Alexander Hamilton saw this coming

Posted Tuesday, 03 December 2019 ‐ Las Vegas Sun

The grounds for impeaching President Donald Trump aren’t hard to find. They’re clearly stated in the spare words of the Constitution. “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 week, the House Judiciary Committee takes up two critical questions: Does Trump’s scheme to persuade Ukraine’s president to announce an investigation of Democrats, including Joe Biden, qualify as bribery? If not, was it a serious abuse of power — a “high crime or misdemeanor”? To help find the answers, I looked up the debates in the 1787 Constitutional Convention in Philadelphia that produced the impeachment language. It wasn’t clear, at first, that the Constitution would include impeachment. One influential delegate, Gouverneur Morris of Pennsylvania, thought it wasn’t necessary. Let the voters decide, he suggested; if a president is re-elected, “that will be sufficient proof of his innocence.” Others disagreed. “Shall any man be above justice?” demanded George Mason, a leading conservative from Virginia. Mason worried that a corrupt president might contrive to fix his own re-election. “Shall the man who has practiced corruption, and by that means procured his appointment in the first instance, be (allowed) to escape punishment by repeating his guilt?” James Madison of Virginia added another reason: A future president “might betray his trust to foreign powers,” he warned. At that, Morris announced that he had changed his mind. “No one would say that we ought to expose ourselves to the danger of seeing the first magistrate in foreign pay,” he said, according to the minutes Madison kept. By “high crimes and misdemeanors,” a phrase that seems maddeningly broad today, they meant acts against the integrity of the republican system they were designing, not violations of the federal criminal code. Morris said the clause was intended to cover “attempts to subvert the Constitution.” Alexander Hamilton, a delegate from New York, wrote that it meant “the abuse or violation of some public trust.” By Hamilton’s standard, Trump’s withholding military aid to Ukraine while he asked its leaders to investigate Biden, the former vice president, qualifies as a “high crime,” hands down. But bribery, since it’s specifically cited in the Constitution, would be a clearer case to take to the country. And House Speaker Nancy Pelosi, D-Calif., argues that the evidence supports a bribery charge. “What the president has admitted to (in his July 25 phone call with Ukraine’s president), I say it’s perfectly wrong,” she told reporters. “It’s bribery.” Rep. Adam Schiff, D-Calif., chairman of the House Intelligence Committee, agreed, although the former federal prosecutor was a little more lawyerly. “An official act was conditioned on political favors the president wanted for his election,” Schiff told NPR. “As the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you’re offering official acts for some personal or political reason, not in the nation’s interest.” The House can also charge Trump with other abuses of power — for example, failing to execute the law that provided the aid for Ukraine. Officials in the Defense Department and the White House Office of Management and Budget warned privately at the time that blocking the aid was probably illegal. Expect vigorous debate in the weeks ahead about what constitutes bribery, as well as other abuses of power that might warrant impeachment. The late Charles Black Jr. of Yale Law School defined those abuses this way: “Offenses which are extremely serious, which in some way corrupt or subvert the political and governmental process, and which are plainly wrong in themselves to a person of honor.” Or there’s the definition Vice President Mike Pence offered in 2008 when he was a GOP congressman from Indiana: “This business of high crimes and misdemeanors goes to the question of whether the person serving as president of the United States put their own interests, their personal interests, ahead of public service.” Pence and his fellow Republicans have largely abandoned that standard in the age of Trump. “An impeachable offense should be compelling, overwhelmingly clear and unambiguous, and it is not something to be rushed or taken lightly,” Rep. Will Hurd, R-Texas, who is retiring, said in one of the House hearings.  “I have not heard evidence proving the president committed bribery or extortion.” Indeed, For Trump’s supporters, the definition of an impeachable offense remains just blurry enough that they can always deny it has been met. For a picturesque example, there’s the argument of Rep. Mac Thornberry, R-Texas, that while the president may have abused power, it was just Trump being Trump. “There’s not anything that the president said in that phone call that’s different than he says in public all the time,” Thornberry said. “Is there some sort of abuse of power that rises to a threshold that is different than the American people have been hearing for three years? I don’t hear that.” Besides, Thornberry said in an all-purpose deflection that echoed Morris’ initial argument in Philadelphia 232 years ago — before he changed his mind: “We have an election coming up … Let the American people decide this.” Hamilton, of course, saw this coming long before he got a musical on Broadway. Impeachment is almost certain “to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused,” he wrote in The Federalist Papers. “There will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” Doyle McManus is a columnist for the Los Angeles Times.

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