Posted on 04/04/2007 9:13:51 AM PDT by Hostage
The most fundamental question, against which the President's actions must be measured, is `what constitutes an impeachable offense?' The Constitution makes impeachable `treason, bribery and other high crimes or misdemeanors.' The Constitution also says that upon conviction in the Senate the President `shall be removed.' Therefore, the questions becomes, in effect, `what actions constitute grounds for removal?'
(Excerpt) Read more at australianpolitics.com ...
FDT is indeed more than qualified to be President. I am thinking his intellect matches Lincoln's.
Combine his intellect with his folksy charm, his ability to communicate clearly and his awareness of how the media works and one can see he will runaway with the election.
Here’s the full text of that section:
HIGH CRIMES AND MISDEMEANORS’
The most fundamental question, against which the President’s actions must be measured, is `what constitutes an impeachable offense?’ The Constitution makes impeachable `treason, bribery and other high crimes or misdemeanors.’ The Constitution also says that upon conviction in the Senate the President `shall be removed.’ Therefore, the questions becomes, in effect, `what actions constitute grounds for removal?’
It should be noted at the outset that what we have in effect is a `mandatory sentence’ wherein if there is a finding of guilt then one particular sentence must be imposed—in this case removal from office. However, unlike judges in a criminal case, the Senate may take into consideration the `punishment’ in determining guilt. Some have contended that the President may be guilty of high crimes and misdemeanors, but his actions may not be sufficient for removal. I believe the better analysis is that the Senate may conclude that the President’s conduct is not sufficient for removal and that that determination, by definition, means that the President is not guilty of high crimes and misdemeanors. I believe that this analysis is important in understanding the scope of our discretion and helps us get away from the notion that there is an objective standard for high crimes and misdemeanors if we could only find it. Historical analysis covering over six hundred years reveals that there is no `secret list’ of high crimes and misdemeanors, but rather our forefathers perpetuated a framework that allows for a certain amount of subjectivity which may encompass changing times and differing circumstances.
Such a conclusion emerges from an examination of English law, original state Constitutions, our federal Constitutional Convention, the ratification debates, American impeachment precedents and scholarly commentary.
The phrase `high crimes and misdemeanors’ can be traced back to the thirteen hundreds in England. It was clear from the outset that the phrase covered serious misconduct in office whether or not the conduct constituted a crime. Commentators say that the English impeachment tradition covered political crimes against the state and injuries to the state. Beyond that, it is difficult to glean covered conduct from the English tradition.
Apparently there was only one discussion during the Constitutional Convention that dealt with the phrase high crimes and misdemeanors and that occurred on September 8, 1787. As reported out of Committee, impeachable offenses included only `treason and bribery.’ Mason wanted to add `maladministration,’ which was also contained in many state constitutions. Madison was under the impression that such language would leave the President at the mercy of the Senate. Madison relented and we wound up with the phrase as we have it today. The founding fathers quite clearly rejected impeachment for Congressional disapproval of policy. Impeachable offenses were `political’ offenses and, as under English law, not necessarily criminal. Other guidance that can be derived from the Convention is the fact that the founders were acutely aware of their rejection of bills of attainder as existed in the English system and, therefore, they thought that impeachable offenses should be something that any reasonable man could anticipate. He should not be punished for some crime made up after the fact. Also, there was to be a requirement for `substantiality.’ This mechanism was not designed for trivial offenses.
We cannot determine the precise intent of the framers because their deliberations were in secret and nothing was printed from their deliberations. They intended for the ratifiers at the state Conventions to be the more authoritative voice for interpretation of the provisions in the Constitution. It is fair to conclude that the attitude of the ratifiers was reflected to a certain extent in the Federalist papers. The most definitive comments concerning impeachment were by Hamilton in Federalist 65 wherein he stated:
The subjects of [impeachment] are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may be with peculiar propriety denominated political, as they relate chiefly to injuries done immediately to the society itself.
The ratifiers at the North Carolina convention spoke in terms of serious injuries to the Federal government. James Iredell, later to become an Associate Justice on the Supreme Court, stated that impeachment was `calculated to bring [great offenders] to punishment for crimes which it is not easy to describe but which everyone must be convinced as a high crime and misdemeanor against governments . . . the occasion for its exercise will arise from acts of great injury to the community.’ He gave as an example of an impeachable offense the giving of false information to the Senate. Impeachment was not for `want of judgment’ but rather to hold him responsible for `willfully abusing his trust.’ Iredell also called attention to the complexity if not
impossibility of defining the scope of impeachable offenses with any more precision than the above. And the ratifiers at the Virginia Convention clearly agreed that a President could be impeached for non-indictable offense.
There was continued discussion and debate after ratification concerning the impeachment process. James Madison contended that the wanton removal of meritorious officers would subject a President to impeachment and removal from office. Forty years later, Justice Story, in his Commentaries insisted that `not every offence’ is a high crime and misdemeanor, that `many offences, purely political . . . have been held to be within the reach of parliamentary impeachments, not one of which is in the slightest manner alluded to in our statute book,’ that `the only safe guide’ in determining `high crimes and misdemeanors’ `must be the common law,’ and left open the possibility that actions a civil officer took that were unconnected to his office might be properly the subject of impeachment.
Therefore, it seems that despite the framers’ and ratifiers’ incomplete discussion, our inability to put our hands on documentation reflecting some of their thoughts, and the fact that perhaps they simply did not think of some of the problems that might arise in the future, we see a certain framework develop—certain perimeters within which our decision should be made.
The Senate’s own precedents do not change this evaluation because they are not terribly instructive either. In impeachment cases, the Senate has convicted on seven occasions, acquitted on five, dismissed two cases on jurisdictional grounds and one case was withdrawn because of resignation. An acquittal serves very little value as precedent beyond the facts of the case since an acquittal can be based on any number of grounds (jurisdictional, failure to prove the factual allegations, offenses not rising to the level of impeachable conduct, etc.) and the motivation for the vote is not reflected when the verdict is rendered `not guilty.’ There is little more help derived from convictions, in terms of precedential value. There has only been one impeachment trial for a President, that of Andrew Johnson, and that, of course, resulted in an acquittal. A large majority of the remainder of the cases have been those of federal judges.
The question has arisen whether judicial impeachments are to be considered by the same standards as presidential impeachments. It seems to me that certainly the application of the standard of `high crimes and misdemeanors’ for a president must differ from that of a judge. Removing the President removes the elected head of the nation. Removing a single judge does not carry the same implications for the country. And while a President should act according to the highest standards of probity, it is quite easy to imagine circumstances that would warrant judicial impeachment that would not justify presidential impeachment, such as making official decisions based purely on political considerations. It is also possible that certain crimes would be impeachable if a judge committed them, because of the specific nature of the judicial office in our system of government, but would not be impeachable for a President.
It has been argued that the standard should be different for presidents than judges because the former serves for a fixed term and the latter serve `during good behavior.’ I do not share that view. The standard itself is the same for each category: treason, bribery, and other high crimes and misdemeanors. But the difference in tenure is relevant in a way. Because impeachment is not punishment and is political, the Framers vested the process in the legislative branch. Prosecution for crimes was lodged in the judiciary. Thus, a President, who cannot be prosecuted while in office, can be impeached and removed from office before he faces criminal prosecution. While a judge can also be impeached and removed before being convicted of a crime, it is also the case that criminal punishment can be, and has been, imposed on sitting judges. But since courts were expressly not given the power to remove civil officers, federal judges who have been criminally convicted and have refused to resign have continued to draw their salary `during good behavior,’ i.e., until they were impeached. That is the only significance with respect to impeachment of judges and of presidents based on their differing terms of service.
Scholars have looked to the purposes to be served by the impeachment process as well as history in making their own analysis as to the meaning `high crimes and misdemeanors.’ For Charles Black they would include offenses (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and (3) which are plainly wrong in themselves to a person of honor or to a good citizen regardless of words on the statute books.
Also qualifying according to Professor Black would be `serious offense against the nation or its governmental or political processes.’ Furthermore, he would include purely personal actions that would make a President unviable as a national leader. Murder, of course, would be the prime example here. He would also include a totally different category of offenses which seriously threaten the order of political society as to make dangerous the continuation in power of the President. Finally, he would include actions that would `undermine government and confidence in government’ such as serious tax fraud.
Professor Michael J. Gerhardt on the issue of purely personal conduct of the President states: `Even if such a crime were unrelated to the President’s Constitutional duties, his criminal act considerably cheapens the Presidency, destroys his credibility with the other branches (and other nations, for that matter), and shows such lack of respect for human life and disdain for the law (which he has sworn to enforce faithfully) that Congress could reasonably conclude that he had seriously breached his trust and no longer deserves to hold office.’ Again, murder was the easy example.
However, he contends further that an official may be impeached for conduct in office that does not relate to his or her former responsibilities if an office holder violates his public trust and loses the confidence of the people. Then he must forfeit the privilege of holding at least his or her present office. `In this context, conduct that may plainly be unrelated to the responsibilities of a particular office may still relate to an official’s capacity to fulfill the functions of that office and to hold the people’s trust.’ He gives the example of income tax fraud.
Gerhardt points out that not all statutory crimes demonstrate unfitness for office, but that on the other hand, there are some indictable offenses for which certain high level government officials may be impeached. Among them are offenses which `demonstrate serious lack of judgment or disdain for the law and the commission lowers respect for the office.’ In other words, there are certain statutory crimes, that, if committed by public officials, reflect, in Congress’ estimation such lapses of judgment, breaches of the public trust and disregard for the public welfare, the law, and the integrity or reputation of the office held, that the occupant may be impeached.
What I derive from this, is that there is no `holy grail’ of impeachable offenses. The framers provided the Senate with a framework within which to operate and history provides us with a map, but not a destination. Our conclusions must depend upon the particular circumstances of the case, the nature of the act or acts involved, and their effects on society or integral parts of our political structure.
Today we are faced with an unprecedented situation. The President engaged in inappropriate personal conduct. It had nothing to do with his official duties, but it did involve a federal employee under his supervision, government time and government facilities. In an attempt to conceal and cover up that activity, he lied, misled and helped conceal evidence both physical and testimonial in a court proceeding. In doing so he elicited the help of other government employees. Therefore, the subject matter was essentially private, but the forum, a United States court, became public. One side says that he `only lied about sex,’ and it had nothing to do with his official duties, therefore, it `clearly does not rise to the level of an impeachable offense.’ The other side says that any perjury and any obstruction of justice `clearly does rise to the level of an impeachable offense.’ I do not think that either position is consistent with history or proper analysis.
For example, I agree with Professor Black that not every imaginable act that might technically constitute obstruction of justice would necessarily be impeachable.
On the other hand, opponents of conviction in the present case, have raised the bar for impeachment to unreasonable heights. Usually they concede that an impeachable offense does not have to be a crime, but often it is maintained that the abuse of power has to come from his public position such as Nixon’s abuse of the CIA or FBI. Of course, this immediately runs headlong into the murder hypothetical and many other hypotheticals of serious, although totally personal, conduct as well.
They then make the further argument that the violation has to be `an offense against the state.’ While I agree that an offense against the state is one of the categories of offenses that impeachment was primarily designed to cover, offenses against the state’s governmental and political processes, including the court system, as well as attempts to subvert them, are also
impeachable. Besides, it would seem to me, that subversion or serious damage to our governmental institutions constitute offenses against the state.
They also point out that one of the purposes of impeachment is to protect the nation from the offender President. I agree again that this may be one of the purposes of impeachment. However, it is not the only purpose, and protection of the public is not always a requirement. If an offense has been laid bare and totally exposed, and the President is completely incapable of continuing his conduct, this lack of imminent threat to the nation does not necessarily mean that he should not and cannot be impeached. President Nixon probably would not have been forced from office if that were the only criteria.
Opponents of conviction also overlook the fact that we may look to the effects of the President’s conduct. Actions, even private actions, that serve to undermine the government or the people’s confidence in the government or the President, may also be impeachable. In other words, opponents of impeachment rightly point out some of the categories that are applicable in impeachment cases, but they set them forth as exclusive when, in fact, they are not.
The impeachment bar has been raised even higher most recently by respected commentators in the media. The New York Times editorial page, for example, takes a position that the President’s action must `threaten the welfare or stability of the state.’ On another occasion, they stated that the President’s actions must `show some fundamental harm to the security interest or stability of the state or some attempt to undermine the Constitution.’ The problem with this is that there is absolutely no authority to support such a contention. Such a theory relies exclusively upon the `protect the nation’ theory of impeachment. The founders certainly did not mean that the President had to be on the verge of throwing the nation into chaos or endangering national security in order to be impeached.
It is extremely important that we refrain from latching onto a definition of `high crimes and misdemeanors’ simply because it leads us inexorably to a conclusion which we may desire. Clearly, a President’s offense or offenses must be serious and/or have serious consequences. Also, while they do not have to be crimes, my own opinion is that in most cases they will be crimes. They must be crimes against the state, but we cannot adopt an unreasonable restriction of that term. The President does not have to order tanks to move on the J. Edgar Hoover building. Offenses against the state can include activity which will undermine our governmental institutions. How can we say that bribing a judge to effect an outcome in a law suit involving a President’s purely personal conduct constitutes an impeachable offense, but say that insinuating perjury into that same law suit to effect the same outcome is clearly not impeachable? And while it is true that the founders meant to cover `public’ behavior, I believe they also meant to cover behavior that has a negative effect on the public if it is of sufficient gravity. Furthermore, if the President’s conduct poses a threat and danger to a country, that certainly is a legitimate (though not exclusive) consideration. If that same conduct serves to undermine the President’s credibility and moral authority, that could also pose a danger to the country and is similarly a legitimate consideration. And, again his conduct does not necessarily have to deal with his office. In the Constitution, a named offense is bribery (treason, bribery or other high crimes and misdemeanors), and bribery itself does not necessarily have to do with the President’s official capacity, if the President is making the bribe.
I believe that the founders did not intend to make our job easy. They provided no list of offenses. They refused to spare us from the difficult analysis that we must now go through. We must take into consideration the offense or offenses, the capacity in which they were committed, the effect on our public institutions, the effect on our people and our people’s attitude toward the Presidency and our other institutions, whether the President’s conduct was one or more isolated events, or a pattern of conduct, the period of time over which the conduct was carried out and ultimately decide whether in view of all of these circumstances, it is in the best interest of the country to remove this President.
The significance of a `pattern of conduct’ is recognized by John R. Labovitz in his book Presidential Impeachment. Labovitz concluded that focusing on whether the President has committed `an impeachable offense’ is of limited usefulness, since few individual crimes warrant removal, such as a single act of treason or a single act of bribery. Even in the case of President Nixon, `[i]t was necessary to combine distinct actions into a pattern or course of conduct to establish grounds for removal from office.’ As he also wrote:
The concept of an impeachable offense guts an impeachment case of the very factors—repetition, pattern, coherence—that tend to establish the requisite degree of seriousness warranting the removal of a president from office. Just as a recidivist deserves a more stringent sentence than a first offender, so presumably a repeated offender is more likely to deserve removal from an office of public trust, and especially the highest trust in the land. . .. [I]t is necessary to take a less divided view of the charges. Because the remedy is not additive, the offenses must be considered cumulatively in deciding whether or not it should be imposed. The House must decide whether or not to prosecute an impeachment on the basis of the charges taken as a whole. And, unless the Senate is to take the determination of the House without question, it too must judge the combined seriousness of the wrongdoing that is proved.
I believe that this statement is very relevant to the obstruction of justice charge, which I will discuss later.
Very long...very worthwhile reading!
Run, FRED, RUN!!!
bump for later read
btt
It's brilliant strategery.
BUMP to read later! thanks!
My only reservation about Fred is his staying power. Though I’ll vote for him in the CA primary. If he’s not on the ballot, I’ll write him in.
bump
Bribery? ROFLMAO!!! If this were enforced, all but a handful of government officials would be out on their asses.
But perhaps you now see why FDT was passionate about CFR. Although FDT has admitted CFR is a failure, he has since proffered a full internet disclosure with strict enforcement. Now that would be something for you to discuss. How about it?
We need a voters’ bill of rights including runoff elections, some sort of an ironclad guarantee against voting fraud, and a provision for removing a vp along with any president who ever gets removed. Trent Lott rightly wanted no part of handing the whitehouse over to Algor with a year left on Slick’s second term, but the guy really needed to go.
BUMP for later
Here’s more commentary on FDT’s eloquence:
http://newsbyus.com/more.php?id=7746_0_1_0_M
“President-Elect Thompson is the man of the hour, the man of destiny.”
Like much of our laws today, it matters not what is written but what some judge says is written. Our laws have lost predictability - nobody knows what the laws mean anymore - because we have bastardized it.
It really doesn’t matter what any President says/does. If most of the Congress says he’s guilty of treason, he’s guilty.
Considering some of the asinine actions our Congress has taken recently, on both sides of the isle, chaos is bound to follow.
that is great, has that been posted as it’s own thread, because it seems like maybe it should be?
One of the serious reasons I am looking to FDT is because of the commentary he has made about some real historically significant issues that Americans are facing and would rather ignore.
We’ve all heard it but its importance does not ring loud yet. But the noise it is making is getting closer and closer.
It is the coming insolvency of the Social Security and Medicare entitlement programs because of a simple unstoppable and frightening cause:
AN AGING POPULATION
This demographic is going to change things whether we like it or not. It is largely a result of 45 million abortions and 70+ million more Americans that would be here today if it were not for Roe vs. Wade. Call it God’s wrath.
The other reason for the unpleasantness (to put it mildly) of what Americans are going to face in the next ten years is persistent intractable high taxation. This has a direct effect on the economic perception that people face when deciding to have children. And the bottom line is we need alot of children immediately.
GWBush and his globalist thinktank intellects have resigned to the approach that we import the bodies necessary to feed the beast.
FDT understands all of this in my observation of him.
What I am waiting to see is whether FDT understands this:
http://video.google.com/videoplay?docid=-4312730277175242198
I couldn’t find it on the search and I have thread-starter disorder. :)
maybe SEmom can post it, since you are afflicted ; )
Hmmm. Tell me again about this Tn bumpkin, whose only appeal is to the eyes and ears? Tell me again about his lack of qualification /sarc
Run-Fred-Run...
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