Impeach This!

What is a wonder is that in all of this talk of Impeachment, no one has mentioned Warren Hastings and what he can teach us about it. No, he is not a Shakespearean movie star nor a New Age Rock Star nor a boring, primping, pompous, eccentrically attired and pompadoured Law Professor or Ambassador (like some I can name). 

Warren Hastings was the British governor of Bengal India in the late 1700's who was impeached by the British House of Commons and tried by the House of Lords...for 7 years! In what is widely accepted as an unjust and partisan trial that bankrupted him, he was finally easily acquitted (after no less than 29 peers died before a verdict could be rendered). After a year of investigation by the House, Hastings was arrested for "crimes of misconduct and abuse of power" just weeks before the US Constitutional Convention met in Philadelphia.

The Hastings Case must have weighed on the conscience of the drafting and deliberating Founding Fathers as they devised their own impeachment process for America. In short, in light of the horrible English experiences, they wanted impeachment to be a last resort, after oversight and the power of the purse, for Congress to deal with a lawless, corrupt, recalcitrant and tyrannical truly abusive President or other executive official or judge. They sought to avoid it being partisan and for it to be, above all, rare. They were not naive. They all lived in a basically undemocratic nation that saw incredibly corrupt practices even by the best of men. There would be abuses of power. Precisely because of this and paradoxically, they believed that it was unworkable and subject to abuse to use the "Nuclear Option" of impeachment for every "abuse of power".

Hamilton, himself, admitted that consideration had been given to truly insulate the process from pure partisan politics by having the Judiciary act as the trier. But, the interests of making the People and the States through Congress have a truly democratic role in the impeachment and removal of an executive outweighed these concerns. This was then mitigated by the ingenius device of first dividing the roles of impeachment, investigation and indictment and trial between the two chambers and finally requiring a 67 vote or 2/3 majority of the Senate to convict.

Further, the drafters sought to make it evident that a President or executive should have to have committed "High Crimes and Misdemeanours" to merit impeachment. As we know, that can be and has been interpreted as meaning nearly any sort of infringement, including orange hair. Obviously, the Founding Fathers thought that we could use our Common Sense of Hearing, Taste and, above all, Smell to determine if a President was an irremediable Scumbag.

Now, for the first time since the equally arguably partisan impeachment of Andrew Johnson in 1868, we see the Founding Fathers' Design threatened. Without any underlying crime, the impeachment plods ahead. The real question is: will this be the beginning of an era much like England and Britain in the 16-1700's where the Whig Supremacy led to the use of impeachment as a weapon against one's political opponents rather than as a dire check on "abuse of power"? Or will this benighted, superfluous, scandalous and frivolous abuse of impeachment lead to a new era of a Mutual Assured Destruction-style accord where both parties agree not to use it because it can bite both ways?

One resignedly hopes for the latter. Now the Twist Ending to this political scientific and legal disquisition - such an outcome will still leave an Executive unchecked, unsupervised and overfunded to continue to be the overpowerful and oversized monstrosity it is now. The true danger of this misimpeachment is not that it may lead to more such proceedings against the POTUS in future for similarly flimsy and nakedly partisan reasons. The real peril to the Republic is that Congress under either party's control has not, will not and does not want to try anything else to act as a true check and balance on the Presidency in the normal course. The abuse of impeachment, in other words, will not weaken an already leviathanite Executive (also definitively against the Founding Fathers' Design) but strengthen it all the more.