Sunday, June 8, 2014

The Post Constitutional Era! Part XV

Article II,
Section 4: Executive Impeachment
Section 3 makes it clear the president must “take care” that federal laws are executed.  However, if the president and vice president fail they can be removed from office if they are impeached and convicted of treason, bribery, or other “high crimes and misdemeanors.”
There has always been a great deal of discussion as to what constitutes “high crimes and misdemeanors”.  I will attempt to outline the historical foundation for that phrase.
Jon Roland of the Constitution Society states that it had meaning and understanding to the Framers stating;
“to the Framers, and found that the key to understanding it is the word "high". It does not mean "more serious". It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.” 
He further states;
“Under the English common law tradition, crimes were defined through a legacy of court proceedings and decisions that punished offenses not because they were prohibited by statutes, but because they offended the sense of justice of the people and the court. Whether an offense could qualify as punishable depended largely on the obligations of the offender, and the obligations of a person holding a high position meant that some actions, or inactions, could be punishable if he did them, even though they would not be if done by an ordinary person.”
He notes the same values applies today in the Uniform Code of Military Justice, where civilian could not be punished, those with “sworn” duties are held accountable for their failure to perform, and their “offenses which bear on the subject's fitness for the duties he holds, which he is bound by oath or affirmation to perform”, are punishable.
To the Founding Fathers the word "perjury" – derived from a number of Latin terms including – periurium -  meaning “a false oath, perjury, and would have meant a "violation of an oath’".
The president must swear: "I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
“He is bound by this oath in all matters until he leaves office because he has assumed an official role and that role is that of a “witness under oath” for the duration of his testimony”’, i.e. his term of office.  That’s what perjury a “high crime” as it is a crime of high office.  So when the President swears to "faithfully execute the Office of President of the United States" and to "preserve, protect and defend the Constitution of the United States", and fails to do so he is guilty of a “high crime”.
The author notes that to hold a “high” office comes to everyone as a privilege” – it isn’t a right, and removal is based on the preponderance of evidence, even if that "high crime or misdemeanor" is “referred to by a different name, when considered as such. Thus, an offense like "obstruction of justice" or "subornation of perjury" may become "abuse of authority" when done by an official bound by oath. As such it would be grounds for impeachment and removal from office, but would be punishable by its statutory name once the official is out of office.”  Therefore the author notes that the President “is not protected by "plausible deniability". He is legally responsible for everything that everyone in the executive branch is doing.”
The last statement by the author is insightful.  He says; “The impeachment and removal process should be a debate on the entire field of proven and suspected misconduct by federal officials and agents under this president, and if judged to have been excessive by reasonable standards, to be grounds for removal, even if direct complicity cannot be shown.”
The authors of the Constitution were well educated and understood the historical foundation for their work.  The first use of impeachment for a public official was in England in 1386 with the “impeachment of the King’s Chancellor, Michael de la Pole, the 1st Earl of Suffolk for breaking a promise to Parliament.  Then there was the impeachment of a descendent of the 1st Earl of Suffolk, William de la Pole, who was now the first “Duke” of Suffolk in 1450 who was charged with “using his influence to obstruct justice, cronyism, and wasting public money. Other charges against him included acts of high treason.”  “In 1621, Parliament impeached the King's Attorney General, Sir Henry Yelverton for high crimes and misdemeanors. The charges included failing to prosecute after starting lawsuits and using authority before it was properly his.”
“After the Restoration the scope of the charge grew to include negligence, and abuse of power or trust while in office. For example, charges in the impeachment of Edward Russell, 1st Earl of Orford in 1701 included many violations of trust and his position. In this case, he abused his position in the Privy Council to make profits for himself; as Treasurer of the Navy he embezzled funds; and as Admiral of the Fleet he got a commission for the pirate William Kidd.”

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