Bob Schwartz

Tag: Constitution

Barbara Jordan: Impeachment Is Not About Removal from Office

It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the President should be removed from office. The Constitution doesn’t say that. The powers relating to impeachment are an essential check in the hands of the body of the Legislature against and upon the encroachments of the Executive….

James Madison again at the Constitutional Convention: “A President is impeachable if he attempts to subvert the Constitution.” The Constitution charges the President with the task of taking care that the laws be faithfully executed, and yet the President has counseled his aides to commit perjury, willfully disregard the secrecy of grand jury proceedings, conceal surreptitious entry, attempt to compromise a federal judge, while publicly displaying his cooperation with the processes of criminal justice. “A President is impeachable if he attempts to subvert the Constitution.”…

If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that 18th-century Constitution should be abandoned to a 20th-century paper shredder!

Barbara Jordan, Statement on the Articles of Impeachment, 25 July 1974, House Judiciary Committee

Politician, legislator, educator, groundbreaker. Most especially orator. Former Congressman Barbara Jordan (1936-1996) was an American hero. And objectively one of the greatest American public figures of all time.

Objectively? How do we know this?

When you review American Rhetoric’s list of Top 100 Speeches you find Barbara Jordan at Number 5 (1976 Democratic National Convention Keynote Address) and Number 13 (Statement on the Articles of Impeachment, 25 July 1974, House Judiciary Committee). Her 1976 DNC speech is ranked below only MLK’s I Have A Dream, JFK’s Inaugural Address, and two speeches by FDR (First Inaugural Address and Pearl Habor Address to the Nation).

The reason her impeachment speech achieved its status is not only because of her unmatched talents as wordsmith and orator. It is because, as she often did, she went to the heart of the matter, which in the case of impeachment is not removal from office, but subverting the Constitution.

Mr. Chairman, I join my colleague Mr. Rangel in thanking you for giving the junior members of this committee the glorious opportunity of sharing the pain of this inquiry. Mr. Chairman, you are a strong man, and it has not been easy but we have tried as best we can to give you as much assistance as possible.

Earlier today, we heard the beginning of the Preamble to the Constitution of the United States: “We, the people.” It’s a very eloquent beginning. But when that document was completed on the seventeenth of September in 1787, I was not included in that “We, the people.” I felt somehow for many years that George Washington and Alexander Hamilton just left me out by mistake. But through the process of amendment, interpretation, and court decision, I have finally been included in “We, the people.”

Today I am an inquisitor. An hyperbole would not be fictional and would not overstate the solemnness that I feel right now. My faith in the Constitution is whole; it is complete; it is total. And I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction, of the Constitution.

“Who can so properly be the inquisitors for the nation as the representatives of the nation themselves?” “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men.”1 And that’s what we’re talking about. In other words, [the jurisdiction comes] from the abuse or violation of some public trust.

It is wrong, I suggest, it is a misreading of the Constitution for any member here to assert that for a member to vote for an article of impeachment means that that member must be convinced that the President should be removed from office. The Constitution doesn’t say that. The powers relating to impeachment are an essential check in the hands of the body of the Legislature against and upon the encroachments of the Executive. The division between the two branches of the Legislature, the House and the Senate, assigning to the one the right to accuse and to the other the right to judge, the Framers of this Constitution were very astute. They did not make the accusers and the judgers — and the judges the same person.

We know the nature of impeachment. We’ve been talking about it awhile now. It is chiefly designed for the President and his high ministers to somehow be called into account. It is designed to “bridle” the Executive if he engages in excesses. “It is designed as a method of national inquest into the conduct of public men.”² The Framers confided in the Congress the power if need be, to remove the President in order to strike a delicate balance between a President swollen with power and grown tyrannical, and preservation of the independence of the Executive.

The nature of impeachment: a narrowly channeled exception to the separation-of-powers maxim.  The Federal Convention of 1787 said that. It limited impeachment to high crimes and misdemeanors and discounted and opposed the term “maladministration.” “It is to be used only for great misdemeanors,” so it was said in the North Carolina ratification convention. And in the Virginia ratification convention: “We do not trust our liberty to a particular branch. We need one branch to check the other.”

“No one need be afraid” — the North Carolina ratification convention — “No one need be afraid that officers who commit oppression will pass with immunity.” “Prosecutions of impeachments will seldom fail to agitate the passions of the whole community,” said Hamilton in the Federalist Papers, number 65. “We divide into parties more or less friendly or inimical to the accused.”³ I do not mean political parties in that sense.

The drawing of political lines goes to the motivation behind impeachment; but impeachment must proceed within the confines of the constitutional term “high crime[s] and misdemeanors.” Of the impeachment process, it was Woodrow Wilson who said that “Nothing short of the grossest offenses against the plain law of the land will suffice to give them speed and effectiveness. Indignation so great as to overgrow party interest may secure a conviction; but nothing else can.”

Common sense would be revolted if we engaged upon this process for petty reasons. Congress has a lot to do: Appropriations, Tax Reform, Health Insurance, Campaign Finance Reform, Housing, Environmental Protection, Energy Sufficiency, Mass Transportation. Pettiness cannot be allowed to stand in the face of such overwhelming problems. So today we are not being petty. We are trying to be big, because the task we have before us is a big one.

This morning, in a discussion of the evidence, we were told that the evidence which purports to support the allegations of misuse of the CIA by the President is thin. We’re told that that evidence is insufficient. What that recital of the evidence this morning did not include is what the President did know on June the 23rd, 1972.

The President did know that it was Republican money, that it was money from the Committee for the Re-Election of the President, which was found in the possession of one of the burglars arrested on June the 17th. What the President did know on the 23rd of June was the prior activities of E. Howard Hunt, which included his participation in the break-in of Daniel Ellsberg’s psychiatrist, which included Howard Hunt’s participation in the Dita Beard ITT affair, which included Howard Hunt’s fabrication of cables designed to discredit the Kennedy Administration.

We were further cautioned today that perhaps these proceedings ought to be delayed because certainly there would be new evidence forthcoming from the President of the United States. There has not even been an obfuscated indication that this committee would receive any additional materials from the President. The committee subpoena is outstanding, and if the President wants to supply that material, the committee sits here. The fact is that on yesterday, the American people waited with great anxiety for eight hours, not knowing whether their President would obey an order of the Supreme Court of the United States.

At this point, I would like to juxtapose a few of the impeachment criteria with some of the actions the President has engaged in. Impeachment criteria: James Madison, from the Virginia ratification convention. “If the President be connected in any suspicious manner with any person and there be grounds to believe that he will shelter him, he may be impeached.”

We have heard time and time again that the evidence reflects the payment to defendants money. The President had knowledge that these funds were being paid and these were funds collected for the 1972 presidential campaign. We know that the President met with Mr. Henry Petersen 27 times to discuss matters related to Watergate, and immediately thereafter met with the very persons who were implicated in the information Mr. Petersen was receiving. The words are: “If the President is connected in any suspicious manner with any person and there be grounds to believe that he will shelter that person, he may be impeached.”

Justice Story: “Impeachment” is attended — “is intended for occasional and extraordinary cases where a superior power acting for the whole people is put into operation to protect their rights and rescue their liberties from violations.” We know about the Huston plan. We know about the break-in of the psychiatrist’s office. We know that there was absolute complete direction on September 3rd when the President indicated that a surreptitious entry had been made in Dr. Fielding’s office, after having met with Mr. Ehrlichman and Mr. Young. “Protect their rights.” “Rescue their liberties from violation.”

The Carolina ratification convention impeachment criteria: those are impeachable “who behave amiss or betray their public trust.”4 Beginning shortly after the Watergate break-in and continuing to the present time, the President has engaged in a series of public statements and actions designed to thwart the lawful investigation by government prosecutors. Moreover, the President has made public announcements and assertions bearing on the Watergate case, which the evidence will show he knew to be false. These assertions, false assertions, impeachable, those who misbehave. Those who “behave amiss or betray the public trust.”

James Madison again at the Constitutional Convention: “A President is impeachable if he attempts to subvert the Constitution.” The Constitution charges the President with the task of taking care that the laws be faithfully executed, and yet the President has counseled his aides to commit perjury, willfully disregard the secrecy of grand jury proceedings, conceal surreptitious entry, attempt to compromise a federal judge, while publicly displaying his cooperation with the processes of criminal justice. “A President is impeachable if he attempts to subvert the Constitution.”

If the impeachment provision in the Constitution of the United States will not reach the offenses charged here, then perhaps that 18th-century Constitution should be abandoned to a 20th-century paper shredder!

Has the President committed offenses, and planned, and directed, and acquiesced in a course of conduct which the Constitution will not tolerate? That’s the question. We know that. We know the question. We should now forthwith proceed to answer the question. It is reason, and not passion, which must guide our deliberations, guide our debate, and guide our decision.

“A Republic, if you can keep it.”

Possibly the most famous and prophetic quote from the American Constitutional Convention is attributed to Benjamin Franklin. America was not just a new nation; it was a new kind of nation, so naturally people wondered just what kind of a nation it was to be:

As Benjamin Franklin left the Constitutional Convention, on September 18, 1787, a certain Mrs. Powel shouted out to him: “Well, doctor, what have we got?,” and Franklin responded: “A Republic, if you can keep it.”

America has voted, there will be a Democratic-led House, and it appears that the Republic, which has been under serious internal siege for the past two years, is a little closer to again being kept.

It is just one step toward having an effective check on a leader and a ruling party intent on subverting virtually all of the principles that Franklin and friends embodied in the new nation. But a step in the right direction it is.

Franklin and friends are cautiously relieved. They, more than any, know how hard this is. So they are smiling a little. And so are many Americans.

Why Trump May Not Fire Department of Justice Officials (It’s Not Impeachment, a Constitutional Crisis or the Rule of Law)

It increasingly sounds like Trump is ready to rush in and try to stop the Mueller investigation:

A Rigged System – They [Department of Justice] don’t want to turn over Documents to Congress. What are they afraid of? Why so much redacting? Why such unequal “justice?” At some point I will have no choice but to use the powers granted to the Presidency and get involved!

Trump actually has no idea what the constitutional powers of the three branches of government are. He may not even know there are three co-equal and balanced branches of government. The only thing he knows is that he is THE PRESIDENT and that is the most powerful position in the world, EVER.

Trump’s firing people responsible for investigating him is wrong, is incident to a constitutional crisis, and breaches the fundamentals of the American rule of law. That won’t stop him. But this might:

If Trump proceeds with his improper intervention, every responsible lawyer currently working on his behalf, and every responsible lawyer being asked to represent him, should and may leave and run the other way. Because by continuing or taking on that work in the aftermath of such action by Trump, they are complicit—even if tangentially and collaterally—in supporting those actions. There is a case to be made that by continuing in those circumstances, lawyers are in breach of their oaths (lawyers are all sworn officers of the court) and of the rules of professional conduct.

All of which is not meaningful or comprehensible to Trump. But he might notice that there are fewer quality lawyers willing to touch his legal problems, and that number will get infinitely smaller if he carries out his threats.

Hope in a Sore American Storm

Wings of Wonder – Morton Solberg

Hope is the thing with feathers
That perches in the soul,
And sings the tune without the words,
And never stops at all,

And sweetest in the gale is heard;
And sore must be the storm
That could abash the little bird
That kept so many warm.

I’ve heard it in the chillest land,
And on the strangest sea;
Yet, never, in extremity,
It asked a crumb of me.

Emily Dickinson, Hope Is The Thing With Feathers

The storm in America is sore.

Those of us who know American history well, who understand how American government works, who have seen it in some of its worst days, want to maintain a sense that all things must pass.

But some of us who want to see a way past the current circumstances are having trouble assembling a vision of that path.

People have confidence in the checks and balances cleverly built into American democracy, and they are right to be impressed. You cannot say enough about the brilliance of the Constitution, the platform for history’s most durable and successful democracy.

But the founders and the Constitution presuppose sufficient people, particularly leaders, of the highest qualities. The list of those qualities is long and obvious. Honest, knowledgeable, capable, intelligent, brave, selfless, compassionate, just, on and on. There was never any expectation that America would be led by saints, just that when people and matters of government got out balance, other people and matters would step up to make it right.

There has never before been a time when it seemed there were not enough of those people with those qualities at the highest levels. We had no idea what happens to the elegance of constitutional America in those circumstances. Until now.

America—the America that knows and believes in the Constitution, American history, the rule of law, the system of checks and balances—must continue to plan and strategize a way past. But mere confidence that this is just one more difficulty that will be dissolved by electoral democracy, time and the American spirit may be misplaced. Which leaves us with hope. That thing with feathers, singing its tune.

It took Nixon 1,734 days. It took Trump only 109.

It took Nixon 1,734 days. It took Trump only 109.

Richard Nixon’s Saturday Night Massacre took place on October 20 1973. Besieged by investigations into Watergate, on that night he fired independent special prosecutor Archibald Cox, which resulted in Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigning. That was 1,734 days after Nixon took office.

Today Donald Trump fired Attorney General James Comey, who was leading one of the investigations into possible ties between the Trump campaign and Russia. It is 109 days after Trump took office.

It still took nearly a year, but Nixon resigned on August 8, 1974, in the face of certain Senate conviction of impeachment articles passed by the House. The articles begin:

ARTICLE 1

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice. (emphasis added)

We don’t know that the Republican-led House will have the courage to hold impeachment hearings, let alone pass articles of impeachment. Unlike the Nixon situation, where Republicans cooperated in a bipartisan upholding of core American and constitutional principles, it is hard to tell exactly what some Republicans believe or will do in these circumstances.

The only thing certain is that with this firing of the FBI Director, we are in dark territory. Will it get even darker? Will we see the light? And will no Congress rid us of this turbulent president?

See The Case for Impeachment by Allan J. Lichtman

Why should the President be born in the United States anyway?

We are asking the wrong and less interesting question about the Constitution and presidential qualification.

A lot of people are talking about Ted Cruz’s birth (the place, not the biological event). The better question is whether the requirement, however interpreted, is in our best interest.

It isn’t. There are plenty of brilliant and capable non-native American citizens who would be terrific at trying to run this country with some vision and imagination. (Though most of them are too smart to want to get involved in the thankless insanity we are now witnessing.)

We have rules, and if any rules deserve respect, the constitutional ones do. But just because it’s in the Constitution doesn’t mean it’s the best idea.

I am not suggesting that we amend the Constitution, especially not for Ted Cruz. But we should at least be talking about maybe expanding the talent pool. Because if most of the current crop of candidates is what we get when we limit ourselves to natural born Americans, we could definitely do much better.

Pope Francis, Kim Davis and Caesar

Caesar Coin

Pope Francis tried very hard in his U.S. visit to watch the line between moral guidance that has political effect and politics itself. He appears, maybe unwittingly, to have crossed the line. In a big way.

His visit with Kim Davis belies a misunderstanding of who she is and what she represents. It’s not that freedom of religious conscience is not an important issue. It’s that Kim Davis is the wrong poster person.

It appears from the context that he may have seen her in the line of great conscientious objectors. He reportedly thanked her for her courage and told her to be strong.

Kim Davis does have a religious conscience. And she does object to authorizing same-sex marriages. But there are two problems.

First, unlike true conscientious objectors, she doesn’t really want to suffer for her beliefs. Civil disobedients and conscientious objectors expect to be punished; sometimes they welcome it. But Kim Davis wants to have it both ways. Martin Luther King Jr. did not write in his letter from a Birmingham jail: For God’s sake, let me out of here. As far as we know, Kim Davis didn’t write any letters from her jail, at least not ones that will be in literary anthologies for the next fifty years.

The second problem is that her objection, at its heart, is that the Constitution and the Supreme Court are wrong, and that’s why she gets to keep her job and perform her duties as she sees fit. As a public servant, she is either explicitly by oath or implicitly by understanding sworn to uphold the Constitution. If she chooses not to, she has no privilege to hold that job, nor is she privileged to be free of sanction. That’s it.

Pope Francis, who I have expressed admiration for, may not understand that or the background of the Kim Davis saga. In that event, he should have followed the advice of Jesus in these situations:

‘Tell us, then, what you think. Is it lawful to pay taxes to the emperor, or not?’ But Jesus, aware of their malice, said, ‘Why are you putting me to the test, you hypocrites? Show me the coin used for the tax.’ And they brought him a denarius. Then he said to them, ‘Whose head is this, and whose title?’ They answered, ‘The emperor’s.’ Then he said to them, ‘Give therefore to the emperor the things that are the emperor’s, and to God the things that are God’s.’

Matthew 22:17-21 (NRSV)

Bacon and Ribs Illegal in America When Jews and Muslims Take Over

When Orthodox Jews or Muslims are in charge, bacon, ribs, and all sorts of other things will be made illegal.

Of course, that will never happen. Not because Orthodox Jews or Muslims will never take control of American democracy (anything’s possible). But because the U.S. Constitution—that imperfectly perfect protector of individual rights—would not permit it.

In the secular sphere, there is no higher law than the Constitution. Beyond being the law of the land, it is the law of the law of the land. Those who study it in the context of world history and politics recognize that it is a one-of-a-kind, no-other-time-or-place achievement.

Those who say there is some kind of higher law than that in the civic arena are misinformed, or in some cases, such as Ted Cruz who should know better, strategically mistaken. The question those folks have to answer is this: If there is higher law than the Constitution, whose law is it? If it’s “God’s” law, recall that God talks to lots of people in lots of religious traditions, and apparently isn’t always heard to say the same thing to everyone. It will shock some Christians to learn that God has been speaking to Jews for thousands more years, and while there seemed to have been plenty of talk about a messiah, nothing to indicate that one actually arrived. Or asked county clerks in Kentucky to stop issuing marriage licenses. Or told presidential candidates who claim to believe in law and order to defy the law of the law of the land. In his name. Amen.

Obama Must Renounce His Hawaiian Citizenship

Ted Cruz Birth Certificate

Now that we’ve (mostly) agreed that Barack Obama was born in Hawaii, there’s one final step: he must renounce his Hawaiian citizenship to legitimately serve as President of the United States.

That’s actually not right. Hawaii was a state when Obama was born there, and before that, it was an American territory (remember Pearl Harbor?).

But it is a splashy way to introduce the latest chapter in the story of Ted Cruz as possible presidential candidate.

Ted Cruz, U.S. Senator from Texas, was born in Calgary, Alberta, Canada to an American mother. The question of whether he is qualified to be President arises from Article Two, Section 1 of the U.S. Constitution, which restricts the presidency to “natural born Citizen[s]”. Even though there has been a colloquial understanding that this means “born in the U.S.A.”, the point has never been litigated, and there is a growing sense that it simply means born American, rather than naturalized.

There is no dispute that Cruz was an American citizen at birth, being born of an American citizen, even if abroad. But after he released his birth certificate this weekend (see above), to answer speculation that he might not be qualified, a new wrinkle has cropped up. As indisputably as he is an American citizen, it now appears that he is—at this very moment—also a Canadian citizen. A number of experts on Canadian law are making it clear that when you are born in Canada, citizenship is automatic. You can renounce it later on if you choose, as some do. But right now, Cruz is both an American and Canadian citizen, able to vote in Canadian elections and even run for office there. (Note how weirdly complicated this would have been had he been born there before 1947, when his birth would have made him both an American citizen and a British subject: God Save the Queen.)

It isn’t clear whether Cruz has long known he was also a Canadian citizen, whether he secretly participates in Canadian ceremonies, whether he privately exhibits the legendary Canadian civility and sensibility, whether his support of the XL Pipeline was specially motivated, whether his plan to bring the U.S. government to a halt is meant to make his Canadian homeland look better by comparison, whether he still has feelings for Her Royal Highness, given that he is a citizen of the Commonwealth, if not the United Kingdom.

There is a political issue here, though one that Cruz might be able to turn to his advantage. He might be able to continue his Senate role as a dual citizen (at least it’s Canada, not Russia), but the presidency is another matter. If he does choose to renounce, he could do it on an ideological basis, pointing out how the socialist leanings of his homeland to the north have left it far behind the achievements of free market America, and how, unless America is careful, it will end up exactly like Canada—the land he chose to leave at the age of four, precisely because he knew that America was the true land of freedom and opportunity. Not to mention a whole lot warmer, particularly in Texas.

Publius Speaks to Congress

Federalist Papers
Publius Valerius Publicola (“friend of the people”) was a Roman consul who helped found the Roman Republic circa 509 BCE. When James Madison, Alexander Hamilton and John Jay began publishing The Federalist Papers in 1787, they attached his name to their arguments for adoption of the Constitution.

We don’t know how many current members of Congress have read the Federalist Papers—not even all 85 papers, maybe just a few. We also don’t know how many senior members of the executive branch have done so. We can assume that all nine Supreme Court Justices have; these are, after all, an essential part of the legislative history of the Constitution.

Every time you see politicians brandishing the Constitution as a weapon, well-meaningly or just plain meanly; every time you hear a half-baked political argument or analysis that makes absolutely no sense, but is based mostly or entirely on emotion or ambition; every time you wonder whether a particular politician is taking the best interests of the country to heart or is just interested I getting ahead, the Federalist Papers are your talisman.

The Federalist Papers are a brilliant combination of careful philosophy and political realities—a balance between aspiration and actuality, between the way we want to be and the way we are.

When we hear today about “grand bargains” being struck in Congress—or often not being reached at all—you have to laugh. The very same founders who are treated as saints or even gods had to make the grandest of all bargains so that this nation could exist and endure. And in the Federalist Papers, we find the philosophical intelligence, the political courage and the candid self-awareness to expose how narrow interest and pettiness can stand in the way of solutions. If anything has changed in more than two centuries, it’s that we seem to have fewer Madisons, Hamiltons and Jays front and center in our national discourse:

A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.

An enlightened zeal for the energy and efficiency of government will be stigmatized as the offspring of a temper fond of despotic power and hostile to the principles of liberty. An over-scrupulous jealousy of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pretense and artifice, the stale bait for popularity at the expense of the public good.

It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.

Federalist No. 1