To Impeach or Not Isn’t the Question, But Safeguarding the Constitution Is (Part 1)

On Wednesday, Special Counsel Robert Mueller closed the investigation he had led since 2017. Though there’s 15 ongoing investigations about the 2016 general election and Donald Trump, which some say will continue to expose Russian interference, witness tampering, abuse of power, and a culture of corruption, what he said is sure to be as divisive as the Mueller Report itself.

According to Mueller, his team never considered charging the president with a crime. This, since the Department of Justice had already set guidelines stating the president could not be indicted. Adding that only Congress has the power to begin impeachment hearings, he therefore left the responsibility for holding the president accountable with this government body.

“The Constitution required a process other than the criminal justice system to formally accuse a sitting president of wrongdoing,” said Mueller. Whether the president’s behavior toward the investigation is warranted for such a process is up to Congress. As for conspiring with Russia’s military intelligence operation to disrupt the U.S. election, which it did, it was not so cut and dry.

Mueller ended his statement by emphasizing that once again, “Charging the president with a crime was not an option we could consider.” The special counsel also made clear that his report should not then be seen as an exoneration of the president. If so, according to Mueller, he would have completely exonerated the president. Consequently, and given all the evidence, it was something his counsel did not do nor could do.

To Impeach or Not Too Impeach
When the Founding Fathers wrote, “We, the people of the United States, in order to form a more perfect union, establish justice,” and “… ensure domestic tranquility,” they probably hadn’t considered someone like Donald Trump becoming President. Nor did they envision just how corrupt the original intent of the Constitution might someday become. Or did they?

Indeed, anyone who’s familiar with American history can see a bit of John Adam’s authoritarian nature and Andrew Jackson’s disregard for the principle of checks-and-balances in Trump. The same goes for Andrew Johnson’s racist tendencies, Richard Nixon’s indifference to civil liberties and rule of law, or Bill Clinton’s repeated womanizing and unwanted sexual advances.

But even this is a matter of interpretation - and opinion. Those who think Trump committed crimes, as the Mueller Report and ongoing investigations suggest, believe he must be impeached to safeguard the Constitution and prevent more corruption. Others say charges of impeachment would be nothing more than a “Witch hunt,” a Deep State conspiracy to remove him from office.

Either way, the Constitution is clear that Congress has the power to protect it through oversight and the principle of checks-and-balances. This includes the power to impeach - the process by which a civil officer of the U.S. is charged with wrongdoing and, if found guilty of a crime or crimes, is removed from office and disqualified to hold or enjoy any other office of honor.

Unprecedented In More Ways Than One
The idea that the political essence of a nation could be distilled into a set of fundamental principles, rules, and procedures was not new in 1787. What was new in America’s case was the idea that the various principles, practices and institutional norms which together constitute a certain system of government could be summarized and articulated within a written document.

It’s an idea that some think is under attack. Ret. Lt. General H.R. McMaster, who served as National Security Adviser to Trump, just blasted his former colleagues as “a danger to the Constitution.” It entailed the president’s inner circle, those who try to manipulate the president based on their own agenda, and others who see themselves as saving the country.

Meanwhile, House Judiciary Chairman Jerrold Nadler has declared a “constitutional crisis". It was due in part as a push back on impeachment as an option after his committee voted to hold Attorney General William Barr in contempt for defying a subpoena for Special Counsel Robert Mueller’s unredacted Russia report and underlying documents.

He moreover compared Trump to Richard Nixon, stating that, “We can’t have a leader attack the essence of our democracy by stonewalling the American people and uniformly refusing to comply with Congressional subpoenas.” Even Hillary Clinton - who has little room to talk - chimed in, saying the nation must decide if they want the rule of law or the rule of Trump.

Survival of Constitution at Stake
The long survival of the U.S. Constitution - well over two centurie - is quite unprecedented. In fact, no other written constitution has lasted anything like it as long. Most Americans have therefore retained great faith in it. At least until now. To be sure, recent polls show that America’s faith and trust in the Supreme Law of the land is on thin ice and has declined drastically.

As a result, some 400 former federal prosecutors just published a signed statement which warned that Trump was slowly dismantling the Constitution. They also want to see him somehow contained or impeached. Their signed statement said: “The Mueller report describes several acts that satisfy all of the elements for an obstruction charge.”

The acts were wanting to fire Mueller, falsifying evidence about that effort, and preventing and threatening witness who cooperated with investigators. “If left unchecked,” they continued, “the whole system of justice is at risk.” It’s a similar sentiment echoed earlier by hundreds of psychiatrists and mental health experts who signed the Yale “Duty to Warn Conference.”

And yet, most Republicans interpreted the Mueller report as having exonerated the president from obstruction charges or conspiring with Russia to win the 2016 election. In fact, Senate Majority Leader Mitch McConnel took to the floor to say, “Case closed!” This led Speaker of the House Nancy Pelosi to declare the case wasn’t closed due to counter-intelligence investigations.

Where the Problem Lies
On the face of it, a constitution is a relatively straightforward document, with an apparently clear and practical purpose. Almost always, however, there’s more to a constitution than meets the eye. Along with hidden meanings beneath the surface of the text, there’s the problem of timely distance. (One example is the debate over exactly what “high crimes and misdemeanors” means.)

William Barr who’s the acting Attorney General, for instance, stunned everyone in the Senate Judiciary Committee when he outlined a theory where its lawful for a President to interfere in an investigation - including shutting it down. Especially if he was doing it because he thought the investigation was either unconstitutional or based on a false allegation.

Barr further said, “We now know he (Trump) was being falsely accused and therefore could not have committed criminal obstruction.” This alarmed opponents, in that such an interpretation could afford any president in the future no legal constraint if he thought any investigation was based on false allegations. It could lead to the abuse of absolute power, and very corrupt at that.

This may be what Thomas Jefferson meant when he wrote: “The problem isn’t the abuse of power; it’s the power to abuse.” But even he neglected to consult Congress with the Louisiana Purchase, doubling the size of the U.S. For someone who was an anti-federalist and proponent of individual liberty, he too corrupted the Constitution by trampling on checks and balances.

Misrepresentations and Real Political Power
In the meantime, it’s certainly true that the existence of a written constitution gives rise to much debate over whether certain political acts are constitutional or not. A constitution may be set in stone - or ink - but that does not prevent interested parties reading between the lines and finding what they want to find. Interested parties like political tribes, personality cults, and presidents.

Part Two will therefore discuss when Congress should pursue impeachment or subpoena witnesses and information and, if necessary, charge one with contempt if they do not comply. For instance, should Congress subpoena and investigate Trump’s tax returns? Or Donald Trump, Jr., over his dishonesty about meetings with Russian officials and the Trump Tower Project?

Part Three will moreover debate an important requirement for all constitutions: a system of active judicial review in order to determine constitutionality. It includes something the founders may not have considered: the pitfalls of political parties and personality cults, and a Department of Justice and Attorney General who are supposed to represent all the people and not just some.

We all can attest that in the absence of oversight, few individuals or corporations were ever held accountable. This goes for judicial review, providing judges and laws are fair. Most importantly is when the same individuals and corporations become so big, including political machines or even the government, voters cannot exercise their oversight, which is known as political power.

Dallas Darling (darling@wn.com)

Dallas Darling is the author of Politics 501: An A-Z Reading on Conscientious Political Thought and Action, Some Nations Above God: 52 Weekly Reflections On Modern-Day Imperialism, Militarism, And Consumerism in the Context of John’s Apocalyptic Vision, and The Other Side Of Christianity: Reflections on Faith, Politics, Spirituality, History, and Peace. He is a correspondent for www.WN.com. You can read more of Dallas’ writings at www.beverlydarling.com and www.WN.com/dallasdarling.