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High Crimes and Misdemeanors
By Kevin Rex Heine, Section News
Though not 'Michigan centric', this is far too important to not have on the front page of every blog. - JG
"This week marks the 40th anniversary of the Watergate hearings. For those of you too young to remember, back then the administration had an enemies list. They were spying on reporters, and they used the IRS to harass groups they didn't like. Thank God those days are gone forever." (Jay Leno, circa last week)
Jay Leno may yet accomplish with President Obama what Johnny Carson did with President Nixon, in that JWC turned RMN into a national laughingstock, and thus greased the skids for Tricky Dick's premature exit from the White House. We can only hope that JDL can accomplish the same with BHO before February 2014 rolls around.
Four scandals, count them, four. Benghazi, the IRS's thuggish behavior, the DOJ wiretapping the AP, and the EPA's selective fee waivers. Those are just the ones that are currently "front-page news." There're plenty of others from the earlier years of this Administration (Operation Fast & Furious comes to mind), and there are likely others not yet brought to light. Solomon had it absolutely right when he said that there is nothing new under the sun.
The more I hear or read about what's going on, the more I find myself in agreement with Speaker Boehner: I'm not interested in who's losing their job over this; I want to know who's going to jail over this.
The legal term "high crimes and misdemeanors" is found in Article II § 4 of the U. S. Constitution; quoting the section in its entirety:
"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."
This section constitutionally secures a provision for the involuntary removal from office of the President, Vice-President, Cabinet Secretaries, other executive officers, as well as federal judges. The reason for this provision is the observation at the Constitutional Convention by Benjamin Franklin that the removal of "obnoxious" chief executives had, historically, been accomplished by assassination, and his recommendation that a proceduralized mechanism for removal would be preferable.
Treason and bribery are well understood crimes, and don't need much explanation here. (Treason is even specifically defined in Article III § 3.) But high crimes and misdemeanors . . . hmm, what's that? Jerry Ford once famously asserted, "An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history." To the extent that the U. S. House of Representatives is the sole and final arbiter of what constitutes grounds for impeachment of a federal official, he's right; but to the extent that this is even a remotely accurate description of the scope of high crimes and misdemeanors, it's not even close.
At the Constitutional Convention, treason and bribery were readily adopted as grounds for impeachment, but two other proposals, corruption and maladministration, were rejected as being overbroad and too vague. Instead, George Mason proposed the phrase "high crimes and misdemeanors against the state," which was shortened to "high crimes and misdemeanors" and then adopted with little discussion. The reason for the ready adoption is that the Founding Fathers were well acquainted with the concept, because it had about four centuries of precedent (since 1386) in English parliamentary use. Explaining the grounds for impeachment in Federalist Paper # 65, Alexander Hamilton wrote (emphasis in source):
"The subjects of its jurisdiction 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 the society itself."
This concept survives today in the Uniform Code of Military Justice, which recognizes as punishable offenses such things as refusal to obey orders, abuse of authority, dereliction of duty, moral turpitude, and conduct unbecoming. These would not be prosecutable offenses if committed by a civilian with no official position, but in the military they are offenses which bear on the accused's fitness for the duties he holds, which he is bound by oath or affirmation to perform. Thus, the emphasis in the phrase "high crimes and misdemeanors" is the word high, because we're referring to offenses that an ordinary person, who is not serving as an elected or appointed-and-confirmed federal executive (or as a duly seated federal judge) is incapable of committing. As an example, an ordinary person isn't going to have any official powers to misuse or abuse, but an elected executive (or one who has been appointed and duly confirmed) could face impeachment for precisely that reason.
The Founding Fathers were well aware of the concept of "executive accountability" (a concept also well understood by anyone who's served in the military), which means that an executive is legally responsible, and accountable, for all of his subordinates, as well as their agents and contractors (most certainly not limited to only those over whom he has direct supervision). The legal concept is a form of vicarious liability, and the standard of proof is "preponderance of evidence."
Keep in mind that that which can be "lain at the feet" of the official in question and "proven beyond a reasonable doubt" is way too narrow an interpretation of the accountability threshold. The executive in question is expected to be aware, at all times, of what every single one of his subordinates (and their agents and contractors) is doing - or is supposed to be doing - and must thoroughly remedy any misconduct committed by any of them as soon as he becomes aware of it. Nor is it necessary to show that such violations occurred at the executive's instigation or with his foreknowledge, but only that, based upon the preponderance of the evidence, the executive was, or reasonably should have been, aware of misconduct on the part of his subordinates. "Plausible deniability" is void ab initio as a defense, because the executive doesn't have the luxury of ignorance.
That executive accountability would be grounds for impeachment recognizes that holding an executive or judicial office of public trust is not a right, but a privilege, and that violating the trust invested in the office forfeits the privilege of holding it. Nor is it just presidents and federal judges who are liable under Article II § 4; there is precedent for impeaching a cabinet secretary (see: Secretary of War, William W. Belknap, impeached on March 2, 1876, and Treasury Secretary, Andrew W. Mellon, who resigned on February 12, 1932, with impeachment proceedings in progress). And it stands to reason that executive agency/bureau directors, especially those who hold a de facto cabinet rank (such as the Director of the EPA), should count as "civil officers" for impeachment purposes.
After test-marketing the excuse that the IRS selectively slow-walking non-profit applications was due to the Citizens United v. FEC decision, the Obama Administration has started floating the umbrella defense that systemic incompetence isn't the same thing as corruption, and now that they're aware of the problems, we can trust that they will exercise all due competence at getting to the bottom of this. Someone needs to get the memo to Jay Carney that even the typically disinterested voters aren't buying the cockalayne that BHO learned about these things in the same place we did, the newspapers, and that outraged cluelessness isn't inspiring a whole lot of confidence in America's chief executive.
That a cabinet secretary (let alone the president) would have left key policy decisions to management-level subordinates, without so much as reviewing them, is a critical point of their culpability. Quite frankly, it boggles my mind that blatant acts of malfeasance would have heretofore escaped executive scrutiny. Specifically:
The connect-the-dots on Benghazi is enough alone to warrant the establishment of a select committee (or perhaps the appointment of a special prosecutor) to investigate what Rand Paul has labeled "staggering abuses of power" . . . maybe another marathon filibuster is in order.
I suspect that the reason that there isn't more public outcry is, in my opinion, twofold: (1) the co-opted media is having a helluva time getting past their pro-commie bias; and (2) the "bread and circuses" American culture is more interested in what's going on with the Kardashians (or the latest "teen mom" story) than what's going on in Washington. It's uncertain at this point whether the wiretapping scandal is going to arouse the media from their kool-aid-induced stupor, but Mr. Carney's job doesn't seem to be getting any easier. As for the hoi polloi . . . well, judging by the "magazine" covers that I see in the grocery store checkout aisle, until either the people's house or the fourth estate start doing their jobs, don't expect the typical disinterested voter (~68.26% of the electorate) to give a damn, and more's the pity because of it.
Because, quite frankly, and for whatever my opinion is worth, not only should Barack Obama and Eric Holder be staring down the business end of impeachment charges, but so also should Hillary Clinton, Tim Geithner, Leon Panetta, and Lisa Jackson. The abuse of power is just that egregious, and the example that needs to be set is just that severe. I have no idea what the precedent is for impeaching a federal executive who's no longer in office, but a hypothetical conviction could, theoretically, bring about the punishment specified in U. S. Constitution Article I § 3, Clause 7 (specifically, permanent disqualification from holding any office of honor, trust, or profit in the federal government going forward). That'll throw a wrench into Hillary 2016.
(And if there's any truth to the scuttlebutt that Kathleen Sebelius is using the authority of her office to conduct a shakedown of the healthcare industry in order to raise funds for the federal exchanges, then throw her in with the rest of the lot.)
High Crimes and Misdemeanors | 6 comments (6 topical, 0 hidden)
High Crimes and Misdemeanors | 6 comments (6 topical, 0 hidden)
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Related Links+ high crimes and misdemeanors
+ Article II § 4
+ Article III § 3
+ once famously asserted
+ Federalist Paper # 65
+ Citizens United v. FEC
+ political witch hunt
+ should know the answer
+ coverup of what really happened
+ connect-th e-dots on Benghazi
+ establishm ent of a select committee
+ staggering abuses of power
+ Barack Obama
+ Eric Holder
+ Hillary Clinton
+ Tim Geithner
+ Leon Panetta
+ Lisa Jackson
+ U. S. Constitution Article I § 3, Clause 7
+ Kathleen Sebelius
+ Also by Kevin Rex Heine