Local opinion: Let's put teeth in impeachment, conviction

In oral argument before the Supreme Court that led to the Court conferring “absolute immunity” on a President for all “official acts” and most, if not all, hybrid official and non-official acts during a presidency, Trump’s attorney and some of the justices seemed to support the idea that “impeachment” was to be the main (or even exclusive) “check” on executive and judicial misbehavior. Until Trump v. U.S. is overruled, it is the law of the land. So be it.

What do we do now to prevent autocracy or at least the worst autocratic abuses? Let’s work to strengthen “impeachment” by the House of Representatives and “conviction” of impeachment charges in the Senate as an accountability and oversight tool. If we just accept that conviction of impeachment is just too hard because of the two-thirds requirement to convict, then it will continue to be weakened by lack of use, and we may be out of “accountability options.”

Right now, the Constitution’s “high crimes and misdemeanors” as impeachable offenses by the House words are amorphous words. Pick your term — vague, ambiguous, undefined (by lack of use, precedent, consensus, or our own history) — in describing what behavior constitutes an impeachable “high crime or misdemeanor. As such, impeachment is regarded as largely political, and therefore, not really an effective accountability tool. But what if impeachment is given some statutory structure?

An overview or outline of what I propose begins with what I hope are several “unimpeachable” premises:

First, the Constitution gives the House of Representatives the “sole” responsibility for impeachment (meaning “to charge” with an impeachable offense) of an executive or judicial officer. So, the Supreme Court has no function and no review. The first in any list of impeachable offenses should be “executive or judicial interference” into the impeachment function — to be solely determined by the House.

The Senate with its “filibuster” has no role to play whatsoever in determining what is an impeachable offense is. Moreover, neither the Senate nor SCOTUS has a role to play in the House’s refinement of its own prefatory rules and procedures — investigation, hearings, evidence-gathering, direct House subpoena enforcement by the House itself (this is the concept of “inherent contempt” for which there is clear historical precedent).

Second, it is already true that when the House delivers impeachment charges for any executive or judicial official to the Senate, the Senate must hold the trial and must confine its trial to the specific offenses charged. So, to use the egregious example brought up in the Trump immunity case, if there was credible evidence that a president ordered or was complicit in the killing of a political rival, impeachment could be made mandatory.

The impeachable offense could be framed so that the Senate trial would be limited to a question of proof by two-thirds of the Senate that the “act” was committed — “not why” or any so-called justification. There doesn’t have to be any “intent” element — such as a president’s “intent” to protect national security. In other words, if he committed the “act” — the homicide, the selling of pardons, the bribery, the Emoluments Clauses violations, etc. — he couldn’t escape Senate conviction because the Senate trial would be confined to the act itself and nothing more. Evidence of motive, intent, justification, or “crime” defenses would be irrelevant and not allowed. Only the House’s definition of the impeachable offense would be the subject of the Senate trial.

The circus aspect of a narrow-scope Senate trial as “political trial,” “witch hunt”, or any such defense could be dramatically reduced.

Third, whatever else SCOTUS may have had in mind when it arrogated to itself the power to cloak POTUS with “absolute immunity” from criminal prosecution for “official acts,” I think Congress can begin to claw back some of its oversight power over the other two branches by defining the word “faithfully” in Article II, Section 3. The constitutional language that the President “shall take care that the laws be faithfully executed” could be a powerful tool of Congress to limit the power of both POTUS and SCOTUS. The “faithfully” part could be powerfully described and defined in an impeachment provision.

Only the House can define the “high crimes and misdemeanors” language underpinning “impeachment.” No one can constitutionally challenge the House’s definitions of words and phrases related to its own power and function.

Moreover, any statute describing or defining the Constitution’s words about Congress’s own function and power should also contain language denying “jurisdiction” to SCOTUS and the federal courts to hear such cases. Article III, Section 3, paragraph 2 contains clear language about the “jurisdiction” of SCOTUS. Except for its limited “original jurisdiction” “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.”

So let’s roll up our sleeves and get to work and retake the House of Representatives. We can reimpose lawful and ethical behavior on the Presidency and the Supreme Court.

You can’t get across the ocean by staring at it, as some wise person has said. Nor can you reform the presidency and the Supreme Court by staring at the television set.