Swamp Gas Hobbling President Trump: Will the House Do Its Duty?
In a system of law based on the presumption of innocence, and designed to protect the unalienable rights of individuals, what sense does it make for the prospective jury to oversee the criminal investigation that precedes indictment? The understanding of justice that is supposed to prevail in the United States requires jurors capable of considering contested cases without prejudice. But if they oversee the investigation on which an indictment is based, will they impartially consider arguments made against it?
In the event the President of the United States is impeached for “high crimes and misdemeanors” the members of the U.S. Senate will be jurors in the trial of his guilt or innocence. Every day we read stories in the media suggesting that charges like obstruction of justice and collusion with Russia’s subversion of our electoral process are being investigated in respect of President Trump and his present or former personal and campaign associates. The U.S. Senate Intelligence Committee is taking the lead in examining those charges. But this role for the U.S. Senate directly violates the plain language of the U.S. Constitution. In matters that may lead to impeachment, the Constitution leaves it to the U.S. House of Representatives to draw up and approve any bill of impeachment.
Some members of the House are therefore called upon to play the role that falls to prosecuting Attorneys in our judicial system. Members of the House at large are called to bear the responsibility of the Grand Jurors, whose duty it is to decide whether charges should be brought. To allow the U.S. Senate to usurp this role, is plainly prejudicial to the likelihood of a fair.
My readers know that I am not simply a Trump believer. But I do believe in the prudential wisdom of the Founders of the United States. They knew that public passion would inevitably be roused and engaged, on one side and the other, whenever the conduct of the President and other such high officials was being scrutinized. They were wise enough to understand that such passion, even if ultimately unwarranted, cannot be cavalierly disregarded under a Constitution that respects people’s right to govern themselves. Rightly jealous of the security of their self-government, people are also right to demand accountability when it appears to be under attack.
But precisely because they were sincere friends of liberty, the Founders knew better than to disregard what they saw as the lessons of human experience. In every republic that made provision for the sovereignty of the people, it was commonplace for designing would-be tyrants to play on their passions in order to corrupt and eventually usurp their self-government. Often this involved playing up accusations against leaders whose sincere support for public liberty led them to advocate and, in office, undertake, measures vital to the survival of self-government, but unpopular with a significant minority, or even majority, of the people.
What Madison called “the scheme of representation” aimed to assure that a) the sentiments of the people would not habitually simply be insulted by neglect or forceful repression; and that b) any actions taken against officials of the Constitutional government, would be the result of deliberate judgment, in light of facts and circumstances diligently ascertained. This due diligence serves to discipline even righteous passions, so that individuals will be justly treated. But it also aims to preserve the good reputation of self-government, which is an aspect of the common good of the people as a whole.
People willing to take the events of his rise to the Presidency at face value see President Trump’s situation as a classic case of in which an elitist clique seeks to discredit and even remove from power one of their own who has turned against their ruthless manipulation and betrayal of the people’s confidence. Such believers see President Trump as the victim of a malign conspiracy. It includes leaders elements in both the so-called “major” political Parties, as well as others from the permanent civil service bureaucracy.
In view of such possible collusion among such elitist elements in government, the Founders decided to put the “people’s House” in the lead when it comes to accusing the President and other such high officials of wrongdoing. The Constitution thus gives the members of Congress who most directly represent grassroots voters responsible for developing the case against incumbent officials, if there is one. If passions run high, their diligence should assure against ignorance or unreason that might embarrass and demoralize their constituents. If grave malfeasance has occurred, unbeknownst to most people at large, their duty is to make sure the truth comes out, so that the people at large have the information they need to mobilize in defense of their self-government.
Either way, it makes Constitutional sense for the House to take the lead in any investigations that might lead to impeachment. An article I read recently offers a concrete example of why this is so. It reports that Senator Joe Manchin, D-West Virginia, (commenting on prospective testimony by former FBI Director Comey,) “said he believe Trump would be wrong to invoke executive privilege to block Comey’s testimony, but said during the CBS interview that he had not heard that the president might take that action.” The President’s power to shield people from Congressional action for contempt is a logical corollary of his pardoning power, a power the Constitution vests, with no restriction, “except in cases of impeachment.” With impeachment in question, any actual or implied use of that power would be a deeply suspect violation of the Supreme Law of the Land. The President might justifiably be impeached and removed from office for that alone.
But this exception to the pardoning power only comes into play once the House of Representatives undertakes impeachment proceedings. Otherwise, the President may, with Constitutional impunity, excuse members of his executive body from contempt of Congress or any other “offenses against the United States.” In present circumstances, however, Trump believers ought to be more concerned about the fact that the elected champion of the people is being weakened by continual accusations based on supposed investigations by officials who are themselves to be suspected of deeply prejudicial hostility toward him, and the voters who elected him.
The Constitution’s provisions make it possible, indeed obligatory, for the people’s House to move expeditiously to clear the air of these charges, one way or the other. Any investigations conducted to do so should be under the supervision of the House. Is the present House leadership shirking this Constitutional duty? If they are, Trump believers should ask whether their dereliction is a sign of the fact that Trump is being purposely deprived of the fair treatment the Constitution requires. Is the aim to hobble his ability to follow through on the electoral mandate he earned in the Presidential election? The people’s House should act to defend the people’s mandate for remedial change. Instead they are allowing poisonous accusations, including even the high crime of treason, to clog the atmosphere in the District of Columbia. This gives the impression that Washington’s swamp rats are winning again, no matter the will of the people of the United States.
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