IMPEACH!?

For the fourth time in our history, Congress is actively pursuing impeaching a president. The act itself is historically rare. However, the process is decidedly political. After all, to charge  and convict a president for "treason, bribery, or other high crimes and misdemeanors," is predominantly a political charge, ambiguous, and not generally codified in any legal manual. In many ways, it describes what Congress decides it means. It is, therefore, no coincidence that none of the parties involved will, at least initially, seem able to agree on the substance  of what is being charged. At every level of the process political opponents strategize on either offense or defense, even if they profess publicly to being open to absorbing facts as they come out, to protect their power position in the legislature.

Regardless of which side the parties are on, charges and counter charges have not really varied much throughout our history. While the scope of alleged offenses may remain relatively narrow, partisan defenses have tended to expand well beyond its parameters. To develop a perspective, it may be interesting to review some of the speeches that have surrounded these historic events.

President Andrew Johnson's impeachment trial (1868) was perhaps the most notorious one our country endured. Johnson, appointed by President Lincoln as his Vice President to help form a unity government, was charged with violating the Tenure of Office Act, past by Congress to protect Edwin M. Stanton, who was Secretary of War, by removing the Secretary from office. The House of Representatives, subsequently, passed 11 articles of impeachment to be adjudicated by the Senate, which missed removing the resident from office by a single vote, short of the 2/3 majority needed to do this. The one vote blocking his removal came from Senator James Grimes of Iowa, a Republican, who stated: "I cannot agree to destroy the harmonious working of the Constitution for the sake of getting rid of an Unacceptable President."

President Richard Nixon's impeachment inquiry, which was never completed because the president resigned from office, focused almost exclusively on "the Watergate scandal." The House Judiciary Committee voted to begin the impeachment process on October 30, 1973. This vote passed by a 21-17 party-line majority, all Democrats in favor and all Republicans opposed. Some of the most memorable speeches during this very public inquiry came from Representative Barbara Jordan (D-Texas) and Representative Charles Wiggins (R-Cal) and Charles Sandman (R-New Jersey). Congresswoman Jordan, in a memorable 15 minute speech before the Judiciary Committee, eloquently, yet subtly, indicted President Nixon by quoting James Madison: "A president is impeachable  if he attempts to subvert the Constitution." The Republican defense at the time charged that no specific piece of evidence linked Nixon to any criminal act. A similar defense is currently being used during the inquiry targeting President Trump.

The impeachment of President Clinton focused on two charges, perjury and obstruction of justice. House Judiciary Committee Chairman Henry Hyde made clear what was at stake: "After months of argument, hours of debate, there is no need for further complexity. The Question before the House is rather simple. It's not a question of sex. Sexual misconduct and adultery are private acts and are none of Congress' business. It's not even a question of lying about sex. The matter before the House is a question of lying under oath. This is a public act." "The issue is perjury - lying under oath." President Trump has denied affairs with Stormy Daniels and Karen McDougal, even though both have been paid off to stay quiet. The difference may be that his denials have thus far not been issued under oath.

This leaves one more issue that continues to surface - the question whether alleged infractions need to be criminal to make them impeachable. Alexander Hamilton, in Federalist No. 65, said the following: Impeachable offenses "are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." They involve "the misconduct of public men, or, in other words, from the abuse or violation of some public trust." The charge against Donald Trump is that during interactions with the president of Ukraine he abused his power by using taxpayer dollars as a tool to extract information potentially damaging to a political rival. A few attorneys have alleged that the relevant criminal statute  to use in adjudicating this behavior is the "Hobbs Act," which was enacted in 1946 to cover "extortion under color of official right," but which during the mid 1970s assumed a role as an "ethics in government statute," to be used when public officials solicit bribes.

Even so, Representative - now Senator - Lindsey Graham (R-SC), during President Clinton's impeachment, memorably explained: "You don't even have to be convicted of a crime to lose your job in this constitutional republic, if this body determines that your conduct as a public official is clearly out of bounds in your role. Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office."

Soon this sentiment could come back to haunt him. We are all watching history in the making.