War Between the Branches of Government

Experiencing the intense civics lesson of the House hearings on the January 6^th storming of Congress, chaired so eloquently and cogently by Democratic Congressman Bennie Thompson of Mississippi’s Second Congressional District, American’s have been both troubled and energized by fundamental questions about the condition of our national character, about how our government is organized and how our laws work.

For instance, has partisan politics in America always been as vicious and unbending as it is today? Is it a criminal offense for officeholders to break their vows of office? Do office seekers break the law when they lie to Congress? Can they be held accountable? Can a president who has been impeached by the House and found not guilty by the Senate — twice — still be charged in federal court for crimes committed while serving in office? Does double jeopardy apply here? What does “the balance of powers” among the legislative, executive, and judicial branches of government really means?

More specifically, can recently appointed Supreme Court Associate Justices be held in contempt of Congress for misleading the Senate on their views of the sanctity of precedent and the established social reality and legal validity of Roe v. Wade? Can former President Trump be charged with a flagrant dereliction of duty when he failed to “preserve, protect, and defend,” the Constitution, as he vowed to do on taking office, when he sicced an armed mob on Congress? Have modern Republicans and Democrats reached new lows in their loathing of each other, or is our current explosive partisan divide merely a reflection on an enduring and necessary structural division in our national make up? Have we so dumbed down American public education that a near majority of us has no blankety-blank idea of what our government is all about? Have popular television, show biz news, commercial and political propaganda, social media, the denigration of teachers and the impoverishment of public education allowed Americans to finally “amuse themselves to death,” as media theorist and cultural critic Neil Postman suggested in the mid-1980s?

It’s often been lamented that public schools all across America, and most private ones as well, do a lackadaisical job at best of teaching students the rudiments of “civics,” of how the democracy they live under and contribute to, through taxes if nothing else, goes about its business. And it isn’t just students, it’s also, of course, the grown-ups and “professionals” they turn into. Specialization, education as job training, the clear cutting of a whole curricular landscape of general knowledge, has limited our collective ability to grasp the big picture.

But almost by accident sometimes, and in spite of ourselves, “the media” does help us to become more acquainted with how our “system” works. It’s happened many times — in the riveting coverage of the Army–McCarthy hearings in 1954, the dogged reporting of the civil rights movement in the 1950s and 1960s, nightly TV reporting from the battlefields of the Vietnam War in the 1960s and 1970s, the Watergate Hearings in the early 1970s, and right now in the ongoing, fascinating and revealing hearings into the attempted violent overthrow of our government by a sitting president and his gang of cronies and thugs on January 6 of last year.

What lessons we’re learning! It’s become apparent that what happened on that dreadful day in early 2021 was not only an insurrection and coup, but a war between branches of government, the executive and the legislative. It was a real anything-goes war of aggression and it was on the verge if causing a fundamental rupture in our system of government and, perhaps, the death of our democracy.

The executive branch, headed by President Donald Trump, attacked the congressional branch, pure and simple. Trump incited rioters to go against the grain of American constitutional history by helping him assert dictatorial impulses to take over the country by denying the peaceful transfer of power. He did, in effect, exactly what the Constitution was designed to prevent through its structure and the provisions it makes for maintaining a balance of power among the branches of government. How can such behavior be interpreted as anything other than a hostile act, threatening the existence of the Constitution that the president vowed to “preserve, protect and defend”?

How is it possible to interpret the behavior of Associate Justices Amy Coney Barrett, Neil Gorsuch, and Brett Kavanaugh before the Senate in their confirmation hearings as not having managed to deceive Congress on how they view Roe v. Wade? To me, they committed perjury and acted in contempt of Congress. House Speaker Nancy Pelosi and Senate Majority Leader Chuck Schumer certainly think so. They issued a joint statement saying that “several of these conservative Justices, who are in no way accountable to the American people, have lied to the U.S. Senate, ripped up the Constitution and defiled both precedent and the Supreme Court’s reputation.” The Republican Senator from Maine, Susan Collins, and the Democratic Senator from West Virginia, Joe Manchin, both claim that conservative, anti-Roe Justices Gorsuch and Kavanaugh lied to them when they “insisted,” in confirmation testimony, “on the importance of supporting long-standing precedents that the country has relied upon,” like the 51-year-old Roe v. Wade decision of 1973.

Both breaking an oath of office and lying to Congress are unequivocally illegal. Lying to Congress is forbidden under the U.S. Code, title 18, section 1001. It’s a form of perjury, and carries with it harsh penalties and even jail time. The trick of proving such deceit, however, is to show that the lying was done willingly and knowingly, and not a mistake due to wrong information. It seems a foregone conclusion that the three recently-confirmed Supreme Court Justices knowingly and willingly deceived Congress about Roe v. Wade. They knew that their chances at confirmation would be almost nil if they had not indulged in making fraudulent statements.

Violating an oath of office, as President Trump has done by inciting a riot that threatened the lives of members of Congress and was aimed at permanently disrupting a constitutional duty of Congress to certify the results of the Electoral College in race for president, is also a kind of perjury according to U.S. Code 5, 7311, with similar penalties. President Clinton was charged with violating his oath during his impeachment trial in 1999, denying that he had a sexual relationship with one of his interns. The prohibition against oath breaking has an interesting twist for a chief executive in that it’s forbidden by a Presidential Executive Order, # 1045 issued by President Eisenhower in 1953, which makes it illegal for a person who vowed to defend the Constitution to advocate “the alteration … of the form of the government of the United States by unconstitutional means.” Our form of government can be altered by constitutional amendment, not by riots and violence.

When it comes to double jeopardy, if a president is impeached but not convicted, or impeached and convicted, he can still be tried for the same or similar crimes in federal court when he leaves office. The Fifth Amendment, which forbids the government trying a person for the same crime twice, does not apply to the impeachment in the House and senatorial conviction because they are political processes, not a criminal trial in a court of law.

Politics in America has always been accused by one interest or another of being a nasty and brutal business. Political hatreds can be as intense as religious and academic ones. As Robert G. McCloskey writes in his book, “The American Supreme Court,” American political passions have traditionally been split between localists, most often Republicans and their insistence on state’s rights, and nationalists, or federalists known as Democrats today, and their struggle to maintain a workable union among localities and a strong central government. And this divide has often been marked by bitter behavior. The early struggles between the two perspectives, which mirror a somewhat similar situation today, even went so far as to make political disagreement a crime, a profound low point in American history. The Alien and Sedition Acts of 1789 were used by Federalists associated with President Adams to fine and imprison publishers who dared to criticize the Adams Administration.

If Democrats retain and expand their control over both houses of Congress this November, an obvious, if aggressive, scenario presents itself.

By using the last clause, the “elastic” or “necessary and proper” clause Article I, Section 8 of the Constitution, the Congress could add four seats to the current Supreme Court. This kind of move has been done in the past. And the minority usually calls it “packing the court.” But it is perfectly legal. There’s no guarantee that liberal justices would be confirmed, but there’s a strong chance that a supermajority of Court conservatives, representing a minority of the voting public, would be checked.

Using its control of Congress, the White House, and a repositioned Supreme Court, Democrats could pass legislation that would codify Roe v. Wade as a national abortion rights law, and have a good chance of it surviving judicial review in the Supreme Court.

And with a stronger majority, Democrats in Congress could pursue the impeachment of Supreme Court Justices who lied to them about their position on precedent and Roe v. Wade during confirmation, charging them with contempt of Congress. And the Justice Department could charge former President Trump as a private citizen of committing perjury by knowingly breaking his oath of office by attacking the legislative branch of government and thereby undermining, not protecting and defending, the Constitution.

Aggressive though this scenario may be, a stronger Democratic majority in Congress could do nothing that even remotely matches the riotous violence of January 6^th, incited by a Republican President and backed by most Republican members of Congress.

But it all depends, of course, on Democrats not committing political suicide as they often do though their endless bickering and failure to recognize, as did the Clinton campaign in 2016, when glaring blind spots appear in their election strategies.

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

(Image: Three men fighting with sticks by Stefano della Bella)