In Violation of the Public Trust

By Todd Buchanan

 

Donald Trump clearly lacks the decency and discretion most Americans expect of a president. His divisive mindset seems to override any notion of the public interest, or what is takes to govern. At his August 22 rally in Phoenix, he declared: “If we have to close down our government, we’re building that wall.”

Trump’s continuation in office does not bode well for either the Republican Party or the Nation, and may risk a catastrophic war with North Korea. The most competent chief of staff, were General John Kelly that, would be no substitute for a competent president.

The limits of Trump’s staff and prominent Republicans to restrain him were demonstrated on August 15, when he returned to his initial response to the tragedy in Charlottesville Virginia, asserting that all sides were to blame. This back-track from his earlier condemnation of white supremacists and neo-Nazis on August 14—two days after the event—was sure to energize such groups.

Yet, some who acknowledge Trump’s misconduct and shortcomings seem confident that corrective mechanisms in our political system can hold him in check. Meanwhile, Senator Bob Corker (R-Tenn.) has stated that if his behavior does not change “our nation is going to go through great peril” (Washington Post, August 17).

Though Donald Trump may be guilty of obstructing justice and possibly more, the Constitutional remedies for this predicament do not require that a sitting president violate any specific law. It is sufficient that he has violated the public trust and abused the power of his office, or is simply unfit to serve.

The Constitutional remedies include impeachment, under Article 2, section 4 of the Constitution, and the 25th Amendment by which either the President’s cabinet or a body Congress may provide for the purpose can decide he is not competent to continue in office. Although the latter might seem to be the quickest route to Trump’s removal, this essay will argue a case for impeachment, which is concerned with misconduct itself regardless of one’s mental state, and for which there is already some support in Congress.

Both remedies are subject to a high bar, given the current Republican control of both the House of Representatives and the Senate. But that could change with the next election in a little more than a year. Citizens who agree that Donald Trump has violated the public trust and is dangerous in office should advocate for his removal, by either means. More and more, Republicans in particular may find Donald Trump’s conduct unacceptable and threatening to their party.

Donald Trump has made wild and unsubstantiated claims, including massive voter fraud in the last election and President Obama ordering wiretapping of Trump Tower. He refuses to release his tax returns or divest of his private businesses. Compromising religious liberty, he singled out Muslim majority countries for a travel ban, with the erroneous claim that the vetting process is minimal. He discounted a unified intelligence community’s conclusion that Russia interfered in the 2016 election, and fired James Comey, the F.B.I. director, apparently in the hope of discouraging the F.B.I. investigation of Russian meddling and any possible collusion by the Trump campaign. He has needlessly insulted allies. He has been consistently slow and half-hearted in criticizing white hate groups. During the campaign he frequently disparaged women and minorities, challenged the competency of a Hispanic judge to preside over a suit against him, and mimicked a journalist with a physical disability.

Six months into his administration, in the span of one week he tweeted that transgender individuals are not welcome in the military, publicly belittled his Attorney General as weak, turned a Boy Scout address into a Trump rally, threatened to withhold infrastructure funds from the state of a senator who voted against him on healthcare legislation, and advised policemen that they can be rougher with persons they are arresting.

On April 25, Trump pardoned former Arizona sheriff Joe Arpaio, a supporter of his who was convicted of criminal contempt a month earlier for defying a court order to stop detaining people on the mere suspicion they were undocumented immigrants. House Speaker Paul Ryan called the pardon an abuse of power which sent a dangerous signal. It was then revealed that Trump had previously inquired of his attorney general and White House counsel if the case against Arpaio could simply be dropped.

Trump’s impulsive behavior has likely aggravated the crisis with North Korea, which will soon be capable of delivering a nuclear warhead to the continental United States. Some grandiose rhetoric by North Korea aside, the simplest explanation for its nuclear weapons program is to deter attack by another nuclear power, particularly the United States. With this comes greater regional influence. But it does not follow from the regime’s brutality that it would be more inclined than any other country to initiate a nuclear war that would end in its demise. The fates of Saddam Hussein of Iraq and Muammar al-Qaddafi of Libya, who did not have nuclear weapons to deter the United States, undoubtedly confirm Kim Jong-un’s belief that his regime’s survival depends on such weapons. Trump’s insistence that North Korea give them up is not realistic, and he is the last person we need to be trying to navigate this situation. Moreover, as both this crisis and Trump’s other troubles grow, he may be tempted to exploit the former as a distraction from the latter.

On to impeachment. Section 4 of Article II of the Constitution reads:

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 referent of “high Crimes and Misdemeanors” is not limited to violations of statutory law, or “indictable” crimes. To quote from Alexander Hamilton in Federalist Paper #65, the subjects of impeachment are “those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to society itself.”

The language, “injuries done immediately to society itself” is important and explains why impeachment would not likely have been limited to indictable crimes. Obstruction of justice aside, in Donald Trump’s wild claims and unbecoming behavior it may not be possible to locate any violation of law or injury to any specific individual or group, yet there is clearly the prospect of injury to the Nation.

In 1974, when another President had violated the public trust, impeachment expert Raoul Berger wrote that “in a succession of ‘guilty’ verdicts [the United States Senate] has tacitly ‘settled’ that impeachment lies for nonindictable offenses.” Particularly instructive for Berger was the case of district judge Halsted Ritter in 1936. Berger wrote:

Ritter was acquitted of charges under Articles I through VI, two of which (V and VI) charged income tax evasion made unlawful by statute. He was then convicted under Article VII, which charged that the consequences of his conduct was ‘to bring his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice” (Impeachment: the Constitutional Problems, 1974, p.59).

Berger quoted Hatton Sumners, Chairman of the House Judiciary Committee in the Ritter case:

We do not assume the responsibility…of proving that the respondent is guilty of a crime as that term is known to criminal jurisprudence. We do presume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause people to doubt the integrity of the respondent presiding as a judge (p. 60, emphasis added).

Reviewing a number of cases of impeachment over a few centuries by the English Parliament, in which history the Framers of the Constitution were “steeped”, Berger wrote that “’high crimes and misdemeanors’ appear to be words of art confined to impeachments, without roots in the ordinary criminal law and which, so far as I could discover, had no relation to whether an indictment would lie in the particular circumstances” (p.66).

Whether or not Donald Trump will be charged with any specific crime, we have seen and heard enough to conclude that he does not belong in the highest office of the land. Citizens should strongly urge their current Congressional representatives and all candidates running for such offices in 2018 to support impeachment proceedings against Donald Trump, or the deployment of the 25th Amendment if such can remove him from office sooner.

 

 

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