What About This?

By Wayne William Cipriano

Things are moving very quickly in Washington, D.C. (You don’t see that statement every day in print, do you?) At this writing most if not all of the Impeachment Inquiry at the House of Representatives Intelligence Committee has been completed and anything I write below is pure speculation which may turn out to be correct.

The results of the vote on the Intelligence Committee’s investigation may be sent to the Judiciary Committee of the House. If the Judiciary Committee receives those results and subjects them to scrutiny, it may vote to construct Articles of Impeachment for one or more presently serving Federal officeholders. And if so, those Articles will be sent to the Senate where a trial may be held. And if, at that trial, the Articles of Impeachment are sustained, the subject of subjects of those Articles will be removed from Federal office.

I’m going to make a few predictions below well in advance of anything beyond that Inquiry, which is still continuing. Bear in mind that my past predictions included Hilary Clinton becoming President of the United States of America in a huge victory over Donald Trump in which he was not only defeated but was repudiated by a spectacular majority of the American voting public.

There will be a vote in the Intelligence Committee sending suggested Articles of Impeachment and the reasoning for them to the House Judiciary Committee. It must be so. Regardless of where anyone’s particular political druthers lie, there is no doubt that President Trump violated Constitutional strictures. The severity of those violations is a matter of discussion but the facts of those violations are pretty well accepted by everyone familiar with the case. In public, but not before the Intelligence Committee, the President, his Chief of Staff, his personal lawyer have all attested to those facts and done so in a manner suggesting there is nothing wrong in what transpired.

A quick word regarding the identity of the famed “Whistleblower.” There are excellent reasons why the identities of any whistleblowers need to be protected. Chief among these reasons, in my opinion, is that without such guarantees of anonymity, we would hear very little of official misbehavior from any except the most ethical or governmental operators. And, again in my opinion, that is an extremely small pool of persons.

In this particular case, the allegation that all the Whistleblower’s information was second-hand at best is true, but was later verified by persons more central to the issues but still no eye witnesses. Those eye witnesses remain outside the investigation at this time. However, the Whistleblower said, in essence, “I saw some smoke over there. I even smelled that smoke. Others told me they had seen a fire burning over there. I think someone out to go over there and check to see if a fire really is happening.” What value beyond intimidation of that person and others who may wish to report misbehavior can lie with their identification? They do not testify to facts, they suggest that facts of interest may exist and point to where they may be found. So much for my quick word about the Whistleblower.

The Intelligence Committee has sworn testimony from several witnesses making a second-hand, sometimes hearsay, prima facie case for further investigation. Although, for political reasons, the Intelligence Committee vote will be along party lines, there is no real doubt and the case must be transferred to the Judiciary Committee.

I have no real confidence in my ability to foresee the Articles of Impeachment. I suspect they will include both emolument and obstruction accusations. Perhaps others as well. Hopefully, the Judiciary Committee will vote on the facts, not simply on party lines. In any case, the Articles will be reported to the full Senate, and the Senate, presided over by the Chief Justice of the Supreme Court, will sit as a jury to decide if those Articles will be sustained. I do not believe that the Senate will vote the two-thirds majority (67 votes) necessary to convict the President on whatever Articles are presented to them.

Impeachment, as you know, is like an indictment, an accusation, nothing more. One can say that rather than a legal procedure, using strict rules of evidence and acceptable methods, Impeachment and conviction are political operations. Senators will take a long hard look at all the evidence presented to them, will listen to witnesses testifying under oath and examined and cross-examined very closely by prosecutors as well as defenders, consider carefully the final arguments pled before them. Then, each Senator will decide to sustain the Articles of Impeachment or to reject them based solely on which vote will increase the Senator’s probability of reelection. Heidi Heitkamp notwithstanding, there is no more important consideration to any Senator than reelection. There will not be sixty-seven Senators voting to remove the President of the United States of America.

There are a lot of other considerations I’d like to suggest in no particular order, each of which could be an article on its own. I hope some of them will inspire discussion in the Herald, in “Letters to the Editor” perhaps?

What about a Presidential Pardon? To everyone involved? Including President Trump himself? Why not? Well, while I agree that the President can pardon anyone, including himself, for “Offenses against the United States,” he can not do so once impeachment has occurred (“except in Cases of Impeachment”). So, if pardons are envisioned, they must be made before the Judiciary Committee votes to send Articles to the Senate.

What about a dismissal of the case by the Senate before it even begins? As the Senate makes its own rules by simple majority vote.,it could vote to dismiss the Articles of Impeachment referred to it by the Judiciary Committee of the House. I think that would be a gross mistake once the process had gone that far, preventing the American people from viewing a full examination of all the provisions carried out, hopefully, by prosecutors and defenders using all the witnesses and all the evidence available, none sequestered by Executive Privilege, Confidentiality, Attorney/Client Privilege unless absolutely required at a level more important than the removal of a President of the United States of America.

In all the proceedings, the President’s representatives must be heard, they must be given every opportunity to present whatever evidence and witnesses that are germane. While each side may take such opportunities to cloud the issues with a lot of B.S., the Chief Justice of the Supreme Court must separate the wheat from the chaff. Chief Justice Roberts, nominated by a Republican president, has shown himself to be a loyal follower of the Constitution with very little “political” bias. We can expect that behavior to continue.

I’ve read about the first Impeachment Trial of a president where conviction was averted by one vote. While there have been many rumblings about proposed Presidential Impeachments over the history of our country, especially in the case of the third greatest President of the United States of America, F. D. R., only one such rumbling resulted in the removal of a president. Richard M. Nixon was visited by powerful members of the Senate when his Impeachment was all but certain to be issued. I believe it was one of his most ardent supporters, Senator Barry Goldwater of Arizona, who went to President Nixon and said, “Mr. President, at this time there are only four or five Senators who will vote in your favor. And I am not one of them.” Hearing that, President Nixon resigned from office.

Interestingly, Ex-President Nixon was thereafter pardoned for any and all Federal crimes he may have committed by Ex-Vice and then President Gerald Ford. Such a pardon would have been unconstitutional had the Impeachment of President Nixon actually begun officially – a consideration President Nixon may have had.

President Bill Clinton was Impeached by the House of Representatives and tried in the Senate, escaping conviction on a fairly close vote. Who knows exactly why he was not convicted. It was not because anyone believed he was innocent of the charges made against him – indeed, he publicly apologized for his misbehavior. We might say he was not convicted because, guilty as he was, his misbehavior did not rise to the level of “misdemeanor” that called for his removal from Presidency. Or, we might say that Senators looked homeward and felt voting for his conviction would hurt them politically. 

Although President Clinton did not, in a strict technical sense, commit perjury (“the meaning of ‘is’” and his verb tense defense), he certainly misled under oath (no longer perjury?). But then perjury doesn’t seem like that big a deal anymore, does it? Two sitting Associate Justices of the Supreme Court (Justice Thomas and Justice Kavanaugh) lied under oath while being watched by millions of Americans on television. It didn’t seem to matter much to their confirmations. I don’t know about the decision of the Senate as regards to President Clinton. The thing with Monica was unimportant, but perjury (or very near perjury) is important. Near perjury  important enough? It’s your call when you are a Senator.

When and if the present Impeachment bruhaha involving President Trump and perhaps others reaches the Senate, Senators will not vote to convict. It won’t be a strictly party-line vote, but it will be heavily in President Trump’s favor. President Trump will not be convicted for the same reasons President Clinton was not convicted; popularity regardless of behavior; offenses not significant enough to remove a sitting president; lots of other reasons no doubt.

What about a Congressional Censure? 

We have had great presidents – Washington, Lincoln, both Roosevelts – and we have had terrible presidents – Buchanan, Grant, Nixon – and the worst of all, George Bush the Younger, but we have never had, in my opinion, a president so unequal to the office upon his election and one so determined to resist growing into that office throughout his tenure.

President Trump should be Impeached, should be tried, and should not be convicted. He should be Censured.

President Thomas Jefferson wrote the epitaph on his gravestone; “Here lies Thomas Jefferson, author of the Declaration of Independence, of the Statute of Virginia for Religious Freedom, and father of the University of Virginia.” He did not mention President of the United States of America. If President Trump were to write his epitaph, would he omit the Presidency as well?