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Impeachment: What Lies Beneath?

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Jim Kavanagh
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Of course, no Republican or Democratic member of Congress would embrace that example. And we are going to ignore here all the profound implications of the fact that no country interferes in US elections more thoroughly and systematically than the state of Israel, and that no country interferes in foreign elections more thoroughly and systematically, as an integral part of its policy, than the United States. Nor can we get into the nauseating set of values that allows Nancy Pelosi to proudly state that she "vehemently opposed" impeaching Bush for committing "the supreme international crime" of initiating an aggressive war--on grounds that he and she knew to be false--while sanctimoniously insisting that Trump's call for "public announcements" from Ukraine is "self-evidently" an impeachable high crime, "something that cannot be ignored". To get into any of that would be to raise politico-ethical considerations of a kind that are vehemently denied a place among either Democrats or Republicans in this impeachment process, or in any other proceeding of the United States Congress.

Because the "abuse of power" charge is so weak, there is actually another charge inserted within it--namely, that "by such conduct" Trump has proven himself to be "a threat to national security". That charge has to be there to give "abuse of power" substance and traction for Republican senators. Republicans would only vote to convict Trump if they accept that he's a "threat to national security"--although for a complex of reasons not explicitly specified in the Article. We'll come back to that below.

The second formal Article of Impeachment, Obstruction of Congress, charges that "President Trump directed Executive Branch agencies, offices, and officials not to comply" with "subpoenas seeking documents and testimony." This has nothing to do with the "10 different episodes of presidential obstruction of justice" the Democrats identified in the Mueller report, for which they claimed "the evidence is overwhelming"--though they've given up on trying to prove them.

The Democrats are adopting here a position that's been taken alternately by Republicans and Democrats at various times: that defying subpoenas from a congressional-impeachment inquiry is itself an impeachable offense. This is a charge that, in constitutional terms, is both important and, at this point, impossible to resolve. For anyone who knows the history of it, it's embarrassing to pretend it's settled by assertion.

It's important because it touches on core issues of the separation of powers: whether a president has the right, the "executive privilege", to withhold documents and testimony from Congress in order to preserve the confidentiality necessary for the functioning of the executive branch. It's impossible to resolve because the Supreme Court (the only arbiter that counts here) has upheld the right of executive privilege and declared it is "limited," but, despite anyone's insistence, has never clearly defined those limits in a way that constitutes such defiance as an impeachable "high crime" in itself. Nor is there a precedent from previous impeachment. It's a charge that was never voted on by the full House against Nixon, and not included in the Articles of Impeachment against Bill Clinton.

So, Republican defenders of Trump will say that you can't blithely accuse him of a high crime that has not yet been defined; you can't convict him for actions that may very well be within his constitutional authority; and you certainly can't say that appealing to the court to defend yourself and clarify the limits of congressional and presidential authority is "obstruction" just because it doesn't fit your accelerated timetable.

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Former college professor, native and denizen of New York City. Blogging at www.thepolemicist.net, from a left-socialist perspective. Also publishing on Counterpunch, The Greanville Post, Medium, Dandelion Salad, and other sites around the net. (more...)
 

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