Now that John Conyers (D), Roy Moore (R) and Al Franken (D) have been accused of sexual misconduct, Democrats are salivating to revisit the allegations of sexual misconduct made prior to the election against then-candidate Donald Trump.
Walking talking-points, the likes of Eugene Robinson, bray, "If Congress is going to probe the conduct of Conyers and Franken, it must also investigate the multiple, believable allegations of sexual misconduct against Trump."
But why?
Six Democratic congressmen, including Rep. Luis Gutierrez of Chicago, want to impeach President Trump. But are they willing to add to their so-called articles of impeachment charges of sexual misconduct?
If so, are they willing to bring similar charges against Conyers and Franken? Members of the House and Senate are not subject to impeachment. Rather, under Article I, Section 5, "Each house ... with the concurrence of two thirds, can expel a member."
Or is the rule, only Republicans should be impeached.
Indeed if candidate Roy Moore has to go based on 40 year-old allegations, why shouldn't Conyers and Franken be cashiered for their more recent "misdemeanors?"
Are there photos of Moore's alleged misconduct? Of Franken's?
Article II of the U.S. Constitution provides "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."
Article 1 provides that the House has sole power to bring charges of impeachment. If charges brought pursuant to a majority House vote, the Senate must try all impeachments, "and no person shall be convicted without the concurrence of two- thirds of the members present."
The question really is, "what is a high crime or misdemeanor?" During the attempted impeachment of U.S. Supreme Court Justice William O. Douglas (one of the court's great justices) U.S. Rep. Gerald Ford gave a very practical definition: "An impeachable offense is whatever a majority of the House of Representatives considers it to be."
It was on that basis, that President Bill Clinton (quite wrongfully, in my opinion) was impeached, but not convicted. But Ford's understanding is not what the framers understood or intended.
The framers borrowed the phrase "high crimes and misdemeanors" from English experience and history. Parliament had impeached for the misuse of public funds, abuse of political (not sexual) power, neglect of duty, corruption, and encroachment upon the prerogatives of the legislature.
For example, English Lord Chancellor Francis Bacon, was impeached for corruption and taking gratuities - "bribes" - from litigants. Charles I was charged with treason for waging war against Parliament, and the people therein represented, and for abuse of power- for encroaching on the prerogatives of Parliament, according to "The Enduring Constitution," by Jethro Koller Lieberman.
American President Andrew Johnson (1867), Justices Samuel Chase (1804) and William O. Douglas were charged with acts done while they held office. Richard Nixon also would have been, had he not resigned.
To revisit charges of sexual misconduct against Mr. Trump before the election, or to examine additional charges that could have been leveled at that time, which weren't, would be a gross abuse of the power of impeachment.
In an impeachment, the Senate acts as the jury. But the charges against Mr. Trump - made before the election - have already been passed upon by another jury - the ultimate jury - the people of the United States, voting in the 2016 presidential election.
The voters were fully aware of the allegations. They had been relentlessly broadcast by the press, Democratic politicians, and anti-Trumpists across TV, cable, radio, newspapers and the internet. And the voters elected Mr. Trump.
There is something utterly undemocratic about 67 Senators nullifying a presidential election - the considered will of the American people.
(I am not saying that the Senate could not convict a president of a pre-election "high crime or misdemeanor" that was unknown to the voters on the day of elections that only comes to light later).
Mr. Lieberman writes, "Disapproval of presidential policies was not made a ground for impeachment, and it is generally agreed that the House abused its power in impeaching President Andrew Johnson in 1867 because it disliked his policies."
Posted: QCOline.com December 7, 2017
Copyright 2017, John Donald O'Shea
Authors Note: Below is the op ed as originially submitted to my publisher, before their editorial changes.
A LITTLE IMPEACHMENT LAW AND OPINION
Now that John Conyers (D), Roy Moore (R) and Al Frankin (D) have been accused of
sexual misconduct, Democrats are salivating to revisit the allegations of sexual
misconduct made prior to the election against then-candidate Donald Trump.
Walking talking-points, the likes of Eugene Robinson, bray "If Congress is going to
probe the conduct of Conyers and Franken, it must also investigate the multiple,
believable allegations of sexual misconduct against Trump." But why?
Six Democratic Congressmen, the likes of Luis Gutierrez of Chicago, want to impeach
President Trump. But are they willing to add to their so-called articles of impeachment
charges of sexual misconduct? If so, are they willing to bring similar charges against
Conyers and Franken in their respective houses? [Members of the House and Senate
are not subject to impeachment. Rather, under Article I, Section 5, "Each house ... with
the concurrence of two thirds, can expel a member."]
Or is the rule, "only Republicans should be impeached. Indeed if candidate Moore "has
to go" based on 40 year-old allegations of sexual misconduct, why shouldn't Conyers
and Franken be cashiered for their more recent "misdemeanors?" Are there photos of
Moore's alleged misconduct? Of Franken's?
Article II, Sec. 4 of the U. S. Constitution provides "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."
Art. I, Sec. 2 [5} provides "The House of Representatives shall ...have the sole power of impeachment." That means the House of Representatives has the sole power
to bring charges (to "impeach"). That charge is brought pursuant to a majority vote.
Art. 1, Sec. 3 [6] provides, "The Senate shall have the sole power to try all
impeachments. ... and no person shall be convicted without the concurrence of two-
thirds of the members present."
So the question really is, "what is a high crime or misdemeanor?" During the attempted
impeachment of U.S. Supreme Court Justice William O. Douglas (one of the court's
great justices) Congressman Gerald Ford gave a very practical definition: "An
impeachable offense is whatever a majority of the House of Representatives considers
it to be." It was on that basis, that President Bill Clinton (quite wrongfully, in my opinion)
was impeached, but not convicted. But Ford's understanding is not what the framers
understood or intended. The framers borrowed the phrase "high crimes and misdemeanors" from English experience and history. There, the phrase took its meaning from English Parliamentary experience. Parliament had impeached for the misuse of public funds, abuse of political (not sexual) power, neglect of duty, corruption, and encroachment upon the prerogatives of the legislature. For example, the English
The Lord Chancellor, Francis Bacon, was impeached for corruption and taking gratuities -
"bribes" - from litigants. Charles I was charged with treason for waging war against the
Parliament, and the people therein represented, and for abuse of power- for encroaching on the prerogatives of Parliament. "Our Enduring Constitution," Lieberman, (1997) p. 92.
In America, President Andrew Johnson (1867), and Justices Samuel Chase (1804) and
William O.Douglas were charged with acts done while they held office. Richard Nixon
also would have been, had he not resigned.
To re-visit the charges of sexual misconduct leveled against Mr. Trump before the
election, or to examine additional charges that could have been leveled at that
time, which weren't, would be a gross abuse of the power of impeachment. In an
impeachment, the Senate acts as the jury. But the charges against Mr. Trump - made before the election - have already been passed upon by "another jury" - the
ultimate jury - the people of the United States, voting in the 2016 Presidential election.
The voters were fully aware of the allegations. They had been relentlessly broadcast by
the press, Democratic politicians, and anti-Trump-ists across TV, cable, radio, newspapers and the internet. And the voters discounted the allegations and elected Mr. Trump President.
There is something utterly undemocratic about 67 Senators nullifying a Presidential election - the considered will of the American people. (I am not saying that the Senate could not convict a President of a pre-election "high crime or misdemeanor" that was unknown to the voters on the day of elections that only comes to light later).
Finally, Mr. Lieberman writes, "Disapproval of presidential policies was not made
a ground for impeachment, and it is generally agreed that the House abused its power in impeaching President Andrew Johnson in 1867 because it disliked his
policies."
Finally, Mr. Lieberman writes, "Disapproval of presidential policies was not made
a ground for impeachment, and it is generally agreed that the House abused its power in impeaching President Andrew Johnson in 1867 because it disliked his
policies."
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