History Tells Us Congress CAN Impeach the President After His Term

The Constitution says nothing specific about whether Congress can impeach an official after his or her term. That didn’t stop the House of Representatives from impeaching the Secretary of War in 1876, after he left office — or the Senate from trying him. And history tells us Congress got it right that year, just as they apparently will again in 2021. The Framers based the impeachment process on the English Parliament’s power to impeach. And English impeachments could start after the official left office. In fact, Parliament impeached an official named Warren Hastings in 1787 and tried him between 1788 and 1795 — though he left office in 1784. The Hastings impeachment battle raged while the Framers wrote the Constitution, and it played a central role in their thinking.

The House of Commons, where they impeached Hastings
The House of Commons, Late 1700s

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History Tells Us the President Cannot “Self-Pardon”

The Framers of the Constitution based the presidential pardon on the English monarch’s power to grant pardons. And the monarch could not pardon himself — could not use executive power to escape the judgement of the courts. Parliament established that principle during the century before the Constitutional Convention, when it tried and executed King Charles I. To the Framers, then, “pardon” meant legal forgiveness granted to another. The authority they gave the President does not include a “self-pardon.”

even with 3 positions, Charles I could not self-pardon
Charles I, triple portrait by Anthony van Dyck

The Constitution does not address a “self-pardon,” and caselaw offers little guidance on whether the President has such a power. But the history of the Seventeenth Century does.
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Time for an Independent Attorney General

Almost every U.S. state has an independent attorney general. Forty-eight of our state governors cannot fire their AG at will, so they can’t avoid justice through control of state prosecutors. American Presidents, however, however, can fire the U.S. Attorney General, for essentially any reason. Yet the White House generates far more potential corruption than any governor’s mansion, due to its greater power. In fact, thanks to the modern imperial presidency, the U.S. executive now overshadows the other two branches, disrupting the Founding Fathers’ plan for a balance of power. And the extreme partisanship of 21st Century politics boosts Presidents’ might even further. It renders them almost immune to impeachment and even to justice from the ballot box. That leaves law enforcement as a crucial check on executive corruption. But the federal prosecutors’ hands are tied by the Presidents’ power to fire them. So the U.S. must learn from the wisdom of its own states.

This article proposes a constitutional amendment creating an independent Attorney General — and it offers the amendment’s text, ready for adoption. It takes no position on the conduct of Presidents Trump or Obama or any of their predecessors. Rather, it offers a non-partisan, traditional American solution. Continue reading “Time for an Independent Attorney General”

Trump Threatens to Jail Clinton: An Authoritarian in America

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George Washington’s legacy is restraint, particularly on presidential power. That legacy is threatened like never before.

Last night, Donald Trump told Hillary Clinton he plans to put her in jail if he’s elected President of the United States.

Dictators threaten to arrest political rivals. American presidential candidates never have. One of the central features of our democracy, since the Founding Fathers, is that we do not use the criminal justice system against political opponents. We separate the two realms as much as possible, to protect political freedom. Continue reading “Trump Threatens to Jail Clinton: An Authoritarian in America”

The Founding Fathers and the Election of 2016

The Republican Party has nominated a truly unusual candidate for President. More than any major party nominee in history, Donald Trump has spoken against the principles and policies of America’s Founding Fathers. He has opposed legal restraints on government power — laws that tie the government’s hands — which for the Founding Fathers provided the bedrock of freedom. And he has advocated open, overt religious discrimination, rejecting another of the Founding Fathers’ core values. Mr. Trump and his supporters aren’t necessarily unpatriotic. Most probably don’t realize they stand against the legacy of George Washington, John Adams, Benjamin Franklin, and the other founders. But as voters, we need to understand the Founding Fathers and the cornerstones they laid for our democracy.

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America’s Founding Fathers Offered an Escape from Guns

America’s gun lobby says private ownership of firearms prevents tyranny. That’s why the Founding Fathers guaranteed the right to bear arms in the Second Amendment. The first part of that argument makes little sense and is easily put aside. I think the second part is wrong too. The Second Amendment wasn’t meant to guarantee the right to bear arms (however it’s used today). But understanding why requires a bit of history and a bit of thought. Continue reading “America’s Founding Fathers Offered an Escape from Guns”