Townhall.com ^ | December 9, 2019
The House Judiciary Committee has issued a report claiming, essentially, that Congress is not bound by any standards of what is impeachable. Citing Justice Joseph Story, who wrote a 19th-century commentary on the Constitution, the report claims that it is impossible to establish any ācomprehensive definition of āhigh Crimes and Misdemeanorsā or a catalog of offenses that are impeachable.ā Instead, the report says, Congress must collect the facts and then consider whether impeachment is warranted.
This conclusion is not unprecedented. It tracks the conclusions of some writers on impeachment, who (as I note in one of my scholarly articles) have struggled unsuccessfully to define what impeachable offenses are.
In addition to making a muddle of what is, and isnāt, impeachable, the report claims that normal "rules of evidence . . . have no place in the impeachment process"āeither in the House or in the Senate. In other words, the politicians may make up rules of evidence as they go along.
There is a name for the committee's ālet's see what you've done then weāll make up the rulesā approach: ex post facto.
This ex post facto version of impeachment is objectionable for at least three reasons.
First, it disregards how those who adopted the Constitution understood impeachment. 18th-century legal sources tell us that impeachment may be had only for violations of āthe known and established law.ā The sources also tell us that āthe same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.ā In other words, impeachment is not a political game of hide-the-ball. It is a judicial procedure and subject to the rule of law. Standards must be fixed in advance, not invented to fit the case.
The second problem with the committeeās version is precisely that it violates the rule of law. This, in turn, opens the process to legislative abuse and undermines the Constitutionās structure. By allowing Congress to invent rules after the president has acted, the committee's approach enables Congress to bully and control the president in ways inherently inconsistent with the independent executive office the Constitution creates.
Third, the ex-post-facto approach is inconsistent with the standards that actually prevailed during the founding era: Trials for impeachment (whatever Justice Story said 40 years later) were not politics-as-usual, but scrupulously legal procedures, and had been so at least since the trial of the Earl of Strafford in 1641. People knew what the rules were: An officer was impeachable for the commission of (1) āhigh Crimesā (felonies) or for (2) what 18th-century lawyers called ābreach of trustā and what 21st-century lawyers call ābreach of fiduciary duty.ā
Admittedly, no Founder stood up during the constitutional debates and explained the standards in detail. This is an area in which, as with some other parts of the Constitution, you have to make inferences from available data. But in this case, the data are copious. They include:
* statements by leading founders,
* the offenses for which officials were impeached in the 17th and 18th centuries,
* discussions of impeachment in popular 18th-century legal sources, and
* the foundersā almost universal view that government is a public trust and that officials are subject to fiduciary duties.
The committeeās claim that āan impeachable offense is whatever we in Congress decide it isā may be convenient for the committeeās purposes. But it violates both the rule of law and the American constitutional order.
------------
What Constitution? The Demonicrats wiped their butts with ours 20 million abortions ago.
The House Judiciary Committee has issued a report claiming, essentially, that Congress is not bound by any standards of what is impeachable. Citing Justice Joseph Story, who wrote a 19th-century commentary on the Constitution, the report claims that it is impossible to establish any ācomprehensive definition of āhigh Crimes and Misdemeanorsā or a catalog of offenses that are impeachable.ā Instead, the report says, Congress must collect the facts and then consider whether impeachment is warranted.
This conclusion is not unprecedented. It tracks the conclusions of some writers on impeachment, who (as I note in one of my scholarly articles) have struggled unsuccessfully to define what impeachable offenses are.
In addition to making a muddle of what is, and isnāt, impeachable, the report claims that normal "rules of evidence . . . have no place in the impeachment process"āeither in the House or in the Senate. In other words, the politicians may make up rules of evidence as they go along.
There is a name for the committee's ālet's see what you've done then weāll make up the rulesā approach: ex post facto.
This ex post facto version of impeachment is objectionable for at least three reasons.
First, it disregards how those who adopted the Constitution understood impeachment. 18th-century legal sources tell us that impeachment may be had only for violations of āthe known and established law.ā The sources also tell us that āthe same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.ā In other words, impeachment is not a political game of hide-the-ball. It is a judicial procedure and subject to the rule of law. Standards must be fixed in advance, not invented to fit the case.
The second problem with the committeeās version is precisely that it violates the rule of law. This, in turn, opens the process to legislative abuse and undermines the Constitutionās structure. By allowing Congress to invent rules after the president has acted, the committee's approach enables Congress to bully and control the president in ways inherently inconsistent with the independent executive office the Constitution creates.
Third, the ex-post-facto approach is inconsistent with the standards that actually prevailed during the founding era: Trials for impeachment (whatever Justice Story said 40 years later) were not politics-as-usual, but scrupulously legal procedures, and had been so at least since the trial of the Earl of Strafford in 1641. People knew what the rules were: An officer was impeachable for the commission of (1) āhigh Crimesā (felonies) or for (2) what 18th-century lawyers called ābreach of trustā and what 21st-century lawyers call ābreach of fiduciary duty.ā
Admittedly, no Founder stood up during the constitutional debates and explained the standards in detail. This is an area in which, as with some other parts of the Constitution, you have to make inferences from available data. But in this case, the data are copious. They include:
* statements by leading founders,
* the offenses for which officials were impeached in the 17th and 18th centuries,
* discussions of impeachment in popular 18th-century legal sources, and
* the foundersā almost universal view that government is a public trust and that officials are subject to fiduciary duties.
The committeeās claim that āan impeachable offense is whatever we in Congress decide it isā may be convenient for the committeeās purposes. But it violates both the rule of law and the American constitutional order.
------------
What Constitution? The Demonicrats wiped their butts with ours 20 million abortions ago.
