The midterm elections have ended in the US with an apparently confusing message: Republicans have gained more seats in the Senate, Democrats in the House. But the real message is unambiguous: President Trump’s unchallenged rule has ended. He could do so far whatever he wanted, for he had both chambers of Congress on his side, not to mention the new rightist majority in the Supreme Court. He had the whole triumvirate of executive, legislative and judicial power.
Now that the Democrats have a majority in the House, they are giving early signs that they will return with vengeance the gift of humiliation Trump piled on them. With the leadership of key committees, they will initiate investigations into Trump’s questionable deals, political, financial, even pre-Presidential. The biggest issue, not only for the US but for the world, will be the resurgent threat Trump faces of impeachment.
The subject of impeachment has been obfuscated by three myths even in the US. Most Americans think of impeachment in terms of President’s criminal deeds. Of the 19 men the Congress has charged in the entire history of the US, only two were Presidents, and the eight who were finally impeached were all judges. Only a study of all those cases, including the cases of the eight judges who were convicted, could tell us the real story of US impeachment ~ why it is the ultimate antidote to presidential wrongdoing.
The second myth is the notion that to impeach a President is to decapitate the government and destabilize the entire American society. In a democracy every official is and should be replaceable. The removal of a President should be no more disruptive than that of a judge, who is appointed for life. The Constitution provides a popularly and separately elected official, the Vice President, to avoid such disruption, not to mention the immense disruption a bad President can cause if not removed.
The third is the most distracting and pernicious myth of all, that a President, or a senior government official, can be removed only for a conspicuous crime, triggered by a phrase the Americans borrowed from their erstwhile rulers, the British (reportedly inspired by Edmund Burke’s denunciation of Warren Hastings for his misdeeds in India) ~ “high crimes and misdemeanors.”
The Founding Fathers originally chose ‘treason’ and ‘bribery,’ and when George Mason tried to add ‘maladministration’ and James Madison preferred a clearer term, consensus was reached on “high crimes and misdemeanors.” Clearly, the intention was to capture all the improprieties that would make a President removable in addition to treachery and financial chicanery.
The phrase, unfortunately, invites the highly misleading interpretation that impeachment can only turn on some decidedly criminal activity. In addition, the term ‘misdemeanor’ creates a serious confusion in the US where it is a common word for a minor infraction of the law, distinguishing it from the more serious ‘felony,’ and which typically invites no more than a warning and sometimes a light penalty.
The truth is that the convention that created the US Constitution was firmly of the view that the person who heads the huge power structure of the US Government ~ a structure that has since grown asymptotically to include 15huge cabinet departments, 160 regulatory agencies and 2 million civilian employees ~ had to have serious legal restraints, including the ultimate restraint of possible removal. The Constitution writers did not want to limit the restraints to picayune errors of omission or commission, but to bring in a broad pattern of ‘maladministration’ that would spell a person unfit for the presidency.
James Madison had three words that capture the essence of the grounds on which a President or any senior government officer can be thrown out ~ incompetence, negligence and perfidy. All together, they have a broad reach, and that is precisely what the Founding Fathers wanted. Those implications are worth looking at.
Incompetence implies personal inability to perform the function of office. Though a person had earlier seemed capable, on assuming office it may become clear that he or she does not have the intelligence, sagacity or balance of mind to do the job. Intelligence is more than political cunning, the ability to apply one’s mind to issues deeply, on a sustained basis, keeping the wide perspective of the country’s welfare.
In the Convention, two delegates expressed their concern about an official’s “incapacity” and James Madison even said one “might lose his capacity after his appointment.” Representative Brad Sherman has warned about “Ignorance accompanied by a refusal to learn. Lack of impulse control, accompanied by a refusal to have his staff control his impulses.”
Negligence implies a refusal to perform satisfactorily on a sustained basis even when one has the ability to do so. A President simply may not apply himself or herself and take chronically poor decisions, disregarding national interest and knowledgeable counsel, based on private or political interests.
George Mason suggested, quoting the British authority Blackstone, “maladministration” ~ mismanagement raised to a pinnacle ~ and the American commentator Justice Story spoke of offences “growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.”
Perfidy comes closest to the generally held notion of impeachable offence and implies deliberate corruption and abuse of power. “High crimes” continues to be misunderstood as common criminality; the epithet ‘high’ alerts us instead that it refers to the misdeeds of high officials rather than serious but common crimes like murder and assault.
The British, from whom the American practice is derived, pronounced impeachment in the House of Commons as “the chief institution for the preservation of the government” by menacing official misdeeds with a broad threat. The American practice, as all the 19 impeachment charges make clear, was designed to cover a wide spectrum of “misconduct incompatible with the official position of the officeholder,” as the 1974 Nixon Inquiry Report summed them up.
From financial shenanigans to misuse of official power, from obstruction of justice to sheer personal ‘conduct unbecoming’ ~ even private conduct and conduct prior to occupying an official position ~ practically anything can be a suitable ground for impeachment if it tends to impugn the dignity of the office.
The 19 impeachment cases where charges were lodged against Presidents, senior officials or high-level judges, included grounds such as: using one’s office for private gain, whether money or property or political advantage; exceeding the bounds of office, by using powers or advantages of one’s position to violate accepted traditions, whether commercial, pardon or war-making authority; or “conduct grossly incompatible with the proper function and purpose of the office,” whether drinking on the job, using intemperate words (such as political speechmaking on the job); disregarding informed advice, dispensing with meritorious service or securing unmerited service.
In short, the Constitution itself, debates at the Conventions, English common law, analogous case law and past impeachments all point in one direction ~ a President does not have to break the law to be impeached. Contrary to the general impression that there has to be criminality and the evidence of a smoking gun, the President, or any senior US government officer, can be impeached if it can be shown that he or she has acted in a fashion that it accords poorly with the dignity of the office.
Whatever else he has done in a year in Oval Office, Donald Trump has not projected a modest profile. Unlike any previous US President, he has been unrestrained in his use of words, on Twitter or in public discourse. He has made abundant use of his treaty-making and breaking power, often without public accounting. He has sought to deploy armed power and threatened its use, even against refugees, without a rationale.
He has used Executive Orders indiscriminately where Congressional legislation is mandatory. He has broken with decades-long traditions and refused to reveal private financial information Presidents are required to disclose. He has declined elucidation where a conflict of interest was apparent between his real estate ambitions and his official decisions.
In asylum cases, he has declined to apply and threatened to suspend well-established US laws. He has repeatedly appointed, sometimes without Congressional approval, his relations, friends, business associates and election donors in key government positions, though neither their experience nor their merit warranted such appointment.
After a year’s untrammeled rule, President Trump now finds the House of Representatives captured by the Democratic Party that he has mislabeled, demonized and ridiculed for his entire tenure. No wonder the Democrats would now be interested to investigate all the presidential sins they have been forced to watch without recourse. It will not be a surprise if the simmering demand for impeachment of President Trump now becomes an irresistible roar.
The writer is a Washington-based international development adviser and had worked with the World Bank. He can be reached at mnandy@gmail.com