It's Politics

In article Number 65 of the Federalist Papers, the divine Alexander Hamilton aka "Publius" explains the reasoning of the Founders behind the Constitution's device for Impeachment As expected, he notes that the system was inspired by the British Parliament's impeachment process for wayward executive officers or "King's Men".  In it, the House of Commons acted as the Grand Jury and preferred the bill of indictment for impeachment to the House of Lords who held the trial and acted as the "petit" jury that would deliver a verdict.

Similarly, the House of Representatives prefers the indictment and the Senate presided over by the Chief Justice holds the trial. But above all, even though impeachment could simply arise from abuses of power that could be simply called "misconduct", in the end POLITICS decided this matter just as sure as both juries involved in the process were elected by the People. Hamilton's explanation of the system and how it should work rings true through the ages as if it were written today in an Op-Ed. That's why the men who made this thing were geniuses.

However, he also warns that the Founders took a calculated risk in leaving the process in the hands of the democratically elected: the legislators may then use the impeachment process as a weapon against their political enemies rather than as a check and oversight on real abuses of power. In other words as Professor Turley said this week, the process becomes the abuse of power.This had happened in the Whig Ascendancy period in England after the Glorious Revolution in 1688 and the Founders thus would have known the risk that was run. It is why as Publius explains, many called for the whole process to be controlled by the far less political, independent, dispassionate judiciary.

Sadly, the Trump impeachment process such as it is seems to have set a precedent for precisely what the Founders feared, impeachment as a political weapon. But surely, the four law professors called in this hellish procedure would have had to agree if asked: "Isn't this process essentially political so that what you have to say about what is or is not impeachable is quite irrelevant? Either the Public support impeachment or they do not. If they do not, all the argument about what is impeachable will be for naught." For example, if there is the oublic support for it, the POTUS could be impeached for jaywalking let alone what we may think of as "high crimes and misdemeanors". What is one Democrat's abuse of power is another Republican's "perfect call", etc., etc.

For authority for this assumption, we can turn to two impeccable sources beside the Federalist Founding Fathers. First, Andrew McCarthy, a US Attorney who wrote a whole book outlining in excruciating detail and proving a full bill of indictment against Barack Obama but noted it would not happen as there was not the political support for it. Second, a Law Professor named Gerhart who testified that the impeachment of Bill Clinton (who was found guilty of 11 crimes) should not proceed because it did not have bipartisan support. He was one of the law professors who just testified on Wednesday that Trump should be impeached without any accepted crime even though not a single Republican congressman has voted for it!

It's politics...