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Published On: Thu, Dec 26th, 2019

Impeachment: A partisan futility

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– IMPEACHMENT – image with words associated with the topic IMPEACHMENT, word cloud, cube, letter, image, illustration

THURSDAY Column with Mohammed Adamu

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“Our founding fathers created a system of government of men, not of angels”. Richard Gephardt, House Minority Leader, on Clinton’s impeachment trial.
By Mohammed Adamu

Trump said, in reaction to his impeachment by the House, “they have cheapened the impeachment process”. But I say the impeachment process in the United States and, largely too, in most presidential democracies, has always been cheapened by the fact that partisanship inevitably has to be at the core of whether a president elected by many should be removed by a few. Donald Trump’s impeachment proves once again the unavoidably partisan nature of this democratic measure in a multi-party democracy; or rather, its futility especially in a presidential system of government. An American statesman, Alexander Hamilton, as far back as 1788 had warned of the “danger that the decision (to impeach) will be regulated more by the comparative strength of parties (in parliament), than by the real demonstration of innocence (or guilt)”. And this would come to pass in 1868 with the first impeachment of America’s 17th President, Republican Andrew Johnson, allegedly for undermining congress. Just as partisan considerations too were at the root of the impeachment against the 37th President, Richard Nixon, in 1947, following the Watergate scandal. As it was also, in 1999, against the 42nd President, Bill Clinton, on account of an amorous relationship dubbed ‘Monicagate’ involving the President and a 22-year White House intern. And now 151 years after Andrew Johnson, Alexander Hamilton’s prediction of the inevitable role of partisanship in dealing with presidential indiscretion, is coming to pass once again, with the enfant terrible of a Donald Trump. Partisan consideration in impeachment proceedings, at last, has become a bitch not even the bastion of democracy –America- is able to whip democratic sense into.
Democratic President Andrew Johnson fought a partisan, dictatorship-bound Republican Congress bent on usurping his powers as President. It was a constitutional crisis defined by two opposing positions on how to deal with a post Civil War America’s ‘South’ on the issues of ‘reconstruction’ and ‘reintegration’. Radical Republicans wanted ‘treacherous’ leaders of the Southern confederates punished, but President Johnson was obsessed instead with the task of Reconstruction and Reconciliation bequeathed to him by Lincoln. A nasty period of executive vetoes and congressional overrides would ensue, with Capitol eventually arm twisting the President to enact laws usurping his command of the Army while arrogating congressional right to share in the President’s power of ‘hire and fire’. Johnson would defy these laws with the unilateral firing his parliament-loyal Secretary of War, Stanton, setting off a string of executive-legislature feud, leading to the first impeachment proceedings in the United States. The Senate prepared 12 articles of impeachment, 10 on violation of the laws which had purported to usurp his powers over the bureaucracy and the Army, while the 11th accused him of “attempting to undermine Congress”. Yet, although the impeachment was carried through in the House, Johnson narrowly survived the Senate conviction vote. And so, Johnson’s case, even as it was America’s first, it was also the earliest to reveal the character of ‘impeachment’ as inextricably a ‘political’ and a ‘legal’ issue.
Of the 3 articles of impeachment prepared against Nixon, the charges of ‘obstruction of justice’ and ‘abuse of power’ (in a manner violating the constitutional rights of citizens) were key. And whereas Nixon had preemptively resigned to avoid impeachment, Clinton, ironically, survived –also at the Senate trial- even though in addition to of ‘obstruction of justice’ and ‘abuse of power’ he was also charged for ‘witness tempering’, ‘lying under oath’ (or perjury) and ‘concealing an indecent sexual relationship’. Yet, said Robert Dallek “The impeachment proceedings against Clinton were highly politicized, with almost all Democrats supporting the President and almost all Republicans opposing him”. The Democrats had argued that “lying about sex” was a private matter “and not an abuse of governmental authority”. But the Republicans had insisted that Clinton had not only “violated the law” but that by “misleading the American public, he had in fact undermined the integrity of his office”.
Impeachment in a ‘presidential system’ is the equivalence of a ‘no-confidence vote’ in a ‘parliamentary system. And whereas in the U.S. it is initiated by the ‘House’ and closed with a conviction vote, by the ‘Senate’, in the UK it is commenced by the ‘Commons’, and via a trial, sealed by the House of Lords. But although the Americans had borrowed the concept from the British, the latter retains it more as a ‘keep-sake’ relic than a remedial living law. It remains, in the US, an albatross of the ‘presidential system’, looming always like the Sword of Damocles, but often ending as a harmless ‘scarecrow’. The U.S. Constitution says the President can be removed from office for treason, bribery or other ‘high Crimes and Misdemeanors’ –alluding at once to ‘serious’, ‘major’ or even ‘minor’ offences like libel or assault, which are less serious than ‘felonies’, (like ‘murder’ or ‘rape’), but which too, are less serious than ‘treason’ or ‘sedition’. Why the framers of the American Constitution chose the term ‘high’ rather than ‘major’ or ‘serious crimes’, has been subject of debate since Andrew Johnson. Many wonder what offences will constitute ‘high crimes’ since it appears the Constitution distinguishes ‘high crimes’ from ‘minor’, ‘major’ or ‘serious’ ones. Others have wondered whether the ‘high’ in ‘high crimes and misdemeanors’ also modifies ‘misdemeanor’, to suggest ‘high crimes’ as well as ‘high misdemeanors’. And with Trump, the debate still rages whether ‘high crimes and misdemeanors’ should be ‘limited to acts which would be indictable as criminal offences’ or they should include ‘abuses of office or breaches of trust not constituting criminal acts’. The dilemma being: ‘whether an offence must be ‘criminal’ to be ‘impeachable’ or that certain non-criminal offences may also be impeachable.
At Nixon’s trial many canvassed the ‘narrow’ view that the grounds for impeachment should be restricted to violation of the criminal code, while others said it should extend to certain non-criminal, political or ‘administrative’ offences. But concerning ‘mal-administrative’ wrongs many constitutional experts feared that if Congress were to be guided by such a general term, “the power of impeachment would be used too frequently”. And it was the reason ‘high crimes and misdemeanors’ was preferred to the vaguer term ‘mal-administration’. An independent White House report said “only criminal offences which are found in the Constitution or laws of the United States and which are of a serious and public or governmental nature” should be grounds for impeachment. It argued that “impeachment and criminal law serve fundamentally different purposes”, and that the former (impeachment) “is remedial not penal and may be based on an entire course of action rather than individual (criminal) acts”. Meaning, whereas criminal law is obligated to punish every crime committed, it is the consistency in the ‘breach’ of an article of impeachment and not just the ‘unlawfulness’ of the breach that may justify impeachment. But the report of the House Judiciary Committee, argued that ‘impeachment’ should “be addressed to serious offences (criminal or otherwise) against the system of government” with a view (only) to preventing conducts capable of subverting its structure or undermining the integrity of its institutions.
Alexander Hamilton described the subject of impeachment as “those offences which proceed from the misconduct of public men, or…from the abuse or violation of some public trust”. They are, he said “of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society”. Thus it is not just about misconduct which exceeds ‘the constitutional bounds of the powers of the office in derogation of the powers of another branch of the government, like Andrew Johnson’s; or about conduct ‘incompatible with the proper function and purpose of the office, but it is about ‘employing the power of the office’ for an improper purpose or for personal gain’. As Nixon and Trump did. It is about the DELIBERATE conduct of the President which brings harm to the system, people or country as a whole. It is the reason they say that unlike in normal judicial circumstances, “past impeachments are not precedents to be read with an eye for an article of impeachment identical to allegations that may be currently under consideration”. Whereas some say that the framers of the American Constitution wanted to avoid creating “too weak” an executive arm, others believed they were rather avoiding the creating of “too strong a legislature”. Impeachment it said “was intended to provide a check on the President… but not to make him dependent on the unbridled will of the Congress”.
But, since in most presidential democracies presidents are allowed immunity against prosecution, shouldn’t we -except where they have become manifestly infirm of body and of mind- simply allow them, until the next election, to be removed or re-installed by those who elected in the first place, rather than allow them partisanly to be removed by a few that may not have elected them? Or do we not say that the definition of democracy includes even the right to elect the wrong candidate?

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