The most powerful rhetorical suggestion in the argument for removal of President Trump, put forward in the Democrats’ legal brief that was filed in connection with the Articles of Impeachment brought against the President, was that he was "the Framers' worst nightmare."
This characterization is in connection with the U.S. House’s charge that Donald Trump had tried to get the Ukraine to investigate his personal political foe, former Vice President Joseph Biden, and his son, Hunter, for purported financial improprieties.
Democrats have condemned this as an abuse of power, accusing the president of threatening the withholding of military aid if the Ukraine did not undertake an investigation of the Bidens.
The Democrats’ brief argued that the president’s invoking of executive privilege to shield members of his administration from testifying in the impeachment inquiry was an unpardonable abuse of presidential power.
There is no doubt that the Framers were concerned with abuse of power, and, indeed, the very structure of the Constitution they gave us, with its checks and balances, its countering power with power, was designed to prevent arbitrary actions of legislators, executives, or judges.
Is the real abuse of power here, however, what the Democrats are seeking to do — to remove a duly elected president of the United States because his personality and policies are simply not to the Democrats’ liking? Who poses the more alarming threat to our constitutional order, the House Democrats, or President Trump?
President Trump’s lawyers. in their reply to the House charges, have argued that it is the Democrats who are the danger to the Constitution, because they simply are unwilling to accept the results of the 2016 election, and want President Trump removed by action of Congress instead of leaving the choice to the American people in 2020.
They argued further that instead of wrongly withholding evidence from Congress, President Trump was simply seeking to protect the prerogatives of executive branch decision-making by preserving the confidentiality of presidential deliberations, something that has been done by every chief executive since George Washington.
This is our most partisan and most nakedly political impeachment ever, but this whole impeachment proceeding may have a salutary effect if it leads us actually to consider the framers’ dreams for this country and leads us to ask, "What actually was the nightmare they feared?"
If one examines the contemporary political discourse during our Revolutionary and early national period, what emerges is that those who sought to declare independence from Great Britain and then to form a national government for the former thirteen colonies were not so much concerned with the abstract power of the executive, but rather with two specific political problems that plagued ancient and modern republics.
These were first, the tendency of such republics to break apart into factions, self-interested groups who might seize the government and use it for their own selfish purposes, and second, the inevitability of corruption, the tendency of powerful governments to serve the ends not of the people, but of the governors’ themselves.
There is no doubt that we are living through the Framers’ nightmare, but it is not as the House Democrats describe it. In the early 21st century, we have experienced a federal government of unparalleled accumulation of financial and military resources, and one which is capable of wielding those resources for benevolent or questionable ends.
The American public is slowly coming to understand that our government, in the hands of the most powerful federal bureaucracy ever created, has, too often, ceased to be responsive to the needs of Americans generally. It has served the purposes of that bureaucracy itself (what President Trump calls the Deep State or The Swamp).
During the Obama administration, for example, the federal government dispensed billions of dollars to favored organizations or individuals, both here and abroad, and, in the course of these efforts, a plethora of politicians, consultants, lawyers, and private foundations may have egregiously profited at public expense.
This misconduct, involving in particular, the Clintons and the Bidens, was the subject of investigative efforts by journalists such as Peter Schweizer, and, indeed, it was the avoidance of such corrupt activities in the Ukraine that President Trump now maintains he was seeking. It is this activity, it would appear, for which the House Democrats now seek to punish the president.
The president’s defenders have the far better Constitutional argument, and one sign of this is that lawyers from the well-known liberal Alan Dershowitz to the well-known conservative Kenneth Starr have signed on to support President Trump’s acquittal in the U.S. Senate.
For the good of the country, we ought to hope that that acquittal comes quickly, and that we can get on with the business of reforming a federal government that is anything but what the Framers’ sought.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). Presser was a Visiting Scholar in Conservative Thought and Policy at the University of Colorado's Boulder Campus for 2018-2019. To read more of his reports — Click Here Now.
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