Alan R. Adaschik
Impeachment and The Constitution
Fri May 11, 2007 11:34

Alan R. Adaschik
Impeachment and The Constitution
Tue Jan 20 10:11:59 2004

It appears that Ms. Coulter borrowed some ideas from an article I wrote immediately following Bill Clinton's impeachment trial entitled "Impeachment and The Constitution. Excerpts of which follow:


There are many momentous events in the 210 years of our Nation’s History and the impeachment of President William Jefferson Clinton ranks among them. Unfortunately, most Americans do not comprehend the significance of the President’s impeachment trial. President Clinton was impeached by the House Of Representatives and found not guilty by the Senate. This article will not argue the President’s guilt or innocence but instead, will attempt to shed light upon misconceptions and mistakes evident during his impeachment process. These misconceptions and mistakes strike at the heart of our constitutional form of government and have transformed this Nation from one that is ruled by law to one ruled by demagoguery.

The Constitution

The Constitution of the United States of America is a document written by citizens in laymen terms. Its purpose is to establish our government and the laws that guide and control it. If the wording of the Constitution sounds awkward, it is because our style of writing has changed over the past 210 years. Most words and phrases in the Constitution can be taken at face value. However, in certain cases, to understand the intent of our Founding Fathers, an understanding of the common usage of words at the time is necessary.

Following is the verbatim text from our Constitution that address impeachment.

ARTICLE I, Section 2 - The House of Representatives shall have the sole power of impeachment.

ARTICLE I, Section 3 - The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present. Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall never-the-less be liable and subject to indictment, trial, judgment and punishment, according to law.

ARTICLE II, Section 1 - The President shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

ARTICLE II, Section 4 - The president, Vice-President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

ARTICLE III, Section 2 - The trial of all crimes, except in cases of impeachment, shall be by Jury.

At first glance these words appear straight forward and easy to understand. A procedure has been established for removing high officials from office for committing, "Treason, Bribery, or other high Crimes and Misdemeanors". But, what other crimes are impeachable under these guidelines? President Clinton’s supporters maintain that only crimes that are an obvious threat to the Nation are impeachable and that Perjury and Obstruction Of Justice do not meet this constitutional standard. We know of two crimes that are definitely impeachable; Treason and Bribery. Treason, is an obvious threat to the nation. However, Bribery may or may not be a threat dependent upon circumstance and clearly, there are many bribes that are not a threat. Therefore, some types of bribes may be impeachable while others are not. How do we determine the difference?

Perhaps an answer to this question lies in the phrase "high Crimes and Misdemeanors". This is a curious arrangement of words. Why is the word "Misdemeanor" used in conjunction with "high Crimes"? Is there such a thing as a high misdemeanor? Can a misdemeanor crime be detrimental to our Nation? If no, we are left with the disturbing conclusion that this part of our Constitution does not make sense and the Framers erred when writing it. But wait; this contradiction is resolved if the word "high" does not refer to a hierarchy of crimes but instead, to the status of the official committing the crime. In other words a "high Crime" is not a crime worse than others, but a crime committed by a "high" government official. Under this interpretation, both high crimes and high misdemeanors are possible and the Constitution makes sense as written. The fact that the words Crimes and Misdemeanors are capitalized while "high" is not supports this conclusion.

Our new understanding of "high crimes" is the only one that makes sense because it is not possible to reconcile "misdemeanor" with the word "high". A "misdemeanor" can never be a high crime and there is no such thing as misdemeanor Treason or misdemeanor Bribery. Therefore, the proposition that only high crimes detrimental to our Nation are impeachable is false. Our Constitution holds government officials accountable for all crimes committed while in office irrespective of how serious those crimes are.

How could the Framers give Congress the power to overturn a national election because of a misdemeanor crime? To understand why, it is necessary to understand their frame of mind at the time the Constitution was written. We had just fought a terrible war to throw off the yoke of British tyranny and at best, government was considered a necessary evil. This was clearly established by Thomas Paine in his pamphlet, "Common Sense", which was very popular and widely read just prior to the Revolutionary War. Furthermore, the thirteen colonies were populated by people who had fled the Old World to escape the oppression and tyranny of their former governments. Therefore, our Founding Fathers, to a man, were distrustful of government. Knowing this, it is not hard to understand why they subscribed to the notion that criminals of any kind should not be allowed hold public office; more so our highest office; the Presidency. The saying, "A public office is a public trust", held real significance to the Framers.

Are we really left with the disturbing prospect that the President, can be removed from office for Jay Walking or for parking at an expired meter? The Framers were not that dogmatic. To be sure, a president will be removed from office if impeached by the House and convicted by the Senate, but this will only happen if the House exercises its constitutional authority to impeach. There is nothing in the Constitution that compels the House to act. Impeachment, therefore, is an option for the House to be exercised at their discretion. If the House impeaches, it is incumbent upon the Senate to hold a trial; the "sole" purpose of which is to determine if the offending official is guilty as charged and thereby removed from office. No other course of action is permitted and under no circumstances does the Senate enjoy the option of questioning whether a crime is impeachable or not. The House has already so ruled and the Constitution reserves this right for the House alone.

Under what circumstances can we expect the House to exercise their power of impeachment? For Jaywalking? Obviously, no. For Treason? Obviously, yes. Where is the middle ground between these two crimes? For an answer, we must look to Bribery; a crime that was given special mention by the Framers. Irrespective of bribes affecting national security, what is it about a bribe that makes it repugnant? When a public official takes a bribe, he is acting for his own interest to the detriment of the public. Bribe taking entails a lie because concurrent with accepting a salary to work for the public’s best interest, an official secretly accepts a bribe to work for someone else’s interest. Clearly, a public official who accepts a bribe, any bribe for any reason, has violated the public trust and by doing so, has forfeited the privilege of holding office.

We have now identified our middle ground. The Constitution holds that the President, Vice President, or other high officials should be impeached and removed from office for Treason, Bribery, or any crime that constitutes a breach of the Public trust similar to Bribery. This interpretation stands the test of reason, is in keeping with sound governing principle and also with the mindset of our Founding Fathers at the time the Constitution was written.

Truth is an undeniable pillar of good government and this is especially valid in our judicial system where the truth is held sacred. The public’s best interest is always served by the truth and any lie told in an official capacity is a breach of the public trust because it supports the furtherance of a hidden agenda. This being so, Obstruction Of Justice, the end result of which is to establish a lie, is also a breach of the public trust. The common essence of Bribery, Perjury and Obstruction are lies and deception to pursue a hidden agenda contrary to the public’s best interest. Therefore, these crimes are clear violations of the public trust and impeachable.

According to ARTICLE I, Section 3, of the Constitution, judgment in cases of impeachment is limited to removal from office and permanent disqualification to hold office. Once removed or if found not guilty, not removed from office, the offending official is subject to being charged and tried in a court of law. From this wording it should be clear that an impeachment trial, while being called a trial, is really an administrative procedure for removing offending officials from office to protect the public’s best interests and also for the purpose of allowing officials to be tried in a court of law as a private citizens. Judgment in cases of impeachment is limited to removal from office and disqualification to hold office specifically to ensure that the impeachment process does not infringe upon the prerogatives and mandates of our criminal justice system. This being so, an impeachment trial has a lower threshold of guilt than a criminal trial and does not replace or supersede one. It is also possible for an official to be impeached and removed from office and then subsequently found "not guilty" in a court of law.

To understand why the Framers had no problem with this last scenario, which seems so terribly unfair to us, we must revisit the mindset they had when writing the Constitution. The Framers did not view removing a President and replacing him with the Vice President as overturning an election, but instead a sacred duty performed for the good of the Nation on behalf of its citizens. The Framers believed public officials should not only avoid improprieties, but also the appearance of impropriety. Isn’t this the essence of good leadership and a standard that should be expected from government officials? A guiding principle in law is that it is better to have a guilty man go free than to convict an innocent one. The converse is true for impeachment. It is better to remove an innocent President from office, than have a guilty one remain there.

The impeachment process was placed within our Constitution to ensure that government officials serve the public’s best interest and to remove them from office when they do not. Its purpose, most assuredly, was not to establish a privileged class of government officials for whom the rule of law can be suspended or denied. Unfortunately, in the trial or President William Jefferson Clinton, this perversion prevailed.

The President’s Trial

Should the President have been removed from office for being unfaithful to his wife? While this moral transgression is lamentable, obviously no. No one should be removed from office for a moral lapse that is private in nature. However, in addition to being unfaithful, the thrust of the Paula Jones’ lawsuit was that the President was a sexual predator. Irrespective of whether this is true or not, it was the Paula Jones’ lawsuit that resulted in exposure of the President’s relationship with Monica Lewinsky. His actions during the investigation of this relationship led to his impeachment.

President Clinton was impeached for lying under oath and attempting to impede an investigation of his sexual activities. However, because these transgressions resulted from actions that are private and personal, many people conclude that they are forgivable and not impeachable. Despite popular opinion, there are no mitigating circumstances for not telling the truth under oath or for obstructing a duly constituted legal investigation. This is especially true for the President of the United States; the highest law enforcement official within our Nation and this holds true irrespective of how much we like the President and how well he does his job. Popularity and competence should never overshadow the principles upon which good government is based and the principles that support our criminal justice system.

The Senate voted "not guilty" to the Articles of Impeachment and the President’s supporters declared a victory for democracy and constitutional government. Unfortunately, the opposite is true. The system worked properly through the swearing in of Senators as jurors, but immediately following this ceremony, the Senate trial degenerated into a political circus.

Upon receipt of the Articles of impeachment, the Constitution mandates that the Senate hold a trial. Before this trial begins, each Senator swears an oath that he will judge the President’s by the evidence. This never happened. Immediately following the swearing in ceremony, the Senate tendered a motion to dismiss the charges against the President. This vote was taken because it was understood that not enough votes were there to convict. Apparently, this was determined by asking each Senator how they would vote and having prejudged the President, they wrongfully revealed their intentions. This would constitute a mistrial in a court of law. Furthermore, because the House retains the "sole" power to impeach, it follows that it is not constitutional for the Senate to tender a motion to dismiss the charges against the President? A vote to dismiss is the same as a vote to not impeach because both votes determine if a Senate trial will be held. This being so, the vote to dismiss by the Senate was an affront to the House of Representatives and constituted a usurpation of their impeachment authority.

After the motion to dismiss failed, the Senate had to decide how to proceed. These procedural deliberations focused on the number of witnesses that would be called and the method of presentation of their testimony. In a criminal trial, no such limitations are allowed. To be sure, evidence can be ruled inadmissible due to legal technicalities or because it is irrelevant, but justice demands that all material evidence be heard. The Senate swore an oath to judge the President by the evidence. It is not possible to reconcile this oath with a vote taken to place limitations on the evidence presented. Therefore, the vote in question was unconstitutional.

During the Senate trial, many Senators voted to acquit because they believed that Perjury and Obstruction do not rise to an impeachable level. It has been established that this is not the case. Irrespective of whether this is true or not, to allow this belief to determine how they would vote was also an affront to the House Of Representatives and unconstitutional. The Constitution provides that the House retains the "sole" power to impeach. Therefore, a vote to impeach by the House necessarily establishes that the crimes in question are impeachable. Furthermore, when the Constitution establishes that the Senate retains the "sole" power to try impeachments, it necessarily follows that that the Senate is duty bound to determine if the impeached individual is guilty as charged and nothing more.

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