Does Our Constitution Still Work?

Obstruction of justice, nepotism, conflicts of interest arising from refusing to put his business empire in a blind trust, attacking the judiciary, flapping loose lips over top-secret national security issues, conspiring with the nation’s Cold War nemesis and adversary to fix our national elections – what more do you need in the way of probable causes to begin building a case for the indictment or impeachment of the president on charges of committing “high crimes and misdemeanors”? And lets not forget to add aiding and abetting in the deaths of probable millions from premeditated climate change denial and negligence.

This astonishing list amounts to the president flipping off the nation and its laws and legal precedents. And to actually say, like Speaker Ryan did last week, that the president “is new to this,” is basically a novice at politics and governance, is about as laughable as swimming in a school of pretty poison jelly fish. If the president’s behavior reflects what “running government like a business” is all about then Walt Whitman became a prophet in Democratic Vistas when he made his crack about the “depravity of the business classes.”

All this is causing many of us to seriously worry about the fate our nation with a chief executive who apparently thinks more about growing his own personal wealth and business, and preening his own ego, than he does about the good of our country. It makes us fear that after years of living on the tipping point we have finally become a country run not by laws but by human folly.

In the midst of weeks of White House scandals and turmoil, some remember that in the mid 1970s president Gerald R. Ford, who replaced Richard Nixon and pardoned him of all Watergate crimes, declared with relief and gratitude that “Our constitution works. Our great republic is a government of laws, not of men.” Many of us doubted Ford then and doubt him deeply now.

Imagine having a president who in less than six months of tweeting and bludgeoning, snake-hipping and finger tossing has come to the precipice of impeachment.

Impeachment is a deeply disturbing and unpleasant word. It is a formal charge leveled in the House of Representatives by a majority vote against a U.S. President (or Vice President or other high official) that will lead to a “trial” in the highly charged partisan arena of the U.S. Senate with the Chief Justice of the Supreme Court presiding and selected members of the House serving as “prosecutor.”

President Richard Nixon was so fearful of “impeachment” over Watergate, its proven felonies and cover-ups, that he resigned his office on August 8, 1974 rather than submit himself to the humiliation of prosecution, even though he was designated as an “unindicted co-conspirator.” His former attorney general John Mitchell, and his closest advisors John Ehrlichman and H. R Haldeman, were indicted by federal grand juries on charges of conspiracy, obstruction of justice, and perjury. All served prison terms of two years or less. Nixon’s Vice President Spiro Agnew, though, requested that the House of Representatives impeach him in hopes of disproving charges of accepting bribes from construction company contractors. His request was refused, and Agnew resigned on a plea bargain of no contest on a charge of tax evasion.

Only two presidents have been impeached, Andrew Johnson, Abraham Lincoln’s Vice President, in 1867, and Bill Clinton in l998. Neither man was convicted in the Senate.

Johnson was impeached on charges of violating the Tenure of Office Act, which in the Civil War era required that a president get Senate approval for removing a cabinet member that it had confirmed. Johnson won his trial before the Senate by a single vote cast by Senator Edmund Ross of Kansas. Almost twenty years later Ross became the Governor of Territorial New Mexico, appointed by President Grover Cleveland. An excellent book on Ross written by Albuquerque historian Richard Ruddy, was published several years ago by UNM Press. It’s called “Edmund G. Ross: Soldier, Senator, Abolitionist.”

Bill Clinton was impeached on charges of perjury and obstruction of justice regarding his affair with a White House intern. The Senate acquitted him of both charges after failing to achieve a 67 vote majority. In a closing argument his defense council asked “Would it put at risk the liberties of the people to retain the President in office? Putting aside partisan animus, if you can honestly say that it would not, that those liberties are safe in his hands, then you must vote to acquit.”

Perjury and obstruction of justice are “high crimes.” And they can be equally applied to petty human follies as well as to criminal cover-ups of major wrong doing and gross abuses of power.

No public official has been impeached in New Mexico since statehood in 1912, though several office holders have faced the possibility. Impeachment proceedings were started in the New Mexico House in 2005 against state Treasurer Robert Vigil and in 2011 against Public Regulation Commissioner Jerome Block Jr. Both cases were dropped when the men resigned from office. In 2015, the House was building a case for the impeachment of New Mexico Secretary of State Dianna Duran. She also resigned her office.

The concepts around impeachment can be misleading at times. Perjury is, however, very clear. It means lying under oath. But obstruction of justice is not as pointed. It casts a broad net over many behaviors that get in the way of serving the impartial rule of law. Deceit, influence peddling, threats of retaliation against witnesses and law enforcement officials can all be obstructive. So can many forms of malfeasance and corruption in the conduct of public duties and obligations. While a person can legally defend themselves against charges of impeachment by refusing to incriminate themselves under the protection of the Fifth Amendment, it is forbidden to squirm ones way out of charges with a tricks, lies, and deception. And it’s certainly a grave and illegal error to try to muscle public officials out of doing their duties when it pertains to potential prosecution. In obstruction of justice, law tops loyalty.

Both perjury and obstruction of justice fall under the category of impeachable offenses along with bribery and treason and other “high crimes and

misdemeanors,” a vague term in itself which appears to cover what the framers of the constitution called “maladministration,” or botching the duties of office that one had vowed to uphold and pursue, which covers, as they say, a multitude of sins.

Treason, like perjury, is clearly defined in the Constitution and is very hard to prosecute. “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court.”

Nepotism doesn’t appear to be an impeachable office, but it does lead to suspicions of malfeasance and “misfeasance” of office, if favoritism is shown to an unqualified relative of a political power broker. Nepotism, in fact, is almost synonymous with the concepts of unearned authority and general incompetence. It undermines presidential credibility. But it is a common practice and is viewed more as the conduct of someone with severe character flaws than as an act of criminality and malice. It is an odious practice in a democracy because it implies that a person in power trusts only the loyalty of his family and that, in fact, loyalty is more important than competence, efficiency, foresight and honesty.

After the first six months of the Trump administration we can ask ourselves if we still are a nation of laws or of one man’s ambitions, if our liberties are at risk in his hands, and if we think he has sought to fulfill his vow of office, “to preserve, protect, and defend the Constitution of the United States.” The answer for many of us is disheartening and causes us to say to our friends “I worry for my country.”

When enough people feel such apprehension it creates the context for building a case for impeachment, which we know is often talked about but vary rarely achieved and prosecuted with success.

In the history of the country, the House has worked to indict only 17 persons, according to the Constitutional Rights Foundation – “one U.S. Senator, two presidents, one cabinet member, and thirteen federal judges.” Of those impeached, the Senate has voted to convict and remove “only seven – all were federal judges.”

Is the fog of lies and presidential turmoil this year a unique situation in which impeachment, trial or resignation has somehow gained an advantage in probability? The answer to that question is the same one might give to another query: Is America any less partisan, any less prone to being hoodwinked and taken to the cleaners, than it has been in the past?

*Nullius in verba: take nobody’s word for it

Correction: A previous version of this column stated that a two-thirds majority vote is needed in the House of Representatives for impeachment.  It takes only a simple majority.

(Capital image from Daniel Huizinga)