The Personal Website of Mark W. Dawson

Containing His Articles, Observations, Thoughts, Meanderings,
and some would say Wisdom (and some would say not).

Impeachable Offenses

What is Impeachable

The Constitution of the United States, founded on the ideals of The Declaration of Independence, provides for the impeachment and trial of all officers of the United States. The Constitution states:

"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."

"The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment."

"The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

There are also the questions of equal protection and due process in conducting an impeachment inquiry as I have written about in my Article  "Justice and the Rule of Law in America". The Preamble to the United States Constitution states:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

To "establish Justice" requires that the Rule of Law must be followed in all official actives of the United States government - including impeachment. The rule of law must be sacrosanct in all legal proceedings, and to do so otherwise is an injustice. A people that believe in liberty and freedom must insist that The Rule of Law is followed and that the accused have legal protections to assure Justice.

This impeachment power should not be used lightly, but it is a power that should be utilized. Impeachment should be utilized for all elected and appointed officials, including but not limited to the President, the Vice President, appointed members of the executive branch, and Supreme Court Justices and other federal Judges. To not do so, when warranted, is an assault on the freedoms and liberties of the people. All who are subject to impeachment take an oath upon entering their office to preserve protect and defend the Constitution of the United States and to faithfully execute the laws of the United States. If an elected or appointed official violates their oath of office or does not faithfully execute the laws, then impeachment is a justifiable action.

It should also be remembered that impeachment is a political process, not a legal process. It is used to determine whether an elected or appointed official has violated their oath of office, did not faithfully execute the laws, or violated a law(s). If such violations of law occur, then the person committing the violations may not fit to be a leader of a free and just people and should be removed from office - if it is so deemed by an impeachment in the House of Representatives, and a trial and conviction in the Senate. It is entirely appropriate that if someone violates their oath of office, or did not faithfully execute the laws, they should also be removed from their office - if it is so deemed by an impeachment in the House of Representatives, and a trial and conviction in the Senate. Impeachment should not be utilized if it is a disagreement as to the implementation of a law, rule, or regulation, as these disagreements can be adjudicated by the courts. Impeachment should only be utilized if the accused is operating outside of the law or the Constitution.

As to the nature of the charge of high crimes and misdemeanors, it covers allegations of misconduct peculiar to officials, such as perjury of oath, abuse of authority, bribery, intimidation, misuse of assets, failure to supervise, dereliction of duty, conduct unbecoming, and refusal to obey a lawful order. Offenses by officials also include ordinary crimes, but perhaps with different standards of proof and punishment than for non-officials, on the grounds that more is expected of officials by their oaths of office. As can be seen from this definition a high crime and misdemeanor has nothing to do with the crime, but everything to do with the individual who committed the crime. Therefore, any high official who commits any crime is potentially committing a high crime, as there is no such thing as a low crime.

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”

When discussing the importance of a high crime you should be utilizing the term felony, misdemeanor or infraction for violations of the law, or for non-violations of the law the failure of officials to uphold their oath of office to Preserve, Protect, and Defend the Constitution of the United States.

It is not only necessary that we follow the Rule of Law, but that we follow the ideals of The Declaration of Independence in regard to Justice and The Rule of Law, and the protection of the rights of all people in the United States as encapsulated in the Constitution, and affirmed by the rulings of the Supreme Court of the United States. Therefore, the following must be observed by the House of Representatives in any impeachment inquiry, or in the Senate trial of impeachment.

  • The Constitution of the United States says that the “House of Representatives” (plural) shall have the sole power of impeachment, therefore, the entire House of Representatives, not any individual or groups of individuals within the House of Representatives, must initiate an impeachment inquiry. And only the full Senate should conduct an impeachment trial.
  • An impeachment raises serious concerns of the integrity of our Republic, the impartiality of all those involved in the impeachment process, and the sanctity of a Presidential Election in the impeachment of the President or Vice President. Therefore, all impeachment activities in the House of Representatives, and the Senate trial of an impeachment, must occur in public to assure the public of the appropriateness and justice of the impeachment process.
  • The issues and concerns of the concepts of The Rule of Law, Equality Under the Law, Equal Protection of the Law, and Due Process for the accused must be addressed by any impeachment inquiry that is initiated by the full House of Representatives, and during the process of a Senate trial of impeachment.
  • The precedents of the impeachment of President Richard M. Nixon and President William J. Clinton should be followed in all Presidential and Vice-Presidential impeachments to ensure that the above doctrines are preserved, and any modifications to these precedents must also assure that these doctrines are preserved. The precedent of the Senate trial of President William J. Clinton should also be followed so that these doctrines regarding the President and Vice President are preserved.

Until such time as The House of Representatives follows these ideals, rights, precedents, and Supreme Court rulings, the Senate must regard any actions by The House of Representatives as antithetical to these rights, precedents, and Supreme Court rulings of the Constitution, and the ideals of the Declaration of Independence. As such, any actions that The House of Representatives may take regarding impeachment that do not satisfy the above points should be considered unjust and illegitimate, thus null and void, and should not be considered by the United States Senate.

* * * * *

The Impeachment of President Clinton

Given the above observations, an example of the utilization of the impeachment process is in the impeachment of President Clinton. This impeachment was handled improperly by the House of Representatives, as the House concentrated on the legal aspects of the impeachment, and barely recognize the political aspects. By concentrating on the legal aspects of President Clinton's actions they allowed for the discussion of the legal minutia of the case against him and did not focus instead on the societal implications of President Clinton's actions.

President Clinton twice took the oath of office to preserve protect and defend the Constitution of the United States. The Supreme Court ruled that a civil action in which President Clinton was the defendant could proceed during his term of office. Whether you agree or disagree with the Supreme Court's ruling, it did so rule and it had to be faithfully executed by all persons involved in the case.

When President Clinton used his powers of office in an attempt to pervert the legal process with false depositions and testimony, the concealment of evidence by government employees, and other abuses of power he acted in violation of his oath to faithfully execute the laws of the United States. It does not matter as to the nature of the offense, nor the reason for the actions, but that he abused his office to achieve his goals. Not only did he violate his oath of office to ensure that all laws were faithfully executed, but he defied a Supreme Court order to allow the court case to proceed in a normal and orderly fashion.

It is for these reasons that President Clinton should have been impeached and potentially removed from office. His action of violating his Oath of Office and subverting a Supreme Court ruling exhibited his disregard for both his Oath of Office and the Supreme Court, a co-equal branch of government. It is for that reason that he could have been judged as to not be fit to be the leader of a free and just people.

The Impeachment of President Trump

On July 25, 2019, 9:03-9:33 AM EDT President Trump had a telephone conversation with the newly elected President Zelenskyy of Ukraine. This conversation was memorialized as a transcript of what several people (including two CIA Agents) who were listening in recalled. As no recording was made (not an unusual occurrence) this transcript is the only record of what was said. This transcript was reviewed with several people who were also listening in, and they all agreed that it was an accurate account as can be obtained under the circumstances. As such, it is the only record that can be utilized to discuss what had occurred during the conversation.

Two major points were discussed during this conversation; first, the origins of the false accusation about the collusion of the Trump campaign with the Russians in the 2016 election campaign, and secondly the actions of Vice President Biden during a visit to Ukraine several years earlier.

A whistleblower within the CIA subsequently alleged that this conversation may have been inappropriate, and indeed, may have been illegal. This whistleblower had no direct knowledge of this conversation and was reporting what others informed him or her what had occurred. As such, his/her report is known in legal terms as hearsay evidence, and in a Court of Law, this evidence would not be admissible. As this was not a Court of Law it may be considered, but prudence dictates that it be taken with suspicion. Prudence also dictates that the whistleblower's identity be protected, but that he/she should be compelled to identify the firsthand sources from which he/she obtained this information to determine the veracity of the allegation. If the allegation was determined to be unfounded then it should be ignored and not made public. If the whistleblower believes their allegation is being covered up then the whistleblower has the right, under the whistleblower law, to take their allegation to the appropriate congressional committees. However, the congressional committees have the duty to keep this allegation secret until they can determine the veracity of the allegation. To do so otherwise will turn the government into a series of charges/countercharges and endless investigations that will interfere with the proper functioning of government.

Upon the release of the transcript, it is now possible to determine what actually occurred during this conversation. There appears to be no demands, no conditions and no pressure placed on the President of Ukraine during this conversation, and the reported testimony about this conversation appears to be nothing but impressions, perceptions, judgments and opinions, often by persons that were not directly involved in the conversation. Shortly before this conversation, President Trump placed a hold on some Foreign Aid to Ukraine. It is not exactly known why the hold was placed, but it is not uncommon for holds to be placed on Foreign Aid. Recent (secret) testimony has indicated that the hold was placed to determine the sincerity of President Zelenskyy anti-corruption pledges. It was alleged that this hold was done to put pressure on President Zelenskyy of Ukraine to cooperate with the Department of Justice investigation on the origins of the false accusation about the collusion of the Trump campaign with Russia. This would be a “quid pro quo”, and possibly illegal. However, as this hold was unknown to President Zelenskyy, nor to anyone in the Ukraine government, there was no Quid, therefore there is no Pro Quo. It has also been reported that President Trump directed that this hold was not to be a Quid Pro Quo. The transcript also reveals that there was no demand, no condition and no pressure put upon the Ukrainian President. It should also be noted that quid pro quo's are the 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 has often stated that he had a "perfect conversion" with President Zelenskyy of Ukraine. However, nothing in human interactions can be "perfect", as humans make mistakes and/or miscommunicate. It is more accurate for President Trump to claim that the conversation was "perfectly appropriate". Appropriate because he was requesting that the Ukraine assist in a criminal investigation by the United States and to uphold the criminal laws of the 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 were they may".

As to the actions of Vice President Biden during a visit to Ukraine several years earlier, there is a video of him claiming that if the Ukrainian prosecutor who was investigating corruption charges against a Ukraine company in which his son was a Board Member was not fired in six hours Ukraine foreign aid would not be given. This appears to be a Quid Pro Quo, and it may also have been illegal for Vice President Biden to do this. This video is a Prima facie (sufficient to establish a fact or raise a presumption unless disproved or rebutted) argument that the Department of Justice should investigate to determine if any crime was committed by Vice President Biden or his son. Vice President Biden and his son have the presumption of innocence, but they do not have any right to not be investigated for credible allegations of wrongdoing. President Trump should have directed the Justice Department to make a determination, and then asked for the cooperation of the Ukraine government in this determination. As to the propriety of President Trump in making this request to the Justice Department, it should be remembered that no one is “Above the Law”. No President, no Vice President, no Cabinet or Executive Office official, no Congressman or Senator, no Judge or Justice, nor any presidential candidate is above the law. When credible, verifiable, or substantiated evidence of wrongdoing occurs the Justice Department should make a determination if legal action is warranted. It matters not where this request originated, only that it be credible, verifiable, or substantiated. Therefore, it is acceptable for a President to request a determination if legal action is merited.

My problem with the transcript of the conversation with the Ukraine President is that Mr. Rudy Giuliani, the President’s personal attorney, was brought into the conversation. As Mr. Giuliani is not a government official and is not a part of the Justice Department, he should have no part in an official discussion between the Presidents. President Trump should not have brought his name up and should have only asked President Zelenskyy to cooperate with the Justice Department. Nor should Mr. Giuliani have any part in any Justice Department actions except as a witness. As a private citizen, he is allowed to investigate anyone of his choosing, as long as it is done in a legal manner. For this, perhaps, President Trump should be admonished by Congress, but I do not believe that this rises to an impeachable offense.

If Congress sets this as a bar for an impeachable offense, then the bar for an impeachable offense is set so low that almost any President could be impeached for any minor infractions. It would also make it difficult for any President to have honest and straightforward conversations with any foreign official. This could be harmful in the conduct of foreign affairs and make the United States and the World a more dangerous place. Even releasing the transcript of conversations between Government and Foreign officials is fraught with potential harm. Only in the most extreme situations should these transcripts be released. And in the case of the conversation between President Trump and President Zelenskyy it was not an extreme situation.

This situation should have been handled in a highly confidential manner, with no leaking, by reasonable people in the House and Senate. But reason seems to be in short supply when it comes to President Trump. In their zeal to tarnish and even impeach President Trump the Democrats have overstepped the bounds of propriety and have started down a course of action that could provoke a Constitutional crisis. A crisis that need not be invoked given the nature of the allegation, the evidence to support the allegations, and the fact that a presidential election is not far off. The best and most proper way to remove a president from office is an election. Let us reserve impeachment for the most egregious Presidential offenses and leave it to the electorate to remove a President for other offenses.

Where you stand on the Impeachment of President Trump is often where you stand on President Trump. But impeachment should not be about your feelings about President Trump but your thoughts about the meaning of impeachment in the Constitutional as regarding the actions of President Trump.

* * * * *

Therefore, let us make an impeachment judgment based on serious harms and compromises to the Constitution, and if a President or Vice President, or appointed officials, are fit to be leaders of a free and just people because of serious harms and compromises. To not do so is to inflict serious harm on the body politic, and to flout the protections of all person’s rights in the Constitution and the ideals of the Declaration of Independence.

* * * * *

Note 1 - The Counsel to the President, Pasquale "Pat" A. Cipollone, has sent a letter to the House of Representatives outlining the issues and concerns of the President regarding the current “impeachment” activities of the House of Representatives. "The White House Letter on Impeachment" raises significant issues about impeachment that should be considered as regards to "Justice and the Rule of Law in America" and "The Rule of Law in Non-Judicial Proceedings". These issues need to be addressed and resolved to assure that an Impeachment inquiry is fair and just. I would encourage you to read this letter and think about the points it raises.

Note 2 - The following are some interesting articles on the Constitutionality and The Rule regarding the Impeachment of President Trump:

Note 3 - You should also remember the words of the author Lewis Carroll in Alice's Adventures in Wonderland:

“Let the jury consider their verdict,” the King said, for about the twentieth time that day.
“No, no!” said the Queen. “Sentence first -- verdict afterwards.”
“Stuff and nonsense!” said Alice loudly. “The idea of having the sentence first!”
“Hold your tongue!” said the Queen, turning purple.
“I won't!” said Alice.
“Off with her head!” the Queen shouted at the top of her voice. Nobody moved.
“Who cares for you?” said Alice, (she had grown to her full size by this time.) “You're nothing but a pack of cards!”