Wednesday, January 27, 2021

Impeachment As a Toothless Law, As Partisanship Holds Sway

As we get set to watch donald trump get impeached for his involvement with the Insurrection riot of January 6, we need to consider how it's already a foregone conclusion that the Republicans in the Senate will not put country before corruption. It's not so much that they forgave his sins during the impeachment trial over his attempted extortion of foreign aid to scam the 2020 elections, it's that they're about to forgive the more violent act he attempted that threatened their very safety. Today's preliminary fight gives us an idea how the final vote is going to be (via Barbara Sprunt at NPR): 

After senators were sworn in Tuesday afternoon as jurors in the impeachment trial of former President Donald Trump, Sen. Rand Paul quickly pressed for a vote to force lawmakers on the record over the issue of the trial's constitutionality.

The Senate voted 55-45 to reject the Kentucky Republican's argument that the impeachment trial is unconstitutional because Trump is no longer in office.

Just five Republicans — Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, Ben Sasse of Nebraska, Mitt Romney of Utah and Pat Toomey of Pennsylvania — joined Democrats in voting to table the motion. Senate Minority Leader Mitch McConnell, R-Ky., notably voted with most of the GOP conference in support of Paul's motion.

A two-thirds majority is required for a Senate conviction. Paul's point of order likely foreshadows the intentions of most Republican senators during the trial and demonstrates how unlikely it is Democrats will garner the 17 Republican votes needed to convict Trump.

What is the use of a legal system when it has no means of enforcement? When the people entrusted to uphold the law and the Constitution itself refuse to do so? We saw the same thing last year when - in spite of all the evidence that trump abused our foreign relations with Ukraine in order to stage fake scandals to affect our own elections - a Republican-controlled Senate did the bare minimum to answer the House's impeachment charges and mocked the failed results.

Looking back at the history of impeaching those who served as President, we can recognize the moments where the need for impeaching a corrupt President did not occur because that President's party also controlled enough of Congress to make the point moot. We can see the moments when impeachment was used as a partisan weapon instead of upholding the Constitution. We can remember how only once in our nation's history did impeachment seem likely - Nixon was facing that fate before he resigned - only because our political landscape was genuinely bipartisan enough to see the reality of how Nixon's acts threatened the public trust.

Impeachment is broken. Either it is too partisan a tool that threatens the independence of the Executive Branch, or the Legislative Branch is too partisan and corrupt to properly employ the impeachment process in any legal and just manner.

trump's own regime is proof of that failure. When Republicans controlled both Houses of Congress, they refused to bring up the matter of impeachment when trump misbehaved and failed to adhere to policy, protocol, or the letter of the law. It took the Democrats - an opposition party - to win the House of Representatives to bring that threat of accountability to the table... and even then, the supermajority need from a nearly-split Senate made it impossible to follow through for removing trump for the crimes he'd committed.

The Founding Fathers may have created the Impeachment process but did so in an era when partisanship had yet to form during our nation's infancy. They did it under assumptions that civic duty and personal honor would drive the individuals in Congress to value integrity over impulsive selfishness. They never considered the reality that Congresspersons - especially when one of their parties turned corrupt the way the modern Republicans have - would avoid their own accountability, that the entire elective process - bent and battered by decades of gerrymandering and false narratives - would fail to hold them accountable when they failed the people and themselves.

The inability to use impeachment now creates ruptures in the entire legal system. One of the reasons Robert Mueller's investigation into the Russian interference with our 2016 elections cycle didn't go far enough was due to Mueller avoiding the implications of crossing a long-standing Office of Legal Counsel (OLC) memo that sitting Presidents cannot be charged with crimes. Mueller was able to prove at one end that Russia DID meddle in the elections process and duly filed charges on culprits he uncovered. But any link that could have been proven from trump's end of things couldn't be proven because that memo prevented Mueller from digging deep enough to find proof that could stand in court.

That OLC memo has got to go. It shouldn't be upheld as legal precedent. Congress should pass legislation overriding that damn thing, and put in place the ability for a federal investigation/grand jury to file criminal charges on a President found to be breaking the law. It doesn't have to be everything under the sun, obviously: the argument against charging Presidents is to avoid them getting charged with petty-ante stuff every day by conspiracy nuts and partisan hacks. I understand that.

But there ARE certain crimes directly related to the powers of the office that CAN be investigated and charged. I'm talking acts of Obstruction - the one thing Mueller could prove trump had done, but had to leave to Congress to charge which they never did - and acts of Bribery and Extortion that are spelled out as impeachable offenses but are better resolved as criminal charges. I'm talking about serious felonies like Murder (personal cases of murdering individuals, not shipping soldiers off to war or anything), Sexual Assault/Rape, and/or Conspiracy to commit such crimes. We can't rely on a political method of accountability to play out on such crimes, because we're seeing that not enough politicians today will treat it seriously in a bipartisan manner.

trump's violations of the Emoluments Clause ended up going unpunished, because the Courts - now all happily aligned to the Far Right, protecting trump as best they can - kept redefining the line of who could file such complaints and delayed the result until it was too late. This is inexcusable. Congress needs to pass legislation spelling out exactly who can challenge such violations of our Constitution's ethics, and make sure it's something that any President who violates it gets charged and held right away. The Emoluments Clause is one of the few laws that relates directly to the President's misconduct, and it ought to be enforceable the second the corrupt Executive breaks that law. Impeaching him on Emoluments violations would never have passed the Republicans playing defense in the Senate.

Impeachment works great as a symbolic gesture, but it's become worthless when it can't be properly used. We need to move beyond this, we need to make the legal system understand the dangers of a corrupt monster sitting in the White House requires a more direct response. If you're worried about how criminal charges would disrupt the orderly workings of government, don't be. We have a 25th Amendment in place that can reasonably replace an arrested/detained President caught up in acts of provable corruption and allow for a smooth transition of power.

We have fallen too far within a partisan political landscape to allow criminal acts to go unpunished. Impeachment can't punish wrong-doers like trump: Federal felony charges are the only sane response left to us.

2 comments:

Infidel753 said...

What is the use of a legal system when it has no means of enforcement?

What's the point of a trial when half the jury consists of cronies of the defendant? The now-inevitable failure of Trumpeachment 2 will probably make impeachment a dead letter for the future. If it can't be used against a president who incited a mob attack on the center of government on camera in broad daylight, it's hard to see where it can be used.

We have a 25th Amendment in place that can reasonably replace an arrested/detained President

Don't forget that removing a president via the 25th Amendment is harder than removing him via impeachment. It takes a two-thirds majority in both houses, not just in the Senate.

I think you're right that felony charges through the conventional court system are probably the only option in future cases -- Republicans will never allow Congress to hold a Republican president accountable in any meaningful way, for anything. Even this might bring up the issue of a self-pardon, but we'll see whether the courts would let a future president get away with that. As for Trump, state-level prosecution for his financial crimes should be able to put him behind bars for many years, and it's possible that he could be prosecuted for sedition as well. But this impeachment is now an obvious waste of time and needs to be wrapped up and put aside as quickly as possible so Congress can get back to work.

dinthebeast said...

I read one take on the trial that posited an anonymous ballot as the remedy for the politicization of the process. As things stand, it could work in this case, but I feel like they'd just find ways to corrupt it just as slimily for future trials.

-Doug in Sugar Pine