Steve-O-From-NJ authored an epic Comment of the Day, checking in at nearly 1800 words, which may be a record–it will take too long to check. The question is, since it an analysis of the soon-to-be-a-really-bad-memory-that-both-parties-will-constantly -remind- us-of impeachment, or as it is known on Ethics Alarms, Plan S, the Trump Impeachment Ethics Train Wreck, and one more car in the 2016 Post Election Ethics Train Wreck, is this an ethics post?
This was already on my mind, having read today another legal ethics blogger complaining that the impeachment debacle has forced her ethics blog into politics. Yeah, tell me about it.
Yes, it’s an ethics post. The impeachment was the culmination—for now–of what Ethics Alarms has been covering for three years as what I labelled early on as one of the most important and dangerous examples of unethical partisan conduct in decades. Steve-O hits many issues that have been extensively covered here from an ethics perspective, and, frankly, a summary right now is helpful. It also helps lay the foundation for a post I have been working on a while with his phrase–twice!–mixed motives.
Here is Steve-O-From-NJ‘s Comment of the Day on the post, “Saturday Ethics Warm-Up, Feb. 1, 2020: A New Month, Post Fake News Shame, And Impeachment Failure Freakout Edition.”
A few thoughts on the all but over impeachment:
After Friday’s vote, it’s all over but the formalities for the third impeachment and the second attempt at a soft coup by Congress against the president. It’s also the least legitimate of the three impeachments plus the one effort that never got to impeachment because the president resigned.
The Radical Republicans tried to push Andrew Johnson out of office because, as a Democrat and a southerner (he was from Tennessee), he was in the way of their harsh program of Reconstruction they wanted to impose on the South after the Civil War, so they essentially took a policy dispute up to eleven. Nixon oversaw criminal activities and lied repeatedly, so his trust was shot and he could no longer lead. Bill Clinton had a sleazy, but probably not impeachable, affair, but then perjured himself, which is a crime, to cover it up, a classic case of the coverup being worse than the act. The best the Democratic Party could come up with on this one was a phone call with, at best, mixed motives.
Nowhere in the Constitution or the other laws of this land does it say that the president or any other official must act totally selflessly at all times in the discharge of his duties, or he risks being impeached and removed from office. Nowhere does it say that, as chief diplomat of the United States, the president is not empowered to engage in political jiujitsu with other governments. Nowhere does it say that, as chief law enforcement officer of the United States, the president is not empowered to look into dealings by others with foreign governments that he has a question about. Most importantly, nowhere does it say that the president, or any other executive official, must defer to Congress, particularly to the House, in all things.
The Founding Fathers were very clear on the concept of separation of powers when they drew up the Constitution. They did not want any one official, or even one institution, making the laws and then prosecuting and punishing anyone accused of breaking the laws. They specifically did not want any of the three branches of government becoming more powerful than the others. That’s why it’s called checks and balances. The nation is still working out how that is supposed to work in every situation, but that’s the basic concept we all learned back around 3rd grade. They built in the power of impeachment to guard against gross abuses by corrupt officials, but they specifically rejected the idea of a parliamentary system where the legislature holds most of the power and can call a vote of no confidence in the government fairly easily.
They also specifically rejected the idea of one branch of government encroaching on the prerogatives of the others. Congress can pass all the laws it wants, but, unless the president signs them and later enforces them, they mean nothing. Congress can also do all the overseeing it wants, but, its power to demand testimony, documents, or anything else can be checked by the courts. That’s how it works. That’s how it’s supposed to work.
Frankly, I’m not sure the Founding Fathers envisioned the concept of political parties ever becoming so dominant, nor that the differences between them would become so pronounced as now. I also don’t believe they ever envisioned the procedures and the powers of the Constitution becoming weapons in the service of those parties and differences. The president is not supposed to be subject to being kicked out of power simply because the other political party dislikes him. If the president is going to be kicked out of power, the main mechanism for doing that is supposed to be an election. That’s why impeachment is deliberately a high bar. In the 231 years since Washington was sworn in no president has been removed from office, and only three impeached. The only one to leave office early quit rather than let the process play out to the end. It’s supposed to be rare, and used only in extreme circumstances, for “treason, bribery, or other high crimes and misdemeanors.”
Treason is also deliberately a high bar, because European monarchs used it as a catch-all charge to get rid of those they disliked, but that’s neither here nor there, since treason wasn’t alleged here. Bribery was not alleged either. That leaves only the catch-all category of “high crimes and misdemeanors.” “Abuse of power” is not a crime anywhere on the books anywhere in this country. There are statutes that govern misconduct while in office, but, typically, before one can be guilty under them, it must be proven that they acted with purpose to gain a benefit or injure another, and they must have known the act or omission was unlawful. In other words, acting with mixed motives in a gray area of one’s power is not misconduct while in office. Obstruction of Congress might mean more…if the House had followed the process all the way to conclusion. It is not obstruction to assert a privilege or to resist a subpoena. If someone does, then the seeker of the information or documents goes to court to get a ruling that the privilege does not cover this situation or that the documents must be turned over. If the court so rules and the person still withholds, then that person would be guilty of obstruction.
In this case, the Democrats in the House have only themselves to blame for the failure of this case. They should have sought court review of the various demands for testimony and documents. Once they had court orders in hand, if they got them, then they would have been in a much stronger position to argue obstruction. However, going to court takes time, and there was no guarantee the courts would rule in their favor. Even then, the president would have appealed the decision all the way up, and that takes a lot of time. By the time there was a final decision, we could well be into 2021, and the election would be over. So they rushed through the investigation and generated these two half-baked charges. Any prosecutor will tell you that rushed charges or attempts to overcharge are sure paths to reasonable doubt and an acquittal. Several of the House managers were former prosecutors and should have known better.
The fact of the matter is that, no matter what Nancy Pelosi, Adam Schiff, or Jerry Nadler say, no matter how much they shake their heads, or tut-tut, or play the part of the oh-so-reluctant defenders of the Constitution and the American people, they didn’t enter into this process with pure motives, and they should know it. The Democratic Party and the political left generally have been gunning for this president since November 9, 2016, before he was even sworn in. When attempting to hijack the electoral college, harassing his appointees, twisting the Emoluments Clause, trying to dig up decades-old dirt from strippers, and countless accusations of everything from insanity to racism didn’t work, and a supposedly irreproachable former FBI director spent two years on an investigation that came up empty, they have turned at last to the political nuclear option. Now that is 99.999% guaranteed to fail, and what do we hear? Do we hear “Maybe this really isn’t going anywhere because there is “no there there?”” Do we hear “This didn’t work, let’s concentrate on the election instead?” “Do we hear “We gave it our best shot but we came up short, let’s get back to working for the American people?”
Nope. Instead we hear “the Senators had no courage, but we’ll keep looking until we find the evidence to have that man frog-marched out of the White House in handcuffs. It’s out there somewhere!”
Part of this is probably confirmation bias, because as far as a lot of Democrats are concerned, the GOP forfeited most of its merit when Herbert Hoover oversaw the Great Depression and proved not up to the task of handling it, then forfeited the rest with Watergate. Since then they’ve been trying to stop them when they get elected, but Ronald Reagan was too slippery and too well insulated, George Bush the elder was voted out of office before they could close in, and George Bush the younger, who should never have been elected, had too much of Congress on his side for too long and the political boost of 9/11 was too great.
Now they thought they had Trump, who should also have never been elected, dead in their sights, and they could only hope that enough Republicans would see enough of the light and “get on the right side of history” to remove him.
It was the right thing to do, after all, since there’s never been a single Democrat since FDR and maybe before, from the least significant councilman in a small village in New England all the way up to the Clintons and Obamas, who ever did anything other than work tirelessly and serve selflessly to make the town, county, state, country and world better, fairer, more inclusive, more peaceful places and leave them all better than when they got there, where the rivers and air will be clean, the schools will be adequately funded, those who’ve been fortunate in life will pay their fair share to lift up those who haven’t been, no person who comes here for any reason will be turned away, church and state will be far apart, love will be love, and every child will be a wanted child.
Well, it doesn’t appear to have happened, yet the Democrats won’t give up the ghost. This is starting to take on the characteristics of an obsession with that which you can never defeat. Herman Melville treated that theme at some length in the book Moby Dick. Captain Ahab is determined to have his revenge on the great white whale that crippled him, so much that he does creepy things like baptizing a new-forged harpoon in blood and having his harpooners drink a toast of death to Moby Dick from the sockets of their weapons. Yet, when he finally confronts this monster of the deep, swearing “for hate’s sake I spit my last breath at thee!” all his skill seems to desert him, and he is pulled to his doom by becoming tangled in his own rope. He is 58 and has done great things, and that was far from the first harpoon he threw. This should not have happened. Captain Ahab let his obsession take over, and in the end it destroyed him, his ship, and all but one of his crew. If the left doesn’t lay off this obsession, they’re going to share his fate.