Platt Perspective on Business and Technology

Donald Trump and the stress testing of the American system of government 7

Posted in social networking and business by Timothy Platt on March 16, 2017

This is my 12th installment to a now-ongoing if still occasional series of postings in which I seek to address politics in the United States as it has become, starting with the nominations process leading up to the 2016 presidential elections (see Social Networking and Business 2, posting 244 and loosely following.) And this is also my seventh installment here since the inauguration of Donald Trump as the 45th president of the United States, and with many already deeply concerned as to his competency for holding office.

I began Part 9 of this with a point of acknowledgement, and with a disclaimer of sorts that that constituted. My goal for that posting was to at least briefly and selectively discuss issues of mental health evaluation and diagnosis, as those issues hold import for the topics discussed in this series, and in our understanding of now-current events. And I directly acknowledged that while I do have training and experience in the behavioral sciences, I am not in any way a trained, let alone licensed mental health professional; I am not a clinician with the expert training or experience to actually offer specific diagnostic insight there. And I repeat this step of acknowledgment here to note that while I am an at least amateur student of history and of the law: and largely an autodidact for this, I am not formally trained in these fields and certainly not in law or as an attorney. And I am not a licensed attorney, or qualified to be one.

That said, the basic thrust of what is to follow here, is a brief and selective discussion of what should be a much longer disquisition on a currently very topically important area of constitutional law. I offer what follows as a matter of sharing my understanding of these issues, based upon my studies of this area of law and of history, and as a starting point for further thought and discussion on the part of any interested readers.

I have been addressing the concern and pushback that Donald Trump and his still only partly formed administration have engendered in the United States and beyond, throughout the past six installments to this series. And I have been delving into at least select aspects of his disruptively disconnected actions and decisions while in office – where action often seems to precede any reasoning that would support or justify it, only to be arrived at ad hoc and after the fact to in some way justify it. And as a result I have devoted a significant portion of the past six installments here, addressing a range of issues that would arise, and of necessity so if any formal, legally structured and supported process of succession in authority were to be contemplated that might remove president Trump from office and either temporarily or permanently.

Two primary avenues for action of this type are laid out in the US Constitution in:

• The 25th Amendment to the Constitution and particularly in its Sections 3 and 4, and
Article 2, Section 4 of the body of the Constitution itself.

Both of these areas of the Constitution deal with succession of office processes and issues. The first addresses the issues of at least temporarily transferring power and authority away from the hands of a sitting US president in the event of their facing at least temporary incapacitation that would prevent their being able to fulfill their constitutional duties and responsibilities of office. And the use of this amendment’s processes would result in presidential duties and responsibilities, and authority at least temporarily being transferred to another high ranking government official with the vice president designated as being next in line for that. And the second deals with the possibility of permanently removing a sitting president from office, if they are found guilty and convicted of committing treason or bribery, or of committing “high crimes and misdemeanors.” And the same order of succession rules as briefly touched upon above, apply here too with for example the speaker of the House of Representatives next in line to assume presidential powers in the event that there is no acting vice president who can fulfill those duties.

I have devoted a great deal of the first six installments to this portion of this series, examining issues and challenges that would enter into any effort to take action against president Trump remaining in power as president, under terms laid out in the 25th Amendment, with a full posting from that examining that constitutional amendment itself and certainly for how it might be applied in a mental health incapacitation context (see Part 8.) And I offered a full posting in coordination with that, that considered the issues and challenges of even arriving at a clinical diagnosis of a sitting US president’s mental health that members of Congress could cite and reply upon as they individually voted and collectively arrived at a legally binding decision as to whether to force a succession of power – in what would of necessity be a largely political context (see Part 9 in particular, with material related to that offered throughout Parts 6-11 as well.) And that brings me to the core area of discussion of this posting, and the second basic approach as listed above for removing a sitting president from office through a formally stated, constitutionally specified succession process: the terms and processes of its Article 2, Section 4.

I have referred to and touched upon the Article 2, Section 4, impeachment and trial option in this series on multiple occasions, but have held off on more systematically examining and analyzing it until now. My goal for this installment is to address that set of issues, as the one remaining constitutionally specified means by which an incapacitated or criminally tainted president can be removed from office within the constitutional framework as is currently in place. And I begin doing so here by noting that the Constitution in and of itself offers essentially no real guidance as to what would be done, or how or even why, at least in the text provided, which I offer here in full:

• “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.”

I just wrote in the immediately preceding text of this posting: “the terms and processes of its Article 2, Section 4.” This does not actually offer much of either, at least directly, and that is where I would begin analyzing and discussing this succession option. And I begin that by invoking a term that is dear to the hearts of constitutional scholars and certainly for any who would in any way see themselves as ever following anything like a strict constructionist approach: original intent.

The founding fathers of the United States and its constitutional system of governance, sought to create a living document when drafting the United States Constitution: one that would not become quaintly obsolete from being too narrowly specific and detailed where change and the flow of history might demand understandings and resolutions that could not then be anticipated. This basic approach to offering a combination of precise detail where that would be called for, and open flexibility where that would be, is very well known and understood in areas of the Constitution such as the elastic clause: Article 1, Section 8, Clause 18, that states:

• The Congress shall have power … “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

Article 2, Section 4 of the Constitution was very intentionally drafted in a similar, non-specific and open ended manner and with a need for recognition of current context in mind for when its proposed succession in office mechanism might be called for. And I add that this intentional vagueness was employed there for a second and at least equally pressing reason too. An in-effect forced removal from office of one of the most senior elected, or appointed officials in office should never be easy or straight forward, and any mechanisms in place should be framed in such as way as to demand both detailed there-and-then thought and consideration, and strong reliance on precedence. Article 2, Section 4 was written with a goal of accomplishing all of these goals.

Let’s start with the list of potential charges that might rise to a level of significance so as to call for impeachment. The constitutional text under consideration here specifies Treason and Bribery, and they are terms of law that were by and large considered to be at least relatively clear in meaning and intent and certainly when viewed from the context of wider legal precedent. But there is probably more room for interpretation as to what “High Crimes and Misdemeanors” mean – which is part of why I have focused on those charges in what I have said about this process per se up to here, as grounds for carrying out this course of action. The founding fathers of the United States certainly had specific offenses in mind that would fully qualify as meeting a level of significance threshold so as to compel impeachment if carried out, and as high crimes and misdemeanors. But those terms themselves are and I add were more open-ended then too, as to how they might be interpreted and for what might be included in them.

• Where do the details as to how Article 2, Section 4 would be carried out come from, and where do precise determinations of what would constitute actual specific impeachable and convictable offenses come from in doing so, and particularly where that might mean a serving president taking actions that could not in principle have existed for form or type, when the US Constitution was first drafted?

Historical precedent enters this narrative with that question. And I begin addressing that with the question of impeachment per se as the first essential step to what Article 2, Section 4 proposes. And I begin addressing that at what might be considered the fundamental starting point for American law in determining criminal charges at essentially anything above a simple misdemeanor level: the grand jury. The House of Representatives, after all in effects serves a grand jury role in this context.

The grand jury as originally conceived, was developed as a means of repression in support of England’s King Henry II, through expansion of the court’s judicial reach throughout the realm. This mechanism of judicial oversight and control was first stipulated and enacted in 1166 in the Assize of Clarendon: Henry II’s effort to transform English law from being local rule and local ruler-driven to being more consistently framed and applied and from the center of government outward. The Assize of Clarendon and the new legal framework that it created, can be seen as the direct progenitor of English common law as a whole – and the grand jury system that it began, as one of the early framework elements to that.

But this earliest incarnation of the grand jury system was skewed in orientation toward protecting and promoting the interests of King and Crown and that created both resentment and anger, and push-back from the lesser nobility of England – the titled land holding powers of the country. And when the balance of power that held between them and the monarchy shifted and at a time when those nobles could come together in common cause – common enough cause to do something about this, they did. And one of the longer-term consequences of that was the drafting and enforcement into law of the Magna Carta Libertatum, in 1215 during the reign of King John. And this new document of law, reestablished grand juries as much more independent deliberative bodies, not hemmed in by the dictates of outside powers that be, the direct influence of a king included.

The grand jury system was brought from England to its American colonies as an essential element of its legal system as would be applied throughout the British Empire. And the grand jury system as envisioned and as enacted in the United States as a nation, traces back to a specific landmark court case that took place in the then-still American colonies of Great Britain: the trial of John Peter Zenger: a German born New York City journalist and printer.

Zenger was brought up on charges of criminal libel for articles that he published in his The New York Weekly Journal that challenged governmental powers that be in New York, and the actions of that colony’s Royal Governor in particular. New York Royal Governor William Cosby, brought grand jury charges against him; Cosby saw such charges and the trials that stemmed from them as a powerful tool for cutting off voices of dissent against his policies and actions, and he took great personal offense at what Zenger was publishing about him. So he pursued this legal course of action against him as a next step to an already established campaign of intimidation against the press in general and with a goal of making his legal challenge against Zenger and his newspaper in particular, a warning for all others.

Cosby also directly ordered the grand jury that heard charges against Zenger to find them credible and serious enough so as to warrant a full trial. The members of this jury refused to do so, citing the independence from outside interference that had become foundational to the grand jury system in England itself, starting with the Magna Carta itself and as established in centuries of case law since then. True, English law does not depend on case law per se the same way that the American legal system does, but this still constituted a strong bulwark of justification for this jury as it spoke out in defiance of executive authority. Cosby sought to retaliate against this seated jury and its members but he was blocked in that by further court action when he sought charges against them too. And ultimately both Zenger and his grand jury were exonerated, Cosby repudiated – and the independence of grand juries in the American colonies and then the United States of America as a nation established.

The principles embedded in this narrative underlie much of the legislative process of impeachment hearings as they would take place in the United States with the members of the House of Representatives duty bound to carry out that responsibility on the basis of evidence presented, and free of outside interference and from the executive branch or anywhere else while doing so. And the House as a body would establish their own precise rules for proceeding in this type of action and their own standards as to what type of voting majority would have to decide to impeach, for that to go forward. Article 2, Section 4 simply left these procedural decisions open, in and of itself.

A determination that charges are both valid enough and serious enough to merit trial requires at least a majority vote of support by all serving members of the House before articles of impeachment could be formally agreed to, and passed on to the Senate for further action as a formal article of impeachment. And I have already noted in this series that an article of impeachment that was so arrived at would then go to the US Senate for trial and add here that a vote to convict would require at least a two thirds majority by all serving members of that legislative body. Article 2, Section 4 does not specify that process either, and neither that Section that nor any other text in the Constitution actually specifies what the terms of charge offered actually mean – and certainly where that would explicitly mean their reaching a level of significance so as to call for removal from office. But precedence does set established standards for all of this.

If asked, most Americans would probably tell you that Article 2, Section 4 has only been turned to on three occasions in American history:

• Once on February 24, 1868 when president Andrew Johnson was brought up on charges of violating the Tenure of Office Act of 1867 (which was arguably passed into law in the first place with him in mind),
• And again in 1974 when president Richard Milhous Nixon was forced to resign from office,
• And again on December 19, 1998 when president William Jefferson “Bill” Clinton was brought up on charges of perjury and obstruction of justice.

That understanding is not entirely accurate. First of all, president Nixon did not actually go through Article 2, Section 4 proceedings, at least to the point where his case would be brought before the full House for deliberation and vote. His case was brought before a House Select Committee but he resigned before its findings could be brought before the full House for a formal vote. Nixon resigned from office to avoid that embarrassment, when he knew that he would be found by the House and tried by the Senate on charges that would likely lead to his forced removal from office if he decided to pursue that full course. And second, and more importantly here from a weight of precedent perspective, the United States House of representatives has carried out impeachment proceedings in accordance with Article 2, Section 4 on 19 separate occasions, when making determination of possible wrongdoing on the part of federal officials. The first such case occurred when charges were raised against a sitting US Senator: William Blount, on July 7, 1797. And the most recent to date, as of this writing, commenced on March 11, 2010 when sitting judge Thomas Porteous of the United States District Court for the Eastern District of Louisiana was brought before the House on impeachable charges. The US Senate refused to accept impeachment charges against Blount, preferring to expel him from the Senate through their own procedures in place. Porteous was convicted by the Senate and expelled from office on December 8, 2010. And between those events, 17 other federal officials have faced impeachment proceedings too and have undergone them through to completion. Some were acquitted as happened in the cases of Johnson and Clinton and some were convicted and with the consequences that that would bring. And this list includes judges and members of Congress and one Cabinet officer as well: William Worth Belknap. He was serving as the Secretary of War as that cabinet position was then called (Secretary of Defense now) when he was brought up on charges before the House on March 2, 1876. He was charged with graft and corruption, and was acquitted in Senate trial after his resignation on August 1 of that year, and yes there is a story behind that.

My point in all of this, is that both the House and the Senate have a regrettably long and detailed and nuanced history of precedent to fall back upon if and when they have to go through impeachment and trial proceedings again, and this time with regard to president Trump, as outlined by Article 2, Section 4 and its intentionally sparse dictates. And this stands in stark contrast to the situation that would be faced if the 25th Amendment and its Section 4 were invoked, and certainly in a mental health incapacitation context for a sitting US president, where as I have argued in earlier series installments there is not real precedent to fall back upon.

I have been addressing the basic underlying issues of impeachment and subsequent trial in this posting, and will continue its line of discussion in a next installment where I will focus on Donald Trump and the specific questions and issues that he and his administration raise in this type of context. And that will mean reconsidering the questions of his mental health capabilities as much as considering those of his possible high crimes and misdemeanors entanglements, as would be addressed under Article 2, Section 4. In anticipation of that discussion to come, discerning the difference between those two actionable contingencies would likely become more a matter of attempting to fathom motive, than of perceiving and characterizing precisely what actions have been taken by Donald Trump per se.

For that posting I will have to acknowledge up-front that I am not a mind reader, any more than I am a mental health clinician or an attorney practicing constitutional law. But while Congress does have access to expert and even renowned clinicians and while many of its members are attorneys and with deep experience in the law, none of them are mind readers either and they cannot call upon such authorities as expert witnesses either. So for that, everyone who would enter into the debate that I address here: active participant or citizen bystander such as myself, starts out upon a shared common footing. I will discuss the issues raised in this next installment from the perspective of a set of historical parallels, and related and hopefully illuminating examples.

Meanwhile, you can find this and related postings at Social Networking and Business 2, and also see that directory’s Page 1.

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