It was October 11, 2017 when I posted that featured article titled “Thoughts on the 25th Amendment.” The introductory paragraph noted the Mueller investigation and declared (in that context) that President Trump “will not be impeached.” Accordingly, the Article pertained to complaints that President Trump is unfit or unable to be President and should be removed by way of the 25th Amendment. Vice President Pence was viewed then as a sort of firewall between Trump and 25th Amendment removal efforts. Now that there is renewed interest in impeachment in the post-Mueller era the Veep still is, or should be, a firewall, but for different reasons.
The 25th Amendment version of the Pence firewall arose from the circumstance that involuntary removal efforts under that Amendment require (without exception) the approval of the Vice President. I could not then and cannot now imagine the circumstances that would bring Vice President Pence to join a 25th Amendment mutiny against President Trump. Mike Pence may want to be President, but not by that path.
There I said it: “Pence” and “President” in the same sentence. Think about it and be afraid. What House Democrat in his/her right mind wants to create President Pence? House democrats should be careful what they ask for and mindful of the “law” of unintended consequences.
Here is a little review of the constitutional law of impeachment, beginning with Article II Sec. 4:
Section. 4. 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.
Article I Sec. 2 grants the “Power of Impeachment” to the House of Representatives:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Article I Sec. 3 grants the “Power to try all Impeachments” to the Senate, assigns a role to the Chief Justice, and requires for conviction a super-majority of “two-third of the Members present,” to-wit:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.
An interesting aspect to the description of the super-majority required for conviction is that the absence of one Senator reduces the magic number from 67 (two-thirds of 100 senators) to 66. From another point of view, the absence of one Senator who would (if present) support impeachment would make no difference while the absence of one Senator adverse to impeachment, makes a substantial, possibly critical, difference.¹
If Articles of Impeachment pass the House, they are likely to charge ordinary “high Crimes and Misdemeanors” as opposed to Treason or Bribery. Looking back to the impeachment of Bill Clinton, one may recall that he was impeached in the House (but not convicted in the Senate) of the “high Crimes” of perjury and obstruction of justice. The Articles of Impeachment cite no particular criminal statute. Still, it is generally recognized that perjury and obstruction of justice are criminal offenses. I have heard the complaint that President Trump has violated his constitutional oath of office (Article II Sec. 1) by failing to “faithfully execute the Office of President . . . and . . . preserve, protect and defend the Constitution . . .” This complaint may or may not have merit, but it does not state grounds for impeachment. Likewise, I have heard the complaint that Trump should be impeached for abuse of (executive) power. Again, the complaint fails to state an impeachable offense.
Having read the notorious “transcript,” of the telephone conversation with the Ukranian President Volodymyr Zelensky, it seems to me that President Trump was in fact attempting to manipulate the actions of a foreign government. In other words, he was engaging in ordinary international diplomacy. Let’s say that Eric or Donald Trump Jr. suddenly became a board member of a foreign corporation and began receiving $50,000.00 or so monthly for no apparent effort. If that happened, House Democrats would be apoplectic and demand an investigation. But it happened to be Hunter Biden who got the foreign money. President Trump’s interest in the situation was natural, even considering an underlying political motive.
According to the transcript, President Trump requested only one “favor” of Zelensky. That request was that Zelensky’s government look into “Crowdstrike,” a Ukranian cybersecurity firm engaged by the Democratic National Committee (DNC) to investigate the hacking of its emails. Crowdstrike pointed a finger at Russia. Hence, the beginning of the “Russian interference” story that launched the Mueller probe. President Trump seems to have accepted Vladimir Putin’s denial of Russian interference in favor of the alternate theory that the interference originated from the Ukraine. Some might regard Trump’s interest in Crowdstrike as foolish, but (from here) it looks nothing like an impeachable offense.
Later in the transcript Trump mentions “the other thing,” to-wit:
The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it . . . It sounds horrible to me.
The context of the quoted text includes Hunter Biden’s employment (beginning in 2014 while Joe was Vice President) with Ukranian energy company Burisma Holdings. For being a board member with ill-defined duties, Hunter Biden was paid “up to” $50,000.00 per month according to published accounts. Then (as the alleged quo in the quid pro quo) Vice President Biden withheld or threatened to withhold aid to the Ukraine until the firing of prosecutor Viktor Shokin, who was investigating (probably half-heartedly) the same Burisma Holdings that “employed” Hunter Biden. From here it looks like a conflict of interest, smells like a conflict, walks like a conflict.
Once the House decides what “high Crime” was committed, the CLB may re-visit the topic to discuss whether the evidence supports the allegation and whether the allegation states a “high Crime” or other impeachable offense.
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¹ According to Article I Sec. 5 the lowest number of Senators who could try an impeached President and cast their votes would be a simple majority (of all Senate Members) of 51 to establish a quorum.
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