As an ethicist, I frequently have to remind my clients that I will not give legal opinions. That’s not my job, though I am a licensed attorney. I know I sometimes venture into law as well as other areas that I have a more than casual interest and knowledge of, such as Constitutional law, history, theater, and popular culture, but there are topics covered here by necessity that require me to opine beyond my primary expertise to an uncomfortable extent.
I have especially wrestled with this problem regarding the recent impeachment assualt by the Democrats, “the resistance,” and the news media, which are essentially the “axis of unethical conduct” in this matter. (I will henceforth use the shorthand AUC.) A half written explication of what is going on—“What’s going on here?” is the starting point for most ethics analysis, after all—is sitting in my drafts file, causing anxiety like an unpaid debt. Thus I am relieved and grateful for the Wall Street Journal column that was published over the weekend, an analysis by David B. Rivkin Jr., Elizabeth Price Foley titled “This Impeachment Subverts the Constitution.”
I am relieved, because the column is remarkably consistent with my own conclusions and analysis. See? “I’m smart! I’m not dumb like everyone says!”
I have been writing on Ethics Alarms that the efforts to de-legitimize the election and Presidency of Donald Trump have constituted a destructive attack on the Constitution and the American system of government literally from the moment Trump won the 2016 election, and I have been chronicling how, despite my desire to write about non-political matters and despite the fact that this assignment has hurt traffic here and gotten my blog banned from Facebook. I consider it a matter of integrity, responsibility, and civic duty, because the actions of the AUC represent the most important, damaging, wide-spread and perilous unethical conduct to take place in the United States since Watergate, and perhaps longer.
Read the entire article, please. I will point you to some if its important and, as I see them, accurate observations:
- “Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense….The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.”
Exactly. I described the effort as akin to a bill of attainder in an argument on Facebook about a week ago.
- “House Democrats have discarded the Constitution, tradition and basic fairness merely because they hate Mr. Trump. Because the House has not properly begun impeachment proceedings, the president has no obligation to cooperate. The courts also should not enforce any purportedly impeachment-related document requests from the House. (A federal district judge held Friday that the Judiciary Committee is engaged in an impeachment inquiry and therefore must see grand-jury materials from special counsel Robert Mueller’s investigation, but that ruling will likely be overturned on appeal.) And the House cannot cure this problem simply by voting on articles of impeachment at the end of a flawed process.”
This is how I see the situation as well. It is part of the despicable plot that Democrats will force the Supreme Court to overturn their machinations, probably in a ideologically split vote, thus allowing them to attack the legitimacy of SCOTUS, demand court-packing measures, and further unravel public trust in our institutions.
- “There is no evidence on the public record that Mr. Trump has committed an impeachable offense. The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” The Founders considered allowing impeachment on the broader grounds of “maladministration,” “neglect of duty” and “mal-practice,” but they rejected these reasons for fear of giving too much power to Congress. The phrase “high crimes and misdemeanors” includes abuses of power that do not constitute violations of criminal statutes. But its scope is limited.”
The misinformation being embedded in American minds on this point is frightening. I keep challenging the Facebook Borg’s daily references to the President’s “crimes,” and get back “emoluments,” allegations of conduct that occurred before the election, and election law theories that have no precedent and that are desperate at best. The general attitude of the AUC and its cheering section is that the President has committed crimes because that’s the kind of guy he is. This was the relentless argument of an anti-Trump stalwart whose derangement ultimately sent him around the bend and off the approved commenters list. It is also the orientation of the majority of columnists who populate the New York Times op-ed pages. What they are selling is bigotry: a presumption of guilt because of who and what an individual is, rather than being based on what an individual has done.
- “One theory is that by asking Ukrainian President Volodymyr Zelensky to investigate Kyiv’s involvement in the 2016 U.S. presidential election and potential corruption by Joe Biden and his son Hunter was unlawful “interference with an election.” There is no such crime in the federal criminal code (the same is true of “collusion”). Election-related offenses involve specific actions such as voting by aliens, fraudulent voting, buying votes and interfering with access to the polls. None of these apply here.Nor would asking Ukraine to investigate a political rival violate campaign-finance laws, because receiving information from Ukraine did not constitute a prohibited foreign contribution. The Mueller report noted that no court has ever concluded that information is a ‘thing of value,” and the Justice Department has concluded that it is not.'”
Thank you, thank you, thank you. A competent news media should have made this clear immediately, because it is true.
- “More fundamentally, the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds. Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities…Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it….In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counter-terrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.”
There is more. The impeachment Plan S, the Ukraine narrative, (the complete, updated list was last published here) is no more legitimate or honest than its family members A-R, and all should be considered unconscionable means to an undemocratic end, a soft coup to remove an elected President without the necessity of an election. Rivkin and Foley have performed a great service by laying out so much crucial (and under-publicized) information clearly and persuasively.
Pointer: Glenn Reynolds