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Tags: pelosi | republican | hatch | conway

Impeachment of Trump Needs GOP Wave of Support



Paul F. deLespinasse By Tuesday, 30 July 2019 05:07 PM EDT Current | Bio | Archive

In the unlikely event that Donald Trump is impeached, public understanding of that process will be important. But to understand impeachment, it helps to begin by looking first at the little-known Hatch Act, legislation which prohibits federal employees (with a few exceptions for top officials) from engaging in campaign politics at work.

Trump aide Kellyanne Conway was recently accused of violating the Hatch Act.

The New York Times reported claims that Conway violated the Act "on numerous occasions by disparaging Democratic presidential candidates while speaking in her official capacity during television interviews and on social media."

Conway retorted "If you're trying to silence me through the Hatch Act, it's not going to work. Let me know when the jail sentence starts."

But Conway need not fear imprisonment, only being fired from her job.

The part of the Act she stands accused of violating is a bylaw, not a law proper, and nobody can be jailed for violating a bylaw.

As provided in the Hatch Act, "Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any Act of Congress for such position or office shall be used to pay the compensation of such person."

No fines or imprisonment are authorized.

I find it useful to recognize a sharp difference between laws proper and bylaws.

Laws proper apply to everybody and are general rules of action enforced with sanctions (deprivations of life, liberty, or property). Governmental bylaws, which apply only to people or organizations with whom government has entered into voluntary associations, are enforced with reduced or terminated inducements.

The Constitution doesn't distinguish between laws proper and bylaws but employs "laws" or "legislation" to refer to both. We must determine the specific meaning from the different contexts in which the Constitution uses these words.

In decisions upholding the Hatch Act, the courts have implicitly recognized this difference. A law proper threatening sanctions against people in general for speaking as Conway has done would clearly be unconstitutional , since the First Amendment provides that "Congress shall make no law  . . . abridging the freedom of speech.  . . . " But "no law" in this context does not restrict government's power to enact bylaws, enforceable through withdrawn inducements.

Since courts haven't recognized the distinction between laws proper and bylaws, they had to go through awkward contortions to uphold the Act, "weighing and balancing" conflicting government and private "interests" and generally confusing the issue.

But the principle is clear enough. As Oliver Wendell Holmes, Jr. , upholding the firing of a policeman for off-duty politicking, wrote in 1892 for the top Massachusetts court, "The petitioner may have a right to talk politics, but he has no constitutional right to be a policeman."

This distinction between laws proper and bylaws is very important in understanding the Constitution's provisions for impeachment. If an official is impeached and convicted, the maximum punishment is "removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States .  . . ." (Article I, Section 3) That is, an end is put to the voluntary association between the individual official and the U.S. government. The official is fired.

The impeachment provisions thus are implicitly bylaws rather than laws proper. It is therefore generally understood that, despite the Constitution's reference to "treason, bribery, or other high crimes and misdemeanors," an official need not have done anything illegal to be impeached and convicted.

The Constitution makes it clear, though, that if the official has done something illegal, after being removed from office through impeachment proceedings, he or she can then be tried in a court and, if convicted of violating a law proper, can then be punished with sanctions— deprivations of life, liberty, or property.

Impeachment, which does not involve any court, is basically a political process rather than a legal one. The House of Representatives votes to impeach, and the Senate (presided over by the Chief Justice if a president was impeached) conducts a "trial" and can only "convict" with the agreement of two-thirds of its members present.

Although the Constitution does not require this, political realities require that impeachment of a president must be initiated by members of that president's own party.

Otherwise it will be seen as a partisan power grab and without considerable support from the president's party it will be impossible to get the two-thirds Senate vote required to convict.

U.S. House Speaker Nancy Pelosi, D-Calif., is therefore on sound ground when she says that there is no use in impeaching Donald Trump unless there is considerable Republican support for that move.

Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. He received his Ph.D. from Johns Hopkins University in 1966, and has been a National Merit Scholar, an NDEA Fellow, a Woodrow Wilson Fellow, and a Fellow in Law and Political Science at the Harvard Law School. His college textbook, "Thinking About Politics: American Government in Associational Perspective," was published in 1981 and his most recent book is "Beyond Capitalism: A Classless Society With (Mostly) Free Markets." His columns have appeared in newspapers in Michigan, Oregon, and a number of other states. To read more of his reports — Click Here Now.

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U.S. House Speaker Nancy Pelosi, D-Calif., is on sound ground when she says that there is no use in impeaching Donald Trump unless there is considerable Republican support for that move.
pelosi, republican, hatch, conway
Tuesday, 30 July 2019 05:07 PM
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