Who Will Terminate the Would-Be Terminators?

The Democrats intended impeachment to cripple if not terminate the Trump presidency. But now it appears the appalling “Rise of the Bureaucrats” will exonerate Trump and may, in fact, lead to the termination of the Democrats.

Like vermin, they flee from light or open hearings. And like the cinematic “Terminator,” they are a ruthless enemy: these operatives of the administrative state can take diverse forms to advance their anti-democratic goals: judges, military officers, congressional staffers, consultants, academics, bureaucrats high and low, as well as elected officials.

And, as the Department of Justice investigations will once again bear out, the ties between the various tribes of the administrative state are close and calculated.

The hearings’ bumbling search for a crime (treason, quid pro quo, bribery?) should backfire on the Democrats, despite the best efforts of the private branch of the administrative state and the media to deconstruct unconstitutional behavior. And even then one is puzzled at whether the punishment of impeachment fits the purported crime? The hearings might be dismissed as a comedic Gilbert and Sullivan spectacle if constitutional self-government were not at stake.

Most Republican members brought sanity to the hearings by asking simple questions—e.g., did the president commit a crime?—which elicited a simple answer, “No.”

Unfortunately, this technique may not satisfy citizens who find President Trump appalling for a variety of reasons. They may mistake unconventional behavior for unconstitutional action or vanity for the hubris of contempt for the law. (Trump is certainly not a Bush, which of course is why his supporters love him.)

In the understanding of Trump critics, policy differences may amount to crimes. Yet even unconstitutional behavior does not necessarily merit removal from office. After all, if a president loses a Supreme Court case by a 5-4 or even 9-0 vote, that hardly means he should resign or be removed from his office.

But this level of discussion, as skillfully as the House Republicans handled it (especially given the strictures on the process imposed by the Democratic majority), misses the core of the constitutional debate. By combating the administrative state, Donald Trump is the grand restorer of constitutional government. The separation of powers cannot exist unless the different branches exert their respective powers with vigor and cunning. Americans should fear an unchecked presidency, but they should fear even more malicious and self-important bureaucrats who want to do good—by running over others. All the more so when those “others” are people constitutionally elected by the sovereign people and, therefore, accountable to them. To whom are these bureaucrats accountable?

But that is, perhaps, the core of the Democratic (and some Republican) resentment of Trump: no longer is government a matter of cushy deals, at home or abroad.

We are reminded that an earlier Congress failed to remove Andrew Johnson when, among other constitutional violations, he did

make and declare, with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled in hearing, which are set forth in the several specifications . . . to set aside the rightful authorities and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States . . . .

Johnson’s presidency, indeed, was a disaster, but this particular article of impeachment contributed nothing to those indictments. Today one can view such “harangues” as virtually a constitutional duty, given Congress’s many successful assaults on the Constitution over the past half-century and more.

Impeachment Powers are Distinct from Legislative Powers

Overlooked during these recent impeachment proceedings was a D.C. Circuit Court of Appeals case involving congressional subpoenas of Trump’s tax returns decided October 11 and later denied an en banc hearing, with the whole circuit court sitting on November 13. Two judges (both former Clarence Thomas clerks, appointed by Trump) wrote insightful dissents that remind Congress of the constitutional requirements of their legislative powers. The administration will appeal the adverse decision in the D.C. Court of Appeals on Trump v. Mazars USA and Committee on Oversight and Reform of the U.S. House of Representatives, which validated the subpoena.

I quote from Judge Neomi Rao’s sharp, historical distinction between the House’s legislative powers and its impeachment powers from her October 11 dissent: “Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power . . . . Allowing the Committee to issue this subpoena [of Trump’s tax returns] for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.”

Instead, Rao notes, the subpoena might be part of an impeachment inquiry: “The House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power.” The House may try to “impeach a ham sandwich,” as some have put it, but even that sandwich has rights under the impeachment clauses. (Legislatively, it might be turned into spam by loose use of the “necessary and proper” clause, but even then there are limits, which belong in another discussion.)

All of Congress’s legislative powers are spelled out in Article I, Section 8, which does not mention impeachment. Impeachment and the trial involve the distinctive impeachment power and are treated in other sections of Article I. They spell out the rules for the House regarding impeachment and the rules for the Senate and chief justice of the Supreme Court regarding the trial. In addition, Article II, on the executive power, provides for penalties for conviction in the cases of “treason, bribery, or other high crimes and misdemeanors.”

Recognizing how impeachment involves Congress assuming judicial as well as executive responsibilities, Rao observes in a recent dissent, “Throughout our history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment.”

When Congress acts as a judicial body, it needs to follow established rules and not its Calvin Ball impeachment behavior of late. And, most troubling, a legislative request for Trump’s tax returns might reflect a constitutionally forbidden Bill of Attainder, a law directing criminal punishment intended for a particular person.

A Congressional Process Completely Out of Bounds

This explains why House Speaker Nancy Pelosi’s delegation of the impeachment process to the Intelligence Committee was a violation of impeachment protocol. Why not the Agriculture Committee? After all, the so-called whistleblower, who started the case, was working with the Intelligence Committee, which itself should have been an object of investigation in the impeachment proceedings, not the committee running them. This delegation is, of course, how legislation in the administrative state proceeds, keeping matters in the dark. That the Democrats plan to return formal impeachment power to the Judiciary Committee is a mere figleaf.

Under the administrative state, the House produces ham sandwiches or more accurately, promises of ham sandwiches. But once the House decides to investigate criminal allegations against the president, he is entitled to the protections of the impeachment process. Thus, as Rao maintains, the “House may not use the legislative power to circumvent the protections and accountability that accompany the impeachment power.”

As Chief Justice John Marshall once stated, “the power to tax involves the power to destroy.” It might be added today that the power to examine tax returns involves the power to destroy individual rights.

While the IRS may investigate tax fraud, politicians may not have such an inherently abused power without destroying constitutional government. In both the tax inquiry and the impeachment proceedings, Democrats have converted a grave constitutional obligation into a partisan game, betraying their oaths of office and establishing a foul precedent that further demeans constitutional government. They insist on the right to play “Terminator” with citizen rights, not only President Trump’s powers of office.

About Ken Masugi

Ken Masugi, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, as well as for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of seven books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Alex Edelman/Getty Images

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