Except ye see signs and wonders, ye will not believe[1]

 

[Hello, everybody, this is Fred. G is out this week, pretty much exhausted from his reveries about the Nixon impeachment and “analysis” of the current Administration’s scandals. G’s right, of course; a President’s office is very big; he can’t know everything about it, or control everything in it. So to make a case against him with respect to this or that scandal, Republicans will have to prove somehow that he was directly involved. And, as usual, they will try to do it with subpoenas and hearings.

No doubt Republicans will spend a good part of this and next year at that sort of thing. They’ll doggedly follow the chain of evidence, such as it is; the press will avidly follow the Republicans’ every move; and you and I will be deluged, 24/7, with breathless reports about everything that happens each day. We’ve seen this movie before, and no doubt we’ll see it again.

Some people think things are different this time; there may be powers and principalities in motion that haven’t manifested themselves in years. The Vatican’s top exorcist, for example says “We live in an age in which God has been forgotten. And wherever God is not present, the Devil rules” [2] And who’s to say he’s wrong?

In addition to the usual murder and mayhem, our papers are replete with stories of bizarre events and ridiculous crimes. Tornadoes are marching through the Midwest yet again[3]; there are snakes falling from the trees in Washington, D.C[4]; and a man is arrested in Chicago for sexually molesting a peacock.[5] Meanwhile, the American Psychiatric Association published its new DSM-5[6], a modernized index of our collective madness. Are these events all connected? Are they signs and wonders, hinting at things to come?

Don’t take me too seriously; I’m just speculating, and, anyway, all the current furor about impeachment – today’s topic – doesn’t really need a supernatural explanation. That bit of political weirdness is just another example of the ongoing struggle in D.C. over power, sugar-coated as ideology. Any facts that emerge in the various investigations now planned by Congress will be massaged and edited by the parties to fit their various agendas. The pros call it “filtering.”[7]

On his way out the door G asked me to take a more detailed look at impeachment to round out our picture of it. “What are the constraints,” he asked, “if any, on it, Congress and the President?” I agreed, so I’m stuck with the assignment, but early on realized I had made a mistake. G’s questions really involve the Constitution, court cases, and that sort of thing. Not my area. So I called Larry, our legal consultant, and begged for help. He kindly agreed.]

“Of course I did. We’re friends, and this area is kind of confusing. I’m sure if the issue heats up, which it probably will before the next election, the media will spend hours and hours flogging the legal part without really explaining what’s going on. Let’s see if we can map the impeachment process so that non-lawyers can follow current events as the pundits jabber on.

I’ll start with the Constitution, and the bureaucrats who run our Government.”

“And who are they?”

“Why, the President, Congress and the Courts.”

The President

We all know him. Article II of the Constitution defines the President’s powers and duties rather broadly. He’s vested with ‘Executive Power’[8] and is the ‘Commander in Chief[9]’ of the Armed Forces. He also has the power to grant reprieves and pardons for offenses against the United States;[10] make treaties and appoint ambassadors to foreign nations, with the advice and consent of the Senate; and similarly appoint judges to the Supreme Court and high officials to the Government, also with the advice and consent of the Senate.[11]

And what are his duties? Well, among other things, he’s to ‘take care that the laws be faithfully executed.’[12] You may recall, that’s one of the themes the House used in forcing President Nixon’s resignation; i.e., that his activities didn’t faithfully execute the laws, but violated them instead[13].”

“That’s fine, Larry, but how does one remove a President? Does the Constitution say?”

“Sure; it says that 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.’”[14]

“So you remove a President by impeachment. Are there other ways to do it? Suppose he commits murder in broad daylight and is recorded doing it. Can the cops just arrest him, or does the prosecution need to go through the impeachment process?”

“Frankly, I don’t know. You’re getting into matters involving Sovereign Immunity, absolute and qualified immunity, and so forth. I’m going to stick with the one process I’ve looked at: Impeachment and removal.

And by the way, once the President and any co-conspirators are removed, they are subject to ordinary prosecution for whatever crimes they committed while in office. ‘[T]he Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.[15]‘“

“Fine, let’s do one more question about the President. You said that he has the power to issue reprieves and pardons. Could he pardon himself, and thereby escape impeachment?”

“I doubt it. The Constitution says that he can grant pardons and reprieves ‘except in cases of Impeachment.[16]’ That pretty much answers your question, I think.

Congress

“All right, let’s move on to Congress. What role do they play?”

That’s easy. Article I of the Constitution spells it out, at least in a summary fashion. All impeachment proceedings must originate in the House of Representatives.[17] If they decide to go forward, they have to send articles of impeachment on over to the Senate for trial.”

“Why?”

“Because the Constitution says so. The Senate has the ‘sole power’ to try impeachments. [18] If the President is the subject of an impeachment, the Chief Justice of the Supreme Court will preside. And, interestingly enough, a successful conviction requires two-thirds of the Senators present to agree.”

“Fine, this brings up an interesting question, a little bit out of sequence, but interesting anyway. What is a “high Crime or Misdemeanor,” i.e., what is an impeachable offense? What does the Constitution say?”

“Not much, at least not directly. We know that treason and bribery qualify, because Article II, Section 4 specifically mentions them.[19] But how far can you go beyond that? I’m not sure, but every time we get in this kind of situation lots of experts step forward to help us out.[20] Perhaps the practical answer is this: an impeachment theory must be strong enough, and supported by enough facts, to (i) make it out of the House and over to the Senate; and (ii) convince two-thirds of the Senators present to vote for it. Otherwise there will be no conviction.”

“So you’re saying that, at bottom, the whole process is political? That there are no Constitutional standards the Congress must follow?” You know, there’s an old saying that aggressive prosecutors can guide a grand jury to indict even a ham sandwich.[21] Now today there is no love lost between Mr. Obama and the Conservatives, and they are his principal accusers in the House. If there are no standards, what’s to stop them from just making up stuff when they start flogging a bill of impeachment? Or what if they decide to impeach him for things that are not (serious) crimes or for having the wrong economic theory?[22]

“Fred, you’re getting paranoid. If the House impeaches the President for eating oatmeal at breakfast, probably more than one-third of the senators present will vote against that count. After they’re done laughing, of course.

Which brings me around to the next question, which is: ‘What role do the courts have in Congressional impeachments?’”

The Courts

If you read the Constitution, it doesn’t look like the courts have much to do. Normally they handle the trials, and criminal prosecutions require a jury. But that’s not the case in an impeachment. The Senate has ‘sole authority’ to try impeachments and, not to put too fine a point on it, jury trials are not required.[23]

But at least one case involving the impeachment and removal of a federal officer reached the Supreme Court in the 1990’s. I’m speaking, of course, of Nixon v. United States.[24] And before you ask, the plaintiff there was Walter Nixon, a federal judge, not Richard Nixon, the former President.

Walter Nixon, the judge, was convicted of making false statements to a Grand Jury and sentenced to prison in the 1980’s. However, he refused to resign his position and continued to draw his judicial salary while incarcerated. In 1989 the House adopted articles of impeachment for him and sent them over to the Senate for further action.[25]

Following its own rules the Senate appointed a committee of Senators to ‘receive evidence and take testimony.’[26] The Committee held four days of hearings, and presented the full Senate with a complete transcript and a Report, stating the uncontested facts and ‘summarizing the evidence on the contested facts.’[27] In due course the full Senate voted by more than a two-thirds majority to remove Nixon from office.[28] Nixon appealed through the federal court system and ultimately reached the Supreme Court.

Nixon argued that the Constitution required the Senate to ‘try’ all impeachments, [29]and the abbreviated proceeding he attended was nothing like a trial. He should have been allowed to present his evidence, etc. to the full Senate, not a committee made up of a few Senators. The courts below held that Nixon’s claim was ‘non-justiciable,’ i.e. couldn’t be decided by a federal court. The Supreme Court agreed. [30]

“Non-justiciable? What does that mean? Is that the same as saying that the courts will not consider matters that have been clearly given to another branch of government, i.e., so-called ‘political questions?’”

“My, aren’t you well-read. The answer is ‘Yes,’ but you have to understand the standard the Court uses. Basically, the Court will find a claim to be ‘non-justiciable’ if the Constitution clearly commits the issue ‘to a coordinate political department,’ or the court lacks ‘’judicially discoverable and manageable standards for resolving it…’[31]

The Court[32] decided that both were true as far as impeachment was concerned, at least in Nixon’s case. It was pretty clear that the Founders intended to leave impeachment to Congress; after all, the Senate had ‘sole power’ to try such cases.[33] And, if the judiciary did supervise such matters, the review would ‘expose the political life of the country to months, or perhaps years, of chaos.’[34]That is, the matter might not be resolved until after years of litigation, and in the interim no one would know who was in charge.

So I would say that, at least as of 1993, the Court it was not interested in involving itself with impeachments, Presidential or otherwise. But of course – and I always have to say this – Nixon v. United States is only one case, and in an extreme situation the Court might find a way to modify its position somewhat.[35] Salus populi suprema est lex.[36]

Summary and Conclusion

“Oh, my! Latin at the end! But, if I get your meaning, Congress’ right to impeach and remove the President is an important check on him, although only if it can act on a bipartisan basis. After all, two thirds of Senators must agree before a President can be removed, and to get those numbers some in the President’s party have to cross over to vote against him[37]. That doesn’t seem very likely on today’s facts, but who knows what the future might bring?”

“Anyway, Larry, for a blog this was a very thorough job. It turned out to be a much bigger project than I thought, but at least now we have the basics. That’s more than most of the media pundits we hear from will ever have. You’re a real asset to Elemental Zoo Two or whatever we call ourselves today. And I’m sure you’ll have another project soon, after you and our readers have rested up from this one.”

[But getting back to my original remarks, I think these are troubled times. There are signs and wonders out there, and we may well be on the brink of the unknown. Given the circumstances Congress should consider taking additional precautions before rocketing down the impeachment road. For example, perhaps they should retain the Vatican exorcist I mentioned earlier as chaplain for both Houses. He’s a recognized authority on demon possession and wrote a well-regarded book.[38]

It would be handy to have somebody on staff to exorcise the facilities from time to time. That’s generally a good idea.[39] In the case of Congress, think of it as a form of pest control for evil influences. Hopefully it wouldn’t discourage too many lobbyists.

More importantly, an in-house exorcist would be indispensable if Senators, Representatives or staff succumb to pressure, and start rotating their heads like owls or spewing green pea soup at colleagues.[40] Somebody immediately at hand could deal with the problem; Congress wouldn’t have to send out for help, and  no doubt that would make it easier to manage any negative  publicity.

With that good faith suggestion I’ll end this blog. G will be back next week, and probably will try to repair the damage.

In the meantime, to the House and the Senate I say, ‘If you can’t take a joke, take a nap!”]


[1] John 4:48 (King James). For other translations, go to Bible Hub at http://biblehub.com/john/4-48.htm

[2] See CP World, Blair, Catholic Church’s Top Exorcist Claims He Rid World of 160,000 Demons (May 28, 2013), at http://www.christianpost.com/news/catholic-churchs-top-exorcist-claims-he-rid-world-of-160000-demons-96794/#deleYlYcmZTaf6b6.99

[3] See AP, Tornado Hits Oklahoma City Area in Plains Outbreak (May 31, 2013) at http://hosted.ap.org/dynamic/stories/A/AP_US_SEVERE_WEATHER?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2013-05-31-21-22-15

[4] See WTOP, King, Snakes in the trees at D.C. Park (05/30/2013), at http://wtop.com/109/3341088/Snakes-fall-from-trees-in-DC-park

[5] See CBS Chicago, Judge Orders Psychological Exam For Man Charged With Molesting Pet Peacock (May 29, 2013) at http://chicago.cbslocal.com/2013/05/29/judge-orders-psychological-exam-for-man-charged-with-molesting-pet-peacock/

[6] See American Psychiatric Association, DSM-5 Development, at http://www.dsm5.org/Pages/Default.aspx

[7] Want some examples? Take a look at The Lowell Sun, Speaking through a political filter (10/27/2012) at http://www.lowellsun.com/editorials/ci_21869005/speaking-through-political-filter; UPROXX, Seitz, Bing’s Political Bias Filter is Actually Pretty Interesting (11/07/12) at http://www.uproxx.com/technology/2012/11/bings-political-bias-filter-is-actually-pretty-interesting/

[8] See U.S. Constitution at Art. II, Sec. 1, cl. 1.

[9] See U.S. Constitution at Art. II, Sec. 2, cl. 1: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States…”

[10] See U.S. Constitution, at Art. II, Sec. 2, cl. 1,

[11] See U.S. Constitution, at Art. II, Sec. 2, cl. 2: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

[12] See U.S. Constitution at Art. II, Sec. 3.

[13] See the blog of 05/22/2013, Impeachment?, at https://opsrus.wordpress.com/2013/05/22/impeachment/

[14] See Transcript of Constitution of the United States (1787), Art. II, Sec. 4 at http://www.ourdocuments.gov/doc.php?doc=9&page=transcript You can download a copy from the Government Printing Office; just go to http://www.gpo.gov/fdsys/search/pagedetails.action?granuleId=CDOC-110hdoc50&packageId=CDOC-110hdoc50  Henceforth this will be cited as U.S. Constitution at __.

[15] See U.S. Constitution, at Art. I, Sec. 3, cl. 7.

[16] See U.S. Constitution at Art. II, Sec. 2, cl. 1: “The President …shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

[17] See U.S. Constitution, at Art. I, Sec. 2, cl. 5: “The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.”

[18] See U.S. Constitution, at Art. I, Sec. 3, cl. 6: “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.”

[19] See note 14 and accompanying text.

[20] See, e.g., The New York Times, Alvarez, Experts Will Try to Define ‘Impeachable Offense’ (November 8, 1998) at http://partners.nytimes.com/library/politics/110898impeach-experts.html

[21] See The Big Apple, Popik, Indict a Ham Sandwich (July 15, 2004), at http://www.barrypopik.com/index.php/new_york_city/entry/indict_a_ham_sandwich/ Actually it’s not so old; apparently it dates from the mid-1980’s.

[22] This is not to say that he is a ham sandwich, but he may be similarly innocent of serious wrongdoing.

[23] See U.S. Constitution, at Art. III, Sec. 1, cl. 3: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury…”

[24] See Nixon v. United States, 506 U.S. 224 (1993). Don’t let anybody sell you a copy. You can get a free download  from the Justicia US Supreme Court Reporter, at http://supreme.justia.com/cases/federal/us/506/224/case.html

[25] See 506 U.S. 224, 226.

[26] See 506 U.S. 224, 227.

[27] See 506 U.S. 224, 227.

[28] See 506 U.S. 224, 228.

[29] See U.S. Constitution, at Art. I, Sec. 3, cl. 6, quoted at note 18.

[30] See 506 U.S. 224, 228.

[31] See 506 U.S. 224, 228

[32] Actually 6 judges signed on to the majority opinion, and the other three agreed with the result.

[33] See 506 U.S. 224, 230-234.

[34] See 506 U.S. 224, 236 (quoting the court below).

[35] Or might not.

[36] This is from Cicero, a Roman litigator and philosopher. It translates as “The good of the people is the chief law.” See the Oxford Dictionary of Quotations (6th Edition, 2004) at Cicero, p. 223.

[37] Or, in the future, possibly “her.”

[38] See Amorth, An Exorcist Tells His Story (Ignatius Press, 1999); it’s available today in paperback from Amazon and other vendors. (Hereafter cited as Amorth at __.)

[39] See Amorth at Exorcising Houses, p. 123: “The Bible does not cite any exorcism of houses, but experience demonstrates that in certain instances this is necessary and fruitful.”

[40] It’s only a joke. To follow the reference, take a look at The Wikipedia coverage of The Exorcist, a movie from the 1970’s. Go to the Wikipedia website and search the title, or just click here: http://en.wikipedia.org/wiki/The_Exorcist_(film)