Skip to comments.The Judiciary Committee's Ex Post Facto Approach To Impeachment Violates the Constitution
Posted on 12/09/2019 5:32:29 AM PST by Kaslin
The House Judiciary Committee has issued a report claiming, essentially, that Congress is not bound by any standards of what is impeachable. Citing Justice Joseph Story, who wrote a 19th-century commentary on the Constitution, the report claims that it is impossible to establish any “comprehensive definition of ‘high Crimes and Misdemeanors’ or a catalog of offenses that are impeachable.” Instead, the report says, Congress must collect the facts and then consider whether impeachment is warranted.
This conclusion is not unprecedented. It tracks the conclusions of some writers on impeachment, who (as I note in one of my scholarly articles) have struggled unsuccessfully to define what impeachable offenses are.
In addition to making a muddle of what is, and isn’t, impeachable, the report claims that normal "rules of evidence . . . have no place in the impeachment process"—either in the House or in the Senate. In other words, the politicians may make up rules of evidence as they go along.
There is a name for the committee's “let's see what you've done then we’ll make up the rules” approach: ex post facto.
This ex post facto version of impeachment is objectionable for at least three reasons.
First, it disregards how those who adopted the Constitution understood impeachment. 18th-century legal sources tell us that impeachment may be had only for violations of “the known and established law.” The sources also tell us that “the same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.” In other words, impeachment is not a political game of hide-the-ball. It is a judicial procedure and subject to the rule of law. Standards must be fixed in advance, not invented to fit the case.
The second problem with the committee’s version is precisely that it violates the rule of law. This, in turn, opens the process to legislative abuse and undermines the Constitution’s structure. By allowing Congress to invent rules after the president has acted, the committee's approach enables Congress to bully and control the president in ways inherently inconsistent with the independent executive office the Constitution creates.
Third, the ex-post-facto approach is inconsistent with the standards that actually prevailed during the founding era: Trials for impeachment (whatever Justice Story said 40 years later) were not politics-as-usual, but scrupulously legal procedures, and had been so at least since the trial of the Earl of Strafford in 1641. People knew what the rules were: An officer was impeachable for the commission of (1) “high Crimes” (felonies) or for (2) what 18th-century lawyers called “breach of trust” and what 21st-century lawyers call “breach of fiduciary duty.”
Admittedly, no Founder stood up during the constitutional debates and explained the standards in detail. This is an area in which, as with some other parts of the Constitution, you have to make inferences from available data. But in this case, the data are copious. They include:
* statements by leading founders,
* the offenses for which officials were impeached in the 17th and 18th centuries,
* discussions of impeachment in popular 18th-century legal sources, and
* the founders’ almost universal view that government is a public trust and that officials are subject to fiduciary duties.
The committee’s claim that “an impeachable offense is whatever we in Congress decide it is” may be convenient for the committee’s purposes. But it violates both the rule of law and the American constitutional order.
Very important step. Not missed by this Congress /s
“Show me the man, I’ll show you the crime.”
The Senate should also make its own rules...
each side gets one minute of debate time..then the vote
The impeachment process is a criminal process under the Constitution [high crimes and misdemeanors] but as the constitution makes clear in this one single proceeding the Congress has jurisdiction rather than the federal judiciary.
As such due process protections apply including right to be informed of the charges against him and the right to subpoena witnesses. Due process means that the Federal Rules of Evidence (which are Congressionally approved) apply.
This would then tie up any impeachment activities until there is a Supreme Court ruling, which would likely be so close to the election that it would become moot.
This ex post facto version of impeachment is objectionable for at least three reasons.
This author misses the point entirely. By its very nature, and by design of the founding fathers, "High Crimes and Misdemeanors" was supposed to be determined on a case-by-case basis, because impeachment is a political, not a legal, process. Ex post facto determination of a high crime is baked into
The check on unwarranted impeachment is the high bar of a 2/3 majority in the Senate for removal from office, and the fact that the Representatives have to face their voting constituents every two years.
The same approach can be found in the Uniform Code of Military Justice article 133, which is a catch-all "conduct unbecoming an Officer" that is determined ex post facto" what constitutes such offending conduct.
A blight on this country and on the Constitution!
It would be better if they just give the reason for all this as “we want our power back and we hate Donald Trump”. Truth always works and it would make the media look like they are at least in puberty and not elementary.
They talk on this as if it’s legit! It’s a lie from beginning to end and I hate to see them make a mockery of everything this country is.. was.
I heard last night on Fox, Trump is transparent... he is what he is... all the rest are fake in public and like this in private. But they have fooled most of those who think with no brains.. that he is different and orders are to hate him...
It pains and lowers those who are reporting as if this today is legit.. wallace is one of them... he wishes so he makes it true.. IT’S MOT! Mike, it’s all a big lie!
What Constitution? The Demonicrats wiped their butts with ours 20 million abortions ago.
The 22nd Amendment to the Constitution says that no person shall be elected to the office of president more than twice. However, it doesn’t state that a person can’t “run” for the office of president more than twice.
Donald J. Trump, the master, could have a lot of fun with that one.
Some of the most EVIL collectives in the history of this fabulous republic.
It’s just standard ops for Nanzi. We have to impeach him to find out what he’s guilty of.
Buzzie’s double must be buzzard bait too. They have to throw an indictment against DJT to keep their judicial infanticide majority.
Third, the ex-post-facto approach is inconsistent with the standards that actually prevailed during the founding era: Trials for impeachment (whatever Justice Story said 40 years later) were not politics-as-usual, but scrupulously legal procedures, and had been so at least since the trial of the Earl of Strafford in 1641. People knew what the rules were: An officer was impeachable for the commission of (1) high Crimes (felonies) or for (2) what 18th-century lawyers called breach of trust and what 21st-century lawyers call breach of fiduciary duty.President Trump has been assiduously fulfilling his campaign promises. The faction (as the founders would have put it) known as "the Democrats have been determined that he should not do that. They want the trust of the people to be breached.
The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests. ― Alexander Hamilton
Congress must collect the facts
When will they start collecting ?
So, that sounds like a pretty powerful (political) weapon, right? Maybe on the order of what the executive possesses, including the nuclear launch codes. Technically, Trump has the ability to declare a national emergency - and all that entails - in order to "defend" the country.
In other words, with great power comes great responsibility. One would think that after 225 years or so, that mature consideration, measured response and an eye towards preserving a legacy would serve as motivation for Congress to moderate its behavior.
That of course is the real danger here - tit-for-tat responses as the political center gyroscopically spins out of control. However, once a bully begins those in the right have no option but to respond.
One could argue that we have been going through that already vis a vis Special Prosecutors/Special Counsel.
It started with Archibald Cox and Nixon, then with Special/Independent Counsels investigating Reagan (Iran-Contra Lawrence Walsh,) Clinton (Whitewater Ken Starr,) and Dubya (Valerie Plame Patrick Fitzgerald)
Obama escaped the special counsel treatment, but then Trump had Mueller.
Impeachment - as currently being utilized - is a whole new avenue of approach, one that violates long term 'gentlemen' understandings. I think of it as WMD - say mustard gas - treaties didn't outlaw war, just the use of chemical weapons. Once everyone realized what would happen in a tit-for-tat situation, they were abandoned.
So, here are the proglibs thinking they have this novel, shiny new powerful and amazing weapon. I mean, it doesn't even engage the judiciary - whoopee! Someone needs to remind them it was always there, always dangerous, and should only be pulled out as a last, stop gap measure to repeal an actual monster/tyrant.
Since the earliest political parties in the US were not established until after the states ratified the Constitution, the drafters of the Constitution arguably failed to foresee the need to constitutionally prohibit political party support for POTUS.
As a consequence of this oversight, and as PDJT supporters have already pointed out, corrupt Democrats have now weaponized the impeachment process to try to get rid of a lawfully elected and very popular POTUS.
Desparate Democrats and RINOs ultimately want to retain control of state powers and state revenues that the feds have been stealing from the states for decades, which most federal domestic policy and spending is unconstitutionally based on imo.
Congress is not empowered to tax for those purposes which are within the exclusive province of the States. Justice John Marshall, Gibbons v. Ogden, 1824.
From the accepted doctrine that the United States is a government of delegated powers, it follows that those not expressly granted, or reasonably to be implied from such as are conferred, are reserved to the states, or to the people. To forestall any suggestion to the contrary, the Tenth Amendment was adopted. The same proposition, otherwise stated, is that powers not granted are prohibited [emphasis added]. United States v. Butler, 1936.
State revenues are stolen by means of unconstitutional federal taxes indicated by the Gibbons excerpt above, taxes that Congress cannot justify under its constitutional Article I, Section 8-limited powers.
Remember in November!
MAGA! Now KAG! (Keep America Great!)
"The Holy Grail of organized crime is to control government power to tax." me
"The 16th Amendment effectively repealed the involuntary servitude aspect of the 13th Amendment imo, evidenced by unconstitutional federal taxes." me
"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." Justice John Marshall, Gibbons v. Ogden, 1824.
"13th Amendment, Section 1:
Neither slavery nor involuntary servitude [emphasis added], except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."
"The constitutionally undefined political parties are basically rival, corrupt voter unions, union dues paid by means of unconstitutional federal taxes. Belonging to a political party means that you are a subject, not a member. me
"Patriots need to support PDJT in demanding that Congress moves "April 15" tax day to the day before election day." me
"The smart crooks long ago figured out that getting themselves elected to federal office to make unconstitutional tax laws to fill their pockets is a much easier way to make a living than robbing banks." me
"Federal career lawmakers probably laugh all the way to the bank to deposit bribes for putting loopholes for the rich and corporations in tax appropriations laws, Congress actually not having the express constitutional authority to make most appropriations laws where domestic policy is concerned. Such laws are based on stolen state powers and uniquely associated stolen state revenues." me
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.