The Personal Website of Mark W. Dawson

Impeachment Hearings II - To Protect and to Serve

To Protect and To Serve is the duty we expect of all civil servants, both appointed and bureaucratic civil servants. While most often utilized by Police and Firefighters this phrase is appropriate to all who work for the government. For those who work for the government need to be protective of the rights of the people, and be subservient to the democratically elected officials who are elected by the will of the people. And the people are the masters of the civil servants and the elected officials.

This does not give the masters the right to be abusive to the servants, as no one has the right to be abusive to others. But we can expect that the servants will be polite and respectful to the masters and carry out the will of the masters. But a servant that does not carry out the will of the master is not serving by defying the master.

As explained in my Chirp “11/03/19 The Deep State” I do not particularly care for the term “Deep State”, but it is a useful moniker. It conjures up images of an organized cabal within the government intent on nefarious goals. There is nothing in government operations that can be this organized and focused, especially across government agency lines that would suggest a cabal, let alone a secret ruling class that directs the goals of the cabal.

Instead, there is an attitude amongst many supervisors and bureaucrats within the Executive Branch that they serve the people directly by determining what is best for the people, and they use many subterfuges to accomplish what they perceive as best for the American people. They believe that the President, Cabinet Secretaries, Department Heads, and Officials are only there for a limited time, while the supervisors and bureaucrats are there for the duration of their careers. They, therefore, believe that they have the discretion to enforce or ignore Executive orders and directions from the President, Cabinet Secretaries, Department Heads, and Senate Confirmed Officials as they see fit for what is best for the American people. In reality, this is an assault on democracy, as they are not upholding the ideals of democracy but subverting democracy to achieve their goals.

All Executive branch supervisors and bureaucrats are there to serve the people as expressed through the election of a President of the United States to lawfully carry out presidential duties and responsibilities. All Executive Orders and directions from the President, Cabinet Secretaries, Department Heads, and Officials need to be obeyed and enforced until such time as they have been adjudicated by the courts as being unlawful, or Congress passes laws that contravene or modify these Executive Orders and directions. If these supervisors and bureaucrats have a problem with the Executive Orders and directions, they only have limited choices in how they carry out their duties and responsibilities.

The first choice is to faithfully carry out the Executive Orders and directions until such time as the courts determine them unlawful, or Congress passes laws that contravene or modify these Executive Orders and directions. The next choice is for them to resign their jobs as a matter of conscientious objection, then work within the political process to have these Executive Orders and directions changed or overturned. Finally, they can work to have these Executive Orders and directions changed within the governmental processes for change, while at the same time faithfully carrying out the Executive Orders and directions.

To do anything other than these three items is to thwart the democratic process of the election of a President. If these supervisors and bureaucrats choose to do otherwise, they need to be disciplined and perhaps removed from their jobs. But as they have Civil Service protections for their jobs there is little that can be done to discipline them under current Civil Service laws, rules, and regulations. These current Civil Service laws, rules, and regulations need to be modified so that officials and bureaucrats who engage in this conduct can be disciplined and perhaps removed from their jobs.

For supervisors and bureaucrats to do so otherwise is to have a government of the people, by the people, and for the people, convoluted into a government of the people, by supervisors and bureaucrats, and for the people. For “by the people” is “by” the elected President, members of Congress, and the appointed and Senate-confirmed Judges and Justices, Cabinet Secretaries, Department Heads, and other Senate-confirmed Officials. All other Executive Branch government employees must faithfully follow the Executive Orders and directions of the President, Cabinet Secretaries, Department Heads, and other Senate-confirmed Officials.

Which brings us back to the Impeachment Hearings. We have seen a parade of appointed officials and civil servants testify. But they seem to be testifying as to their opinions and not the facts. They have many opinions as to the rightness or proprietary of President Trump’s words and deeds, but they have very little facts as to the “Impeachable Offenses” of his words or deeds. Most have testified that there was no Bribery, Extortion, nor Quid Pro Quo in his words or deeds, but that he behaved inappropriately. But under our Constitution it is the President that determines Foreign Policy, and what is appropriate or inappropriate regarding Foreign Policy. If the President operates within the boundaries of the Constitution, and the appropriate Federal statutes regarding foreign activities, it is his decision as to appropriateness. Therefore, we have the situation of:

“Water, water everywhere, Nor any drop to drink.”
 - from “The Rime of the Ancient Mariner,” by Samuel Taylor Coleridge.

That can be rephrased as:

“Opinion, opinion everywhere, but not any facts to support.”
- Mark Dawson

In their testimony, many witnesses presumed or inferred what President Trump wanted. However, “Presume” is to assume, take it, think, believe, imagine, suppose, surmise, infer, presuppose, hypothesize, deduce, take for granted, take as read, and “Infer” is to deduce, derive, extrapolate, conclude, come to a conclusion, reason, assume, presume, surmise, gather, understand, or allude. To presume or to infer is not evidence but assumptions. And assumptions without evidence is highly suspect and may have more to do with the assumer rather that the person that was assumed.

Therefore, the opinions, presumptions, or inferences of those testifying have no bearing on the direct evidence, and should not be utilized in determining “Impeachable Offenses”. Impeachable Offenses as Stanford law school professor Pamela Karlan has written about the impeachment clauses:

“The Framers meant for the phrase ‘high crimes and misdemeanors’ to signify only conduct that seriously harms the public and seriously compromises the officer’s ability to continue. If the phrase is given a less rigorous interpretation, it could allow Congress to influence and control the President and the courts”

To assert that President Trump’s conversations and actions regarding the Ukrainian situation meet this bar is to set the bar so low that any President could be removed from office as a result of their dealings with foreign governments (see below). And this would allow Congress to influence and control the President.

As to the appropriateness of a Quid Pro Quo during discussions between nations it should be noted that they are normative in negotiations and/or discussions between nations. On nation gives something to another nation to obtain something of value. The question is if the quid pro quo was to obtain something for personal or political value. In these cases, the quid pro quo may be inappropriate or perhaps illegal. In addition, it is a Presidential duty to faithfully execute the laws of the United States and enforce treaties with other countries. As the U.S. and Ukraine have a treaty in which they pledge to cooperate with each other in mutual criminal matters, and a Justice Department investigation is underway investigating this matter in which Ukraine has some knowledge, President Trump was performing his Constitutional duties in requesting their assistance. Therefore, this quid pro quo was not for personal or political gain as it was for the enforcement of the laws of both counties as agreed upon by our treaty with Ukraine.

President Trump’s actions were appropriate because he was requesting that Ukraine assist in a criminal investigation by the United States and to uphold the criminal laws of Ukraine. That the results of these criminal investigations impact the past or future elections in the United States is not a factor, as not upholding the law for election purposes is not a valid excuse for not enforcing the law. If the facts are politically disadvantageous to someone then the facts take priority, and the impacts of the facts are simply what they are. To the claim that the facts may interfere with an election, I would respond "I certainly hope so!". For facts should always be utilized by voters in elections. Just because they are inconvenient facts does not discount the facts. Let the facts reign supreme and let the "chips fall where they may".

For justice to prevail you must have a just process. A just process in which Direct evidence is admitted, Circumstantial evidence is admitted if provable, Hearsay is only allowed under strict exceptions, and Presumptions are permitted in some (narrow) situations as outlined in my Chirp “11/22/19 Evidence”. In a just process, direct evidence reigns supreme while all the other evidence is supplemental. If the direct evidence contradicts the other evidence, then the direct evidence is the basis of proof and the other evidence may be disregarded.

Let us, therefore, remember the following words of wisdom:

“The greatest deception men suffer is from their own opinions.”
- Leonardo da Vinci