This blog post is merely to provide my key thoughts about this Trump impeachment process from my lawyer perspective. I also realize my perspective is only one of millions. It realistically has no more weight among all other views than a grain of sand. But, nonetheless, I voice my comments not for purposes of stating my position one way or the other about what I believe should have been, or will be, the conclusion of this present impeachment effort.
Rather, I express my great concern about the persistent chipping away — for the past 40 years or so — of the sanctity of our three-branch system of government. Our system appears to move each year toward a myopic vision of a simple-minded, one-party political system of government, blind to the three-branch element (regardless of which party).
And, I do not use the word “sanctity” in any sense of religion, morality, or political party; but, more importantly, from my great and deep respect for the ultimate importance and inviolability of our three-branch system. In my view, the longstanding success and freedoms we have in the United States rest on the three-branch system of checks and balances. This, in my opinion, is the primary reason our country has succeeded during its long test of time.
Here are my key comments:
(1) The House blundered, tainted a key underpinning of their procedural process, and by doing so failed to respect our three-branch system of government by not seeking judicial review of (or by not issuing) House subpoenas. A fundamental element of our great freedom in the U.S. is the ability to obtain judicial review when we are subpoenaed and assert grounds for objection to the subpoena or to the scope of the subpoena. The government (including the House) also has the ability to obtain judicial review and assistance in determining the necessity and scope of a subpoena. For you historical legal readers, the first U.S. Supreme Court opinion addressing House subpoenas was in 1880, in Kilbourn v. Thompson, 103 U.S. 168 (1880). Click here for a copy.
(2) President Trump’s blanket snubbing of the entire process of subpoenas and witnesses is itself another serious failure to respect the sanctity of our three-branch system of government.
I wrote a blog post a few months ago about the Richard Nixon subpoena situation. Search “Nixon” in my blog search above. I repeat, now again, essentially what I said in my Nixon post. That is, the following question my constitutional law professor at Emory Law School (in Atlanta) posed to our first-year law class many years ago, which I have never forgotten: “If President Nixon had refused to comply with his subpoena, we would have experienced an extremely serious (and still-unanswered) constitutional crisis that would have substantially stress-tested our three-branch system of government. And, possibly the system would have failed. The crisis would have centered on “Who would, or can, force President Nixon to comply with his subpoena?”
Keep in mind the Nixon subpoena had been issued by the Department of Justice, a part of the executive branch (not issued by the House). Thus, if Nixon, as head of the executive branch, opted not to have his own executive branch enforce his subpoena, who would have acted to enforce it? Our Emory constitutional law professor posed the possibility of a military coup, or military tanks rolling up to the front of the White House, to step in and take over the enforcement effort, etc.
(3) I, candidly, have always been concerned the U.S. would not have withstood the above Nixon constitutional crisis if it had been pushed to an ultimate limit, nor recover minimally unscathed. This is the reason that particular law school class discussion is burned deeply into my consciousness. I truly believe the above Nixon crisis could have effectively dismantled, or substantially damaged, the longstanding balance of our three-branch system of government. One political party would have won the battle, but we all would have lost the war. A crucial question we each should consider at every juncture of our own respective political moves and attacks is whether we are helping to sustain, or erode, our three-branch system of checks and balances.
(4} We each, therefore, should also ponder seriously how all facets and participants leading up to this current Trump crisis have, or are, affecting this balance. And, we need to rethink everyone’s relative contribution to this situation. As an aside, I believe Nixon understood his tremendous constitutional crisis for our country, leading ultimately to his voluntary compliance with the subpoena, and ultimately his resignation.
(5) Back to my statement above about the success of the U.S. being based on the three-branch system of government. In my view, I do not care where one places himself or herself on a religious, moral, or political spectrum. That is one’s gift of liberty, and personal prerogative. However, the substitution of a controlling element of religion, morality, or politics, etc., as a decisive or tipping-point factor sidestepping our three-branch system of government places far too much power with, and simply by the whims of, those asserting — at any given time — their majority religious, moral, or political views. Keep in mind, everyone once knew the earth was flat.