by RonK, Seattle
Should the Constitution enable a President's "public men" to conspire to disregard the law, shield each other from justice, and rely on his last official act to absolve them of penalties? We think not, and we think the Framers said so -- emphatically. Publius SHOUTS, Part 1 advanced the following propositions:
- That "all civil Officers" can be impeached, convicted, removed and barred from future service. Noncontroversial in principle, but with boundaries untested in practice.
- That impeachment may proceed after the defendant has left office. Precedented, but reconsidered and susceptible to controversy.
- That impeachment (and conviction) nullifies a presidential pardon. Our "radical originalist" reading is that conviction in the Senate exposes the defendant to the jaws of ordinary criminal justice in spite of a pardon. The standard reading is much narrower -- merely that the President may not use a pardon to derail an impeachment.
Now, therefore, under present circumstances, and with these tools in our kit, how might we proceed?
First, we must make sure these neglected tools are in working order. Drag them out of storage, brush away centuries of cobwebs and rust, hone their cutting edges ... and "practice, practice, practice".
1. Confirm Congress's power over officials who have left office. Impeach an official from a previous administration, who has grievously betrayed the public trust.. (For practical and political reasons, our test case might select a Democrat ... perhaps even a volunteer!)
2. Confirm the scope of Article I's "all civil Officers". Impeach a Senate-confirmed appointee below cabinet rank (the current threshold of historic precedent).
3. Further confirm this scope. Impeach an official whose appointment was never subject to Senate confirmation. (Chief of Staff and National Security Advisor, for instance, are powerful officials whose appointments do not require confirmation.) This distinction might come into play in divergent readings of text and precedent.
4. Confirm the primacy of Impeachment over Pardon. Make the claim explicit in articles of impeachment: conviction renders null and void any Executive pardon of the accused. For supreme clarity, our test case might best impeach an official who has already been criminally convicted, sentenced and pardoned.
When these test cases are presented, controversy ensues. Learned scholars and jurists opine. Editorials are published, and appeals brought. This is all good -- it constructively clarifies the issues. In the end our propositions are either sustained, or they are not.
- In the affirmative, a President's web of loyal subordinates can still institute the Rule of Men while in office, but they are no longer immune from Rule of Law thereafter. This provide a remedy and a deterrent to one of the Framers' worst nightmares.
- In the negative, we are left with well-defined loopholes to close, and we take the next step.
5. Amend the Constitution to explicitly confirm our reading of Alexander (Publius) Hamilton's emphatic shout: "EXCEPT IN CASES OF IMPEACHMENT".
"But we are the minority", you may object, "and an Amendment requires a 2/3 vote of both houses of Congress, plus 3/4 of the states".
Intelligent readers. Remarkable readers! We'll take up this problem and other political dynamics in Part 3.