By Nancy Thorner & Al Boese – 

David B. Rivkin, Jr. and Elizabeth Price Foley, two Constitutional Scholars, lay out with clarity, the case against the process being employed by the House Democrats and sanctioned by their Speaker, Nancy Pelosi. Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. Rivlin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations.  Foley is a professor of constitutional law at Florida International University College of Law.

Their lengthy 2100 word article, This Impeachment Subverts the Courts, published in the WSJ on Saturday, October 26, 2019, presents a comprehensive and legally supported case against the procedure Adam Schiff and his committee members have created and followed in their Impeachment quest of Donald Trump.

Aside from the lack of public evidence of a qualifying crime ( Remember, The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” ), there is also a well-defined procedure and sequence based on all previous impeachment attempts; utterly ignored by Schiff and company.

There is also conflict and tension between evidence seeking and the legality of such demands that much will be rejected by the Trump Administration and consequently tested by appeals to higher level courts.

As Rivkin, Jr. and Elizabeth Price relate in their lengthy WSJ article:

“It’s legally irrelevant that a criminal investigation may be politically beneficial to the president. Virtually all exercises of constitutional discretion by a president affect his political interests. It would be absurd to suggest that a president’s pursuit of arms-control agreements, trade deals or climate treaties are impeachable offenses because they benefit the president or his party in an upcoming election.

Using a private party such as Rudy Giuliani to carry out diplomatic missions is neither a crime nor an abuse of power. While the State Department’s mandarins have always lamented intrusions on their bureaucratic turf, numerous U.S. presidents have tapped people to conduct foreign-policy initiatives whose job—whether in the government or private sectors—did not include foreign-policy experience or responsibility. George Washington sent Chief Justice John Jay to negotiate the “Jay Treaty” with Britain. Woodrow Wilson used American journalist Lincoln Steffens and Swedish Communist Karl Kilbom as special envoys to negotiate diplomatic relations with the Soviet Union. A close Wilson friend, Edward House, held no office but effectively served as chief U.S. negotiator at the Paris Peace Conference after World War I.

Nor is it illegal or abusive to give a diplomatic assignment to a government official whose formal institutional responsibilities do not include foreign affairs, such as the energy secretary. JFK relied on Attorney General Robert F. Kennedy to negotiate with Moscow during the Cuban missile crisis.

Although the impeachment inquiry has been conducted in secret, what we know suggests it has become a free-ranging exploration of Mr. Trump’s foreign-policy substance and process, with the committees summoning numerous State Department witnesses. Congress could properly undertake such an inquiry using its oversight authority, but by claiming that it is proceeding with an impeachment inquiry, it has forfeited this option.

If the House impeaches Mr. Trump because it disapproves of a lawful exercise of his presidential authority, it will in effect have accused him of maladministration . The Framers rejected that amorphous concept because it would have allowed impeachment for mere political disagreements, rendering the president a ward of Congress and destroying the executive’s status as an independent, coequal branch of government. If the House impeaches on such grounds and the Senate concludes it has jurisdiction to conduct an impeachment trial, it should focus first and foremost not on the details of Mr. Trump’s foreign policy, but on the legal question of whether the conduct alleged is an impeachable offense.

Alexis de Tocqueville observed in 1835: “A decline of public morals in the United States will probably be marked by the abuse of the power of impeachment as a means of crushing political adversaries or ejecting them from office.” What House Democrats are doing is not only unfair to Mr. Trump and a threat to all his successors. It is an attempt to overrule the constitutional process for selecting the president and thus subvert American democracy itself.”

The flawed process

In the end, the process being followed by the Democrats will also be tested by an election and the process may well be rejected at the ballot box. The press is reporting that the public sentiment is turning in favor of an impeachment, but that does not consider the facts of reality.”

In the end, the process being followed by the Democrats will also be tested by an election and the process may well be rejected at the ballot box. The press is reporting that the public sentiment is turning in favor of an impeachment, but that does not consider the facts of reality:

  • Information flow about the witness testimony is secret but selectively leaked to the supportive press to establish a mythical narrative of impeachable offense.
  • The public is always highly suspicious of secrecy.
  • In an actual impeachment proceeding, including a trial in the Senate, the defense finally gets to call their own witnesses and cross examine testimony from that of the prosecution and all will be viewed by the public.
  • The Congressional approval numbers are approaching single digit.
  • Polls about Trump support or favorability are always understated.
  • The press are the most aggressive cheerleaders of the impeachment.
In the latest chapter of the “Impeachment” saga Speaker Pelosi has seemingly capitulated, at least in words, by signaling a floor vote for the inquiry. Is this a head fake, or the recognition the flawed process of Adam Schiff was catching up with him and his committee?  Perhaps fairness for once for Trump is taking hold.