In order to understand the current state of government under the Trump administration, retired professor Jack Fruchtman says it is essential to understand past presidencies.
Fruchtman, a seasonal resident of Aquinnah and a retired professor of political science and constitutional law at Towson University in Maryland, spoke to a sizable audience at the Martha’s Vineyard Museum Tuesday. His talk came on the eve of public impeachment hearings before the House Intelligence Committee.
He spoke in-depth about the process of impeachment in the historical context of presidential power. “Who are we and how we got here is one of the most important aspects of this [impeachment] inquiry,” Fruchtman said.
Fruchtman, a frequent contributor to The Times, stressed that impeachment should be considered a last-resort political process that is entirely separate from a criminal process.
“This is a very grave and consequential action that Congress is taking; it is not something that should be taken lightly,” Fruchtman said. “Removing an elected official from office is a slap in the face of democracy.”
But Fruchtman reminded the room that our country is not a full-fledged democracy in the classical sense of the word. “We are not a democracy. The closest thing we have to a democracy is our town meetings in New England, where we come together and vote on issues directly,” Fruchtman explained.
Instead, Fruchtman said, the country is run as a republic, where elected representatives make laws on the people’s behalf. He said the public has “hope, trust, and faith that their [elected officials’] decisions will best represent the people.”
“When this idea was being designed, it was kings, lords, and commons — things have changed since then,” Fruchtman said.
One difference between our current political system and that of the constitutional framers, according to Fruchtman, is Article III of the Constitution, which establishes an independent judiciary system.
“Our courts are not the king’s courts, or at least they are not supposed to be,” Fruchtman said.
Fruchtman also mentioned the doctrine of the separation of powers, or the system of checks and balances. He said this doctrine is supposed to create three separate and distinct branches of government.
The original process through which laws are supposed to be created can become flawed or backed up, and that this can be seen currently in the relationship between the House and the Senate, he said. “Mitch McConnell has hundreds of bills on his desk that Democrats in the House have put forward that he said he won’t accept because the president won’t sign them,” Fruchtman said. “That’s not how this process is supposed to work.”
Fruchtman went back three presidents, starting with George W. Bush, and explained the evolution of presidential power through the doctrine of the unitary executive. He said the current definition of the doctrine is that in certain areas of government, a sitting president is not subject to oversight by the courts or by Congress, especially in the areas of national security and foreign policy. “Under this doctrine, the president acts alone.” Fruchtman said.
Fruchtman explained how presidents have used this doctrine to accomplish various objectives of their administration that might be considered unlawful.
“In the Bush administration, he used the state-secrets privileges when relatives of Guantanamo Bay wanted to sue for things that had happened there. Their court cases didn’t go anywhere,” Fruchtman said.
He also mentioned the torture memos, and warrantless wiretaps used by intelligence agencies.
When Obama ran for president, he claimed that Bush’s actions were immoral, unlawful, and unconstitutional.
“Obama promised that this was not going to happen under his administration. Then he became president,” Fruchtman said. “There is something in the air in that White House. There are certain things that cause presidents to rely on that same doctrine.”
Unrestricted drone strikes are one example Fruchtman gave of the Obama administration utilizing the continually growing powers of the presidential office.
“Presidential power has grown tremendously since guys like Washington and Lincoln were in office. That is the context in which president Donald Trump is operating,” Fruchtman said.
According to Fruchtman, the reason Trump has been able to act so freely during his term is because “Congress has failed to act.”
“If Congress doesn’t check the president, then he has free rein, and the constructed system fails,” Fruchtman said.
Toward the end of the presentation, Fruchtman asked the room whether trying to impeach is a “fool’s errand.”
“Because the process has started, I believe there will probably be a partisan impeachment,” Fruchtman said. “What happens in the Senate will be an acquittal.”
If the Senate does vote by a two-thirds majority to impeach the president, Fruchtman said, removal from office is still not a given, and Trump may be able to run for public office again.
“Unless the Senate says at the time of removal that this person is disqualified from running again, Trump could be removed and then run for the 2020 office,” Fruchtman said.
Fruchtman ended with the current situation surrounding the phone call between Trump and Ukrainian President Volodymyr Zelenskiy.
“Was the president asking Zelenskiy to find dirt on a political rival? Was he also telling him, ‘You won’t get any military aid if you don’t do this?’” Fruchtman asked.
He said engaging a foreign power to intervene in an election is considered treason, but asked whether that is enough to move forward with impeachment proceedings. “So you decide, are we embarking on a fool’s errand? Are we wasting our time with these inquiries? Maybe censure is a better option,” Fruchtman said.
According to Fruchtman, governmental censure would publicly reprimand the president through a formal statement of disapproval.
“This would tell the president, ‘You have done something very wrong, you’re naughty,” Fruchtman said. “Trust me, he wouldn’t like that.”
Someone in the audience asked why bribery is not being considered as grounds for impeachment.
“It certainly is one of the grounds being looked at,” Fruchtman said. “Federal election law prohibits receiving something of value in exchange for something else.”
He said that is one possible avenue for the House to take, but insisted that any articles of impeachment will be difficult to push through the Senate, no matter what they focus on.
“I suspect we won’t see Trump in jail. I think if he is impeached, most people will just move on,” Fruchtman said.