To impeach, or not to impeach, that is the question

Can Donald J. Trump survive the barrage of hostility he has provoked during two months in office?

“Since his election… Trump has defamed a great newspaper, a federal judge, and a former president. He has attacked whole institutions, pillars of American democracy. He appears willing to hold a great constitutional order hostage to his narcissism and political insecurities.”

So writes Lawrence Douglas in “President Donald Trump is the most powerful cornered animal in the world” (The Guardian, 6 March 2017).

Conduct unbecoming an officer and a gentleman is an offence subject to court martial defined in the US Uniform Code of Military Justice. As Commander-in-Chief, Trump might be accused of conduct unbecoming, but while US presidents have ultimate authority, they have no rank and retain civilian status.

A gentleman is understood to have a duty to avoid dishonest acts, displays of indecency, lawlessness, dealing unfairly, indecorum, injustice, or acts of cruelty. While Trump has revealed himself not to be a gentleman, no non-criminal charge can be brought on that count. But impeachment might work.

“The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.”

This is from Article II Section 4 of the US Constitution. Only the House of Representatives has the power to impeach, while only the Senate has the power to try an impeachment. The removal of impeached officials is automatic upon conviction in the Senate. Moreover, in Nixon v. United States (1993), the Supreme Court determined that the federal judiciary cannot review such proceedings.

The phrase “High Crimes and Misdemeanors” covers any criminal act that abuses the office. Founding Father Benjamin Franklin asserted that the power of impeachment and removal was necessary for those times when the Executive “rendered himself obnoxious”, and the Constitution should provide for the “regular punishment of the Executive when his conduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”

Former President James Madison thought the community should be defended against “the incapacity, negligence or perfidy of the chief magistrate.” With a single executive, Madison argued, unlike a legislature whose collective nature provided security, “loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.”

There is a provision in the 25th Amendment that empowers Congress to form its own body to evaluate the President’s fitness for office, eliminating the need for the Cabinet’s involvement in the process. Legally, it is a long shot and it probably requires the Vice President to sign off on the move. If Mike Pence were that ambitious, he might seize the chance since he would then become president.

In California, Richmond City Council and Alameda City Council have passed resolutions asking Congress to investigate whether to impeach President Trump. In “Trump’s Wiretap Tweets Raise Risk of Impeachment” (BlombergView, 6 March 2017), Noah Feldman, professor of constitutional and international law at Harvard University, wrote, “When President Trump accuses Obama of an act that would have been impeachable and possibly criminal, that’s something much more serious than libel. If it isn’t true or provable, it’s misconduct by the highest official of the executive branch.”

Then there are Trump’s personal and business holdings in the USA and abroad, which present unprecedented conflicts of interest. Crucially, some of these business arrangements seem to violate the US Constitution’s Foreign Emoluments Clause, intended to prevent foreign influence or corruption. Since Trump did not divest his business operations before inauguration, he seems to have been violating the Foreign Emoluments Clause from the moment he took office.

Impeachment is an admission of a gross error of judgement. But it could also be an affirmation of making America great again.



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