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Judicial review of Democrats’ impeachment process needed

By BOB MARTIN

Contributing columnist

I have endured four presidential crises in my life, if you include President Kennedy’s assassination.

Kennedy’s assassination was the end of innocence for a young college student. As a student of history, I knew this had happened before; but I assumed we were beyond all that in 1962. The Robert Kennedy and the MLK assassinations in 1968 were equally disillusioning.

Thankfully, President Nixon resigned before he was impeached, after a congressional delegation of GOP members told him he would most certainly be convicted by the Senate. It was the cover-up that doomed him.

Again, the cover-up proved to be the most damaging in the bipartisan Clinton impeachment, although the Senate acquitted him in a bipartisan vote. President Clinton’s impeachment was a more political act than the Nixon impeachment, since infidelity was a common failing among presidents. Although, Clinton is an enthusiastic aficionado of infidelity.

The impeachment of President Trump creates a dangerous precedent for any future impeachments. Let this version of presidential impeachment be the “Pelosi/Shiff” model. The founders feared direct democracy, which is the proximate historical cause of democracy’s failure. Hence, the founders chose a constitutional republic, where power is shared by three separate but equal institutions: the administration, congress and the judiciary. 

The division of power checks the totalitarian impulses of any branch of government; political clashes between the branches are to be expected. Indeed, conflict is how the “separate, but equal” branches are maintained. The power of the House to impeach is checked by the exclusive power of the Senate to try the case. Improper behavior is to be adjudicated by the judiciary.

The constitutional issues raised by the Pelosi/Shiff model are: Does the President have the right to “due process?” Does the “burden of proof” rest on those who would bring the charges? Do we presume the president is innocent in an impeachment? Do House minority members have the right to cross-examine witnesses and to call their own witnesses? Does the president have the right to representation during discovery? Can the president’s attorneys cross-examine his/her accusers? And do all impeachments require bipartisan support — if so, how much support? 

The Pelosi/Shiff model is designed to minimize bipartisan support. Some argue it was aimed at the Republican majority in the Senate. If the Republican majority voted against conviction, the Democrats thought the voters would punish them in the election. On the other hand, suppose voters are opposed to impeachment after more than three years of “Russia-gate?” The people who brought us Russia-gate also brought us Ukraine-gate.     

In order to understand why this is such a dangerous precedent, suppose the president’s opposition has majorities in both the House and the Senate? This is not unlikely, since voters seem to like divided government. Under this scenario, presidents would serve at the pleasure of the political opposition. Any action that offends Congress leads to impeachment. Separate but equal would be violated and the constitutional structure would be undermined. The executive branch would be subordinate to Congress and the republic would be gone.

It would be imprudent to allow the precedent established by Pelosi/Shiff to stand. But, how should it be overturned?

One answer is to have the Supreme Court rule on the constitutionality of the process by which the House derived the charges and how the trial was conducted in the Senate.

If the Supreme Court found constitutional problems with this episode, it could instruct the House and Senate to adopt impeachment procedures that will pass constitutional muster. I desire never to see this happen again, regardless who holds the presidency.

 

Bob Martin is emeritus Boles Professor of Economics at Centre College.