Saturday, October 26, 2019

An Impeachment Primer

David B. Rivkin Jr. and Elizabeth Price Foley have authored what amounts to a primer on impeachment, and an incisive critique of the ongoing Impeachment Theater in the House. The article appears behind the WSJ paywall, but it also appears free of charge at MSN: This Impeachment Subverts the Constitution. In my opinion they do a fine job of explaining exactly that--that the House's Impeachment Theater goes far beyond disgraceful partisanship and really does threaten our constitutional order. Here are their credentials:

Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. She is a professor of constitutional law at Florida International University College of Law.

Before getting to some extended excerpts from the article to illustrate their approach and hopefully entice one and all to read the full article, I'll insert the relevant portions of the Constitution--all from Article I, and edited for relevance. I'll also add some comments of my own:

Section 1.
All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Here the Congress is identified as a legislative body, separated into two chambers. The important point is that by its very nature a legislative body acts by voting. That's the first assault on the Constitution that we see in Impeachment Theater. The House is not acting as a legislative body but rather as an assembly of a political party which tolerates, but only barely, the presence of non-members, without affording them equal status. Of course the House sets its own rules, as does the Senate, but in doing it must act with the framework of the Constitution. That means that the House cannot renounce its essential nature as a legislative body--yet that appears to be what is happening. This is simply the way that Leftists operate, whether in a legislature or sitting as judges in a court.

Section 2.
The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.

Which is to say, that the power of impeachment is vested in the House as a whole, not in the Speaker and not in the majority. Further, a legislative body acts by voting--not by staging press conferences.

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.

My reading of this may be slightly different from the view of the eminent authors. I take this to mean that no other body than the Senate may try any impeachment, but the Senate is not necessarily obligated by its possession of this power to conduct a trial solely upon the referral to it of articles of impeachment by the House. The authors arrive at a similar conclusion, but I'd have preferred that they stated this as above and had thought better of using the word "obligation."

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. 
Section 9.
No bill of attainder or ex post facto Law shall be passed.

You'll see the relevance of this as you read. The authors liken Impeachment Theater to a proceeding under a "bill of attainder," which is something that we see is proscribed by the Constitution. A bill  of attainder is "a legislative effort to punish a disfavored person." What we see in Impeachment Theater is that no specific impeachable offense has been alleged--only general allegations are made. Shockingly, in alleging grounds for investigation Speaker Pelosi has falsified a clear record of the events that are supposedly in question: Pelosi's Outrageous Fake Narrative Of Impeachment.

So, on to the excerpts. The portion that I have excluded is probably the part that most readers will be most interested in--grounds for impeachment. The authors discuss the possible grounds at length and I found their discussion quite enlightening. Follow the link if that topic interests you:


Speaker Nancy Pelosi has directed committees investigating President Trump to “proceed under that umbrella of impeachment inquiry,” but the House has never authorized such an inquiry. Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense. Lawmakers and commentators have suggested various possibilities, but none amount to an impeachable offense. The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.

The impeachment power is quasi-judicial and differs fundamentally from Congress’s legislative authority. The Constitution assigns “the sole power of impeachment” to the House—the full chamber, which acts by majority vote, not by a press conference called by the Speaker. Once the House begins an impeachment inquiry, it may refer the matter to a committee to gather evidence with the aid of subpoenas. Such a process ensures the House’s political accountability, which is the key check on the use of impeachment power.

The House has followed this process every time it has tried to impeach a president. Andrew Johnson’s 1868 impeachment was predicated on formal House authorization, which passed 126-47. In 1974 the Judiciary Committee determined it needed authorization from the full House to begin an inquiry into Richard Nixon’s impeachment, which came by a 410-4 vote. The House followed the same procedure with Bill Clinton in 1998, approving a resolution 258-176, after receiving independent counsel Kenneth Starr’s report.

Mrs. Pelosi discarded this process in favor of a Trump-specific procedure without precedent in Anglo-American law. Rep. Adam Schiff’s Intelligence Committee and several other panels are questioning witnesses in secret. Mr. Schiff has defended this process by likening it to a grand jury considering whether to hand up an indictment. But while grand-jury secrecy is mandatory, House Democrats are selectively leaking information to the media, and House Republicans, who are part of the jury, are being denied subpoena authority and full access to transcripts of testimony and even impeachment-related committee documents. No grand jury has a second class of jurors excluded from full participation.

Unlike other impeachable officials, such as federal judges and executive-branch officers, the president and vice president are elected by, and accountable to, the people. The executive is also a coequal branch of government. Thus any attempt to remove the president by impeachment creates unique risks to democracy not present in any other impeachment context. Adhering to constitutional text, tradition and basic procedural guarantees of fairness is critical. These processes are indispensable bulwarks against abuse of the impeachment power, designed to preserve the separation of powers by preventing Congress from improperly removing an elected president.

House Democrats have discarded the Constitution, tradition and basic fairness merely because they hate Mr. Trump. Because the House has not properly begun impeachment proceedings, the president has no obligation to cooperate. The courts also should not enforce any purportedly impeachment-related document requests from the House. (A federal district judge held Friday that the Judiciary Committee is engaged in an impeachment inquiry and therefore must see grand-jury materials from special counsel Robert Mueller’s investigation, but that ruling will likely be overturned on appeal.) And the House cannot cure this problem simply by voting on articles of impeachment at the end of a flawed process.

The Senate’s power—and obligation—to “try all impeachments” presupposes that the House has followed a proper impeachment process and that it has assembled a reliable evidentiary basis to support its accusations. The House has conspicuously failed to do so. Fifty Republican senators have endorsed a resolution sponsored by Judiciary Committee Chairman Lindsey Graham urging the House to “vote to open a formal impeachment inquiry and provide President Trump with fundamental constitutional protections” before proceeding further. If the House fails to heed this call immediately, the Senate would be fully justified in summarily rejecting articles produced by the Pelosi-Schiff inquiry on grounds that without a lawful impeachment in the House, it has no jurisdiction to proceed.

The effort has another problem: There is no evidence on the public record that Mr. Trump has committed an impeachable offense. The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” The Founders considered allowing impeachment on the broader grounds of “maladministration,” “neglect of duty” and “mal-practice,” but they rejected these reasons for fear of giving too much power to Congress. The phrase “high crimes and misdemeanors” includes abuses of power that do not constitute violations of criminal statutes. But its scope is limited.


Although the impeachment inquiry has been conducted in secret, what we know suggests it has become a free-ranging exploration of Mr. Trump’s foreign-policy substance and process, with the committees summoning numerous State Department witnesses. Congress could properly undertake such an inquiry using its oversight authority, but by claiming that it is proceeding with an impeachment inquiry, it has forfeited this option.

If the House impeaches Mr. Trump because it disapproves of a lawful exercise of his presidential authority, it will in effect have accused him of maladministration. The Framers rejected that amorphous concept because it would have allowed impeachment for mere political disagreements, rendering the president a ward of Congress and destroying the executive’s status as an independent, coequal branch of government. If the House impeaches on such grounds and the Senate concludes it has jurisdiction to conduct an impeachment trial, it should focus first and foremost not on the details of Mr. Trump’s foreign policy, but on the legal question of whether the conduct alleged is an impeachable offense.

Alexis de Tocqueville observed in 1835: “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.” What House Democrats are doing is not only unfair to Mr. Trump and a threat to all his successors. It is an attempt to overrule the constitutional process for selecting the president and thus subvert American democracy itself. For the sake of the Constitution, it must be decisively rejected. If Mr. Trump’s policies are unpopular or offensive, the remedy is up to the people, not Congress.


  1. Don't even get me started.

    Our senators and congressmen vote in the open so that they are accountable to the people whom they represent.

    What a joke! No, not a joke. A farce and a tragedy.