At Law and Liberty Jeremy A. Rabkin muses about impeachment and the conditions under which a president may have “forfeited the public trust”:
In 1998, all House Democrats and even some House Republicans accepted the argument of Clinton’s lawyers that mere abusive conduct in the Oval Office was not proper grounds for impeachment. Accordingly, the House rejected a proposed impeachment article for “abuse of power†and focused on charges involving perjury.
But the Framers were well aware that Britain’s Parliament had, in the 17th century and for centuries before that, used impeachment to address offenses we might now describe as malfeasance or betrayal of trust. Federalist 66 seems to say that the Senate would be justified in removing a President for “perverting the instructions or contravening the views of the Senate†in a foreign negotiation. And what the Clinton impeachment experience actually shows is that even a crime—Clinton’s lawyers did not deny that he was guilty of perjury—would not be enough, unless it were clear that the incumbent’s behavior had actually forfeited public trust.
So before Robert Mueller’s team has its say, we might do better to reflect on what we regard as unacceptable or untrustworthy presidential conduct. The immediately preceding administration offers the most obvious comparison. A recent book by Louis Fisher, President Obama: Constitutional Aspirations and Executive Actions (2018), is a good place to start. A useful companion volume in this exercise is an earlier book by my colleague at George Mason University, David E. Bernstein. Reviewed in these pages at the time (by Mark Pulliam), and featured on Liberty Law Talk, Lawless: The Obama Administration’s Unprecedented Assault on the Constitution and the Rule of Law (2015) is worth another look as an interesting counterpoint to the Fisher volume.
He’s a lot more optimistic than I am. I think a president has forfeited the public trust when he lowers his right hand after having taken the oath of office.
We have accumulated a deep, dense thicket of laws, customs, and practices and there is always a tension between those and what the president has been elected to accomplish or what he thinks he has been elected to accomplish. Every president violates norms. It comes with the territory. Supporters or detractors just pick and choose the norms they care about.
I would prefer a weak president and a strong Congress, as was established by the Constitution, over a strong president and studiedly weak Congress as we have now. And the less said about executive deference the better.
Weak president?
The precedent is set. The investigations will now forever begin well before inauguration. Obama was a unique outlier, skin color will not shield the next president of African ancestry from scrutiny.
Every candidate has history, video history, audio history, family secrets, shady business dealings, off color college humor, drunken dates, the only winners will be the lawyers.
None of the constitutional framers or any of our presidents have been without sin, nor would we want them to be. But today, there is nowhere to hide. We will be unable to teach our children the heroic fictional tales about Washington, Jefferson, Lincoln, they were all scoundrels, murderers, slavers. All of our current leaders belong behind bars, all got rich by being bad, but kids,, you behave.
The Courts are a much bigger problem. Not only have they usurped the power to judge the constitutionality of laws (for which there is no precedent in Common Law and no grant in the Constitution), they have also been the prime mover in aggrandizing Presidential power.
None of that can change under the present Constitution. If you want a remedy, reinstate the Articles of Confederation. Every evil of the present regime will go aways, especially our endless wars of empire, and our despotic civil service.
“John Marshall has made his decision; now let him enforce it.”