So with Trump's official letter saying that impeachment is unconstitutional unless it has even more protections for the President than criminal and civil trials, shall we look into some primary sources on how impeachment works?
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At the Federal Convention, James Madison worried the President might "lose his capacity after his appointment," or "pervert his administration into a scheme of peculation [embezzlement of public property] or oppression," or "betray his trust to foreign powers."
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Ben Franklin figured impeachment was good because the alternative was assassination. Governor Morris initially opposed impeachment, then changed his mind, having realized the President could be "bribed by a greater interest to betray his trust," like "foreign pay." /3
The Founders presumed the House of Representatives would serve as the place where accusations and indictments were formed; that's how England did it, with the Commons presenting impeachment to be tried by the Lords. The only debate was over who would try it; the Senate won.
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In the Federalist Papers, Hamilton presented impeachment to the people as inherently "POLITICAL," concerned with "the misconduct of public men, or in other words from the abuse or violation of some public trust." Hamilton envisioned the House as having great sway over POTUS. /5
Later, William Rawle, who Washington appointed US Attorney for PA, recounted how flexible it was. The President could be indicted for ordinary crimes and impeached for "official delinquency." The House didn't even need to make a formal indictment, just something "intelligible."/6
You can read these documents and more at the link. But the moral of the story is, yes, the letter from the White House counsel is total bunk, and even if everything he said was factually true (it's not), his constitutional arguments are just wrong.
/end press-pubs.uchicago.edu/founders/tocs/…
/end press-pubs.uchicago.edu/founders/tocs/…
And if you want the unrolled version of this thread on how the Founders saw the impeachment process, here you go:
Yesterday in this thread we looked at how the Founders saw the impeachment process, today we'll look at the (scant) case law cited by the White House's letter.
Spoiler: it doesn't support them. Here, for example, are the very pages cited by the WH's footnote 8.
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Spoiler: it doesn't support them. Here, for example, are the very pages cited by the WH's footnote 8.
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Watkins & Quinn, arising from the Committee on Un-American Activities, recognized Fifth Amendment rights at Congressional hearings.
Two problems for Trump: nobody has invoked the 5th (yet), and SCOTUS recognized Congress can "inquire into and publicize" gov't misconduct.
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Two problems for Trump: nobody has invoked the 5th (yet), and SCOTUS recognized Congress can "inquire into and publicize" gov't misconduct.
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The WH's footnote 10 case at least relates to impeachment (of a judge), but it is, ahem, about trial in the *Senate.* The opinion was also vacated in a single-sentence order from the D.C. Circuit.
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These citations by the WH to the DOJ's Office of Legal Counsel, most of them Trump's own OLC, are worthless. Congress doesn't have to follow OLC memos. Federal courts don't follow them either; just two days ago SDNY granted OLC memos no weight and rejected several of them.
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And that's it for the case law and OLC memos cited by the White House letter. Thus, as this thread has shown, Trump's obstruction is contrary to the Founders' understanding of the Constitution and to the case law. This conduct is yet more reason to impeach and remove him.
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More on the White House counsel's letter, and specifically on how that one-sentence vacatur of Hastings was because SCOTUS had ruled exactly the opposite in another impeachment case. Impeachment is a political process, not a legal one. Like Hamilton said.
