Wednesday, February 10, 2021

Political Crime & Punishment with Balking Heads

A friend & I who most often come to similar conclusions, differ on whether the Senate's trial against Donald constitutional, or not. Though Morgan thinks that what the Leftists' are doing is "...stupid and dishonest...", he does think it is constitutional, and I most definitely do not think the Senate trial is constitutional - does he have a point? Well... let's have a look at the Impeachment Clauses themselves:
"Article 1, Section 2, Clause 5 The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Article 1, Section 3, Clauses 6 and 7 The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law."
So where does the disagreement come from? I think it has to do with where he and many others are beginning from - the Impeachment Clauses themselves. Why? Because, IMHO, they aren't the proper place to start such reasoning from, they're the last part of the process, and with a false start, you're as likely to make a false conclusion as a 'correct' one. Keep in mind here, that I'm looking only at how people can have an honest disagreement over the matter, as distinct from the dishonest and corrupt efforts of the Pro-Regressives (Left & Right) in the media and Democrat & Republican parties (if you can square their words & actions with law and justice... please, show me how), and they have no relation to those who, like Morgan, are honestly looking at the matter, and trying to determine what is, and is not, constitutional (and BTW, Morgan's got some questions that I'd love to see being taken up in the 'trial' this week).

So with that in mind, and attempting to use the impeachment clauses as our starting point, lets see if we can see what the veritable parser of clauses might see.

If you start with the impeachment clauses themselves, what do you have to go on? Article 1, Section 2, Clause 5, is pretty straight forward, and though historically every other congress has had the good sense of responsibility to at least pretend to intend to have honest hearings, and to bring reasonable charges, the Constitution doesn't say a word about their having to do that. Pelosi got the House of Representatives to impeach the then currently sitting president, again, and that's that. We can argue over whether it was wise to do so, but there's no real argument over whether it was constitutional of the House to do so. It was. It was also stupid and corrupt... but... that doesn't make it unconstitutional, it only shows what kind of thinking is representative of all too sizable a segment of the people living in America, today.

So then what? Article 1, Section 3, Clause 6, says that only the Senate has the power of trying impeachments, and that 'when the President of the United States is tried the Chief Justice shall preside' - do you think that that presents a problem to the earnest clause parser? No, I think, not really, as that too could easily go either way. For instance, if Parser #1 thought that such a line did actually settle matters, then Parser #2 could easily point out that that which refers to the current President, is just as simple a matter of pointing out that since the former president is no longer the current president, then the Chief Justice needn't preside. Sure, Parser #2 would then call out 'next!' and move on, as his fellow Parser's head explodes on the spot. If Parser #1 balks at that, Parser #2 might point to the last portion of the clause which says, that: " Person shall be convicted without the Concurrence of two thirds of the Members present.", and point out that it says 'person', and not President, right?! Balk & balk, and on they go. We'll leave them there, for now, and move on.

And so what about Clause 7? Here especially, from what I've seen of people honestly trying to parse this out, there seems to be an almost even-odds chance of them coming out one way, or the other. Clause Parser #1 will point out that "Judgement in Cases of Impeachment shall not extend further than to removal from Office, AND disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States", and conclude that 'You can't remove someone who's not in office, amiright?' Right you are, Parser #1... but... then... Parser #2 will point out that 'disqualifications' from holding office, is still on the table. "No it's not!" Parser #1 will reply, 'didn't you see the 'AND'? They can only be disqualified after being removed from office!'. But, as Parser #2 will then point out, that 'and' is preceded by a comma, which makes it less a logically binding of 'This AND that', than an optional listing of 'You can choose from this, and this, and this, and this', indicating that those are options are all available, but optional.' and so forth, and so on the balking heads go.

See what I mean? Beginning from the Impeachment Clauses themselves, will lead honest people into balking heads, balking at this point, and that, and they can go no further - seriously, how could either hope to go any further than endlessly 'Yes!/No!'ing each another from there?

Now, as I said, I do not think that the senate can properly put former president Trump on trial before the senate, but I also do not think that that point can be made and understood, simply on the basis of a common sense reading and parsing of the clauses alone, because 'answers', one way or the other, are only too easy to find, and only too easy to feel satisfied with. And that's pretty much where my back & forth with Morgan was stuck at, as he was looking at the clauses themselves, and found no way to look beyond them when any of the above points were pointed out, such as the point that Trump was no longer in office, Morgan simply replied:
"... But, Trump *was* in office when he was impeached.
The question thereby becomes relevant: Is he so unsuitable for that office that he should never enter it again? I maintain this question is predicated on premises that are not only false, but laughable. But that doesn't make it unconstitutional. The Senate has a valid impeachment article. As I said in my blog post, if they vote to acquit and the House says "Hold up, we just thought of something else we're going to impeach him again"...that's a different conversation. That's a bill of attainder. Congress authorizes the House to act upon the office, not the person; and it authorizes the Senate to act upon the *article*. Both are expressly prohibited from acting upon the person.
And neither one is. The President Pro Tem is presiding over the trial, just as he would preside over the trial of any article impeaching someone other than the sitting President of the US..."
We went back & forth through several feet worth of comments, and not surprisingly, we got no further, as most of the honest arguments that I've seen over the matter, end up in irresolvable 'Yes!/No!'s, and no one can decisively say otherwise. Even Wapo (who I in no way consider to be an honest actor in this) admits: Can a former president be subject to an impeachment trial? The Constitution is murky. The experts (establishment) are split (Libertarianish), and not surprisingly, as more legal experts - the vast majority of whom have learned the law through only the modern positivist parsing of it - side with the Pro-Regressive (Left & Right)'s point of view.

IMHO, the honest differences involved stem from a different approach being taken to not just the law, but to thinking itself, which might be summed up as a tendency to go straight to analysis, in order to arrive at their interested ends, vs performing analysis only after having engaged in synthesis. Think... the modernist 'Critical Thinking' (which Morgan has a favorable view of) approach of looking at what's presented and immediately performing a logical analysis of it, vs the more traditionally reasoned approach, which I favor, of first seeking to understand what it is that's being discussed, checking and verifying the premises of the argument being presented, it's then and only then, if they check out, moving on to perform those logical comparisons needed to test the validity of the argument being presented.

So if we want to get beyond the endless 'Yes!/No!' of balking heads, we've got to begin by starting where we should have focused upon, at the beginning, rather than the end. And the first step of entering deeper into that argument, begins with the immediate surface level definition of the word, Impeachment, which is defined as:
'1.(especially in the US) a charge of misconduct made against the holder of a public office.'
, where the 'holder' is '2. a person who holds something'. That alone will get us no further and deeper in the matter than it did above... unless we begin looking beyond the text of the clauses themselves and into their meaning, do that, and, then we might begin to take notice of what's in the parenthesis at the start of #1:
"(especially in the US)..."
The alert reader will notice that that is an indication that a different approach to impeachment may exist elsewhere. Does that matter to us in the US? Well, No, and Yes, meaning that it doesn't matter what Canada, or Mexico may or may not define or use the word for today, but it does matter how it was elsewhere defined in what formed the basis of our Founder's understanding of Law, even and especially where they disagreed with that. To that end, I'd urge you to read through the links at the bottom of the page that I linked those clauses from, and especially to the last two, both of which came from early and distinguished commentators on our Constitution, the first from from William Rawls, which gives a fine overview of the thinking prevalent in our Founder's time, and the second and far more extensive and comprehensive link, is to former Supreme Court Justice, Joseph Story, whose commentaries on the Constitution formed the basis for Constitutional Law for nearly a century, until that point where our Law schools began to actively distance themselves from the thinking of our Founding Fathers, in the 1930's.

Why those apply especially to this part, 'especially in the US', is that they give more than a little history on how and why impeachment developed under the English Crown, and how they deliberately differed from that, and how, and more significantly, why, our Founders defined the process as differently from the English as they did, strictly confining charges of impeachment to 'civil officers' of the United States, including the president and vice-president, who could then be put on 'Political Trial' for, and have judgement rendered against them for 'Political Crimes'. And yes, there's an important reason for why I'm italicizing and underlining those terms, as they indicate an important and very clear distinction between private and civil life, and between both political and criminal charges.

First, there's the difference between Civil & Private life, that needs to be taken into account, as Justice Story puts it,
"... we speak of civil life, civil society, civil government, and civil liberty; in which it is nearly equivalent in meaning to political. It is sometimes used in contradistinction to criminal, to indicate the private rights and remedies of men, as members of the community, in contrast to those, which are public, and relate to the government...."
That distinction was an issue, under that English law which our Founders were deliberately seeking to improve upon. There, impeachment could be applied to a wide variety of person's, and our Founders had that very much in mind when writing the impeachment clauses as they did, as Joseph Story further notes,
"...In this respect, it differs materially from the law and practice of Great-Britain. In that kingdom, all the king's subjects, whether peers or commoners, are impeachable in parliament; though it is asserted, that commoners cannot now be impeached for capital offences, but for misdemeanours only. Such kind of misdeeds, however, as peculiarly injure the commonwealth by the abuse of high offices of trust, are the most proper, and have been the most usual grounds for this kind of prosecution in parliament. There seems a peculiar propriety, in a republican government at least, in confining the impeaching power to persons holding office. In such a government all the citizens are equal, and ought to have the same security of a trial by jury for all crimes and offences laid to their charge, when not holding any official character. To subject them to impeachment would not only be extremely oppressive and expensive, but would endanger their lives and liberties, by exposing them against their wills to persecution for their conduct in exercising their political rights and privileges. ..."[emphasis mine]
, and from that understanding of confining the impeaching power to persons holding office, goes to what the nature of Impeachment was understood by our Founders to mean, and to what they intended it to be used for, and to why it is that Impeachment is defined as: '1.(especially in the US) a charge of misconduct made against the holder of a public office'. Which is why I emphasize, that the impeachment clauses referred to some one person, who presently holds office.

Whatever we might say about the shoddy and rushed nature of the charges of impeachment that the House brought against President Trump, his term in office had not yet expired, and as the Constitution doesn't define the process any further, the charges of impeachment brought by the House are constitutional. But that's only the first step, and the second step comes as those charges are then taken up in a trial in the Senate (and what kind of trial is... and can... that be?), which is what we're going to be subjected to this week, which is occurring weeks after the expiration of the then president's term in office - which means that our Senate, in the name of We The People, will be subjecting a private person to a political trial, on charges of political crimes, and that, IMHO, is not at all acceptable, and is more in line with the practices of the British Crown, which is what our Founders were clearly seeking to distance us from, and for very good reasons, which we should respect and demand be upheld.

Some of the reasons for that,:
"...§ 783. As the offences, to which the remedy of impeachment has been, and will continue to be principally applied, are of a political nature, it is natural to suppose, that they will be often exaggerated by party spirit, and the prosecutions be sometimes dictated by party resentments, as well as by a sense of the public good. There is danger, therefore, that in cases of conviction the punishment may be wholly out of proportion to the offence, and pressed as much by popular odium, as by aggravated crime. ..."
, and,
"...§ 784. There is wisdom, and sound policy, and intrinsic justice in this separation of the offence, at least so far, as the jurisdiction and trial are concerned, into its proper elements, bringing the political part under the power of the political department of the government, and retaining the civil part for presentment and trial in the ordinary forum..."
The President of the United States - and not a private citizen who at one time may have held the office of the President of the United States, but the current office holder of that office - may be subjected to a political trial for political crimes, but a private citizen may not be subjected to political charges, over political crimes, in a political trial.

This is not and should not be, about Donald J. Trump - who is no longer our president and so cannot be removed from office - but about the dangerous notion of using the Constitution's Impeachment Clauses, to subject a private citizen to political crimes and punishments - not only do those charges no longer apply to him, but more importantly they do not under any circumstances, apply to any private citizens, and so the senate should not, must not, and cannot, constitutionally, try a private citizen on charges of impeachment. Those charges were constitutionally brought by the House, upon the public official who was then serving in office at that time, but who no longer is the President of the United States of America. Those are not charges that are suitable for being brought against American citizens, on charges which 'shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor'.

This does not mean that if a former president were suspected of having committed criminal acts while in office, that he would somehow be free from the long arm of the law. Take note of the last line of Clause 7, that "... the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.", IOW if the person in question is believed to have committed criminal acts, they most definitely can still be charged with them after leaving public office, just as any private citizen might be, and if those charges are found to have merit, then that person can be tried, and if found guilty, they can be convicted, and can be sentenced for those crimes - but that can happen only because they are criminal crimes, in criminal court, and not political crimes, being tried in a political court.

As Justice Story pointed out, there is a clear distinction between private affairs and civil duties, and there is also a distinction between what the private citizen can count on when charged in a court of law, and what they might be made to face up to in a political process. A private citizen in a criminal trial enjoys the 'due process of law' and conviction by 'unanimous agreement' of a jury of their peers who believe them to be guilty beyond a reasonable doubt - that's not the case in an impeachment trial before the Senate, where it requires only that a 2/3 majority of sitting senators, who can hardly be seen as 'the peers', of that private citizen. The United States Senate, although constrained by laws, is not a court of law, and an impeachment trial is a political process applied only to members (present tense) of our government. The Senate has no power to try private individuals, and what they are now pursuing has far more in common with a British form of impeachment, or bill of attainder, or with a legislature singling out individuals for 'trial' and conviction... than it does our Founders political form of impeachment, and which would be a major constitutional no-no.

For those reasons, what the nature of Impeachment is (as applies to an office holder), for 'political' and not criminal charges, there is a distinction between an Office Holder, and what all office holders immediately revert to on leaving office, the resuming of their fully private status as private citizens, who are due the “privileges” and “immunities” as were later re-asserted in the 14th Amendment. The former 45th president is now a private citizen, and we should not, for any reason, be seeking to bring that private citizen, or any other, up on political charges. Period. If you have reason to believe that he's guilty of a crime, then charge him, try him, and even convict him, but that must be done as with a private citizen being brought up on criminal charges. In no way, shape or form, should a private citizen, be brought up on political charges, and tried in a political court. Ever.


A thought might have occurred to you here, as it did to Rawls, and to Story, and most others, which are longstanding questions which have not been resolved, such as:
'What happens if the president resigns as the trial begins, what happens? Can the impeachment trial continue?'
Would that be an escape? My answer to that, is no; if the person that is serving the political office of president, is in office when a trial is begun, then his resignation would amount to an evasion of lawful charges, and should be brushed aside - if President Ford hadn't pardoned Nixon after he resigned, he could have been tried in the senate on the charges that the House was presumably about to bring against him, as the prerequisites for the trial were met in that he was in office, and his term would've been active at the time of a Senate trial, and his resignation would have amounted to an attempt to evade trial, and so would have been in that context, invalid. But if the person proposed to be tried for 'political crimes', is not in political office at the start of the trial, because his elected term of office had concluded, then the conditions for a political trial are not met, and that trial is not appropriate.

Yes, the points that Morgan and others are making, do have a point - but only if you go on nothing more than the text of the Constitution alone. Yes, anyone who is capable of reading and using logic, can make the point that the constitution doesn't explicitly say that the President has to be in office, but such a 'logical' and legalistic parsing as that is, IMHO, an extraordinarily dangerous road to stroll down. In issues of power, if the rules defining it are unclear, then the ability to wield that power should default to the usage that is more restrictive towards governmental powers, than to those of private citizens. If you're not sure why, maybe you should think about the differing interpretations of the Commerce Clause, and of all of the enumerated powers of our Constitution's Article 1, Section 8, where similar Clause Parsers of the past and still in the painfully ever present moment, have enabled our government to insert itself into every aspect of our lives. Think of that same murkiness of interpretation being applied when it comes to the action of trying private citizens for political crimes, and by political rules.

For these 'clausal parsing's' and for many other reasons, I am most definitely not a 'Textualist', or of a 'Original Intent' school of thought, because by their similar natures, they also soon stray into equally stunted views of the law, leaving and exposing easy loopholes, which soon lead to evading the deeper meaning that the Constitution was written to express, and to secure; and while it is true that logic is a necessary component of constitutional thought, it is not a sufficient one. Logical comparisons are not a valid starting point, IMHO, as was widely understood up until the last century; instead, the proper starting point had been understood to begin with first asking whether the premises which those logical comparisons are to be performed upon, are true, or not. If not, there are no parsings to apply or logical comparisons to perform, and so no logical conclusion to be pretended to be arrived at, as the journey was cancelled when its premises were found to be untrue. Only after a successful step is completed, should we proceed on to the next step, and properly analyzing the issue requires beginning by looking at what the matter itself is, and then at what the processes, plural, involved are, and only after the matter is found to apply, and each successive step is properly completed, should we come to the part where judgements might be rendered, if found guilty.

Our Constitution was developed not out of ideological schools of 'law', but as the concept and purpose of Law naturally developed into (pre-American) constitutional structures through the concepts of natural law that it was later derived from, and major decisions cannot be made upon the basis of particular clauses without reference to the whole, but only with the full meaning of the law in mind which that clause expresses a portion of. In this particular case of impeachment, that process begins with the concept and history of impeachment itself, whose purpose is to remove an unfit person from political office, and as it was developed in America, to apply to political actors in political office. To accept that it is ok to impeach a private citizen, to try them, and to assign judgement upon them, for the purpose of preventing them from seeking political office in the future, is not only a case of the ends justifying the means, but is a matter of our government using our political processes to limit the available political actions and thoughts of American citizens. Such an action is not, and must not, be tolerated to be, in any sense, justified. 

If the term of the person serving in the political office of president, has not expired when a trial is begun, then the prerequisites for the trial are met, and any political penalties are appropriate to be applied to them, if they are found guilty. But if the political term of a person proposed to be tried for 'political crimes', has expired, and they are not in political office at the time of the start of the trial, then the conditions for holding a political trial are not met, and that trial is not, in any way, appropriate, allowable, justifiable, or constitutional.

The 45th president was impeached twice, and was tried in the senate for it once, and as his term in office has expired, he can no longer be constitutionally be tried for impeachment as an office holder. If someone wants to bring criminal charges, and can produce just cause for them, they may do so, but in no way do any aspects of impeachment apply to the former President of the United States of America, Donald J. Trump.

I'll leave you with Joseph Story's summary, his opinion, and his realization that the Constitution itself doesn't settle the matter conclusively, that, sadly, is up to us... and judging from our current state of affairs, I think that We The People are the very last ones who should be trusted with the matter.
§ 801. As it is declared in one clause of the constitution, that "judgment, in cases of impeachment, shall not extend further, than a removal from office, and disqualification to hold any office of honour, trust, or profit, under the United States;" and in another clause, that "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 or misdemeanours;" it would seem to follow, that the senate, on the conviction, were bound, in all cases, to enter a judgment of removal from office, though it has a discretion, as to inflicting the punishment of disqualification. If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object, for which the remedy was given, was no longer necessary, or attainable. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office. There is also much force in the remark, that an impeachment is a proceeding purely of a political nature. It is not so much designed to punish an offender, as to secure the state against gross official misdemeanors. It touches neither his person, nor his property; but simply divests him of his political capacity.

...§ 803. It is not intended to express any opinion in these commentaries, as to which is the true exposition of the constitution on the points above stated. They are brought before the learned reader, as matters still sub judice, the final decision of which may be reasonably left to the high tribunal, constituting the court of impeachment, when the occasion shall arise....
The situation of 'when the occasion shall arise', has indeed arisen, and I'm very skeptical about whether We The People are going to rise to the occasion of it. We'll see.