Tag Archives: Obstruction of Justice

Impeachment

There is and has been a lot in the media about impeachment.  A good part of the sound and fury signifying nothing comes from the constitutional text referring to “high crimes and misdemeanors.”  And part of that misunderstanding comes from using modern criminal justice terms to define an eighteenth century text.

Today, the general distinction between felonies and misdemeanors is based on the potential sentence — over one year for felonies and less than one year for misdemeanors (although some states draw different lines since each state is free under the Tenth Amendment to define those terms as they see fit).  But that one-year line tends to be used in federal enhancement statutes (those that increase the minimum or maximum sentence based on prior criminal history) to define what counts as a felony offense.   And there are a lot of “white collar” criminal offenses.

Originally, however, the distinction between a felony and a misdemeanor was whether the offense was a capital offense carrying the death penalty and confiscation of all of the offender’s property  (a felony) or an offense for which an alternative disposition was made (misdemeanor).   Out of twenty-two federal offenses created in the Crimes Act of 1790, seven carried the death penalty (in most cases a mandatory death penalty).   As such, the reference to high crimes and misdemeanors was really a broad statement of potential grounds for impeachment as it was highly unlikely that a public official would be guilty of a crime meriting the death penalty. Continue Reading...

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Reckless Incompetence

For the past two weeks, almost every day has produced a stunning revelation about the current Administration.  By this point, it is crystal clear that the Liar-in-Chief is completely clueless about the many responsibilities of his job and simply does not care.  He is going to proceed full speed ahead — hoping that determination and arrogance will make up for any deficiencies in his knowledge about policy issues or protocol.

Most democracies have some institutional procedures that keep individuals from rising to the top of the government without sufficient experience in politics and government to assure a basic knowledge of how things work.   In a parliamentary system, the leaders of the major parties tend to have served several terms before becoming leader of their party.  Additionally, the leaders tend to have served on the leadership teams of their parties (having responsibility for several different policy areas including at least one major area) before running for and winning their party’s top spots.  In addition, there are procedures in place that allow a party to remove (albeit with some difficulty) a leader who is not doing a good job as prime minister.

Unfortunately for the U.S., our Constitution predates the modern era of parliamentary democracy.  Our framers did have the same type of concerns that have animated modern parliamentary government, but the development of national politics have undermined the procedures created by the framers.  The electoral college was supposed to assure a minimum level of competence in the presidency.  The thought behind the original language in Article II (two votes per elector, no more than one of which could be from the elector’s state) was that each elector would cast one vote for one of the leading politicians in that state and one vote for a politician with a  national reputation.  Barring a clearly obvious national candidate, no candidate would get a national majority and the House would pick between the top candidates.  This scheme depended upon the framers’ belief that politics would stay state-based and that the different state parties would not get together with similar groups from other states to from a national party that would be able to get electors in multiple states to support a national ticket.  That has left the burden on the parties to devise systems of choosing leaders that ensures competence in their presidential candidates, and — as the current incumbent shows — the Republican Party rules have failed in that regards. Continue Reading...

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