In all of the recent unpleasantness surrounding President Trump’s impeachment and subsequent Senate trial, I have yet to hear or read the following theory regarding why the impeachment itself was inappropriate, and thus why acquittal is justified. Given that I am neither a legal scholar, nor particularly more intelligent than the average person, I suspect that other much better educated and/or smarter than I have already proposed this argument. I must have missed it. However, here goes…
The current articles of impeachment brought against the President do not specify any actual crime, only the improper exercise of executive power for political advantage (both individually, and as pertains to the President’s interactions with Congress). However, the last two presidential impeachments (Nixon and Clinton) established the precedent that a violation of Federal law was the requisite grounds for such action. In both cases, there was no question that the President had in fact broken the law. Allowing for the fact that Nixon was not in fact impeached, rather resigned before such action was taken, the 1998 Clinton impeachment was predicated on the unquestioned fact that the President had both committed Perjury, and Obstruction of Justice. However, the Senate did not remove Clinton from office, thus setting the “common law” precedent that these crimes were below the threshold for “High Crimes and Misdemeanors.” (I recall the justification at the time being that, “everyone lies about sex, and there was no harm done to any national interests, so it doesn’t really matter.”)
Okay. Remember, I’m not a lawyer of any kind. But I do understand (and deeply appreciate) the common legal heritage the US shares with ancient English Common Law traditions. Legal precedents set by earlier rulings or judgements are held to be binding unless later law explicitly addresses changing the common interpretation of the law, and justifies why the change is warranted by new conditions. Therefore: Based upon the precedent set in the most-recent previous case (Clinton, ’98) any presidential malfeasance short of the threshold of perjury or obstruction of justice simply does not meet the precedent set in the relative case law for the removal of the President from office.
It seems to me that the more common argument made these days on behalf of the President, that he “has broken no laws” is too shallow and lacks the necessary context. Even if President Trump has acted inappropriately, or even illegally under white-collar ethics law, the behaviors identified in the Articles of Impeachment come nowhere close to the level of perjury. In saving Clinton in ’98, the Democrats established a precedent that vacates their whole argument now.
Frankly, until the US Constitution is amended to specify the threshold of criminal actions covered by the phrase “High Crimes and Misdemeanors,” no action short of Perjury or Obstruction of Justice can qualify. The precedent has been set, and I see no reason to believe that the current Senate trial is going to reverse that precedent. (Thanks again, Bill Clinton … the wreckage of your administration continues to this day.)
(By the way, if this argument has been made by others elsewhere, especially using better prose or logic, I’d appreciate any links or citations. I certainly want to acknowledge those who said it first.)Published in