Issue Position: The Constitution

Issue Position

The educational system has failed so utterly in its job of informing our youth about the history and role of the Constitution in our society that I am compelled to outline them here in order to place in proper context the enormous continuing threat to our nation initiated and perpetuated by Congressional Democrats.

In the late colonial period through the time when the Constitution was ratified (1788), the colonists acquired a good deal of experience with several forms of government. They had experience with a distant government much more interested in the wellbeing of the English homeland than that of the colonists. They felt they were being ill-used in the decade or so run-up to 1776, with a series of acts guaranteed to tax them beyond their means and inconvenience them beyond their capacity to bear, and this without them having a chance of representation in parliament, a promise that had been held out to them for years but had never been fulfilled.

Each colony had its own colonial charter, which provided a plan of governance. And, after the declaration of independence, all the colonies set up their own self-selected form of government. These differed from each other with respect to the power of the governor, the number of chambers in their legislatures, etc. And they had experience with the effect of the weak federal government that was formed under the Articles of Confederation. In addition, the learned people of that time familiarized themselves with the works of authors discussing different forms of government. The point is that the populace was experienced with different forms of government and the theories behind them.

It was this experience that the Framers brought to the Constitutional Convention in Philadelphia. There they discussed the principles that they wanted to embody in the founding document of our new, better, federal government. These principles are important because, if the Constitution is The Foundation of our government, the principles are the bedrock upon which The Foundation was built.

The primary principle of any government, regardless of its form, is order. That is the basic responsibility of any functioning government. Although this is obvious, it bears mentioning because one of the things that the Congressional Democrats are threatening is order.

The other principles are freedom, equality, fundamental fairness, and respect.

We wished to be free because we had experience with being ruled by a monarch who had little regard for us. We wanted to be the rulers so that we could see to our own wellbeing. So, it is we who are the source of the government's power. The government has no power except that which we give it, and we do not give it the power to abuse us.

To realize this principle, the freedom of citizens, the power of the government MUST be limited. So, for instance, we have no monarch who can throw someone in prison at his/her whim, there to languish until he/she sees fit to release them. That is why we have the writ of habeas corpus. That is why we limit the awesome power of the government to search and seize. Etc.

This limitation on the government are manifested in the Constitution in two ways. The power of the government was split among three co-equal branches, so no branch is Supreme over the others, and the government has only the powers granted to it by the people -- it could not take new powers for itself.

The three co-equal branches of government each carry out some typical governmental functions necessary to an orderly society, but each is also intended to be a check on the other two.

The legislature is to pass laws, the executive to carry out the laws and defend the nation, and the judiciary to hear cases and interpret laws. In the instances where there are conflicts between the other two branches, the judiciary is to resolve them. Laws are necessary to an ordered society, and the government is responsible for making the laws. But to guard against the possibility of government overreach, safeguards have been put in place to assure that citizens are not subjected to an abusive process in the exercise of the legal system, and to ensure that no citizens had more rights than any other.

The colonists had experience with a system of inequality in Great Britain. The King and the Nobles had immeasurably more rights than ordinary subjects. The colonists did not want anything like this in their new nation, and they made sure to include equality of citizens into the Constitution's structure. Article 1, Section 9, Clause 3 states:

"No Bill of Attainder or ex post facto Law shall be passed."

Bills of Attainder were laws passed against the actions of particular individuals. In other words, they were laws that were personal in nature. Ex post facto laws were laws that were passed outlawing actions that had occurred in the past and holding those who had done these acts liable in the present. These types of laws singled particular individuals out for punishment for one reason or another, the cause to be subject only to the whim of the law-making authority. The unfairness of these sorts of legislative acts is so blatant as to not require further discussion.

Article 1, Section 9, Clause 8 states:

"No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or Foreign State."

Obviously, the Framers did not wish to have the feudal system, with its inherent inequities, they had so recently exited reproduced in their new nation. So citizens would be equal before the law. The next order of business would be to ensure that they would have fair treatment from the government.

This is where the principle of fundamental fairness comes in, which includes the notion of due process (fifth amendment). With the colonists feeling so abused by the distant English government, they made sure to so structure their bundle of rights as to be protected from onerous unfair legal process. Among these is the right to freedom from unreasonable search and seizure, the right to counsel, the right to confront one's accuser, the right to cross-examine witnesses, the right to call witnesses, the right to present evidence, and the right to trial by jury. This is not a complete list, but the Framers' concern that citizens not be abused by a lack of due process comes through in these.

The principle of respect is vital to the functioning of the government. In our form of government, with the government having only the power granted by the governed, it is essential that the various branches respect each other's legitimate function, so that no branch acquires more power than any other. The balance is essential. It is the oil that keeps the governmental machinery from squeaking and eventually wearing itself out. This principle is so well understood that "comity', a word meaning "courtesy and considerate behavior toward others' (Google) has come to be used as the standard for what the relationship between the Senate and House of Representatives should be.

Respect should also extend to the results of elections, which are actually nothing more or less than the will of the people put to a vote. I am reminded of the indignation expressed by Hilary Clinton in one of the presidential election debates in the last cycle when Donald Trump said he might not respect (accept) the results of the election. His acceptance, he said, (paraphrasing) would depend on the circumstances of the election (in other words, if there might be possible election fraud that would need to be investigated). Fast forward to the present, not only Ms. Clinton, but the whole of the Democrat establishment, including legacy media, have challenged the legitimacy of the election, pointing out that Ms. Clinton received the most votes (won the "popular' election). Of course, Mr. Trump based his election strategy on the rules that exist, (i.e. the fact that the Electoral College elects the President, not the people) not the rules as the Democrats wish them to be, and won on that basis. So, he won.

The point of the last paragraph is that the will of the people of the country as expressed in the way prescribed by election laws should also be respected.

CONGRESSIONAL DEMOCRATS' ATTACK ON THE CONSTITUTION
The Congressional Democrats have systematically violated each of these principles. Either they do not understand their importance, or they do not care. In either case, they must be stopped in order for our government to continue to shelter us, as it has for going on two and a half centuries.

They have violated the principle of order. We have an orderly way for our government to transition from one cycle to the next -- elections. In the rare event that the President has, by his actions broken particular laws that show he places this own wellbeing above that of the nation (when he has taken a bribe, for instance), a mechanism has been included to remove him from office. It is a mechanism that has required so little use that it has come up only three times (President Nixon resigned before he was impeached) since our Constitution was ratified in 1787. But, as stated above, its application is limited in the Constitution itself.

Article II, Section 4 of the Constitution provides as follows:

"The President, Vice President, and all civil Officer of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

The two Articles of Impeachment that have been passed by the House are: 1) Abuse of Power, and 2) Obstruction of Congress. Although, careful readers will have noted, these do not appear in the specific crimes noted, the Articles of Impeachment mention that these "charges' are included under "other high Crimes and Misdemeanors'. It is worth noting that very few have noted the effect of the word "other' in this sentence of the Constitution. Treason and Bribery are crimes of a very serious nature. The word "other' relates this "seriousness' to high Crimes and Misdemeanors. Along with the adjective "high', it requires that the act for which impeachment is contemplated be on the level of seriousness of Treason & Bribery.

The point is that just because the articles of impeachment are included under the heading of high Crimes and Misdemeanors does not mean that they belong there. It would be useful to have some insight from an informed person of that time to comment on the issue. Luckily, we have Alexander Hamilton discussing the matter in Federalist Paper 65, which pertains to why the Senate is to be the trier of fact in impeachments. The following paragraph is from that Paper.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses 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 the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

Hamilton first states the offense in expansive terms: " … those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust". "Misconduct of public men', and "abuse or violation of some public trust' is subjective language, and might be interpreted to be almost anything. But he follows that with "'… injuries done immediately to the society itself". This is limiting language, in that it features conduct that impacts the whole of society. Still, some might like to argue that anything a President does that has a negative connotation is an impeachable offense, regardless of any alternative exculpating explanation. In the "Expert' hearing on impeachment held in the House Judiciary Committee, Professor Noah Feldman from Harvard stated his opinion that President Trump had committed an impeachable offense because he was trying to damage a possible opponent in the upcoming presidential election, Joe Biden.

But this completely ignores an alternative exculpating explanation for President Trump's language in his phone conversation with Volodymyr Zelensky, the President of the Ukraine. In that conversation, President Trump asked that President Zelensky look into the situation behind the firing of the Ukrainian prosecutor investigating the gas company employing Joe Biden's son, Hunter Biden. Joe Biden was at the time of the firing the Vice President of the United States and had been asked by then-President Obama to be the administration's point man on the Ukraine.

Vice President Biden had told the story of how he got the prosecutor fired on one of his trips to the Ukraine. In fact he got it done in a six hour window in one of his trips to Ukraine. His telling of the story was captured on videotape and the videotape was broadcast many times in various media. This may be the way President Trump became aware of the situation.

It is worth mentioning that at the time of the firing (and before) Ukraine was notoriously rife with corruption. This was one of the issues the Obama administration had with the Ukraine, and this contributed to President Obama's analysis that Ukraine required particularly strong oversight. So he assigned then Vice President Biden to manage the administration's affairs there.

The situation there was made more complicated because of two additional factors. One was the relationships that had formed between career US State Department professionals and the Poroshenko administration in the Ukraine (Zelensky's predecessor). President Poroshenko was considered by the Ukrainian electorate to be more part of the corruption problem than the solution to it, which is the reason he lost so badly to the reform candidate, Zelensky, in the last election. The other was the need to provide means to the Ukrainian government of a kind and level sufficient enough to effectively discourage Russian aggression.

In his well-known phone conversation with newly elected President Zelensky (elected April 21, 2019 -- telephone call July 25, 2019), the text of that conversation reveals that President Trump had the same things on his mind as he had with other instances when foreign aid was involved, evaluating whether or not the foreign aid in a particular instance would be go to a friend of the United States, and whether or not it would be sidetracked by corruption.

In the conversation he said "I would like you to do us a favor". The favor went to the issue of helping to determine if the Democrat National Committee ("DNC') server allegedly hacked in the last election by Russians was in the possession of a Ukrainian company called Crowd Strike, and, if so, whether or not there was any as yet unknown useful intelligence that might be gleaned from it. Crowd Strike was the company hired by the DNC to do a forensic analysis of the server's hard drive. It is unclear why they chose a foreign company over the cyber forensic team at the FBI, but they did. The objective of this was clearly to determine if there was any additional information that could be gathered on foreign interference in our elections.

The second thing that was mentioned, somewhat later in the conversation, was that President Trump asked President Zelensky if he could find out the details of VP Biden's firing-of-the-prosecutor incident. It is the second request that is the basis of Congressional Democrat's attempt to remove President Trump from office. They maintain that President Trump's primary motive was to damage a political opponent. They infer that there was an implicit threat made in the conversation, that threat being that foreign aid amounting to hundreds of millions of dollars to be used in deterring Russian aggression would be withheld if no "firing' investigation was "announced' and undertaken. They maintain that this inferred attempt to force an attempt to bring "dirt' to light on Joe Biden would undermine the chances of the Democrats to win the White House in the upcoming election, and so is an attack on our electoral system.

Their two counts of impeachment are Abuse of Power (using the authority of his office in trying to get a foreign country to find "dirt' on a political opponent), and Obstruction of Congress (not providing requested information and access to executive branch staff requested by committee chairpersons as witnesses before committee impeachment hearings).

It should be pointed out that the first charge depends on the state of mind of the President during the phone call (something that is entirely subjective), and that legal arguments were raised by the President's legal team to each request for information and potential witnesses.

The President has offered, sometimes through staff, the details of an alternative explanation for requesting the information in the "firing' incident, and for asking his staff to get the Ukraine to announce that the investigation had begun.

As mentioned above, President Zelensky ran as a reform candidate, promising to get rid of the corruption so notoriously rife in the country. The videotape of Joe Biden claiming credit for getting Viktor Shokin (the prosecutor looking into his son's Ukrainian employer) fired (or he would see that one billion dollars in foreign aid for the Ukraine would be held up) was widely watched when it was broadcast several times in various media outlets. Taken at face value, it could be a corrupt act in a place where corruption was common. If one of the main goals of the U.S. in the Ukraine was a reduction in corruption, it would be useful to know whether or not the former Vice President, who, as the Obama administration's point man on the Ukraine, would have been in an ideal position to profit from corruption.

The inference that this might be the case is supported by the fact that Hunter Biden, the VP's son, got his lucrative position on the Burisma Board of Directors after he flew into Ukraine with his father on Air Force Two. It is also supported by the fact that Hunter Biden brought nothing to Burisma except his last name and family connection to the VP, and for this he received $50,000 per month.

So, it is not inarguable that President Trump was looking into former VP Biden's possible involvement in the Ukrainian corruption scene as a possible future blackmail danger to the U.S. in the event that Mr. Biden wins the upcoming Presidential election.

Indeed, if President Trump thought there might be corruption there, he was bound to investigate it. The President of the United States has the Constitutional duty to see that the laws of the United States are faithfully executed (Article II, Section 2). Corrupt acts by U.S. government personnel overseas is under his purview. And to ignore what some could view as blatant corruption broadcast serially on the nation's media would be dereliction of that constitutional duty.

With regard to having the Ukrainians announce that they would be starting an investigation into the matter, it is worth mentioning that Ukrainian officials have promised action on various matters before, but that no action was forthcoming. That is why, President Trump's supporters say, that he wanted the investigation announced, as that would make it harder for the Ukrainians to back out of doing anything.

Further, the President's staff maintains, and evidence supports, that the Ukrainians were unaware of any pause in the executive branch releasing the monetary aid that Congress had requested until an article was published in "Politico' on August 28, 2019. The phone call was on July 25, 2019, over a month previously. In the interim, no mention was made by any high-ranking Ukrainian officials to their American counterparts about the aid not being forthcoming. After the article, there were a flurry of questions from Ukrainians to American officials on the subject. So, there had been no threat communicated in official channels of withholding of aid until an investigation was started and announced.

It bears mentioning that the President withholding foreign aid from a country was by no means unique to the Ukraine. Only two examples will be cited here, but more are available. Foreign aid had been withheld from Pakistan for its lack of support against terrorism, and from some of the Central American countries because of their lack of support in stopping groups of migrants headed north to the United States. State Department personnel familiar with Ukraine, and who testified before the House Intelligence Committee, stated that foreign aid as a general matter was "under review'. So the President did not "single out' the Ukraine for special treatment.

Also, the aid in question was delivered before the date mandated by the statute granting the aid. This in spite of the fact that no investigation had been announced or undertaken.

In the meantime the U.S. government was supplying "lethal' aid for Ukraine's use in deterring Russian aggression, Javelin missiles. These had also been promised in the famous phone call, and their delivery was not held up. Javelins are anti-tank weapons. Since a good deal of Russian military might is in "armor', Javelins are potent dissuaders. Bottom line, there was no quid pro quo.

All this information either was known or should have been known to the Congressional Democrats when they began their impeachment investigations. But it did not deter them from moving forward with impeachment. Indeed, per a remark from Speaker Pelosi, Congressional Democrats had been working on impeaching President Trump for over 2 ½ years. Message -- they just wanted to be rid of him, and this was as good an excuse as they could get, given that the Muller investigation into the Russia Hoax had failed to discover that any American (i.e. anyone in the Trump camp) had worked with the Russians in their efforts to interfere with our elections.

So, despite the fact that they would have to drag the country through the impeachment process based solely on their ASSUMPTIONS about President Trump's state of mind during the Zelensky phone call, and that they would further divide the country in the process, they went ahead anyway.

Regarding the second article of impeachment, Obstruction of Congress, the House impeachment process was fatally flawed from the outset. Article I, Section 2, Clause 5 of the Constitution states that "The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment." The power of impeachment is given to THE HOUSE and not to the Speaker. It is not part of the legislative function, and so is not under the direct control of the Speaker. So there should be a vote by the people's representatives as to whether or not such a divisive step should be taken. Yet this impeachment inquiry received no vote at the beginning. The Speaker merely announced that the Intelligence Committee would be holding impeachment hearings. So any subpoena issued by the chairpersons of any committee investigating matters pertaining to impeachment would be without legal force. This is one of the primary points raised by the executive branch personnel in response to committee chairperson issued subpoenas regarding the committee impeachment proceedings.

Further, even if the subpoenas were legitimate, the President is entitled to Executive Privilege. It is vital that any President receive unvarnished advice from his advisors, and that could hardly be forthcoming if they had to couch their communications in terms of what use others could make of later. In other words, the President must have the privacy necessary for him to carry out his Constitutionally mandated duties.

Finally, the way the Congressional investigation was handled, with the President being denied the right to have counsel present at the hearings, or to have witnesses at the hearings, or even for Republicans to have witnesses at the hearings, shows how closed and partisan the whole affair was. Of the 78 days the impeachment inquiry took, 71 of those days the President was denied the due process that would have been afforded a mass murderer.

Concluding this section, Congressional Democrats have attacked the most basic principles enshrined in the Constitution. And worse, they have threatened to continue trying to impeach the President if this attempt fails. The only thing that is guaranteed to stop them from wasting legislative opportunity as well as further dividing the country is losing their majority in Congress. That is one of the main reasons why Congressman Price must be defeated.

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