“Legislative in the Congress, yet checked by negative [veto] of the executive. Executive in the President, yet checked by impeachment of Congress.” — Alexander Hamilton, 1788
For the third time in 46 years, Congress is investigating a president to determine whether he should remain in office. The question is whether President Donald Trump tried to engage a foreign power, Ukraine, to interfere in the 2020 presidential election. Specifically, to investigate a political rival, Joe Biden, now a leading candidate for the Democratic presidential nomination.
President Trump’s request to Ukrainian President Volodymyr Zelensky in a July 25 phone call violates federal law, contradicts American values, and may even endanger American national security. It raises the greater principle of American sovereignty and independence from foreign interference. The framers of the Constitution understood this and included the impeachment clauses in the document just for this purpose.
The facts are not in dispute. They appear in a whistleblower’s report to members of Congress and in the White House summary. Several career diplomats, foreign service officers, and White House lawyers have also confirmed them in testimony to House committees.
Republicans do not dispute the facts but claim they do not rise to the level of impeachment.They also contend they have been left out of the process. But they serve on all three of the committees that have taken depositions and have had opportunities to ask questions and contradict assertions.
Republicans also complain that the depositions should not have been held in private. But the Nixon impeachment in 1974 included special counsel investigations into the Watergate cover-up. And the 1998 Clinton impeachment proceedings began with private grand jury hearings led by an independent counsel. So far, the process is almost the same as these two most recent predecessors.
With the passage of an October 31 House resolution, open public hearings will begin in mid-November in the House Intelligence Committee, which consists of 13 Democrats and nine Republicans. If the committee issues a report, the proceedings move to the Judiciary Committee with 24 Democrats and 17 Republicans. The president and his lawyers then will have the opportunity to ask questions, review evidence and testimony, and to bring in their own witnesses and information. The committee may or may not then develop articles of impeachment.
The Constitution states that presidents may be removed from office should they be found to have committed “treason, bribery, or other high crimes and misdemeanors.” Treason and bribery in law have clear meaning.But the phrase “high crimes and misdemeanors” is not self-defining. As a lawyer trained in British law, Hamilton knew what it meant. Impeachment was practiced against the king’s ministers, though not the king himself, until parliamentary sovereignty developed at the end of the 17th century. In Federalist 65, Hamilton wrote that impeachment results from “misconduct,” or, “in other words, from the abuse or violation of some public trust.” In short, the abuse of power.
The Constitution empowers the House to begin the impeachment process. In this way, the House acts like a grand jury when prosecutors, without defense counsel present, ask jurors whether sufficient evidence exists to go to trial. If the House affirms one or more articles of impeachment by a simple House majority, the process moves to the Senate. For the Senate to convict (that is, remove) a president from office, two-thirds must vote to approve at least one of the articles.
Hamilton believed that presidents must possess great power. He had in mind a virtuous president who worked selflessly on behalf of the people. As he wrote in Federalist 70, there is “a high probability” that presidents will be known as “pre-eminent for ability and virtue.” He knew, however, that things could go awry, which is why he favored impeachment for presidents engaged in the abuse of power.
As of now, the House is only inquiring into whether President Trump abused power in his request to President Zelensky. Some representatives want to add obstruction of Congress because the president claims that absolute executive privilege empowers him to withhold documents and to prohibit administration officials from testifying. In 1974, the Supreme Court rejected this argument when Richard Nixon asserted it during his impeachment.
Others want to include the president’s 10 instances of obstruction of justice that Robert S. Mueller III, the special counsel in the Russia investigation, laid out in his final report last spring.
Some think that President Trump has violated yet another, somewhat obscure, provision of the Constitution, the emoluments clause, which prohibits presidents from receiving gifts or money, beyond his salary, from foreign powers or domestic sources. They charge that he has enriched himself because his hotel near the White House and golf courses have hosted several foreign and domestic visitors seeking influence.
While the facts of the call are indisputable, we are in a daily wait-and-see mode as events unfold. Then again, the House may decide that the president’s request to Ukraine to investigate Joe Biden does not rise to a high crime and misdemeanor and deserves censure, not impeachment.
Jack Fruchtman, a seasonal Aquinnah resident, will address presidential power and the impeachment inquiry at the Martha’s Vineyard Museum on Tuesday, Nov. 12 at 6 pm.