist Papers. Jefferson’s opponents criticized his Louisiana Purchase as exceeding his authority instead.

Although the US has been involved in many conflicts, only five wars have been formally declared. These include the War of 1812, The Mexican War, The Spanish-American War, World War I and World War II. That does not mean that all other conflicts were unconstitutional, however.

Congress has authorized the use of military force at least 13 times without declaring war. The first such authorization occurred even before the Barbary wars when Congress authorized John Adams to use military force against France during the Quasi War of 1798-1800. Congress has authorized the president to use military force many times in recent years including in Vietnam, Afghanistan, and twice in Iraq. These authorizations could be construed to fill the constitutional role of a declaration of war.

Many conflicts never had congressional approval at all. One of the largest undeclared wars, The Korean War, was never authorized by Congress. Neither was George H. W. Bush’s deployment of troops to Somalia or Bill Clinton’s deployments to Bosnia and Haiti. President Bush’s invasion of Panama received congressional approval only after the fact. President Obama never went to Congress for approval of his intervention in the Libyan civil war.

An opinion memorandum from the Deputy Counsel to the President from September 2001 quotes the Supreme Court in United States v. Verdugo-Urquidez (1990), “[t]he United States frequently employs Armed Forces outside this country—over 200 times in our history—for the protection of American citizens or national security” and goes on to note, “On at least 125 such occasions, the President acted without prior express authorization from Congress.”

The military actions in Korea, Bosnia and Libya were authorized by the United Nations even though Congress never signed off on them. In some cases, such as the Persian Gulf War, military force was authorized by both Congress and the UN.

In 1973, Congress was concerned enough about the possibility of abuse of presidential war-making authority that it passed the War Powers Act to clarify the constitutional roles of the president and Congress. The WPA requires the president to “consult” with Congress before introducing US troops into hostile or potentially hostile situations. It also requires the president to withdraw American forces after 60 days unless Congress grants approval for continued action.

The requirement to consult with Congress sets a low bar. It allows the president to act quickly and for a short time without a congressional approval. Under both the Constitution and the WPA, there is no specific requirement for the president to seek approval from Congress for a single military strike.

If a sustained campaign against a hostile foe is required, the rules are different. The War Powers Act, but not the Constitution, sets a 60-day time limit for unilateral actions by the president. Even then, neither law requires the president to ask for a formal declaration of war.

Why is Congress granted the power to declare war if such a declaration is not required under the Constitution? A declaration of war has legal implications that an authorization for use of force does not.

“In contrast to an authorization, a declaration of war in itself creates a state of war under international law and legitimates the killing of enemy combatants, the seizure of its property, and the apprehension of enemy aliens,” says the Congressional Research Service. “With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc.”

Undeclared and unauthorized military actions are still subject to international law. “Perhaps most important,” notes the CRS, “neither a declaration nor an authorization is necessary to trigger application of the laws of war, such as The Hague and Geneva Conventions; for that, the fact of armed conflict is the controlling circumstance.”

The lack of a declaration or authorization does not mean that the president’s actions are illegal under international or domestic law. President Trump’s strike against Syria was well within his role as commander-in-chief of the US military and his power to set foreign policy. A ground invasion and occupation of Syria would trigger different rules, but would still not require a formal declaration of war.

 Originally published by The Resurgent

Why President Trump Won't Be Impeached

  

Almost since the election, there have been calls to impeach Donald Trump. The chorus to impeach President Trump follows years of calls to impeach President Obama by conservatives. Barack Obama was not impeached and Donald Trump isn’t likely to be, even if it can be proven that he colluded with the Russians during the election.

The Constitution is very specific about the basis for impeachment. Article II Section 4 states, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

People, both conservative and liberal, who want to impeach a president for policy differences or because they don’t like him are acting outside the bounds of the Constitution. Even a president who commits crimes that do not rise to the standard of “high crimes” may not to be subject to impeachment.

Article III of the Constitution helps to interpret the rules for impeachment. For example, “treason against the United States,” is defined in Section 3 as “only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Section 2 specifies “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” This implies, but does not require, that impeachment would be the result of an indictable offense.

Less clear is the meaning of the phrase, “high crimes and misdemeanors.” The Constitutional Rights Foundation notes that this phrase had been common in English law since 1386 and would have been familiar to the Framers, who adopted it with little discussion. At its core, the phrase implies abuse of office and unfitness to serve.

The CRF also points to the Federalist Papers for clarity on impeachment. In Federalist No. 65, Alexander Hamilton wrote that impeachable offenses are “those offences which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

In the case of President Trump’s alleged coordination with the Russians during the campaign, he would likely be safe from impeachment even with incontrovertible proof. In 1872, Schuyler Colfax, vice president to Ulysses Grant, was threatened with impeachment for corruption and bribery. The House Judiciary Committee ultimately decided that Colfax could not be impeached because the alleged bribe occurred before he was elected vice president. The committee believed that the matter should be handled by the courts instead of Congress. Colfax was never indicted or impeached.

Conversely, in 1973, the Office of Legal Counsel wrote that it was unacceptable for a jury of 12 individuals to overturn the will of the nation as expressed in an election. In a memo, the counsel argued that it “is more fittingly handled by the Congress than by a jury, and such congressional power is founded in the Constitution.”

President Trump would have two defenses under these legal theories. First, the actions that might trigger an impeachment, from sexual harassment to Trump University to collusion with the Russians, occurred before he was elected president. Therefore, under the Colfax memorandum, they would not be impeachable offenses.

Second, these actions were also known to the voters during the election. People knew that Trump was a Putin aficionado, they knew about his history with women and they voted for him anyway. It would be problematic for the courts or Congress to overturn the election under those circumstances.

Nevertheless, the ongoing investigation into Russian meddling in the election has dangerous consequences. If it is proven that Vladimir Putin intervened in the election on Trump’s behalf and that Trump purposely acted in concert with the Russians, it would almost certainly trigger a constitutional crisis over how to handle the matter.

Ultimately, impeachment is a political institution as well as a legal one. The same thing that prevented President Obama’s impeachment may be what stymies attempts to impeach President Trump as well. President Obama may well have been saved by the fact that the Democrats had a majority in at least one house of Congress for most of his term.

Under the Constitution, the House of Representatives votes to impeach the president and the Senate holds a trial to decide whether to remove him from office. Two presidents, Andrew Johnson and Bill Clinton, have been impeached, but neither was removed from office. It is likely that the pattern would have continued if House Republicans had voted to impeach Obama.

From 2010 on, the Republicans held control of the House, but Democrats held the Senate until after the 2014 elections. It would have been pointless to impeach Obama if he could not be removed from office. After 2014, even if serious charges could have been brought against Obama, the result of removing him from office would have been placing Joe Biden into the presidency. As an incumbent, he would have had a large advantage in the 2016 elections and, given the weakness and unpopularity of both Hillary Clinton and Donald Trump, Biden may well have become president.

Democrats face the same problem today. As long as Republicans control Congress and remain reasonably unified, impeachment is a nonstarter. If Democrats do gain control of Congress and push through an impeachment, President Trump will be replaced by President Pence, who would probably be much more popular and effective. Trump’s impeachment may well prove to be a boon for the Republican Party instead of the Democrats.

The Democrats would also be taking a risk that Trump would be impeached but remain president. Bill Clinton’s popularity soared to record highs after his impeachment. The Clinton impeachment also served to unify Democrats and deepened partisan divisions in Washington. The impeachment of Andrew Johnson for a noncriminal offense also later came to be seen as politically motivated and a partisan error.

The big risk of impeachment for President Trump comes from his actions going forward. If he proves to be corrupt in office, he could turn enough Republicans against him to make impeachment a possibility. Likewise, the originalist interpretation of “high crimes and misdemeanors” could include incompetence and unfitness as a leader. If Trump, who has no experience in government, proves to be such a bad leader that the nation is endangered by his administration, a difficult standard to meet, even a Republican Congress may find itself looking for alternatives. 

Originally published on The Resurgent