Posted on by rjonakait

REMOVAL OF THE PRESIDENT: A PRIMER

There has been a lot of talk recently about how to divest ourselves of the current president. There’s not a chance, and here’s why.

The United States has two constitutional methods for removing a president.  The first is the impeachment process. Three separate constitutional provisions are involved. The first gives the House of Representatives the power to impeach.

Article I, Section 2, Clause 5 states: “The House of Representatives shall have the sole Power of Impeachment.”

Impeachment means an accusation or charging decision akin to an indictment. It is not a conviction. This means the House takes on the role of prosecutor and decides whether to bring charges.

In modern times, impeachment proceedings begin in the House Judiciary Committee, which investigates and holds hearings on the charges. The committee may produce an impeachment resolution that usually contains articles of impeachment based on specific charges. The House then votes on the resolution. Impeachment requires a simple majority in the House.

The Constitution gives the Senate the power to try an impeachment’s accusation. Article I, Section 3, Clause 6 states: “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.”

House members act as prosecutors for the trial. Attorneys for the accused can present a defense and question witnesses. The accused may testify. If the president has been impeached, the Chief Justice of the United States presides over the trial. In other cases, the vice president or the president pro tempore of the Senate is the presiding officer.

At the end of the trial, the Senate debates in closed session, with every senator limited to 15 minutes of time. Each article of impeachment is voted on separately and conviction requires a two-thirds majority. If all 100 Senators are present, sixty-seven are required to convict.

Article II, Section 4 of the Constitution defines who can be impeached and for what. It states: “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.”

An impeached official can be convicted for the reasonably well-defined offenses of treason and bribery and the broad category of “high crimes and misdemeanors.” That phrase does not have a fixed definition. Perhaps most famously House Minority Leader Congressman Gerald Ford said in April 1970, “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” At that time, Ford was seeking to impeach Supreme Court Justice William O. Douglas, a staunch liberal he accused of financial impropriety.

Impeachment is not limited to the president but applies to everyone in the executive branch and the judiciary. To date, the Senate has conducted formal impeachment proceedings nineteen times, resulting in seven acquittals, eight convictions, three dismissals, and one resignation with no further action. The eight convictions were of judges. Although three presidents have been impeached (Andrew Johnson, Bill Clinton, Donald Trump twice), the Senate has not convicted a president although Johnson survived by only one vote. (This post-Civil War drama produced one of the chapters in John F. Kennedy’s Profiles in Courage.)

The consequences of an impeachment conviction are removal from office and a disqualification from holding future federal offices. Article 3, Clause 7: “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 nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

A second process for removal of a president comes from Section 4 of the Twenty-Fifth Amendment. It reads:

“Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.”

The impeachment process is aimed at the conduct of a president, for the commission of bribery, treason, or high crimes and misdemeanors. The Twenty-Fifth Amendment is designed for situations where the president is incapacitated or dangerously unable to function but refuses to step aside. For example, before this provision became part of the Constitution, it is widely believed that Woodrow Wilson suffered a massive stroke and was no longer able to act as president. In essence, his second wife performed as the chief executive, which we tend to forget when we say that no woman has been president.

The Twenty-Fifth Amendment removal process is triggered if the Vice President and a majority of the Cabinet (or another body Congress creates) declare the president unable to discharge the powers and duties of the office. The Vice President becomes Acting President. The president can contest this determination. If the Vice President and a Cabinet majority again determine that the president is unfit, the matter goes to Congress, which can remove the president only with a two-thirds vote in both the House and Senate.

Something to be stressed here: The triggering process requires the Vice President and a majority of the Cabinet and may eventually require agreement of two-thirds of both the House and Senate. This is, indeed, a high bar.

Not surprisingly, Section 4 of the Twenty-Fifth Amendment has never been invoked.

But there is another wrinkle, and that is in the term limits of the Twenty-Second Amendment. It states: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”

It is the second clause of that provision that would be important in the highly unlikely event Trump would be removed. If JD Vance were to serve as president for more than two years of Trump’s unexpired term, he could only be elected to the presidency one time. If, however, he serves less than two years of the unexpired term, he could be elected to the presidency twice. The presidential term starts on January 20. In other words, again in the highly unlikely event Trump was removed before January 20, 2027, Vance would serve as president for more than two years of ‘Trump’s term and could be elected to that office only once. If, however, Trump wasbe removed after January 20, Vance could be elected twice and in theory could be president for ten years.

So. How likely are either of these events going to succeed in “ridding us of this meddlesome” president? Not very. Even if the House impeached, it is fantasy to think that two-thirds of the Senate would convict Trump. With the Twenty-Fifth Amendment, neither JD Vance nor a majority of the Cabinet are going to certify that Trump is so disabled that he can’t perform as President. And two-thirds of both the House and Senate are never going to vote for that. I, for one, hope that Congress would address more substantive issues such as comprehensive reforms of our immigration framework or our healthcare system. Wasting its time on impeachment proceedings that go nowhere is foolish.

That does not mean that I am not concerned about the performance and mental abilities of our president as is indicated by a tee shirt I have worn frequently in the last decade. It reads: “Trump: His Mother Did Not Have Him Tested.” My spouse gave it to me. The culturally literate, of course, will immediately recognize it as a reference to Sheldon Leonard on “The Big Bang Theory.” You can look it up.

Posted on by rjonakait

Unnatural Immunity

The Supreme Court will soon decide whether Donald Trump has immunity from criminal prosecution for his actions that culminated with the events on January 6, 2021. Immunity is most frequently granted when a prosecutor agrees not to prosecute a person in exchange for testimony against someone else. Trump, however, is not seeking immunity as part of such a bargain. Instead, he wants it for his status as ex-president of the United States. Status, however, has not prevented the prosecution of governors, members of Congress, judges, CEOs, religious figures, or others.

While status has not given others immunity, it has been argued that a president enjoys limited immunity while in office. The Office of Legal Counsel of the Department of Justice (OLC) in 1973 and 2000 concluded that it was, in fact, unconstitutional to prosecute a sitting president. The Office reasoned in part that the president “is the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs.” And, of course, the time that a sitting president spends defending criminal charges is time not spent governing.

Other prominent legal thinkers have not agreed with the OLC and have maintained that even while president, a person can be criminally charged. The Supreme Court has never decided this issue, but the OLC’s rationale would only protect a person while in office. Trump, however, wants something much more. He wants immunity now even though he is no longer the symbolic head of the country and a criminal trial would no longer interfere with presidential duties. He wants immunity for his status as ex-president.

 Some find merit in his position. For example, Marco Rubio, as reported by Nick Robertson in The Hill of March 24, 2024, defended Trump’s claim of immunity. Rubio said, “I do think there’s a legitimate issue here that we need to talk about writ large, especially after what we’ve seen in the last three years. Do we want to live in a country where basically the opponents of the president can kind of extort them, can have leverage over them during their entire presidency and say, ‘Don’t worry, once you’re out of office, we’re going to prosecute you or we’re going to come after you, charge you with this crime or that crime.’ We’re living in a country now, where basically, if you’re president now, you have to think to yourself, ‘I gotta be careful what I do as president,’ not even legal or illegal, even on policy.”

Robertson reports that Trump’s attorney have made a similar claim: “A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents. That bleak scenario would result in a weak and hollow President, and would thus be ruinous for the American political system as a whole. That vital consideration alone resolves the question presented in favor of dismissal of this case.”

Nowhere in the Constitution does it say that a president, much less an ex-president, has immunity. The only explicit constitutional provision about presidential immunity makes it clear that ex-presidents can be prosecuted at least sometimes. Section 3 of Article I states that a person convicted of an impeachable offense, which would result in the removal from office, “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

If the Supreme Court were to find any sort of immunity for Trump, they would have to make it up. That, of course, is not what they will say they are doing. Instead, they will say that they are inferring it from explicit constitutional provisions. The Supreme Court has often been criticized for finding rights that are not explicitly stated in the Constitution, but only “activist” judges could proclaim prosecutorial immunity for an ex-president.

Even though it is not in the Constitution, I have some sympathy for the position that presidents should be able to make decisions without the fear of later prosecution. The only reason to give an ex-president immunity is to keep subsequent presidents free of such a concern. I leave it to you to decide whether that is a sufficient reason to infer that such a protection for ex-presidents is in the Constitution.

On the other hand, I hope that we can all agree that a president who brutalizes his wife leaving her disfigured and disabled should not be free from prosecution. A president who arranges for a political, business, or romantic rival to be killed should not have immunity. A president who barricades the polls to prevent citizens from voting can, and should, be prosecuted.

If an ex-president were to have any immunity, it should only be for presidential decisions and actions. It should only be for the use of powers granted by the Constitution to the president. Committing domestic violence is not a presidential decision. You don’t have to be a president to commit domestic violence. Nor do you have to be a president to kill a rival or, as our history has shown repeatedly, to intimidate or use violence to prevent votes from being cast.  Decisions that only a president can make perhaps should have criminal immunity but not for behavior that non-presidents also commit.

Although the boundary as to what constitutes a presidential decision may at times be hazy, some of the criminal prosecutions against Trump are brought for clearly non-presidential actions. It should be evident that any litigation concerning his behavior before he was president do not involve presidential decisions. His actions alleged in the New York criminal” hush money case”  occurred before he was president, so there cannot be any kind of presidential immunity for those actions. As I wrote before, perhaps we should be concerned that he was targeted by New York law officials (see post of March 18, 2024, “Targeting Trump”). If so, he should get the same legal protections that are available to anyone who has been arguably targeted by prosecutors, but nothing more.

The absence of immunity in the Florida case also seems straightforward. The transfer of records from the White House to Trump’s living spaces may have happened while he was president and perhaps could be deemed presidential actions. However, because he is being prosecuted in Florida for refusal to surrender classified documents after he left office, he could not have been making a presidential decision to keep them because he was no longer president. He was acting as a private citizen, and he should not get any kind of presidential immunity in that case.

That leaves the Georgia and federal criminal cases revolving about the events that culminated on January 6. Trump was president when these events occurred, and some have claimed he was acting within the duties of a president by insuring or inquiring about the integrity of an election or was simply exercising his free speech rights. The criminal allegations, however, allege that he was interfering with the integrity of elections and trying to prevent the rightful winner from peacefully taking office. Trials exist to resolve questions of fact. Thus, if Trump was not seeking to interfere with the outcome of the election or was not inciting or colluding with those trying to unlawfully interfere with the transfer of office, he does not need immunity. He will be acquitted.

If Trump was interfering with a valid election, he was not using powers given to the president by the Constitution. If he had lost, Biden might have tried to marshal fake electors, could have leaned on a state official to “find” more votes for him, and then encouraged a mob to march on the Capitol to prevent the lawful certification of the election’s result. If this is what Trump did, he was not exercising presidential authority; he was, instead, trying to manipulate a system that had rejected his presidential candidacy. He should not have immunity for these actions.

Finally, the alleged fear that political opponents will persecute former presidents in the future for partisan reasons has neither history nor logic behind it. These are the first prosecutions of a former president in our over two-century existence. This is so even though during those two hundred years we have had many fierce, partisan alignments. The immunity advocates may say the times are different now, but if so, they don’t want to recognize that the times may be different because Trump’s actions have made them different. They give us no examples of prosecutions of ex-presidents for trying to hide hush money payments, withholding classified documents after leaving office, the obstruction of results of an election, or any other reason. And our future history is unlikely to be rampant with similar prosecutions.

There are natural, institutional restraints on the use of criminal charges for presidential decisions against former presidents by successors. Most of what a president does—appoint a Secretary of State, prepare a budget, draft a new healthcare bill—is not even arguably criminal and will not lead to any criminal prosecution. Perhaps, however, ordering a drone strike that kills an American citizen claimed to be a terrorist leader in the Mideast or declaring an “emergency” to find the funds to build a border wall that Congress has refused to fund — these might arguably be criminal. Even if so, successor administrations are highly unlikely to seek indictments for such actions no matter what the partisan climate. Criminal charges would mean that the successor had restricted his own freedom of action. Someday he may want to do something akin to what a predecessor did, but if he labeled it criminal through a prosecution, he won’t be able to. Sitting presidents almost never want to limit their own power. Indicting and trying predecessors for presidential acts has not happened and will not happen.

The scare tactics are a false flag.

And in our country, you and I and ex-presidents are all supposed to be equal under the law.

Posted on by rjonakait

Snippets

News reports state that “Ukrainian oligarch” Victor Pinchuk donated $150,000 to Donald Trump’s now-defunct foundation. (Can any of you tell me any good works that the Trump Foundation did while it was funct?) In 2015 Pinchuk invited Trump to speak at a conference in Kiev, which Trump did by a video link. Trump praised Pinchuk as “a very, very special man.” But as you assess how this makes you think about our president, throw into your thought hopper that the same news report also said that Pinchuk gave more than $10 million to the Clinton Foundation and was invited to dinner at Hillary and Bill Clinton’s Washington home.

Not too long ago, I played a game while watching Fox News. I would bet with myself how long it would take until I heard “Hillary.” On Hannity’s show, it almost never took more than a minute and usually fewer than fifteen seconds. Now while watching Fox I count the seconds until I hear “Hunter Biden.” And, I note, the last time I watched Hannity, within five seconds I heard both Hillary and Hunter Biden mentioned. (I do not recommend turning this into a drinking game. It would be too dangerous to your health.)

When did Rudy Giuliani stop mentioning 9/11 every time he spoke? I almost miss that guy.

The notes of the phone call between the American and Ukrainian presidents have Volodymyr Zelensky saying to Donald: “I would like to tell you that I also have quite a few Ukrainian friends that live in the United States. Actually last time I traveled to the United States, I stayed in New York near Central Park and I stayed at the Trump Tower. I will talk to them and I hope to see them again in the future.” Isn’t it sad that the Ukrainian thought he could ingratiate himself with the American president by saying that he had stayed in a $600-a-night hotel room and that he might get friends to do so, too? Isn’t it even sadder that he might have been right?

My very large brain       

Said lean on Ukraine

To get me some poo

So I can be re-elected.

But a whistle blew,

I’m in such deep doo,

I might even be ejected.

I could be impeached;

Not fair! The law I was not teached.

          “The man was intoxicated; drunk on a little man’s dreams of revenge.” Robert Harris, Munich.

Posted on by rjonakait

Snippets–Mueller Edition

The Mueller rohrshachs along. One pod of pundits proclaims, “Total exoneration.” A coven of commentators ignores any exoneration and points out that the president repeatedly lied and tried to get others to lie. Pusillanimous politicians repeat that there was no collusion with the Russians. A jeremiad of journalists catalogs all the contacts between Trump people and Russians. And so on.

The interpretations, characterizations, and mischaracterizations of the Mueller report fly about, but all ought to home in on the most important part of the report: the Russians interfered in our election. “Interfered,” however, is a polite word, a euphemism. We should label the Russian actions more forthrightly. The Russians attacked us. A fighter plane does not have to be shot down, a literal bomb does not have to be dropped, to be attacked. When the Russians took steps to subvert our election, they attacked us.  Conservatives don’t won’t to dwell on this because the Russians were trying to get Trump elected. Liberals seem to gloss over the interference because they feel that they can’t get Trump if he did not overtly collude with the Russians.

We all ought to agree, however, that we need to stop the Russian intervention. You can ask your elected officials whether they think all investigations of the president should stop or whether impeachment procedures should begin, but you should first be asking those who represent you, and asking them again, what measures do they support to lessen the possibility of a Russian attack in our next election? And don’t just address your national politicians. States and localities should also be taking steps for securing our elections, which is to say, securing our Republic. Ask your state and local officials what they are doing to prevent future subversions of our electoral process. The most important takeaway from the Mueller investigation should be that the Russians attacked us, and the most depressing takeaway is that we don’t seem to be doing anything about it.

 

 

“A lack of mental agility was not necessarily a handicap in Washington.” Scott L. Malcomson, One Drop of Blood: The American Misadventures of Race.

 

 

If the Russians attack us again in 2020, and we seem to be doing little to prevent that, who will the Russians try to get elected? They worked for Trump in 2016, but don’t assume that they will necessarily support the incumbent unless you know why the enigmatic Russians did it. If they affirmatively wanted him, it might only seem natural for the Russians to stay on the same train, but we don’t really know what the mysterious Putin and friends wanted from the reality TV performer. If they haven’t got whatever it was or they have already gotten what they wanted, will they hop off the train? If, however, they helped him not because they wanted to kiss his cheeks but because they adamantly opposed the election of Hillary Clinton, they might not promote Trump in a Clinton-less election. And if the Russians’ goal is simply to weaken the United States by spreading discord in America, who will they hack for? The Russians could conclude that they sowed discontent and a loss of faith in America among those who opposed Trump last time. Thus, they might reason, we won’t produce much new discord by using that strategy again, but those Trump supporters may go ballistic if he loses. So, let’s support the Democratic nominee. And what would be reactions if they did that? It’s a riddle.

Posted on by rjonakait

Unsolicited Advice for House Democrats

Democrats have the majority in the House of Representatives. They can use this power for investigations of Donald Trump, but these should not be their principal focus, for such hearings will appear to many as acts of revenge or vindictiveness that are primarily aimed at pleasing the Democratic Party’s base. They might be the Democratic equivalent of all those endless and fruitless Benghazi hearings and not much different from demagogic Trump rallies. Investigations and hearings should serve and be seen to serve some broad national purpose, not just as spectacles to rile up or satisfy partisans.

This does not mean that all Trump investigations are unwarranted. We should know whether the president, his family, or those around him have economic and social interests that could be affecting our country’s policies. Could our relationships with Saudi Arabia be colored because of financial links between that country and the president or his family? Does the expansion of certain economic opportunity areas benefit the Kushner family? Is the relaxation of auto fuel standards driven by connections between the oil industry and the administration? Unfortunately, there are many such possible topics for exploration by sober investigations and hearings, and they should be done.

The House Democrats should not, however, enter the new Congress focused on articles of impeachment of Trump. Perhaps information will come to light that would justify the removal of the president, but under the present circumstances the Senate would not convict the president. Much has been made of recent guilty pleas and arrangements with prosecutors that suggest Donald Trump broke campaign finance laws, but even so, those violations by themselves will not bring a conviction in the Senate, for surely violations of campaign finance laws are legion and others are not removed for them. And the campaign finance problems really sound as if the Democrats are going after Trump for lying about sex. Sound familiar?

The Democrats should wait for Mueller to complete his investigation and only then consider strategies. Articles of impeachment may seem satisfying to certain partisans, but if there is no realistic chance of conviction in the Senate, impeachment will only further inflame and divide the country, and probably do the almost impossible: make Trump into a sympathetic figure.

A House impeachment without a solid chance of removal by the Senate would be grandstanding, and Democrats should avoid grandstanding. Instead, they should try to legislate and govern. The House should concentrate on passing good, cogent, well-researched legislation. Okay, okay, I know that that is a radical notion. Congress, whose constitutional purpose is to pass legislation, no longer seems to be much concerned with legislating. More often, a congressional party’s primary goal is to score political points. However, Democrats should realize that legislation that would help the country can be both good for the country and good for politics.

Objections will come that working on substantive legislation is a waste of effort because nothing that the Democrats propose will stand a chance of passage. The Republican-controlled Senate will simply kill any House initiative. But not so fast. What if House Democrats concentrated on legislative measures that President Trump has promised to support. We forget that there are important areas of apparent agreement between the rivals.

On what issues do Democrats agree with Trump? President Trump campaigned on increased infrastructure spending. As with many of his promises, he was not consistent in what he pledged–500 billion dollars, a trillion dollars, 1.5 trillion dollars. Nevertheless, more infrastructure spending was promised. He loudly and proudly pledged that he would “build the next generation of roads, bridges, railways, tunnels, sea ports and airports that our country deserves.”

Democrats agree with that, and the House should pass an infrastructure bill for the needs most obvious to many Americans: roads, bridges, tunnels, and the like—the stuff that Donald Trump said that he was going to improve. Such a law would produce many benefits: It would show actual governing; it would improve the everyday lives of many, it would further commerce and, therefore, the economy. This is a no-brainer–is there anyone who does not think we need such infrastructure improvement?

The House, however, should not stop at the traditional hard-hat areas. Our power grid was largely built fifty or more years ago, and many have said that it is not adequate for the twenty-first century—indeed that it poses national security risks. I don’t know if that is true, but I am willing to bet that many (most?) in Congress don’t know either.

Legislative hearings can serve purposes other than trying to score political points. They can collect information about problems and can suggest workable ideas that can be turned into legislation that would ameliorate the problems. Good hearings about our aging power grid might accomplish such things. At a minimum, the hearings could help educate Congress and the country and have the added political bonus of showing that the Democrats are truly interested in governing and helping the country. From the information and proposals garnered from such hearings, the House should pass a bill that would improve our power grid.

(continued January 4)