" "More Than Just Musing" #19
INDICT, NO; IMPEACH, YES
The Founding Fathers were more than intelligent and reasonable men. They had foresight far beyond what we seem to be capable of. Their understanding of the importance of an independent Presidency and the necessity of oversight by Congress is demonstrated in Article I, Sections 2 and 3 of the Constitution. The oversight of a sitting President belongs to the House OF Representatives in impeaching (indicting) and the Senate in convicting or in a finding of exoneration.
Their foresight is further demonstrated by curbing the power of the Senate in punishing an impeached President. The punishment is limited to "removal" and "disqualification" leaving indictment and punishment on criminal charges to the courts when he/she is not a sitting president.
The "shall not extend further" limits the Senate and the "but" (a connective that implies a shift in the direction of thought) clarifies their thoughts on the adage "No man (or woman) is above the law." The Founding Fathers understood that an indictment by anyone other than the House could theoretically come from any district attorney in any judicial district for anything from looking hungry and refusing to eat to littering. That's any district attorney, who may simply be seeking his fifteen minutes on stage, in any district in the country. This section blocks criminal indictments of a sitting President without placing him/her above the law.
What would be the operational mode of our President if he/she had to respond to every crackpot charge? Could he/she function at all? Would the public be served in any way by the muddle created by indicting a sitting president?
Impeachment is so different. It is brought to the front by an elected body, the House, that must answer to people every two years and who must do their business in public with the people and our free press looking on. Although politics will always play a role, any blatant political motives will have consequences. (President Clinton's approval rating jumped to 73% after his acquittal and the Republicans lost four Senate seats and control of Senate when Vermont Republican Senator Jim Jeffers caucused with the Democrats.)
The Founding Fathers in Article I, did not say forget the illegal activities until the President's term is over. They did not say a President should be able to continue his errant ways without intervention. They gave Congress the tools and authority to act in a fair and rational manner - an indictment and a trial with restrictive punishment.
"Qui tacet consentire videtur" means more today than ever. Behavior that threatens our democratic institutions, compromises our elected officials, hinders administrative leaders, and cohorts with enemies who are adversarial to our way of life needs to be called out. Politics be damned. "Silence gives consent."
In Washington we need conditions that encourage honesty and representation that demonstrates courage and convictions. Congress needs to demonstrate courage.
The 28th Amendment to the Constitution is a good place to start.