The two significant news events last week in the ongoing battle of the Trump administration to restore the republic were the opening of the public impeachment hearings in the U.S. House of Representatives and U.S. Attorney General Bill Barr’s Olson memorial lecture at a meeting of the Federalist Society in Washington, D.C.
Both occasions were concerned with the constitutional role of the president — the power which ought to be accorded to the nation’s chief executive.
Democrats in the House of Representatives still cling to the notion that somehow when President Trump asked Ukraine President Zelenskiy to look into Ukraine meddling with the 2016 U.S. presidential election and the possibly corrupt role of Hunter Biden in connection with Ukraine energy company Burisma, Trump was engaged in "treason, bribery, or other high crimes and misdemeanors."
Originally the Democrats’ theory had been that the "resident was demanding a “quid pro quo” of Ukraine investigations before military aid to Ukraine would ensue.
Having discovered that the use of the Latin terms did not poll well in the essential swing states, they switched their talking point to "extortion," and then to the even easier to understand "bribery," as a means of describing the purported misconduct.
Unfortunately for the Democrats, even their public hearings appeared to demonstrate that Ukrainians were not aware of the reason for the delay in aid, nor did the Ukrainians apparently undertake either investigation desired by President Trump, and the military aid was, in fact, delivered.
That appears to obliterate the quid pro quo argument, leaving the Democrats only with some sort of "attempted" extortion or bribery.
Even that argument seemed to collapse, however, when one considers, first, that it's indeed the duty of the president to investigate corruption in the recipients of our foreign aid, and it is hardly bribery or extortion to carry out the foreign policy that is the president's prerogative. Second, the bribery the Framers contemplated in the impeachment clause was bribery of our president by a foreign power, as had been done, for example, by the French King Louis XIV to influence the English monarch Charles II.
Even if an attempt had been made to link foreign aid to help in rooting out American and Ukraine corruption, it's difficult to bring that within our Framers’ rubric.
All of this underscored that these hearings are simply part of the three-year effort by Democrats to reverse by non-electoral means the election they lost in 2016.
This is a purely political impeachment proceeding, absent any real constitutional basis — the very thing the Framers sought to avoid. This is so because they feared too easy impeachment would upset the constitutional separation of powers and checks and balances by putting the legislature in a position to remove the president, at will.
Barr’s speech, while not exclusively targeted at the impeachment proceedings, was, nevertheless, a learned and powerful plea for the restoration of the constitutional power of the president; it lamented that the other two branches were now engaged in eviscerating the executive.
Barr's speech deserves to be read in its entirety by anyone concerned with preserving the Framers’ aims of creating "energy in the executive," and preserving the president’s power in foreign and domestic matters.
Barr detailed the recent encroachments by the courts in hamstringing the president, both in the conduct of foreign affairs, and, through the extraordinarily dubious tactic of nation-wide injunctions, from the carrying out of domestic policy.
His most noticed words, however, came in his condemnation of the efforts by Democrats to do everything in their power to check the initiatives and appointments of this president:
"Immediately after President Trump won election," said Barr, "opponents inaugurated what they called 'The Resistance.' and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his administration."
For acknowledging this reality, Barr has been pilloried by Democratic partisans.
There has even been a call for his impeachment, but the attorney general was simply reporting facts, and revealing an astute analysis that there are ongoing threats to our basic constitutional structure.
The Federalist Society, at whose gathering Barr spoke, is the nation’s premier organization of conservative lawyers, law students, and judges, and while those who ought to know better described it as a "radical" organization.
It is anything but that.
It's a group committed to the Madisonian belief in the importance of federalism (the allocation of significant governmental power to the state and local governments) and the separation of powers. Barr and his president are committed to those constitutional values,
It's far from clear that today’s Democratic party shares them.
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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