Dec. 16, 2019
Permission to republish original opeds and cartoons granted.
'Abuse of power' and 'obstruction of Congress' are not high crimes or misdemeanors, bribery or treason
“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.” That is Article II, Section 4 of the Federal
Constitution, outlining what a case for impeachment is supposed to consist of,
namely, crimes. Therefore, without a crime there cannot be an impeachment. And yet, that is precisely the Articles of
Impeachment House Democrats have now put to the floor of the House of
Representatives, outlining vague charges of “abuse of power” and “obstruction
of Congress.” Neither of these are crimes, articulable under a law passed by
Congress and signed by the President. They can be found nowhere in the criminal
code. They are not bribery. And they are not treason. Gerald Ford once famously
argued that “high crimes and misdemeanors” are “whatever a majority of the
House of Representatives considers them to be at a moment in history.” And yet
that is not what the framers had in mind at all. In fact, they anticipated that
after being removed from office for a crime (and only a crime), that the
removed President would then face prosecution. In the Federalist No. 69,
Alexander Hamilton wrote on the impeachment provision, “The President of the
United States would be liable to be impeached, tried, and, upon conviction of
treason, bribery, or other high crimes or misdemeanors, removed from office;
and would afterwards be liable to prosecution and punishment in the ordinary
course of law.” Meaning if it is not conduct that would punishable by law, then
it cannot be punishable by impeachment, constitutionally.
Liberal billionaires fund left-wing scam group Southern Poverty Law Center
Liberal
billionaires John and Laura Arnold would like for you to believe that they are
not ideological, are guided by the facts, and are motivated by a desire to
improve society. But the facts are otherwise: they have given millions of
dollars to the abortion lobby, support a carbon tax, have donated millions to
study ways of eroding gun rights, and have given generously to liberal
Democrats. As if all of that is not bad enough, they have also awarded four
grants worth more than $4.8 million to the Southern Poverty Law Center (SPLC),
which loves to falsely claim that conservative organizations are “hate groups.”
Time for Georgia to end tax credit welfare for Hollywood
Americans for
Limited Government President Rick Manning: “Ending corporate cronyism is
something that the left and right can generally agree upon, and corporate tax
credits designed to help out of state or country industries are particularly
noxious. The entertainment industry in
Hollywood has been particularly aggressive in seeking tax credit incentives from
states like Georgia in order to enjoy the lower cost of film making that the
Peach state provides. As part of a
broader campaign by Americans for Limited Government to spotlight corporate
cronyism, we will be focusing upon the ever-expanding corporate welfare which
Hollywood enjoys from the taxpayers of Georgia. It is time for the state
legislature to end Hollywood welfare.”
Andrew McCarthy: The costs of trivializing impeachment
“Resorting to a
vague ‘abuse of power’ theory, the House Judiciary Committee Friday morning
referred two articles of impeachment to the full House on the inevitable
party-line vote. The full House will impeach the president next week, perhaps
Wednesday, also on the inevitable party-line vote. The scarlet ‘I’ will be
affixed to Donald Trump in the history books. He will not be removed from power
by the Senate, however, and he has a fairly good chance of being reelected by
the voters. In sum, then, we are exactly where the Framers hoped we would never
be when they added the impeachment clauses to the Constitution: in a governing
system in which impeachment has been trivialized into a partisan weapon for straitjacketing
the incumbent administration, rather than being reserved as a nuclear option
for misconduct so egregious that Congress must act, transcending partisan,
factional, or ideological considerations. What will be the cost of trivializing
impeachment this way?”
'Abuse of power' and 'obstruction of Congress' are not high crimes or misdemeanors, bribery or treason
By Robert Romano
“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.”
That is Article II, Section 4 of the Federal Constitution, outlining what a case for impeachment is supposed to consist of, namely, crimes. Therefore, without a crime there cannot be an impeachment.
And yet, that is precisely what the Articles of Impeachment House Democrats have now put to the floor of the House of Representatives do, outlining vague charges of “abuse of power” and “obstruction of Congress.”
Neither of these are crimes, articulable under any law passed by Congress and signed by the President. They can be found nowhere in the criminal code. They are not bribery. And they are not treason.
Under the first article of impeachment, the supposed “abuse of power,” which the resolution fails to cite which section of the U.S. Code that is being violated and is thereby not a crime, House Democrats point to President Donald Trump’s decision to temporarily hold up military assistance to Ukraine in July that was ultimately released on Sept. 11, and his encouraging of prosecutors in Ukraine to take another look at the Burisma natural gas firm for a potential corruption investigation after former Vice President Joe Biden had a Ukrainian prosecutor fired in 2016 reportedly to protect the company from prosecution, which his son happened to serve on the Board of Directors of.
Despite not producing a single witness who could testify with direct knowledge of such a scheme, Democrats accuse President Trump, without evidence, of leveraging the military and security assistance to Ukraine in exchange for these investigations. None of the diplomats and White House officials who testified, however, witnessed either the President ordering or communicating to Ukraine such an arrangement. One of them says he “presumed” that’s what the President was leveraging the aid when that diplomat communicated to a Ukrainian official, but says when he later spoke to the President he said the opposite and that there was no quid pro quo.
But, even if that had been the arrangement, that would not be a crime either, since we’re still talking about two things the President has the power to do: Reconsider military assistance to Ukraine in the conduct of his powers over foreign affairs pending a policy decision, and to urge Ukraine to investigate corruption, even if those being investigated might be well-connected Americans.
Ukraine had alleged that in addition to local potential violations by Burisma, U.S. laws against money laundering might have been violated as well. The U.S. and Ukraine have a mutual legal assistance treaty, allowing law enforcement agencies to cooperate on such matters, even if the criminal conduct involves high ranking officials.
Democrats’ — who profess that no one is above the law — principal argument against investigating the Bidens or any companies they might have been involved in, is that it would benefit Trump, since as the incumbent, will be the Republican nominee for President in 2020. That therefore the Bidens are above the law whilst a Republican is in office. But the interests of justice and the rule of law are not suspended in election years, even for Democrats.
Whether an investigation of Burisma is legitimate or not rises or falls on the merits of the conduct by the company alone, not what long-standing political players were hired to shield such inquiries. Such matters are settled in courts of law, whether here in the U.S. or in Ukraine, as the case may be. Congress has no power to settle such a dispute, and certainly not on concocted impeachment charges for non-crimes.
The second, laughable charge of obstruction of Congress is principally connected to the refusal of certain senior White House and administration officials to testify before the House impeachment panels. Again, this is not a crime either, it is a dispute between the executive and legislative branches over executive privilege. That is, the doctrine that executive branch officials who provide direct advice and counsel to President cannot later be called to testify, pointing to the need for confidentiality, particularly of matters pertaining to military and diplomatic secrecy, as well as matters of executive consideration that would national interests be better served being kept private.
Normally, such disputes over what Congress has the power to subpoena are settled by the judicial branch and federal courts.
Congress’ power to subpoena records and witnesses is an implied power under Article I’s grant of legislative powers. And the President’s power of executive privilege, to keep the deliberations of the executive branch sealed, is an implied power under Article II’s grant of executive powers.
Therefore, asserting executive privilege is not a crime, and no more so than Congress’ power to subpoena documents and witnesses, neither of which are articulated in the Constitution.
When there is a disagreement over whether a document or a witness can be subpoenaed by Congress, the proper form is to take it federal court for potential adjudication.
Gerald Ford once famously argued that “high crimes and misdemeanors” are “whatever a majority of the House of Representatives considers them to be at a moment in history.”
And yet that is not what the framers had in mind at all. In fact, they anticipated that after being removed from office for a crime (and only a crime), that the removed President would then face prosecution.
In the Federalist No. 69, Alexander Hamilton wrote on the impeachment provision, “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
Meaning if it is not conduct that would otherwise be punishable by law, then it cannot be punishable by impeachment, constitutionally.
When the Justice Department, on behalf of the President, brings prosecutions against defendants, it must always articulate the crime that has been committed. Warrants cannot issue except upon a showing of probable cause. Every person is entitled to trial by jury and the right to an adequate defense and the right to confront accusers and call witnesses. These and other protections are articulated in the Bill of Rights, and particularly the Fourth, Fifth and Sixth Amendments to the Constitution.
Yet, almost none of these protections have been applied in the Democrat’s impeachment inquisition. No crime has been articulated under federal law. Records including phone records of the President’s attorneys, members of Congress and even a journalist were subpoenaed and granted without any judicial order or warrant and showing of probable cause. The President was not allowed to call any witnesses in the House proceedings, have any legal counsel present to ask questions and the primary accuser was never even called to testify and his name is being kept anonymous under dubious legal grounds.
No wonder Senate Majority Leader Mitch McConnell has already declared, “The case is so darn weak coming from the House… We know how it's going to end. There's no chance the president's going to be removed from office.”
This is the first impeachment of a sitting President in U.S. history ever to lack either a crime or any due process. And Democrats expect Republicans to join with them in a bipartisan undertaking necessary to overturn the results of the 2016 election and remove the President from office when there is no basis under the Constitution for doing so? Don’t hold your breath.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
Liberal billionaires fund left-wing scam group Southern Poverty Law Center
By Richard McCarty
Liberal billionaires John and Laura Arnold would like for you to believe that they are not ideological, are guided by the facts, and are motivated by a desire to improve society. But the facts are otherwise: they have given millions of dollars to the abortion lobby, support a carbon tax, have donated millions to study ways of eroding gun rights, and have given generously to liberal Democrats. As if all of that is not bad enough, they have also awarded four grants worth more than $4.8 million to the Southern Poverty Law Center (SPLC), which loves to falsely claim that conservative organizations are “hate groups.”
Who are the Arnolds? John Arnold graduated from Vanderbilt University and then went to work for Enron. While there, he traded natural gas derivatives. Shortly before the company collapsed, he received an $8 million bonus, the largest in Enron’s history. He used this bonus to set up his hedge fund. He hired former Enron employees, made his fortune, and announced his retirement at age 38. Laura Arnold has three degrees: a bachelor’s degree from Harvard, a master’s degree from Cambridge, and a law degree from Yale. After completing her education, she worked as a lawyer and as an oil industry executive. The Arnolds now devote their time to doling out money to their pet causes, including the SPLC.
For decades, the SPLC raised money by suing the Ku Klux Klan and winning big judgments for their clients. Unfortunately, these huge awards were of little value to SPLC clients because the KKK did not have many assets.
In more recent years, the SPLC adopted another fundraising gimmick: it issues regular reports about the “hate groups” in the country and has created a “Hate Map.” It is so desperate to find new “hate groups” that it sometimes just randomly labels individuals “hate groups.” Included on the SPLC’s “Hate Map” are plenty of conservative organizations; but, it leaves out hateful, violent left-wing groups.
The federal government has regarded the SPLC as an expert on extremism and has a long history of coordinating with law enforcement at the federal and state level. SPLC sources were among those used to draft the Department of Homeland Security right-wing extremism memo in 2009.
Year after year, the SPLC says the same thing: “The number of hate groups is rising. Send money.” And gullible liberals do just that. These fundraising gimmicks have been so successful that the SPLC was able to accumulate assets of more than $500 million — some of which is tucked away in the Cayman Islands, as a shady, Third World dictator might do.
Based on the hate group designation the SPLC gave to the Family Research Council (FRC), one rabid left-winger decided to go shoot up the place. But for the courageous actions of a security guard, there likely would have been a bloodbath there. In spite of this attempted terrorist attack, the SPLC stubbornly insists the Christian organization is a “hate group.”
To be sure, SPLC’s problems extend far beyond its dubious fundraising strategies. The SPLC was also in the headlines earlier this year for allegedly allowing its co-founder Morris Dees to sexual harass employees for years. Even worse, the organization is alleged to have retaliated against those who complained. This scandal finally led to Dees’ firing and the resignation of the organization’s president. But that’s not all. There have long been complaints that the SPLC functioned like a plantation with blacks consigned to lower positions while whites largely led the organization that is supposedly dedicated to fighting racism.
The SPLC is rotten to the core, and no decent, sensible person would give them a dime, much less millions of dollars. How could the smart, successful Arnolds — with a large staff to assist them — choose to support a scandalous organization like the SPLC? Rather than canceling their current grants and demanding refunds of previous grants, the Arnolds are standing pat with this despicable organization. Apparently, the Arnolds are fine with contributing to a fabulously wealthy nonprofit that mistreats women and blacks and is bigoted against people of faith. It is incomprehensible and absolutely disgraceful.
Richard McCarty is the Director of Research at Americans for Limited Government Foundation.
Time for Georgia to end tax credit welfare for Hollywood
Dec. 13, 2019, Fairfax, Va.—Americans for Limited Government President Rick Manning today issued the following statement urging the Georgia legislature to consider proposals to eliminate tax credits for Hollywood in the upcoming session:
“Ending corporate cronyism is something that the left and right can generally agree upon, and corporate tax credits designed to help out of state or country industries are particularly noxious. The entertainment industry in Hollywood has been particularly aggressive in seeking tax credit incentives from states like Georgia in order to enjoy the lower cost of film making that the Peach state provides. As part of a broader campaign by Americans for Limited Government to spotlight corporate cronyism, we will be focusing upon the ever-expanding corporate welfare which Hollywood enjoys from the taxpayers of Georgia. It is time for the state legislature to end Hollywood welfare.”
To view online: https://getliberty.org/2019/12/time-for-georgia-to-end-tax-credit-welfare-for-hollywood/
ALG Editor’s Note: In the following featured column, the National Review’s Andrew McCarthy warns that the case to impeach President Donald Trump is so weak that there will be a cost of trivializing the process:
The costs of trivializing impeachment
By Andrew C. McCarthy
Resorting to a vague “abuse of power” theory, the House Judiciary Committee Friday morning referred two articles of impeachment to the full House on the inevitable party-line vote. The full House will impeach the president next week, perhaps Wednesday, also on the inevitable party-line vote. The scarlet “I” will be affixed to Donald Trump in the history books. He will not be removed from power by the Senate, however, and he has a fairly good chance of being reelected by the voters.
In sum, then, we are exactly where the Framers hoped we would never be when they added the impeachment clauses to the Constitution: in a governing system in which impeachment has been trivialized into a partisan weapon for straitjacketing the incumbent administration, rather than being reserved as a nuclear option for misconduct so egregious that Congress must act, transcending partisan, factional, or ideological considerations.
What will be the cost of trivializing impeachment this way?
I do not think that question will be answered in the Senate. It will be answered in the election next November. I fear that the answer will be banana republic-style dysfunction in government and a chasm of divisiveness in the body politic that may not be bridgeable.
That is because I believe the voters may enable Democrats to retain control of the House. In the absence of public objection to the politicization of impeachment, it is apt to become the new normal.
That does not necessarily mean we will continue to have the level of dysfunctional governance impeachment now entails. Even now, although the Democrats’ impeachment inquiry has chewed up an inordinate amount of committee and floor time, the House appears to have reached agreement with the White House on a new trade deal with Canada and Mexico, as well as government spending for fiscal 2020. No one is taking impeachment all that seriously.
This has been obvious not only on Capitol Hill but in the Beltway media. Think about the Sunday political talk shows. It has become standard for pundit panels to divide into two segments. In the first, journos ponder the tactical maneuvering toward impeachment and such concerns as the potential effect on Democrats holding seats in Trump-friendly districts. Then, after a commercial break, that panel returns to analyze the state of the 2020 race — which Democrat will emerge to challenge President Trump? That is, everyone takes for granted that the impeachment machinations they just discussed are irrelevant. Trump is not going to be removed, he is going to be the GOP nominee. No one thinks impeachment will render him less formidable; in fact, the main attribute most Democrats look for in a candidate is electability against Trump, not issue consistency or ideological purity.
As our Rich Lowry notes in his column today, the Trump impeachment seems inconsequential and “unhistoric,” notwithstanding that it is only the fourth time in 230 years of constitutional governance that we have reached this point. (Only two prior presidents, Andrew Johnson and Bill Clinton, have been impeached by the full House. Richard Nixon resigned after the House Judiciary Committee approved articles of impeachment but before the full House could vote on them.)
If the new normal becomes politicized impeachment on comparatively trivial grounds, the government may function marginally better during future impeachments than it has during this one. Impeachment will come to seem less like a crisis that puts other urgent government business on hold. Yet, that will be cold comfort because there will be many more impeachments.
Moreover, these impeachments will be bitterly divisive. It is a commonplace for the party out of power to accuse the president of abusing power; but now, the party’s base will demand that impeachment follow. As Congress comes to see itself as a standing grand jury for conducting criminal investigations (under the guise of “abuse of power”), it will be harder to attract quality people to fill critical administration positions. Such people always have other attractive options besides government service. Power is a lot less alluring if it means prohibitive lawyer’s fees and a working environment where everyone is under suspicion.
In Faithless Execution (2014), I argued that our system needs a credible impeachment threat because the Constitution’s other means of reining in executive excess (particularly, the power of the purse) are no longer effective. My point was that impeachment needed to be credible, not routine.
My contention was, and remains, that a political case has to be built for impeachment because the question of whether power should be stripped is a political determination. But there’s a critical caveat: Unless misconduct is so egregious that a public consensus forms that would induce two-thirds of the Senate to oust the president, the House should not impeach. Not only are the governmental and societal downsides of impeachment deleterious; an unsuccessful impeachment effort is likely to incentivize more, rather than less, presidential misconduct.
Trivializing impeachment gives us the worst of all worlds: Impeachment will become a less credible check on presidential misconduct, but it will still poison our politics and compromise our government’s effectiveness.
Is that our new normal? I think it may be. If President Trump is reelected, impeachment will be proven trivial. If he is defeated, his supporters and many other Republicans will blame a politicized impeachment and demand that the next Democratic president be impeached. Most importantly, if the House remains in Democratic control, it will signal that a significant plurality of the population, maybe even a majority, is comfortable with politicized impeachment.
What goes around comes around . . . and around . . . and around . . .
