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Impeachment Q&A

Some notes on impeachment in Q&A format even though it isn’t necessarily normal for people to ask these questions rather than just assuming convenient answers to them, and even though I’m not the best person to answer them. I promise my answers will be factual to the best of my knowledge, and that they are relevant, if one-sided. If you have factual answers to the same questions that are relevant, but maybe reflective of another perspective, I welcome them.

1. Can a partisan impeachment process remove Trump from office?

No. In order for Trump to be removed from office, a super-majority of the Senate must vote for conviction and removal. Since neither party has a super-majority in the Senate, it cannot be accomplished without votes from both political parties. If all of the Democrats voted for conviction, then at least half of the Republicans would have to do so also. Not even just a few cross-overs from the moderate wing of the Republican party would be sufficient. 67 votes are required – that would mean at least 18 Republicans.

2. If Trump is impeached, convicted, and removed from office, would that be tantamount to overturning an election?

One very strict way to describe “overturning” an election would be to reverse or nullify Trump’s official actions since his inauguration, and replace him with his opponent who would serve out the remainder of the term. Of course impeachment doesn’t do this. His official actions while in office will stand no matter what, and he would be replaced by his duly elected Vice President, a member of his own party, and one who has pledged himself to the same ideals that Trump himself has espoused. You might describe “overturning” in less stark terms. I cannot guess how loosely you would have to describe this term in order for it to apply to impeachment. Without knowing your definition, I cannot criticize it, but I reckon that describing it loosely enough to apply to impeachment would run afoul of the “noncentral fallacy“.

3. If Trump is impeached, convicted and removed from office, would that be tantamount to “regime change” or a “coups d’etat”?

See answer to #2. These are hyperbolic terms, sometimes deployed by Trump defenders, but occasionally by his opponents. If you have a rational definition of them, not subject to the noncentral fallacy but applicable to impeachment, please let me know.

4. If Trump is impeached, convicted, and removed from office, would that be tantamount to overturning the will of the people?

See answer to #2, but further – still no. Even if the election were “overturned”, it’s good to remember that American elections, by and large, and including Presidential elections, do not reflect the will of the people and are not meant to. Constitutionally speaking, we are a Republic before we are a Democracy. There has been far too much ink spilled over the fact that Trump lost the popular vote. I don’t intend to belabor that point. It’s worth noting to me that Clinton also lost the popular vote. 51.8% of the voting public voted against Hillary Clinton, and 53.9% of them voted against Donald Trump. So, regardless of who “won” the popular vote in the sense of “beating the other candidate”, both candidates lost the popular vote in the very straightforward sense that more people opposed them than supported them. The electoral college decides who is awarded the Presidency, but the popular vote is the only measure of the will of the people. Clearly, the will of the people was “neither”, and that will was already overturned on inauguration day. Impeachment does nothing further to overturn it. In fact, whether we are talking about Clinton or Trump, impeachment and removal is the only measure that represents the will of the people.

5. Is the House impeachment process partisan?

Yes. For now, only Democrats are supporting the impeachment investigation. Because it is proceeding only by the mandate of one party, it is a partisan process.

6. Is a partisan impeachment process legitimate?

Yes. The Constitution gives no consideration to whether the process is partisan or not – only whether it is supported by the the House according to its rules. Because the impeachment investigation is supported by the House leadership  and by a majority of its members, it is constitutionally legitimate. If articles of impeachment were to be approved by a majority of the House, they would represent a legitimate indictment, and the matter would then move to the Senate for an equally legitimate trial.

7. Does impeachment provide due process to President Trump?

Yes, but read the explanation. The Constitution requires that no one be deprived of life or property without due process of law which according to modern jurisprudence includes some very specific standards of evidence and restrictions on how such evidence can be collected. The Constitution does not require that due process  of law, by that name or according to those standards,  be afforded to an officeholder before they are removed from office. On the other hand, it does make explicit what is required to deprive an officeholder of office,. For the President, what is required is impeachment by a majority of the house and conviction by 2/3 of the senate. Without using the term “due process”, the Constitution defines what process is due. Only by removing an officeholder by some non-Constitutional means (other than impeachment) is due process subverted. The Constitution does not provide for or imply any evidentiary rules in impeachment. There is good reason for this. I will take liberties in explaining. I am not historian enough to responsibly speak for the framers, but what I have learned is consistent with the following very compelling case:

a). Due process is meant to protect a defendant from unjust prosecution. Impeachment carries no penalties to life or property, so there is nothing to protect a defendant from. It is the Republic which should be protected in the impeachment process. The President isn’t afforded due process because he is not in jeopardy. If he is convicted and removed from office, then he may be prosecuted under the criminal justice system. It is then that he can and should expect due process.

b). Since impeachment must protect the Republic, the risk to the Republic must be evaluated.

Is it likely that 2/3 of Senators will decide wrongly against a duly elected President who was, at least on election day, supported by a large number of the same voters who the Senators represent? Of course not.

What is more dangerous to the Republic – to wrongly remove a duly elected President who is innocent, or to rightly remove a guilty President who is abusing power? By my estimation, wrongly removing 10 innocent Presidents would be better than allowing one guilty President to use the unfathomable power of that office to entrench himself and his political allies and thereby transform this very imperfect Republic into an autocracy. Criminal and civil processes place burdens on the prosecution in order to protect innocent defendants. Impeachment removes some of those burdens in order to protect the Republic, and places trust that 2/3 of the Senate – an elite chosen by the states (in modern times through popular election) – will only be persuaded if the defendant is in fact guilty.

8. Is Trump guilty of an impeachable offense, and should he be removed from office?

It is clear now that Trump did withhold Congressionally approved military aid to an ally trying to defend itself from Russian aggression. It is clear that he used the withheld aid (as well as State visits) as a leverage to pressure Ukraine to take a course of action which he believed would help him politically. In his defense, he may have believed that the investigation he was promoting was well-founded and would turn up real wrong-doing by the family of his opponent. That is too weak a defense. Had he been equally forceful in pursuing justice in Saudi Arabia, Russia, and China, perhaps. Had he been equally forceful in pursuing justice for Paul Manafort or Roger Stone, perhaps. If he was a champion of investigating corruption, and the case of Burisma Holdings was just one of many that concerned him so strongly that he used the levers of power to pursue it, then we could believe that his opposition to corruption was his real motivation. We cannot believe that, because the only corruption investigation for which he was willing to barter the security of the west was this one.  He may have believed that the Bidens did something wrong, but it is obvious that his real motivation was to weaken his opponent’s candidacy. It is obvious that any concerns about corruption were mere justifications.

Maybe this conduct is as some of his defenders have suggested: “bad but not impeachable”. Even so, it is egregiously bad. Through such tactics, American interests are subverted to the interests of a political cause, and the legitimacy of the American electoral process is further undermined. Impeachable? Maybe so, maybe not.  That’s for Congress to decide. But we have decisions to make, too.  Is it bad enough that his party should not nominate him for a second term? To anyone who really cares about protecting the Republic – Yes. Bad enough that he should not be able to gain enough support to win the electoral college? Again, yes. Bad enough that neither you nor I should vote for him in 2020 – yes. The questions before the electorate are easy to answer. I’m sure we all have opinions about the questions before Congress, but they are kind of secondary.

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