What a Constitutional Crisis Looks Like
By: Steve Russell
Tags: Constitution, Politics, Donald Trump, History, Impeachment

Andrew Johnson Impeachment Trial. Drawing by Theodore Russel Davis public domain by age.

The system of checks and balances we have inherited is in danger.

(Author’s Note: The writers intended to compose anonymously under the nom de plume “Publius” in The Federalist Papers. I give the scholarly consensus of the identity of each writer. The actual fact is beyond my ken.)

That system assumes things about Americans that are less than complimentary, because of what the Founders believed about human nature. Just as they did not trust individuals, they did not trust what they might have called eklogikó sóma, the voters as a body, back when educated persons were expected to have studied Greek and Latin.

They feared “the mob,” which my people might have likened to a bison herd. You could shoot one from a distance and the rest would continue grazing as if nothing had happened. But if you did manage to stampede them, they became unstoppable to the point of suicide. That’s why some of the earliest evidence of human behavior in the Americas are called “buffalo jumps,” where Indians who lacked the technology to kill the animals would cause them to kill themselves.

This fear of mob behavior would be why the Founders gave us a republic rather than a democracy. That was balanced by fear of an authoritarian government, which is why they gave us rights against the government, rights claimed at the outset to be “inalienable,” but written down so they could be asserted in the courts and not just in the streets.

A major division among the Founders was between Anglophiles and Francophiles, reflecting a division some called religious and some called political that had given Europe war on a generational scale that never seemed to end, but only paused long enough for the belligerent nations to rest and add to their list of grievances before plunging into the next round.

There was a genuine love for French culture and gratitude for French aid in the revolution, but those feelings stopped well short of declaring war on England.

There was awareness of our endless debts to English culture and family ties still spanning the Atlantic and a common language that was much more common than it is today, but all of this did not tempt American leaders to join the endless war against France.

In our time, “imperialism” is a bit of Marxist jargon of only historical import, but when the ink was still drying on our Constitution, the new nation had been born in the endless war between England and France into a world where European nations were still brushing indigenous peoples aside and looting the Americas to benefit Europe.

Spanish Florida was a long simmering border dispute. Dominance of the Mississippi River and therefore the heartland of North America was the real prize when the Spanish and the French pressed competing claims to New Orleans. On the Pacific Coast, the fur trade was lucrative enough that English traders had to keep brushing back Russian traders to grasp for monopoly.

On the Founders’ concerns about imperialism, see Federalist 2–5 (probably John Jay).

Our Constitution breaks the power of government into smaller pieces and gives each piece powers to check the others. These days, the Monroe Doctrine is such a commonplace that it is invisible, rendering checks and balances only tools against dishonesty. They are that, of course, but they were originally defensive measures against imperialism. Our break with England was more complete than simply trading inherited kings for elected kings. By design, the power of a nation would never again be subject to the whims of one person.

When we are presented with a problem that cannot be solved within the system of checks and balances, we have a constitutional crisis. One such crisis gave us the Civil War, after which three amendments were tacked on to prevent a repeat.

Another source of constitutional crisis is when the document does provide a clear solution, but one or more of the actors is unfaithful to their oath of office. This has happened a number of times in our history. It’s usually one individual creating a crisis and that one is usually the President, because of the sheer unlikelihood that either house of Congress or the entire Supreme Court could be captured by individuals unfaithful to their oath of office. In addition, the President is the only officer who makes decisions by himself and is therefore subject to capture by the fantasy that he (or she, someday) is above the law.

On the promise of the Constitution that each branch shall be subject to check by another branch, see Federalist 48 (probably James Madison, quoting Thomas Jefferson at length).

Another major threat was what Publius called “the violence of faction,” which he characterized as a “dangerous vice.” The root of the fear is that “public good is disregarded in the conflicts of rival parties.” Publius goes on to state the philosophy that underlies our entire constitutional order:

The latent causes of faction are…sown in the nature of man.

Federalist 10 (probably James Madison).

The thought behind the Constitution was that the institutions of a republic would prevent the excesses of a democratic mob aroused to stampede.

Senators had longer terms and they were not subject to direct election by the voters. The House was directly elected with everybody on the ballot every two years — an arrangement that equals a very short leash.

Neither was the President subject to direct election, although we the voters have come to expect that. We forget that there is no remedy against a so-called “faithless elector.” A member of the Electoral College, once elected, can vote for whomever he or she chooses as long as the person meets the qualifications set out in the Constitution.

Back to the Other Casino Business? publicdomainpictures.net

George W. Bush and Donald J. Trump got elected in the face of losing the popular vote because of the apportionment of the Electoral College, but at least Bush and Trump were declared candidates who participated in the campaign. All that was required was that they be natural born U.S. citizens of at least 35 years of age who had lived in the U.S. for at least 14 years.

Suppose, unlikely as it may sound, a POTUS were elected with aid from a foreign power, or a POTUS found a way to direct public funds into his private accounts, or both. The only way to remove that POTUS would be impeachment.

The House would have to do an investigation into whether the POTUS was guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.” It’s not necessary to prove him guilty, but rather just to have some cause that a reasonably prudent person could believe he is guilty. Proving guilt is for the trial, not the impeachment.

Treason is, as a practical matter, off the table unless there is a confession. Why? Article III, Section 3:

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.

Bribery? Perhaps, but the reference to bribery has to refer to the common law crime. There was no federal penal code at the time the Constitution was ratified. In the current unpleasantness, the articles of impeachment do not charge bribery.

“High Crimes and Misdemeanors” is a phrase that, when the Founders chose it, was a term of art with 400 years of usage behind it — none of which show that proving a crime is required.

Publius stated the intent was to make impeachable “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”

Federalist 65 (probably Alexander Hamilton).

This brings us to the Senate and the highly unlikely state of affairs that a political party would be captured by a cult of personality so completely as to prefer the interests of that cult over the interests of the nation.

I suggest the problem is not that the Senate will not convict, if it’s true that the Senate will not convict. That is up to the Senate.

The problem is that the Senate — through its presiding officer — is threatening to refuse to hold a trial. Some senators have suggested that — even if a trial broke out — the House managers could be prevented from bringing forward any evidence that was not introduced in the House.

That is profoundly silly.

Leaving aside that has never been the rule, what about the article of impeachment claiming obstruction of Congress? Can it be the law that the POTUS can refuse to comply with lawful subpoenas and then claim no obstruction can be proven because there’s no evidence? Seriously?

It is absolutely within the Senate’s discretion to find that President Donald J. Trump committed the acts alleged in the articles of impeachment but those acts do not rise to the level that ought to warrant removal from office. Should anybody disagree with such a finding, they must take it up with the voters in the state represented by each Senator who voted not guilty to avoid the President’s removal from office.

It is not within the Senate’s discretion to refuse to try articles of impeachment that passed the House. The Constitution requires that they be put to trial — not merely voted upon.

If the Senate found that the POTUS did not commit the acts alleged in the articles of impeachment, that would not amount to a constitutional crisis no matter how clear the evidence was.

If the Senate found that the POTUS did commit the acts alleged in the articles of impeachment, but those acts did not warrant removal from office, that would not amount to a constitutional crisis.

If the Senate refused to conduct a full and fair trial of the articles of impeachment passed by the House, that would be a constitutional crisis, leaving citizens injured by the faithless senators no nonviolent alternative. That is the nature of a constitutional crisis. It leads to manifest injustice or civil war or both.

(Author’s note appended after a fair question asked privately: What is the difference between a simple vote to dismiss the impeachment and a not guilty vote contra the great weight of the evidence? The difference — and what offers a nonviolent action alternative — is the record of the trial, of great value to those who disagree with the result and greater value to history.)