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Robbins: How impeachment works

It’s coming.

Like a freight train.

Little doubt remains that President Donald Trump will be impeached.

Oh my.

What seems to be that fact notwithstanding, however, what does impeachment mean? And how is it supposed to work?

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First, let me set the stage and define a couple of terms. Impeachment is provided for under the United States Constitution. No doubt you’ve heard of it. It’s in all your history books. The constitution, you may remember, is the highest of the high legal authorities in this land. It is the foundation and the fundament upon which this nation, a nation of laws, is constructed. In lay terms, it’s pretty important. And what the Constitution has to say is this “The House of Representatives … shall have the sole Power of Impeachment” — Article I, Section 2, Clause 5

And this, “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.

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”  — Article I, Section 3, Clauses 6 and 7

But wait, there’s more, “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.” — Article II, Section 4.

While the constitution limits the grounds of impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors,” oops … the precise meaning of the terms “high Crimes and Misdemeanors” is not defined in the constitution itself.  Or maybe, that was not an “oops” at all; throughout the constitution broad latitude was afforded for its application and interpretation as the still-nascent nation evolved.

The notion, however, that only criminal conduct can constitute sufficient grounds for impeachment does not comport with either the views of the Founding Fathers or with historical practice. In Federalist 65, Alexander Hamilton described impeachable offenses as arising from “the misconduct of public men, or in other words from the abuse or violation of some public trust.” Such offenses were “political, as they relate chiefly to injuries done immediately to the society itself.”

Thus, impeachable conduct is meant to include conduct that violates an official’s duty to the country, even if such conduct is not necessarily a prosecutable offense. In previous proceedings, both houses of Congress have given the phrase “high Crimes and Misdemeanors” a broad reading, finding that impeachable offenses need not be limited to criminal offenses.

So there’s that.

Unnecessary stunting

And here’s the other thing…

The recent storming of the secure facility where the deposition of Laura Cooper, a senior Pentagon official, was due to testify, was not exactly a storming of the Bastille. Ah, no. It was, instead a mockery. With cell phone cameras held high — which was, by the way, a rather serious breach of security protocols — these Banana Republicans were there for show. 

Not only were their grinding protestations false — in fact, nearly 50 members of the House Republicans are current members of the committees engaged in the impeachment inquiry and are granted equal right to question any witness, but at least three of the protestors had seats at the very table in the room that they “demanded” the right to enter. 

Um … sir, madam … why not just come in and take the seat reserved for you?

You’ll note that, above, I said “these Banana Republicans.” Here’s why. I did not intend to insult all or even most Republicans. It is only these “stunters” at whom I wish to sling my arrows of aspersion.

A “banana republic” in political science, is a term banana that describes a politically unstable country with an economy dependent upon the exportation of a limited-resource product, such as bananas or minerals.  While the second half isn’t apt, the first seems to fit as warmly as a Snuggie.  Here’s why …

Akin to a grand jury

Rules are rules.  And the rules under which this impeachment inquiry are proceeding were adopted by the House in 2015 when, um … the Republicans were in the majority. Former Speaker John Boehner (R, Ohio) is the one who signed ‘em.

What’s more, despite the White House and these Banana Republicans’ protestations that the inquiry is taking place in secrecy, well … yeah. That’s the way it’s supposed to be.

The inquiry in the House is more akin to a grand jury investigation than a trial. Grand jury inquiries are held behind closed doors. If and when articles of impeachment are brought, then, like a grand jury that refers its findings to be tried in a court of law, trial on articles of impeachment will be referred to the Senate.  And those proceedings will be held — no doubt cameras whirring — in the open.

Stunting and posturing is pure deflection. It is mean to obfuscate, confuse and distract. Let the facts lie where they may. If the rresident is found to have abused his power, to have committed “high crimes and misdemeanors,” then he should be removed. If not, then he should be permitted to serve out his term in what counts in this frenzied environment of ours in peace.

This is what the founders intended. This is the rule of law that this nation of laws adopted and by which it has been guided for two-and-a-quarter centuries.

The founders did not intend to either found or sanction a banana republic.  Despite our disparate political orientations, it would be good for us all — left, right or center — to bear that firmly in mind.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, robbins@slblaw.com.


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