Tag: impeachment

History Tells Us Congress CAN Impeach the President After His Term

~ David Tollen ~ 12 Comments

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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The Chief Justice Can Call Witnesses

~ David Tollen ~ Leave a comment
Marshall would never stand for impeachment without witnesses
Would John Marshall, our most influential Chief Justice (1755-1835), have stood for a trial without witnesses?

Under the Constitution, the Vice President presides over the Senate — except during presidential impeachment trials. The Vice President would inherit the President’s position if the trial led to conviction, so the Founders feared the VP’s bias. Who then? An obvious choice would be the President pro tempore of the Senate: the Senator who presides in the Vice President’s absence. Or the Senate could elect another Senator. But instead of those natural choices, the Founding Fathers reached out of Congress and chose the Chief Justice of the United States. Why? Continue reading “The Chief Justice Can Call Witnesses” →

Vichy and American Collaborators

~ David Tollen ~ 2 Comments

In 1940, cooperation with the Germans looked like good sense to many French leaders. Germany had conquered most of their country, and by working with the invaders, these politicians and generals could maintain power. Even better, much of the populace favored cooperation. So while some French leaders kept fighting a seemingly hopeless war, others set up the “Vichy government,” which administered much of the country and assisted the Germans during World War II. Aiding the foes of French liberty, however, did these men no good in the long run. After the war, the French jailed or executed much of the Vichy leadership. And the nation came to view them with contempt and loathing. Some Vichy leaders had done great things before 1940, but that does not matter. History has given them an ugly name: collaborators.

Marshal Pétain, first of the Vichy collaborators -- a lesson for impeachment
Marshal Philippe Pétain, once an immensely popular WWI hero — jailed for leading the Vichy government and remembered today as a traitor and collaborator

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Time for an Independent Attorney General

~ David Tollen ~ 6 Comments

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” →