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Here And Sphere Blog: The History of Impeachment

Nov 02, 2019 06:48AM ● By Mike Freedberg

Possibly a bronze of William, 4th Baron Latimer, impeached by the “Good Parliament” in 1376 — the earliest known impeachment process in our inherited political practices and precedents

Quite soon now, President Trump will be impeached, and a trial of the articles of that impeachment will take place in the Senate, with Chief Justice Roberts presiding. Conviction and removal seems a definite possibility.

In this column I will talk about impeachment’s steps, but first, a little history : what is impeachment, and how did it get into our political system ?

The verb “impeach” comes to us from French, in which language the verb “empecher” (pronounced omm-pesh-ay)  means ” to prevent.” Thus the objective of impeachment is to prevent the impeached person from continuing in the office he or she occupies.

Our legal and political arrangements are taken directly from British law and government as these were arranged in the 1770-1780s. Impeachment is much older than that, however. To quote wikipedia :

Parliament has held the power of impeachment since medieval times. Originally, the House of Lords held that impeachment could apply only to members of the peerage, as the nobility (the Lords) would try their own peers, while commoners ought to try their peers (other commoners) in a jury. However, in 1681, the Commons declared that they had the right to impeach anyone, and the Lords have respected this resolution. Offices held “during good behaviour” are terminable by the writ of either quo warranto[2] or scire facias, which has even been employed by and against well-placed judges.[3]

After the reign of Edward IV, impeachment fell into disuse, the bill of attainder becoming the preferred form of dealing with undesirable subjects of the Crown. However, during the reign of James I and thereafter, impeachments became more popular, as they did not require the assent of the Crown, while bills of attainder did, thus allowing parliament to resist royal attempts to dominate parliament.

Bills of attainder are expressly forbidden in our Constitution. Impeachment is that document’s instrument of sanction against “high crimes and Misdemeanors” it accuses executive officers and judges of committing. (Congress members cannot be impeached. The process for disciplining them — censure or expulsion — is set by House and Senate rules.) It might be interesting to compare our modern impeachment process with that of the first recorded impeachment : When Parliament was called in April 1376, known as the Good Parliament and led by Peter de la Mare, the members wanted to remove corrupt advisers from court. Latimer, Neville, London merchant Richard Lyons and Alice Perrers were accused, and the charges against Latimer were that he had been guilty of oppression in Brittany; had sold the castle of Saint-Sauveur to the enemy, and impeded the relief of Bécherel in 1375; that he had taken bribes for the release of captured ships, and retained fines paid to the king, notably by Sir Robert Knolles, and the city of Bristol; and finally, that in association with Robert Lyons he had obtained money from the crown by the repayment of fictitious loans. Seconded by William of Wykeham, de la Mare sought to have Latimer immediately convicted, with the Commons acting on behalf of the king. They were unsuccessful and a trial took place.[4] The charges were proven and he was removed from his positions in the royal household and on the council, fined and imprisoned.

The record does not tell us stuff we might really like to know : ( 1 ) who devised the procedure by which this action was carried out ? Who gave this action the name “impeachment,” and why ? How come the King allowed it to proceed — at a stage in British history when Kings held almost all power, other than that of taxation and such accords as were guaranteed to peers in Magna Carta ? In any case, a much later action by parliament, the trial of Charles I, in 1649, provides our own impeachment with a direct antecedent.  This was a treason trial — treason is one of two specific crimes cited in the Constitution’s impeachment clause — judged by a Court set up ad hoc by act of Parliament : Charles was accused of treason against England by using his power to pursue his personal interest rather than the good of England.[8] The charge against Charles I stated that the king, “for accomplishment of such his designs, and for the protecting of himself and his adherents in his and their wicked practices, to the same ends hath traitorously and maliciously levied war against the present Parliament, and the people therein represented”, that the “wicked designs, wars, and evil practices of him, the said Charles Stuart, have been, and are carried on for the advancement and upholding of a personal interest of will, power, and pretended prerogative to himself and his family, against the public interest, common right, liberty, justice, and peace of the people of this nation”.[8] The indictment held him “guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to this nation, acted and committed in the said wars, or occasioned thereby”.[8]

Although the House of Lords refused to pass the bill and the Royal Assent naturally was lacking, the Rump Parliament referred to the ordinance as an “Act” and pressed on with the trial anyway. The intention to place the King on trial was re-affirmed on 6 January by a vote of 29 to 26 with An Act of the Commons Assembled in Parliament.

Our own impeachment follows the same design. The House — equivalent to Britain’s Commons — files the impeachment accusations, and the Senate — our House of Lords — tries them. British impeachments were tried before a bench of royal justices; ours are heard by only the Chief Justice of the Supreme Court — a presidential appointment (equivalent to Royal nomination), but very likely not appointed by the president being impeached (if the trial is of a president; any Federal executive officer or Federal judge can be impeached, and some are convicted.) And now to the enabling language of our impeachments :

first, the Text of  Article 1, Section 2, clause 5 : The House of Representatives… shall have the sole Power of Impeachment.

second, language from Article 1, Section 3, clauses 6 and 7 : 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.

Third, the text of Article 2, Section 4: 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.

As impeachment is brought solely by elected politicians, and the articles judged by elected persons, impeachment in the Constitution is a political act only. It is NOT a legal trial. To what extent the basic legal rules apply, of due process and of evidence, is not prescribed. The House in  the current case has chosen to act like a grand jury, taking testimony in secret, for good and sufficient reasons given by Chairs of the Congressional Committees conducting the inquiry. Articles on impeachment, when finally presented, will read very like a bill of indictment, and such they are: but NOT a legal indictment, only a political one, as the sole punishment, if there’s a conviction, is removal from office and disqualification to hold and enjoy any office of honor.

Note also this language from Article 2, Section 2 : [The President] … shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.

If President Trump is convicted in the impeachment trial, he cannot pardon himself.  If any of his executive officers are impeached and convicted, before he is convicted, he cannot pardon them. If Mike Pence becomes President upon a conviction of Mr. Trump, he cannot remove the impeachment by pardon either.

I would not bet against a conviction in the Senate. By his utter betrayal of the Kurds, and the weak and surrendering follow-up that has now taken place, Mr. Trump has alienated all but his stubbornest defenders. His incompetence has been shown, and his personal priorities. The articles of impeachment could be very, very many, if the House is of a mind to tally them all up.

Mr. Trump calls the impeachment of him a “lynching” — gross word so absolutely not true of the impeachment process, which as we have seen, is diligently enumerated in the Constitution to which he swore an oath of office ! Mr. Trump and his defenders call the impeachment ridiculous and a “coup” and refuse to co-operate with the House’s investigators. is he for real ? Again : he swore an oath to protect and defend the Constitution. Including its impeachment clauses.

He seems either not to understand what the Constitution says or to not give  a damn. Yet ignorance of the laws is indeed no excuse. He has plenty of advisers to advise him what is illegal for him to do and what isn’t. It is a Federal crime to solicit foreign interference in our elections, yet Mr,. Trump not only demanded that the P:resident of Ukraine investigate a potential Democratic 2020 opponent (Joe Biden), he extorted Ukraine’s president — yet another crime.

Mr. Trump doesn’t understand the law or his role in it. Congress appropriated $ 491 million in military aid to Ukraine. Mr,. Trump has no authority to withhold that aid, he is, in fact, duty bound to get it delivered expeditiously. that is the plain meaning of the “take Care” clause of Article 2 of the Constitution, in which the executive’s duties are enumerated.

If impeachment were not available to Congress, how would our elected representatives ever hold the executive — the President and his staffs — accountable ?

If impeachment is not the necessary remedy for behavior such as Mr. Trump’s, it isn’t available at all.

If convicted by the Senate — by a two-thirds vote of Senators PRESENT AND VOTING (please note) — Mr. Trump is immediately removed from office, and the Oath of Office is given to Vice President Pence , whom the Constitution states his the first successor.

Thus the only question remaining is this : what exactly is meant by “an office of profit or honor” that a convicted Mr. Trump, once removed from office, cannot again hold ? Judgeships, certainly, any office with a salary, and any office requiring taking an oath. Perhaps that’s it.

Impeachment is coming, and, in my opinion, more than deserved. Conviction is not at all out of the question — again, in my opinion, warmly deserved. Of course my opinion is hardly the governing one. 20 Republican Senators hold Mr. Trump’s fate in their hands. We will see soon enough ho wit all turns out.

Until then, read up on your Constitution and about the history of impeachment in our common law and what it inherits from Great Britain.

—- Mike Freedberg / Here and Sphere

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