EVERYTHING HANGS IN THE BALANCE

December 15, 2019

We know, from reading the Federalist Papers, that James Madison and Alexander Hamilton were keenly aware that they could not presume that the voters would always put the leadership of the country in the hands of a person of irreproachable character who would put the interest of the People and the country first. This is why section 4 of Article II, dealing with the impeachment process, is included in the Constitution.

The President, the Vice President and all civil Officers of the United States can all be removed from office by impeachment. The words “civil officers” shields military officers from impeachment and the precedent was early established that impeachment provision does not apply to members of Congress either.

It is remarkable though that, in all of the 231 years that the Constitution has been in effect, no President or Vice President has yet been removed from office by impeachment. The only civil officers to be impeached and removed from office have been judges, seven so far. Two Presidents, Andrew Johnson and Bill Clinton have been impeached by the House of Representatives, but acquitted by the Senate. Richard Nixon resigned before the House of Representatives had a chance to vote on the articles of impeachment drawn up against him.

In a couple of days, the House of Representatives will issue a third impeachment against a sitting President and then it will be up to the Senate to decide if it will remove Donald J. Trump from office for committing the high crime of abuse of power and/or obstruction of Congress. It is widely believed that the outcome of this process is preordained to be the third acquittal of a President in the history of the Republic.

In the immediate aftermath, half the nation will rejoice and the other half will be furious, but future generations will wonder where the system, so thoughtfully and ingeniously put in place by the founding fathers, failed to deliver in the face of irrefutable evidence of conduct unbecoming of the holder of the highest office in the land and a persistent and flaunting breach of the oath taken at the inauguration of our 45^th President.

The short-term effect of the system failure may be limited if, in less than a year, the voters correct the situation and vote Donald J. Trump out of office. But the long-term effect is likely to set a precedent that no President, nominated by the party controlling the Senate, will be impeached and removed from office.

The carefully crafted system of checks and balances does not work when the institutions that are charged with the obligation to provide the checks are stubbornly refusing to do their job.

If Congress is incapable or unwilling to keep the ambitions and powers of the President in check, then the next safeguard to the system is in the hands of the judiciary branch of government. At the time of this writing, numerous actions by Donald J. Trump, committed in office, as a Presidential candidate, and as a private citizen are currently under scrutiny of various courts. Only a dubious Department of Justice memorandum from 2000 prevents the indictment and criminal prosecution of this President.

Can the courts step in where Congress fails to put the guard rails on Presidential conduct and authority? Will they? The senate majority leader has worked long and hard on confirming lifetime appointments to the Federal Courts as well as the Supreme Court for judges who are considered favorable to his party’s cause. And Donald Trump, with his handpicked and subservient Attorney General, as President and as private citizen has all the means to delay final verdicts by endless appeals. The delaying game pays off, both politically and legally: With most federal offenses subject to a 5-year statute of limitation, a second term would shield this President from ever getting prosecuted for criminal offenses any other citizen would be convicted of and imprisoned for. And, until the Supreme Court has spoken, the public remains in doubt about the legality of the disputed actions by the defendant, allowing the GOP to argue that the President has done nothing illegal.

Under these conditions, only the voters can restore the checks and balances that are imperfectly working under one party sabotage and the current balance of power. Best of all would be if the People convincingly deny Trump a second term, but the Democrats appear to be hell bent on making the same mistake that cost the Labour party in the UK dearly, by going way left of where the voting public is willing to go. Second best then is for the voters to punish the GOP, for its subservience to an unfit President and the relinquishing of the basic republican tenets, and take them out of the majority in the Senate.

The Constitution itself cannot pull us out of the existing quagmire, if the impeachment tool is taken out of the toolkit by party considerations and the judicial process is slow to respond and handcuffed by Presidential prerogatives. But the battle is not lost. It merely shifts to the forum where it best belongs, the voting public. Everything hangs in the balance with the 2020 national elections. They will decide if we will still have a Republic that we can keep.