by Robert Romano
“House Democrats settled on two flimsy Articles of Impeachment that allege no crime or violation of law whatsoever—much less ‘high Crimes and Misdemeanors,’ as required by the Constitution… [T]he terminology of “high Crimes and Misdemeanors” makes clear that an impeachable offense must be a violation of established law. The Impeachment Clause did not confer upon Congress a roving license to make up new standards of conduct for government officials and to permit removal from office merely on a conclusion that conduct was ‘bad’ if there was not an existing law that it violated.”
That is part of the defendant’s brief for President Donald Trump for his impeachment trial in the Senate, noting the fact that the two articles of impeachment against the President — abuse of power and obstruction of Congress — are not criminal violations under either federal or state criminal codes, nor are they bribery or treason.
Yet, Article II, Section 4 of the Federal Constitution says that the President can only be removed for a crime: “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 fact, the Framers anticipated that a President, upon removal, would then be subject to prosecution for the crimes that he was removed from office for, under Article I, Section 3 of the Constitution, “the convicted party shall… be liable and subject to indictment, trial, judgment, and punishment, according to the law.”
This is further underscored in the Federalist No. 69 by Alexander Hamilton noting that Presidents can only be removed for crimes, “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
Having failed that most basic obligation to charge the President with a crime in order to have him removed, House Democrats should not be surprised that they face an uphill battle in the Republican-controlled Senate, which is already skeptical of the charges that allege President Trump abused his power when he temporarily paused military assistance to Ukraine while he considered requesting a rescission of the funding from Congress, namely because the President has the power to consider and request such a rescission, and that otherwise, under Article II, the President is in charge of foreign policy.
Under 2 U.S.C. Section 684 or 2 U.S.C. Section 683, the Impoundment Control Act, the President has the power to propose deferring funds on a temporary basis or rescinding them altogether, subject to Congressional approval.
There is also the Office of Management and Budget’s authority under 31 U.S.C. 1512 to conduct apportionments, which the White House cited as authority for the three-day spending freeze of foreign aid in August in its letter to the Department of State and USAID. The letter stated, “All previously apportioned unobligated resources in the [Treasury Appropriation Fund Symbols] shall be unavailable for obligation until three business days after the Office of Management and Budget receives an accounting from your agencies of the current outstanding unobligated resources…”
By Sept. 11, the reviews were completed by State and Defense, and the funds were released.
On the broad constitutional question of administering foreign policy, if the President believed that the military assistance to Ukraine risked a wider regional war or a global one involving the U.S. and Russia he did not wish to provoke — a real possibility as Moscow backs Ukrainian separatists in Crimea and other eastern provinces — he would be wise to consult with his Cabinet, Ukrainian and even Russian leaders first to ensure that such funding does not serve as a spark for a larger powder keg.
Or, in the case of the new administration in Ukraine — one of the most corrupt governments in the world — under President Volodymyr Zelensky, to ascertain if leaders in Ukraine are simply too corrupt to give funds to.
Not only are these considerations not crimes, they are things the President expressly has the power to do under Article II of the Constitution’s sole vesting of executive power in the President. Whether they were good ideas or not, or why they were being considered, is not relevant to the constitutional discharge of the President’s duties.
Which is why a crime is needed in order for a President to be removed from office. Without one, an impeachment cannot be held to be valid, and therefore, once the House and the President’s legal teams have had the opportunity to present their cases, the Senate should move for a swift dismissal of the charges and acquittal.
– – –
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
Photo “Nancy Pelosi” by Gage Skidmore. CC BY-SA 2.0.
The idiocy exhibited here is overwhelming. Trump, over many months, said to Velensky “announce an investigation into the Biden’s and you’ll get your military aid to fight the Russians”. This was only to benefit his re-election campaign. He got caught and is now impeached. Simple. Like an episode of matlock for you morons.
Unlike NFL fans, we the people are being forced to fund the clown show going on in the U.S. Senate. Think of the $millions being spent to finance this clown show. We have no choice. If we turn off the TV, the show still goes on. The corrupt MSM gets funds and advertising revenues from the NFL, gate receipts, and advertisers to cover the games.
Who pays them to cover the clown show? Is there anyway taxpayers can claim a tax exemption because we do not support or watch the show?
The Dems like to compare the show to a real trial. It used to be, in real trials, the loser (plaintiff or defendant) has to pay court costs. Will the Dems shoulder the cost if they lose in this “trial”?
They picked the wrong issues to impeach Trump on. Instead of wasting time on Russiagate, Ukraine, North Korea, China, etc., the Democrats should have chosen bigger things to impeach Trump on like inciting racial mob violence, threatening our civil liberties, and other issues that the average American can identify with. But, oh no. Nancy Pelosi and Upchuck Schumer chose very narrow issues in which to “out-right wing” Trump on. Many prominent leftists such as Chris Hedges have bitterly opposed the way Pelosi and Company have handled this impeachment issue. Hedges and fellow progressives fear that this particular impeachment proceeding could end up making Trump look like a martyr instead of a villain. That’s the very last thing that progressives need!
These hearings are more and more like NFL Football: they pre-empt other television and radio programs during the evening on the public broadcasting networks.
This impeachment is nothing more than adult children (Democrats) who have a small amount of power pitching a fit for something that the want (more power) that they cannot get. They fall down on the floor and cry and scream and roll around and kick and they still cannot get what they want. And then they stand up and start cussing and hitting and foaming at the mouth. And still cannot get what they want. It is called TDS (Trump Derangement Syndrome). Very unattractive in a child and disgustingly undisciplined in an adult. The voters in their Districts need to bring these adult children home and send statesmen to Washington, DC.
This is the icing on the cake for the reelection of President Trump. I pray that after he is reelected the investigation of the previous administration’s attempt at winning the election through obviously illegal activities, and the intimidation of the Ukrainian government by ex VP Biden will take place. The Democratic party has sunk to a new low. Their illegal activities are beyond belief!