Democrats Seek to Abuse Impeachment Powers

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."

Impeach Federal Office Holders who Take the Fifth Amendment

The new Acting-IRS Commissioner has suspended Lois Lerner, the head of the unit that considers and passes upon applications from nonprofits groups seeking to get tax-exempt status, for improperly targeting conservative groups. The suspension came one day after she invoked the Fifth Amendment and refused to answer questions before a congressional committee.

Ms. Lerner told the House Oversight committee in an unsworn opening statement that "I have not done anything wrong. I have not broken any laws, and I have not violated any IRS rules or regulations, and I have not provided false information to this or any other congressional committee." She then invoked her Fifth Amendment right against self-incrimination.

What must be understood is this. The right against self-incrimination only can be invoked by
one who has a "good faith" belief that by testifying he may disclose something he may have done that might violate the criminal laws. If a person truly is innocent and has no fear his testimony would furnish evidence of his violation of a criminal law, he cannot invoke the 5th Amendment simply to avoid embarrassing himself, or to protect his fellow workers, or his superiors, or for any other purpose.

But what is an IRS employee? What is an IRS supervisor? What is the Commissioner of the
IRS?

They are government employees. But what that means is they really are employees of the people of the United States. They are public servants. They are not our bosses; we are their bosses.

But because they are our servants, or employees, under agency principles, they owe a duty to the American people, and to their Congressional representatives, to give full and fair accountings of their actions as public employees.

Refusing to testify because that testimony may incriminate the employee/witness runs directly contrary to the employees duty to fully and fairly account. Any public employees - including member of the IRS - who takes the 5th to avoid accounting, further abuses his power and commits a high crime or misdemeanor worthy of impeachment.

Commentators agree abuse of power is the quint-essential high crime or misdemeanor, and is the common denominator for all other impeachable offense. Indeed, it is that abuse of power which renders the official unfit to retain his office and unfit to serve.

Five Articles in the U. S. Constitution deal with Impeachment:

Art. I, Sec. 2[5]. The House of Representatives shall ... have the sole power of impeachment.

Art. I, Sec. 3[6]. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation ... no person shall be convicted without the concurrence of two-thirds of the members present.

Art. I, Sec. 3[7]. Judgement 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, judgement and punishment, according to law.

Art. II. Sec. 2 [1]. The President ... shall have power to grant reprieves and pardons ... except in cases of impeachment.

Art.II. Section 4. 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.

In that regard, two things must be understood: (1) Legal scholars have suggested Congress alone decides for itself what constitutes a "high crime or misdemeanor." In 1970, the then-House Minority Leader, Gerald Ford said "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." (2) In [Walter] Nixon v. U. S., the U. S. Supreme Court held it did not have power to review whether the Senate properly "tried" Judge Nixon. The court found the Constitution confides the sole power to try impeachments to the Senate, and therefore that review of the Senate conviction was a non-justiciable matter, and it therefore lacked judicial power to review the judgment of the Senate.

There are a number of sound reasons why arrogant public officials of Lois Lerner's ilk should be impeached. An impeachment conviction by the Senate swiftly can remove an official from office who abuses his power, or who refuses to account for his conduct in office. It also can render him forever disqualified to hold and enjoy any (present or future) office of honor, trust or profit under the United States.

Additionally, it deprives him of all pension benefits. Finally, there are no endless judicial appeals from the Senate's conviction. Once convicted, the notion the officer is on administrative leave at full salary is dead. And once convicted, the President can't give him another government job.

If Ms. Lerner continues to take the 5th in the face of Impeachment, we can fairly conclude
that her taking the 5th was done in good faith, and that she would prefer to be removed from office, lose her pension and be disgraced and disqualified rather than to tell the whole truth which might lead to her criminal prosecution and imprisonment.

Posted Online:   June 01, 2013, 11:00 pm - Quad-Cities Online
by John Donald O'Shea

Copyright 2013
John Donald O'Shea