The Libertarian Perspective on Impeachment

OpEd first published in the Amarillo Pioneer


There really isn’t another political subject a Libertarian should be tackling for a Thanksgiving column this year than impeachment, as all others pale in weight, and the vast majority of the commentary on President Trump’s impeachment proceedings comes with such partisan vitriol that it’s hard to separate fact from spin.


Let’s start with how the impeachment and removal process works under the Constitution


Art 1 Sec 2, Clause 5: The House of Representatives … shall have the sole Power of Impeachment. 


Impeachment itself is just the indictment. Just like the prosecutor or Grand Jury, the House’s sole job is to decide, in its sole discretion, whether to indict an officer for the Senate to try. A defendant doesn’t get to confront his accuser, or call witnesses at this stage, this is just the part where the prosecutor decides whether or not he has enough evidence to charge you. The trial hasn’t started yet. The House gets this power because it is the people’s chamber.


Art 1 Sec 3, Clause 6: 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.


The Senate actually conducts the trial, it’s basically the jury of the President’s peers. Senate gets this power because it’s the chamber of the States, and the one with the longer tenure, and hopefully a more considered and long term temperament.


Art 1 Sec 3 Clause 7: 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.


Impeachment is not actually about throwing you in jail for a violation of the law, it’s a check and balance on the executive and judicial branches by our elected representatives.  It’s really simple, Congress decides, one house with the power to charge, the other with the power to decide, if any officer is not fit for office, and removes them from office.  After that, you’re out, and back under the law of the land as a private citizen. 


Art 2, Sect 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.


The acceptable reasons for removal of any officer from office, whether the President, or anyone on down, are the same:  Treason, Bribery (which Trump’s alleged acts likely would fall under, as the massive discussion of quid pro quo indicates), or, and here’s the big one, other high Crimes and Misdemeanors.  So what does that last part mean?  There’s a great article on the history of the term “High Crimes and Misdemeanors” from the Atlantic that’s worth a read if you want a deeper discussion. But the short answer, Alexander Hamilton laid out for us in Federalist No 65 elegantly as “the abuse or violation of some public trust.”  This was not intended to be a high bar, and it does not matter if there is a law on the books that was violated. If Congress believes an officer is guilty of abuse or violation of some public trust, no matter how great or small, it can remove him. If you don’t want to read your history, and are just concerned with the high sounding bar of the plain language of the word “high crimes” as a signal our framers meant some major legal test, then consider the second word, misdemeanor, which includes in Texas possession of up to 4 oz of marijuana. Our President and constitutional officers are and should be held to a very high standard, and low bar for abuse of power and public trust.  Or think of it this way, the Constitution wasn’t created to give an elected official or officer extra protections beyond the law because they are now special and powerful, it was created to limit the inherent power that comes with the responsibility of that office, and provide checks and balances and allow our officers and officials to be held accountable.


So what should our takeaways be?

1.       No one is above the law.  Period.  Our founding fathers were very clear on that.  They were also very clear the impeachment is not about statutory laws, and didn’t set a high bar, it’s about Treason, Bribery, or a catch-all of high crimes and misdemeanors for any abuse of power our elected representatives deem relevant. The real hurdle for Congressional overreach has never been some arbitrary legal test of did he or didn’t he. It’s stupidly simple. If 51% of the House, and 67% of the Senate believe you stepped over your bounds, you are out. Our framers were clear, it’s the high hurdle of those two votes themselves that are the test, not any legalese or standard of violation or proof.


2.       Separation of Powers matters. Partisan or not, our Congressional representatives have the right, and obligation, to investigate the executive branch, and provide oversight.  Whenever they stop doing so, that’s when it’s time for ordinary citizens to get very scared.  Nobody should ever be scared of Congress investigating the executive branch. It’s literally half the job we pay them to do.


3.       On no planet does it make sense that impeachment or conviction is a party line vote. That in itself is a condemnation of a two-party monopoly, and a failure of the separation of powers. Our framers certainly did not separate powers between branches only intending that party cliques should emerge to effectively un-separate them by controlling multiple branches.


4.       50% of Americans favor impeachment and removal of the President, that’s 2/3rds higher than the percentage that favored removing President Clinton, and almost as many as favored removing President Nixon. This high level of support for impeachment and removal of any sitting President is stunning.


In this case, what is this impeachment process about?  Congress, which not the President, has the power to decide where we spend money, appropriated money for Ukraine military aid. Our President, or his staff, tried to hold it, and other benefits including various meetings, up, for a political favor in our elections.  The facts and testimony on that are pretty clear, and the President’s Chief of Staff even admitted it on national television. Worse, our executive branch officials basically tried to get an ally of ours to interfere in our election process in order to receive money that our legislative branch specifically appropriated to spend to defend themselves against a common adversary, then tried to excuse the act by blaming that same ally for 1) corruption just like this act, and 2) the actual interference in the last election done by our adversary, Russia, who is the same adversary actually at war with said ally that Congress appropriated the said money to help defend against.  It’s really whacked.


You and I may not agree with that decision to give money to Ukraine (libertarians generally don’t like foreign aid or military interventions), and maybe you think Ukraine is a pretty corrupt place, and that it’s super odd that a sitting Vice President’s son got a cushy oil politically sensitive company board seat with no relevant experience except his father’s name and ear, and perhaps the President or his advisors did not either, but that doesn’t matter.  In our Constitution, 1) the power of the purse belongs to the Legislative Branch, and 2) we don’t let our elected officials use our money to help them stay in office. 


Is that the end of it? 


I do think each side is missing something however, in the politics of this debate.  And make no mistake, this is about politics and governance, not law.


The Democrats are Completely Missing their Audience


The Democrats appear to have gotten bogged down in the legalese and media echochamber, and have forgotten, this is a bi-cameral, Congressional process, not a court room or election.  No judge is their audience here.  Even public opinion, whether of Democrats, independents, Republicans, or Libertarians is not the real audience, just possibly a pressure point for the jury.  And literally every individual in Washington understands the serious issues this current administration has exhibited, but that doesn’t mean they, too, don’t have partisan and electoral considerations that complicate their own calculus, like it or not. 


The Senate is the jury here. There is no appeal to position for.  As every good lawyer knows, it’s all about what your jury thinks. Audience of 12, or in this case, 100. They need to stop acting like a beach full of partisan hermit crabs putting on a Broadway show, and start acting like Congressman and prosecutors. If they want impeachment to succeed in effecting removal, and re-establishing the power of the Legislative branch for a generation, they should have been building bipartisan bridges across both houses, and working to take Republican electoral risks off the table, instead of all out partisan war pushing Republican Senators into their bunkers by using impeachment as an electoral tool.  That’s about like a lawyer starting his or her opening argument by calling the judge incompetent and the jury stupid. Juries and judges usually don’t like to be called stupid. 


The Republicans are Forgetting They are Still in Charge Either Way


The Republicans however, are also being just about as short sighted.  Poll after poll shows the Republican base is the smaller of the major party bases, and losing ground.  Republicans across the country, just like here in Texas, are pulling out all stops to blunt the demographic electoral shift against them.  They are keenly aware the Trump phenomenon has accelerated and exacerbated their demographic challenges and their brand with independents and swing voters.  So what does that mean?  Let’s assume the House impeaches, as it looks likely to do, and the Republicans break on party lines, and acquit the President. There is no appeal, and they are still in charge of the Senate the next day, and the White House.  And still have a rough 2020 election in 12 months.  Now assume they cross party lines, and convict.  What happens?  Again, no appeal, we go straight to Article 2, Sec 1, Clause 6: “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office,9 the Same shall devolve on the Vice President”.  Mike Pence automatically becomes President for 2020, and the Republicans are still in charge of the Senate, and the White House, and still have a 2020 election, with a wide open playing field, and a Democratic primary veering left and opening up the middle of America that Trump has struggled to take. 


I’m pretty sure I’ve seen no major media discussion on this, seen no polls indicating how well Mike Pence or any other prospective Republican Nominee polls vs. the Democratic Presidential candidate leaders compared to Trump in that scenario, simply an implicit untested, and undebated assumption that Trump getting kicked out of office is bad for Republicans, and good for Democrats.  But are they sure? 


For myself, I hold our officers to a very high bar, and on this I stand with our framers – if an executive branch officer of my party or any other party abuses their office or power, Congress needs to remind them, and us, and themselves, that they are responsible for oversight, and one holds office in America as a public trust, not as a protected rung on your career ladder.  After all, we’ll throw a high school graduate in jail for 4 oz of marijuana to protect a perceived public injury, but we’ll let Ivy league trained billionaires abuse the public trust and keep running our country?  In an age where Fortune 500 boards fire CEOs for simply dating an employee of their company or creating an appearance of a conflict of interest, that doesn’t seem very libertarian to me.  I stand with Congress and the high school graduate over the ivy league billionaire in this one.


It’s going to get uglier before it gets better.  But our country will get through this, and be stronger on the other side.