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High Crimes and Misdemeanors

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Well, it’s not yet the beginning of the end, but it sure as hell is the end of the beginning.

Trump is on the road, kept so busy that he’s not been tweeting at 4 AM, what with his circadian rhythms all skewed. So far he’s snuggled up to Saudi royals with the message that he won’t “meddle” over human rights—while Saudi women are legally kept permanent minors, prisoners are beheaded in public, and rape survivors accused of “adultery” are flogged and stoned to death. Boasting about a $100 million donation to Ivanka’s “foundation” for “women’s entrepreneurship development” might be less ironic if women in Saudi Arabia were allowed to vote, or drive to school or work, or to be entrepreneurs without the written permission of their male “guardians,” who also will sign off on every one of their entrepreneurship documents. Nor is $100 million much—chump change when compared to the $110 billion deal Trump made with the Saudis for munitions. The claimed purpose was threefold: to create jobs in the U.S. (which it won’t, given factory mechanization); so the Saudis can fight Iran (where they just held an actual election and voted a moderate back in); and so the Saudis can fight terrorism (which originated in and is still funded largely by Saudi Arabia, and is fostered worldwide through the kingdom’s Wahabist teachings).

Ho hum, then Trump’s off to Israel, where Netanyahu can welcome his fellow right- winger all he likes but the secret intelligence service Mossad is livid at Trump’s having disclosed their findings to the Russians, and they won’t forget that. (You really don’t want to make Mossad cranky.) Perhaps during this coming week Trump will manage to insult Pope Francis, and then beyond that loom meetings with the EU and NATO and the Group 7. So many chances to offend, so little time! Meanwhile, he continues to be as contagious as Ebola, to slime the acts and reputations of those who come near him—National Security Adviser H.R. McMaster being the latest example.

But Trump must secretly fear (as those of us who survived Watergate know), that the odds grow stronger each day he will not complete his first term, not get to use the $40 million-and-climbing cash chest already raised for his reelection campaign—at least, not use the funds for that purpose, since his greed seems to know no satiation. In a few days he’ll come home, happy to have his junk food and twitter storms again, but not so happy to face the music. The melody in this case will be played by Special Counsel Robert Mueller, appointed because of public pressure—you. Public pressure is the drumbeat.

And that’s why this is the end of the beginning. From now on, the gravity shifts. From here in, Trump is on the defensive. Nor does he control the news cycle anymore: the news does.

Pence, we now learn, knew more than he claimed, as did Sessions. Remember “all the President’s men”? They may go down with Trump, and Ivanka, Jared, the whole gang. So it’s time to begin getting in shape, exercising our constitutional memories to relearn (or learn) more about the tools bequeathed to us by the Framers.

There’s been much parsing of meaning about one specific ground for impeachment, obstruction of justice. Certainly, Trump’s refusal to provide tax information, serial lies about his own acts, on-air TV admission that he definitely had in mind ending the “Trump Russia thing” investigation when he fired Comey, and the jaw-dropping revelation (undenied!) that he told the Russian Foreign Minister and Ambassador straight out he’d fired Comey in order to “take the pressure off” the Russia investigation—all this would seem to construct a neon-glowing pattern of obstructing justice. If it turns out that there are audiotapes, as he implied, and if they’re not already destroyed, game over.

But he’s also guilty of another ground for impeachment, from Section 4 of Article Two in our Constitution: “the president, vice president, and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, bribery, or other high crimes and misdemeanors.”

Everyone thinks they know what that means. So just what does it mean?

Since 1386, the English Parliament used the term “high crimes and misdemeanors” to describe one of the grounds for impeaching officials of the crown. The Framers of our Constitution knew the phrase and its context very well, and knew that a high crime is committed to circumvent justice by someone in the unique position of power that is political in character. At the time the Constitution was written the phrase did not mean any stringent or difficult criteria for determining guilt. Just the opposite–the phrase was historically used to cover a broad range of crimes and acts. Officials accused of high crimes and misdemeanors were charged with offenses as varied as:

—Misappropriating government funds (the millions of taxpayer dollars spent on Trump’s weekend trips to Florida and on his family’s purely business trips abroad, for starters);
—Appointing unfit subordinates (Flynn, Bannon, Jared, Ivanka, Sessions, de Voss, oh good god where would I stop?);
—Threatening a grand jury (denouncing the Virginia grand jury that issued subpoenas regarding Flynn as part of a “witch-hunt” against Trump).

Other offenses included losing a ship by neglecting to moor it, a 17th-century one he hasn’t been guilty of yet, and bribery. Bribery?! Like encouraging special interests in the U.S. and abroad to patronize his hotels with the unsubtle message that this would gain special favors? Like asking for Comey’s personal loyalty with the inescapable implication that this was the price for Comey keeping his job? Like violating the emoluments clause of the Constitution (by profiting his business interests through abuse of his position)? Like—oh, way too many more to name here.

The phrase “high crimes and misdemeanors” in its original meaning is interpreted by scholars as “For whatever reason whatsoever.” James Madison said impeachment was “indispensable” to defend against “the incapacity, negligence, or perfidy of the chief magistrate,” adding that unlike a legislature, whose collective nature provided some safety, in an individual “loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the republic.” Loss of capacity? Corruption? What about both? (Don’t forget, the Framers had tried to negotiate with and finally had rebelled against King George III, who was stark raving insane.)

It was George Mason who offered the term “high crimes and misdemeanors” in place of those proposed earlier, such as “high misdemeanors” and “maladministration.” Alexander Hamilton defined the phrase as “those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

My own personal favorite is Benjamin Franklin’s definition. He deemed impeachment and removal necessary for those times when the executive simply “rendered himself obnoxious.” Bingo, Ben!

So obstruction of justice as impeachment grounds—well, sure, Trumps qualifies for that. Personally, though, I’d push for the all encompassing “high crimes and misdemeanors.”

But hallelujah, soon after Memorial Day, Comey will testify in an open Senate hearing. That hearing might make impeachment grounds for Trump irrelevant, as they might be outstripped by the charge of treason.

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