Eyeless on Campus: IMPEACHMENT--High Crimes and Misdemeanors--WHERE'S THE BEEF?

JOUR107.1002
James L'Angelle
University of Nevada, Reno
Spring 2020

High Crimes and Misdemeanors, a background---& The House Resolution

   At the heart of the effort to bring down the President of the United States is the clause written into the effort by the House of Representatives' opposition;
"Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors." (House Res.,)
Lines 4-16 in the document provide the background of the Constitutional authority for impeachment as "Treason, Bribery, or other High Crimes and Misdemeanors."
   The impeachment resolution is divided into two sections, the first titled "Abuse of Power," and the second titled "Obstruction of Congress." Lines 15-26 in Article Two repeat the allegations of Treason, Bribery etc. However, the initial line of accusation is for "high crimes and misdemeanors" only and it appears the other charges of "Treason" and "Bribery" are without merit and inserted to prejudice not just the proceedings, but the media and public opinion as well. If the House intended to try the President on the latter charges, they should have been included in the line immediately following the Resolution title. The President is not accused of Treason, and not accused of Bribery, but of "high crimes and misdemeanors." A background in historical context of the phrase is in order.
   The phrase originates in early 18th century British law and was coterminous with treason, sedition and other allegations that might not have been directly proven due to the inflammatory nature of those accusations. A catchall for whatever couldn't be pegged on the accused, it appeared a convenient way to tag someone if the evidence didn't support the indictment. A case in point was the trial of Henry Sacheverell in 1710. An Anglican clergyman and Tory sympathizer, he was brought up on charges due to his condemnation of the opposition;

   "However, when the government lawyers examined the sermon, they discovered that Sacheverell had chosen his words carefully to such an extent that they considered it uncertain whether he could be prosecuted for sedition. They considered bringing Sacheverell to the Commons' Bar on the charge of displaying contempt for the Commons resolution of December 1705. A vote in the Commons would be enough to convict him. However this approach would deny the Whigs the publicity they sought in prosecuting Sacheverell and he would be at liberty once the Commons' session ended. The Whigs wanted a punishment sufficient enough to deter other High Churchmen. A vote in the House of Lords on a charge of high crimes and misdemeanours had the power to achieve what the Whigs wanted and could also inflict a heavy fine with confiscation of goods and imprisonment for life." (Wikipedia)

The phrase became a catchall for the inability to exact a particular, more damaging charge of sedition, against the accused. Britannica notes that he was indeed tried for sedition and found guilty and notes he was found guilty but at least one publication at the time infers this was not so.

Again, this time related to the governor-general of Bengal in the late 18th century, the dealings of Warren Hastings were brought under scrutiny and eventually led to a long drawn out affair that was engineered by the influential Edmund Burke;

   "But Hastings was vulnerable on episodes such as the execution of Nandakumar and his treatment of the begums of Oudh and Chait Singh and even on some aspects of his personal finances, where he had acquired money in excess of his official allowances. In 1786, when Burke introduced an impeachment process against him (a prosecution by the House of Commons before the House of Lords), these blemishes were enough to persuade the House of Commons and in particular William Pitt the Younger, the prime minister, that Hastings ought to be sent to trial. The trial before the House of Lords lasted from 1788 to 1795, when he was acquitted." (Hastings, Britannica)

   The prospect of getting a conviction that would stick, much less to more serious charges, appeared in these two cases weak even with the influence of high-profile actions by historical heavyweights such as Edmund Burke. Curiously, Burke was no stranger to the rights of the colonists during the War for Independence even as he engaged in prosecution of his own countrymen over "high crimes" charges. (Burke) In fact, the nature of the charge involved a rather convoluted interpretation of how Hastings achieved peace following a war involving the East India Tea Company and accepting offers from those who sought conciliation. (Hastings 001) His enemies interpreted it as a bribe. It appears again that the actual nature of high crimes skirts the requirements of sedition and treason and becomes useful to at least shame the accused for questionable behavior that can't actually be considered criminal.
   In the case of Judge John Pickering, the Vermont Gazette reported in 1804;

   "the said John Pickering, being a man of loose morals and intemperate habits, on the eleventh and twelfth days of November, in the year one thousand eight hundred and two, in and for the district of New Hampshire, for the purpose of administering justice, appear on the bench of the said court, in a state of total intoxication, produced by the free and intemperate use of inebriating liquors, invoke the name of the Supreme Being, to the evil example of all the good citizens of the United States; and was then and there guilty of other high misdemeanors," (The Vermont Gazette)

   Note here the reference to ill-will toward the people of the nation and not necessarily he badrapped the Lord, drunk on duty being the more realistic charge against the judge. However, it still does not give us a solid ground to walk on concerning the charge of high crimes. If spouting obscenities and intoxicated on the bench are grounds for removal from office, then falling back on the Whig-Tory disputes over impeachment in 18th century England have plenty of merit. In fact, just about anything can be considered high crimes and misdemeanors.

   Returning to the current case involving the President of the United States, an overview of the process can be found in the Congressional record;
   "The Constitution's grant of the impeachment power to Congress is largely unchecked by the other branches of government. Impeachment is primarily a political process, in which judgments and procedures are left to the final discretions of the authorities vested with the powers to impeach and to try impeachments." (Congress)

Looking back at the file, the redundancy of at least two sections, that of inferring treason and bribery in both articles doesn't help convince the Senate that a high crime, much less a misdemeanor, was committed. Lines 20-24 in Article 1, The Abuse of Power, infer the President;
   "through a scheme or course of conduct,"
attempted to influence the upcoming national election by digging up dirt on his opponents, in particular Joe Biden, through his son's business connections in Ukraine. In addition, it is inferred that military aid was withheld as some "quid pro quo" until the dirt was sent over. The weak wording of "scheme or course of conduct" indicates the opposition may not have concrete proof it was the President's intent at all, as with the necessity of public opinion influencing the bribery interpretation against Hastings from above.
   If we also consider the fact that impeachment may well have a criminal basis, as by the Henry Tazewell interpretation during the William Blount case in 1798, then the call for a jury would be in order. (Tazewell) The problem with a jury, and a "criminal basis" as such, is that some of the basic rights of the defendent would surface, such as the very notion of "intent." The case would then represent more of a criminal, instead of a political, nature and evidence that appears fact may become circumstantial at best, weakening the case.
   In Article 2, Obstruction of Congress, it is unclear that any influence of the President to prevent witnesses to appear can only be judged in the eye of the witness. In the end, it is the responsibility of the individual to appear when handed a subpoena, regardless of pressure from the boss, the media, public opinion, or Congress itself. The allegation is extremely weak.
   In spite of the polls, the determination politically of his opponents in Congress, and the fact that the resolution, considering all of the months long effort in coming up with a concrete proposal, there appears little in the resolution to make the charges stick.

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Friday, December 13, 2019

IMPEACHMENT--High Crimes and Misdemeanors--WHERE'S THE BEEF?

Column: Democrats impeachment of Donald Trump is way too thin, like butter scraped over too much bread

GOP lawmakers jockey for positions as managers