James Madison long ago wrote that in establishing good government, he and his colleagues must find a way to allow reason, logical thinking, to overcome passion or emotions. “Ambition must be made to counteract ambition,” he famously wrote in Federalist 51.
And yet, passions flare when personalities and personal vendettas distract us from important issues. That is what seems to have happened in news accounts from The MV Times to the New York Times, Washington Post, and elsewhere.
But let’s look at the basics. Madison knew that the president of the United States would wield great power. The other branches of the government were designed to ensure that he would never become an absolute monarch. Hence, Madison’s focus on “ambition.” “If men were angels,” he went on, “no government would be necessary.” But, of course, they are not.
Madison’s vision was a government that divided and arranged “the several offices in such a manner as that each may be a check on the other; that the private interest of every individual may be a centinel [sic] over the public rights.”
One of these “checks” is Congress’ power to remove presidents from office. But like much of the Constitution, the terms of impeachment are not defined. Article II, Section 4, states that “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, and other high crimes and misdemeanors.”
Article III, Section 3, does not define treason with great clarity. All it says is that “Treason against the United States, shall consist only in levying war against them, or, in adhering to their enemies, giving them aid and comfort.” How to figure out the meaning of “levying war” against the U.S.? Or giving the enemy “aid and comfort?”
Bribery is the same: Two years ago, the Supreme Court unanimously overturned the conviction of Virginia Governor Bob McDonnell, who had accepted over $165,000 in gifts and loans from a wealthy businessman who wanted him to promote his dietary supplement. Because McDonnell took no “public action” in return for his acceptance of the gifts and loans, the court held that no bribery took place.
And what rises to the level of giving aid and comfort to the enemy? Billionaire Tom Steyer of San Francisco thinks he knows. He has started an organization, needtoimpeach.com, and is spending $10 million to gain public attention to have Congress impeach President Trump on several grounds: first, that President Trump obstructed justice in the investigation of Russian involvement in the 2016 presidential campaign when he fired FBI Director James Comey. He revealed his reasons to the Russian ambassador, foreign minister, and other Russian officials in the Oval Office when he said, “I faced great pressure because of Russia. That’s taken off.”
Steyer also claims that the president has taken money from foreign governments and thus violated the emoluments clause in Article I, Section 9, which prohibits him from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any king, prince, or foreign state.” The president continues to own the Trump Organization, and receives payments from foreign governments, for example, that use the Trump International Hotel in Washington, D.C., and Trump Tower in New York.
The attorneys general of Maryland and Washington, D.C., have filed suit against the president on these grounds, as has a liberal watchdog organization, the Center for Ethics and Responsibility.
Finally, Steyer claims the president has violated the First Amendment in his threats against a free press, which President Trump continues to call “the enemy of the people.”
There is also another group, impeachdonaldtrumpnow.org, which has gained over 1.5 million petition signatures.
Do these grounds rise to the level of treason, bribery, high crimes and misdemeanors? No one knows for certain, because impeachment is not a criminal or civil proceeding. It is a political action that only Congress can take, in a two-step manner that leads to the removal of an officeholder, nothing more (though they may be subject to criminal prosecution afterward).
Based on a set of “articles,” or a list of charges, the House of Representatives possesses the power, by a simple majority, to impeach the president. This means that he is subject to a “trial” that the Senate then holds. Select members of the House, known as managers, present the articles of impeachment to the Senate, where, in the case of the president only, the chief justice of the U.S. presides.
The Senate must approve each article by a supermajority of a two-thirds vote. Three presidents have faced the possibility of removal this way: Presidents Andrew Johnson in 1868, Richard M. Nixon in 1974, and Bill Clinton in 1999. None was convicted: Johnson faced 11 articles and was spared by a single vote in the Senate, Nixon resigned rather than risk impeachment, and Clinton was acquitted on two articles, perjury and obstruction of justice.
Part of the problem with President Trump is the difficulty in finding meaning in the words he expresses. Of course, he enjoys the same civil liberties as do all people in this country, but with one major difference.
As the only nationally elected officer of the U.S., when he speaks, he speaks for the nation. So what did he really mean when he told the Russian officials that he was relieved when he fired James Comey because Russian meddling and his campaign’s collusion with the Russians were off the table? What does he mean when he calls the press the “enemy of the people”?
One conservative commentator, George F. Will, recently wrote that the problem is the president’s words: “Precision is not part of Trump’s repertoire: He speaks English as though it is a second language that he learned from someone who learned English last week. So, it is usually difficult to sift meanings from Trump’s word salads.”
It’s reminiscent of the line spoken by Chico Marx in the 1933 film, “Duck Soup,” when he was posing as Groucho: “Who you gonna believe, me or your own eyes?” After all, the Washington Post reported that at the end of May, President Trump had lied or misrepresented the truth 3,251 times, or 6.5 times a day.
On the other hand, Will argued that the president was unusually clear in his Helsinki news conference with President Vladimir Putin of Russia when he stated that he accepted Putin’s denial of meddling in U.S. elections.
The investigation by Special Counsel Robert S. Mueller III is, for the president, “a rigged witch hunt,” and for others, illegal, because a “special counsel” is an officer of the U.S. who must be confirmed by the Senate. His investigation, however, continues and, as Will concludes, might find “still-hidden sources of the behavior of this sad, embarrassing wreck of a man.”
If Will is correct, maybe Madison’s vision will flourish, and reason will eventually overcome passion. Then again, that may be asking way too much in these days of political turmoil and division.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.