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After the Kangaroo Court last week that was the second impeachment of Donald J. Trump, occurring after he completed his term as president and returned to private life, I’ve seen many commentators state words to the effect that, “Now we can impeach Obama!” I maintain both that what occurred last week was unconstitutional and that it should not occur again, i.e. we should not go down the path of impeaching past presidents.
The purpose of the Constitution is to set the framework, the boundaries, the rules, the laws, of the federal government, which was created from that of the individual states. It is a legal document, the Supreme Law of the Land. While it allows great latitude, such as allowing each house of Congress to determine their own rules, and states to make their own laws, all such rules and laws must be in accordance with the Constitution. See my previous article on the Unconstitutionality of CoVid-19 Lockdowns for further discussion on this point.
What the Constitution Says on Impeachment
Before pressing my argument as to why Trump’s impeachment last week was unconstitutional, it is insightful to examine what the Constitution states about impeachment, which is only mentioned six times in the following clauses:
Article I, §2, ¶5 thru 7:
“The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
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.
Judgment 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, Judgment and Punishment, according to Law.”
Article II, §2, ¶1: “The President … shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”
Article II, §4: “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.”
Article III, §3, ¶3: “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
The 10th Amendment is also pertinent to the discussion:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
What do the Dictionaries Say?
As with my previous article, I maintain that one need not refer to exterior supporting documents or discussions, other than perhaps a dictionary, to understand what the various sections of the Constitution mean. While I have read much of those works, including The Federalist Papers, as with that article, I refrained from referencing them for this, and only referred to the same two dictionaries, those being: 1) A Dictionary of the English Language, Samuel Johnson, A.M., London, 1792, 2) https://www.merriam-webster.com/.
Within those, one finds the following concerning to impeach and impeachment:
to Impeach
Johnson: def 2, “to accuse by publick (sic) authority”
M-W: (transitive verb) def 1, “to charge with a crime or misdemeanor; specifically: to charge (a public official) before a competent tribunal with misconduct in office”
Impeachment
Johnson: def 2, “Publick (sic) accusation; charge preferred”
M-W: refers to “Impeach” as well as to “Charge”, def 4 a thru c: a: to make an assertion against especially by ascribing guilt or blame (charges him with armed robbery) (They were charged as being instigators.); b: to place the guilt or blame for (charge her failure to negligence); c: to assert as an accusation (charges that they distorted the data)
The Senate’s Error
A great number of papers have been written and discussed, which make the point that impeachment is a purely political process. Article I, §2, ¶7 leaves one convicted by impeachment open to further liability in a court of law, so the point might be made that the impeachment process isn’t actually a legal process. That’s pure obfuscation. Everything is political, but not everything is lawful or legal. If the Constitution is the Supreme Law of the Land, and the process of impeachment is specified therein, then impeachment is both a lawful and legal process. Furthermore, any impeachment must be conducted within the bounds of those laid out by the Constitution, to do otherwise is simply unconstitutional.
Although the Articles of Impeachment against Trump were filed while he was still in office, the senate voted that impeachment of him as a private citizen, after he left office, was constitutional, and in that vote they erred gravely.
Just because the senate, which is apparently teeming with those who’ve never actually read the document they’ve sworn to uphold, votes that the process is constitutional, doesn’t make it so. Nowhere is the power to interpret what the Constitution says mentioned as an enumerated power of the senate, nor for that matter the Supreme Court but that is a subject for another paper. The word interpret does not appear in the Constitution; the synonym construe appears four times, and only then as a limitation on the specific clause. The process to amend the Constitution is specified in Article V, and a simple vote of the senate is not part of that process. Finally, Congress’s powers are specifically limited by Article 1, §9 and the 10th Amendment.
To use impeachment against private citizens would be in contradiction of Article III, §3, ¶3, which stipulates trails of all crimes shall be by jury, except in case of impeachment.
In summary, impeachment is a public process, which is specified in Article II, §4 as process for removing civil officers of the United States federal government, if convicted in that public process by two thirds of senators present at the vote.
Pandora’s Box
IF the senate was correct in its action on proceeding forward with the impeachment of a private citizen, then any private citizen could be impeached with the sole aim of making them ineligible to hold any office of the federal government. Not only is this wrong, but it is also not a path that we should go down as a country. We have already allowed the federal government to usurp far too much power and have acquiesced too much liberty. Imagine a government that has the self-declared power to unilaterally decide who may hold any federal office. This is akin to declaring someone guilty of a crime before any crime has been committed!
If Obama, or one of the other former presidents committed crimes while in office, then the proper procedure now is to bring civil or criminal suit against them in federal court. To impeach them only opens a Pandora’s Box of maliciousness which would lead to further abuses of power on top of those already committed by those who are supposed to be working FOR us, We the People, not AGAINST us.
Endnote and Suggested Reading
Whenever I look at the Constitution, I always attempt to look only at the source document itself. My position is always that any document, be it a contract, an instruction, a regulation, a law, a Constitution, should stand alone in its meaning. In the case of the Constitution, it is important to study the history to have a deeper understanding of why those who wrote it, wrote it the way they did, and how the amendments came to be. But one should not need to refer to any history to understand what the document itself says. Indeed, the Founders expected the common man to be able to read and understand the Constitution.
For those interested to study the history, I offer the following suggestions:
Namaste,
Mark Stansell
February 17, 2021
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