By Kelly O'Connell —— Bio and Archives July 13, 2014
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A growing crisis in our constitutional system threatens to fundamentally alter the balance of powers -- and accountability -- within our government. This crisis did not begin with Obama, but it has reached a constitutional tipping point during his presidency...First, we need to discuss the erosion of legislative authority within the evolving model of the federal government. There has been a dramatic shift of authority toward presidential powers and the emergence of what is essentially a fourth branch of government -- a vast network of federal agencies with expanded legislative and judicial power... The framers believed that members of each branch of government would transcend individual political ambitions to vigorously defend the power of their institutions.Overall, considering the subject of Barack's crazy behavior, and his alarming state of mind, it seems obvious he must be pondering the possibility of some kind of revolution in America. Why? Because, for a man so vain and self-absorbed, how can he possibly accept what seems now his certain place in the pantheon--the worst president in history? In fact, the only way he could acquiesce to the lowest of presidential rankings would be if he had a chance to be top president of the new, reformatted United States of Amerika.
The process roughly resembles a grand jury inquest, conducted by the House, followed by a full-blown trial, conducted by the Senate with the Chief Justice presiding. Impeachment is not directed exclusively at Presidents. The Constitutional language, "all civil officers," includes such positions as Federal judgeships. The legislature, however, provides a slightly more streamlined process for lower offices by delegating much of it to committees. See Nixon v. US, 506 U.S. 224 (1993)(involving removal of a Federal judge). Presidential impeachments involve the full, public participation of both branches of Congress.
"The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors."1. Reasonably Defining High Crimes & Misdemeanors The phrase High Crimes & Misdemeanors can mean obvious crimes, yet cannot simply be claimed "criminal activity" as this would wall-off devastating presidential acts creating irreparable damage, which were not technically "crimes." "High Crimes & Misdemeanors" ought be viewed as an assault against the state's integrity by a high official. Michael J. Gerhardt, in The Federal Impeachment Process: A Constitutional and Historical Analysis," explains impeachable acts are properly understood as an attack against the state. This must be true by logical necessity. For if not--a leader set upon destroying a country, yet never caught in an actual crime, could not be removed. To illustrate, Judge Richard Posner, in An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, claims impeachment can occur despite technical absence of law breaking. Posner offers the following hypothetical:
If the President moved to Saudi Arabia so that he could have four wives, intending to run the government of the United States by email and telephone, he would have to be removed from office, even though he would not be committing a crime by his absenteeism; and the only mode of removal would be impeachment.
The major disagreement is not over whether impeachable offenses should be strictly limited to indictable crimes, but rather over the range of non-indictable offenses on which an impeachment may be based.1. British History of Impeachment Impeachment originated in England. For its history, Raoul Berger, in Impeachment: The Constitutional Problems, states the British defined "'high crimes and misdemeanors' as a category of political crimes against the state." Further, William Blackstone, British legal expert to the Founders, differentiated "high treason" from "low treason," the latter being disloyalty to an equal or lesser. So high treason was disloyalty to a superior person or entity. According to Arthur Bestor, this difference describes how a fair impeachment proceeding would be founded upon a profound assault to the state itself, or high treason, as detailed in the Clinton Impeachment record. 2. Founders on Impeachment The American constitutional Framers understood the difference between high and low treason, believing impeachment dealt with high treasons in the form of attacks against the state. For example, George Mason felt impeachments should be limited to acts that "attempt to subvert the Constitution," among which he felt should include "maladministration." None of the Founders believed impeachment was simply a process to deal with straightforward crimes. Gerhardt writes,
In short, the debates at the constitutional convention show at least that impeachable offenses were not limited to indictable offenses, but included offenses against the state.The ratification debates on the Constitution examined "great" offenses, such as when an executive "deviates from his duty" or "dare to abuse the power vested in him by the people." Founder Alexander Hamilton wrote on this in Federalist 65:
A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.Founder and US Supreme Court Justice, James Wilson concurred, calling impeachable offenses... "political crimes and misdemeanors." US Supreme Court Justice Joseph Story, himself a noted impeachment authority, agreed. In "Proceedings in the Cases of the Impeachment of Charles Robinson, et al," Wilson stated,
The subject (of impeachment) is full of intrinsic difficulty in a government purely elective. The jurisdiction is to be exercised over offenses which are committed by public men in violation of their public trusts and duties. Those duties are, in many cases, political; and, indeed, in other cases, to which the power of impeachment will probably be applied...the power partakes of a political character... Political injuries to be of such kinds of misdeeds... as to peculiarly injure the commonwealth by the abuse of high offices of trust.
Political offenses are of so various and complex a character, so utterly incapable of being defined, or classified, that the task of positive legislation would be impracticable, if it were not absurd to attempt it.
Dereliction of duty refers to failure through negligence or obstinacy to perform one's legal or moral duty to a reasonable expectation. In other words, it means willful or negligent failure to perform assigned duties or performing them in a culpably inefficient manner.Who would not categorize abandoning Iraq, supporting random Middle Eastern uprisings, pointlessly blocking new oil pipelines, Refusing to enforce our border, or shrinking the US military during times of unprecedented danger, etc would not be Dereliction of Duty for Obama?!!
Kelly O’Connell is an author and attorney. He was born on the West Coast, raised in Las Vegas, and matriculated from the University of Oregon. After laboring for the Reformed Church in Galway, Ireland, he returned to America and attended law school in Virginia, where he earned a JD and a Master’s degree in Government. He spent a stint working as a researcher and writer of academic articles at a Miami law school, focusing on ancient law and society. He has also been employed as a university Speech & Debate professor. He then returned West and worked as an assistant district attorney. Kelly is now is a private practitioner with a small law practice in New Mexico.