Could a President Hillary Clinton Be Impeached Over Her Emails?
http://www.truthdig.com/report/item/could_a_president_hillary_clinton_be_imp
eached_over_her_emails_20160209/
Posted on Feb 9, 2016
By Bill Blum
Democratic presidential candidate Hillary Clinton campaigns outside a
polling place during the first-in-the-nation presidential primary on Tuesday
in Manchester, N.H. (Matt Rourke / AP)
If Hillary Clinton is elected president, could her slow-bleeding email
scandal lead to her impeachment?
The question has been percolating in right-wing circles since last October,
when Republican Congressman Mo Brooks of Alabama broached the subject in an
interview with conservative talk-radio host Matt Murphy. If Clinton makes it
to the White House, Brooks declared in no uncertain terms, “the day she’s
sworn in is the day that she’s subject to impeachment because she has
committed high crimes and misdemeanors” arising from her use of a private
email server to discuss matters of national security during her tenure as
secretary of state.
Ordinarily, I would accord Mo Brooks no more credibility than Moe Howard of
Three Stooges fame.
Brooks is one of the most outspoken and, often, zany conservatives in the
House. He opposes Obamacare, abortion and stem cell research and wants to
defund Planned Parenthood and NPR. He has signed Grover Norquist’s Taxpayer
Protection Pledge, believes Democrats have promoted a “war on whites” and
has openly called for President Obama to be jailed over his executive orders
on immigration.
In the world of mainstream punditry, Brooks is also regarded as something of
a buffoon, not to be taken seriously.
Within days of the congressman’s impeachment comments, reporter Philip
Bump, writing in The Washington Post’s The Fix blog, attempted both to
lampoon Brooks and school him on the finer points of constitutional law. In
language no less confident than that used by Brooks on the radio, Bump
invoked the House’s 1873 impeachment investigation of Vice President
Schuyler Colfax to advance the notion that federal officials cannot be
impeached and removed from their current offices for crimes committed before
they have assumed those positions.
Colfax was accused of taking kickbacks in cash and discounted stock from the
Union Pacific Railroad’s Crédit Mobilier subsidiary in exchange for votes
while serving in the House during the 1860s. And although it’s true, as
Bump argues, that the House Judiciary Committee dropped its impeachment
probe mainly because Colfax’s improprieties occurred before his ascendancy
to the executive branch, his case is but one episode in the tangled and
often contradictory history of impeachment in America. The Colfax
investigation by no means stands as a binding precedent.
Even a broken clock is right twice a day. And when it comes to impeachment,
Brooks may just have stumbled onto something worthy of concern. To see if he
has, let’s start with some impeachment basics:
As explained in a 2015 study, “Impeachment and Removal”, prepared by the
nonpartisan Congressional Research Service (CRS), “The Constitution gives
Congress the authority to impeach and remove the President, Vice President,
and other federal ‘civil officers’ upon a determination that such officers
have engaged in treason, bribery, or other high crimes and misdemeanors.”
The specific constitutional provisions involved are:
Article 1, Section 2, which invests the “sole Power of Impeachment” in the
House;
Article II, Section 4, which sets forth the grounds of impeachment in the
famous phrase, “Treason, Bribery, or other High Crimes and Misdemeanors”;
and
Article I, Section 3, which stipulates, in part, that the Senate shall have
the “sole Power to try all Impeachments” in proceedings presided over by
the Chief Justice of the Supreme Court. The same provision instructs that
those who are convicted by the Senate “shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law.”
As the CRS study stresses, it’s essential to keep in mind that “although
the term ‘impeachment’ is commonly used to refer to the removal of a
government official from office,” it actually refers to the accusatory
process carried out by the two houses of Congress.
To quote the study further: “First, a simple majority of the House
impeaches―or formally approves allegations of wrongdoing amounting to an
impeachable offense, known as articles of impeachment. The articles of
impeachment are then forwarded to the Senate where the second proceeding
takes place: an impeachment trial. If the Senate, by vote of a two-thirds
majority, convicts the official of the alleged offenses, the result is
removal from office. …”
Although scores of federal officials have been the subject of impeachment
deliberations since the nation’s founding, the House has referred only 19
individuals to the Senate for impeachment trials―15 federal judges
(including Supreme Court Justice Samuel Chase in 1805), one senator, one
Cabinet member and two presidents, including, of course, Clinton’s husband,
Bill. The Senate has conducted 16 full impeachment trials, convicting eight
lower-court judges. All the rest, Chase and Bill Clinton among them, were
acquitted.
Because of the plenary powers given to Congress, the impeachment process is
largely insulated from judicial review. As a result, invoking the example of
Colfax in rebuttal to Brooks is of little avail. Past impeachment
investigations aren’t binding on subsequent sessions of Congress in the way
that past judicial rulings and precedents are binding on judges. In the
words of Gerald Ford, who as House minority leader spearheaded an
unsuccessful campaign to remove Supreme Court Justice William O. Douglas in
1970, “An impeachable offense is whatever a majority of the House of
Representatives considers it to be at a given moment in history.”
Nor is it true, historically, that impeachment proceedings have been limited
to offenses committed after accused officials have been elected or appointed
to their current offices. To cite two examples discussed in the CRS report:
● In 1912, Judge Robert Archbald was impeached and convicted while serving
on the 3rd Circuit Court of Appeals and the short-lived United States
Commerce Court (which was disbanded in 1913) in part because he had accepted
gifts from litigants and lawyers and committed other corrupt practices while
working previously as a federal district court judge.
● More recently and even more on point, federal Judge G. Thomas Porteous
was convicted in 2010 by a Senate vote of 96-0 on four articles of
impeachment, two of which concerned financial corruption that began while he
was a state court judge in Louisiana in the 1980s, and a third that alleged
he had made false statements to the Senate and the FBI in connection with
his appointment to the federal bench. The articles passed in his case were
signed and certified by Nancy Pelosi, then the House speaker and current a
Hillary Clinton backer.
It should also be remembered that the investigation that ultimately led to
Bill Clinton’s impeachment began with an examination of the Whitewater real
estate scandal that took place in Arkansas in the 1970s and ’80s. From
there, the probe expanded to the former president’s sexual encounter with
Paula Jones while he was governor of Arkansas, then to the deposition he
gave while president in Jones’ civil lawsuit against him―in which he lied
about his relations with White House intern Monica Lewinsky.
Thus, when contemplating a potential Hillary Clinton impeachment, the vital
question may not be whether some tea party zealot in the House, such as
Brooks, will call for a formal inquiry over her pre-election conduct―that
much seems fairly assured. Indeed, the email controversy has already been
the subject of hearings before the House Select Committee on Benghazi and
the Senate Judiciary and Homeland Security committees. (There is even a
Facebook page dedicated to her future impeachment.)
The real question is whether Brooks would succeed in persuading a House
majority that her use of the private server rose to the level of a high
crime or misdemeanor. In this respect, the CRS study doesn’t cite Ford’s
quip about Justice Douglas, but it nonetheless supports Ford’s view that
the phrase historically has been given a broad and robust reading,
suggesting that it pertains to conduct that results in serious violations of
the “public trust.” Such conduct usually is criminal in nature, but need
not be, at least in the strict sense.
This probably means that the end of Clinton’s email travails is nowhere in
sight. Her critics have alleged that, at a minimum, her use of a private
email server to conduct official business while she had ready access to a
government email account was reckless and foolish. Some critics have also
alleged that she should be indicted immediately for violating a variety of
federal laws, including statutes dealing with the mishandling of classified
information.
To compound Clinton’s problems, the FBI has opened an investigation of her
emails. According to Fox News, citing anonymous “intelligence sources,”
the bureau’s probe has widened to “look at whether the possible
‘intersection’ of Clinton Foundation work and State Department business
may have violated public corruption laws.”
If Clinton avoids indictment before the presidential election, demands no
doubt will arise that she be charged afterward. Whether a sitting president
can be indicted remains one of the big, unresolved questions of
constitutional law. Both Bill Clinton and Richard Nixon came perilously
close. There is no question, however, that a president can be impeached.
To date, Hillary Clinton’s defense has been threefold: that the attacks
against her are political rather than legal; that previous secretaries of
state such as Colin Powell and aides to Condoleezza Rice also used private
email to conduct official business; and that none of her emails contained
material that was classified at the time they were drafted, sent and
received.
No one can fault Clinton for fighting back. And when and if the dust finally
settles, she may be proved right on all three counts, especially the first.
Impeachment isn’t just a creature of the law. It’s also a means for
exacting political retribution and revenge.
But the political nature of impeachment is nothing new, and that fact offers
little consolation, much less absolution, for Clinton. This is especially
true when her diehard enemies, such as Brooks, are convinced that the law―
in addition to morality and God―is on their side.
And so we can expect the email crisis and the talk of impeachment in the
event of her inauguration to persist, sapping the nation’s energy and
attention in yet another Clinton family drama, writ large.
If only there was some alternative to Clinton’s nomination as the
Democratic candidate for president, we might avert the drama and potential
constitutional crisis it portends. Oh wait, there is … but that’s a
subject for a future column.
http://www.truthdig.com/ http://www.truthdig.com/
Could a President Hillary Clinton Be Impeached Over Her Emails?
http://www.truthdig.com/report/item/could_a_president_hillary_clinton_be_imp
eached_over_her_emails_20160209/
Posted on Feb 9, 2016
By Bill Blum
Democratic presidential candidate Hillary Clinton campaigns outside a
polling place during the first-in-the-nation presidential primary on Tuesday
in Manchester, N.H. (Matt Rourke / AP)
If Hillary Clinton is elected president, could her slow-bleeding email
scandal lead to her impeachment?
The question has been percolating in right-wing circles since last October,
when Republican Congressman Mo Brooks of Alabama broached the subject in an
interview with conservative talk-radio host Matt Murphy. If Clinton makes it
to the White House, Brooks declared in no uncertain terms, “the day she’s
sworn in is the day that she’s subject to impeachment because she has
committed high crimes and misdemeanors” arising from her use of a private
email server to discuss matters of national security during her tenure as
secretary of state.
Ordinarily, I would accord Mo Brooks no more credibility than Moe Howard of
Three Stooges fame.
Brooks is one of the most outspoken and, often, zany conservatives in the
House. He opposes Obamacare, abortion and stem cell research and wants to
defund Planned Parenthood and NPR. He has signed Grover Norquist’s Taxpayer
Protection Pledge, believes Democrats have promoted a “war on whites” and
has openly called for President Obama to be jailed over his executive orders
on immigration.
In the world of mainstream punditry, Brooks is also regarded as something of
a buffoon, not to be taken seriously.
Within days of the congressman’s impeachment comments, reporter Philip
Bump, writing in The Washington Post’s The Fix blog, attempted both to
lampoon Brooks and school him on the finer points of constitutional law. In
language no less confident than that used by Brooks on the radio, Bump
invoked the House’s 1873 impeachment investigation of Vice President
Schuyler Colfax to advance the notion that federal officials cannot be
impeached and removed from their current offices for crimes committed before
they have assumed those positions.
Colfax was accused of taking kickbacks in cash and discounted stock from the
Union Pacific Railroad’s Crédit Mobilier subsidiary in exchange for votes
while serving in the House during the 1860s. And although it’s true, as
Bump argues, that the House Judiciary Committee dropped its impeachment
probe mainly because Colfax’s improprieties occurred before his ascendancy
to the executive branch, his case is but one episode in the tangled and
often contradictory history of impeachment in America. The Colfax
investigation by no means stands as a binding precedent.
Even a broken clock is right twice a day. And when it comes to impeachment,
Brooks may just have stumbled onto something worthy of concern. To see if he
has, let’s start with some impeachment basics:
As explained in a 2015 study, “Impeachment and Removal”, prepared by the
nonpartisan Congressional Research Service (CRS), “The Constitution gives
Congress the authority to impeach and remove the President, Vice President,
and other federal ‘civil officers’ upon a determination that such officers
have engaged in treason, bribery, or other high crimes and misdemeanors.”
The specific constitutional provisions involved are:
Article 1, Section 2, which invests the “sole Power of Impeachment” in the
House;
Article II, Section 4, which sets forth the grounds of impeachment in the
famous phrase, “Treason, Bribery, or other High Crimes and Misdemeanors”;
and
Article I, Section 3, which stipulates, in part, that the Senate shall have
the “sole Power to try all Impeachments” in proceedings presided over by
the Chief Justice of the Supreme Court. The same provision instructs that
those who are convicted by the Senate “shall nevertheless be liable and
subject to Indictment, Trial, Judgment and Punishment, according to Law.”
As the CRS study stresses, it’s essential to keep in mind that “although
the term ‘impeachment’ is commonly used to refer to the removal of a
government official from office,” it actually refers to the accusatory
process carried out by the two houses of Congress.
To quote the study further: “First, a simple majority of the House
impeaches―or formally approves allegations of wrongdoing amounting to an
impeachable offense, known as articles of impeachment. The articles of
impeachment are then forwarded to the Senate where the second proceeding
takes place: an impeachment trial. If the Senate, by vote of a two-thirds
majority, convicts the official of the alleged offenses, the result is
removal from office. …”
Although scores of federal officials have been the subject of impeachment
deliberations since the nation’s founding, the House has referred only 19
individuals to the Senate for impeachment trials―15 federal judges
(including Supreme Court Justice Samuel Chase in 1805), one senator, one
Cabinet member and two presidents, including, of course, Clinton’s husband,
Bill. The Senate has conducted 16 full impeachment trials, convicting eight
lower-court judges. All the rest, Chase and Bill Clinton among them, were
acquitted.
Because of the plenary powers given to Congress, the impeachment process is
largely insulated from judicial review. As a result, invoking the example of
Colfax in rebuttal to Brooks is of little avail. Past impeachment
investigations aren’t binding on subsequent sessions of Congress in the way
that past judicial rulings and precedents are binding on judges. In the
words of Gerald Ford, who as House minority leader spearheaded an
unsuccessful campaign to remove Supreme Court Justice William O. Douglas in
1970, “An impeachable offense is whatever a majority of the House of
Representatives considers it to be at a given moment in history.”
Nor is it true, historically, that impeachment proceedings have been limited
to offenses committed after accused officials have been elected or appointed
to their current offices. To cite two examples discussed in the CRS report:
● In 1912, Judge Robert Archbald was impeached and convicted while serving
on the 3rd Circuit Court of Appeals and the short-lived United States
Commerce Court (which was disbanded in 1913) in part because he had accepted
gifts from litigants and lawyers and committed other corrupt practices while
working previously as a federal district court judge.
● More recently and even more on point, federal Judge G. Thomas Porteous
was convicted in 2010 by a Senate vote of 96-0 on four articles of
impeachment, two of which concerned financial corruption that began while he
was a state court judge in Louisiana in the 1980s, and a third that alleged
he had made false statements to the Senate and the FBI in connection with
his appointment to the federal bench. The articles passed in his case were
signed and certified by Nancy Pelosi, then the House speaker and current a
Hillary Clinton backer.
It should also be remembered that the investigation that ultimately led to
Bill Clinton’s impeachment began with an examination of the Whitewater real
estate scandal that took place in Arkansas in the 1970s and ’80s. From
there, the probe expanded to the former president’s sexual encounter with
Paula Jones while he was governor of Arkansas, then to the deposition he
gave while president in Jones’ civil lawsuit against him―in which he lied
about his relations with White House intern Monica Lewinsky.
Thus, when contemplating a potential Hillary Clinton impeachment, the vital
question may not be whether some tea party zealot in the House, such as
Brooks, will call for a formal inquiry over her pre-election conduct―that
much seems fairly assured. Indeed, the email controversy has already been
the subject of hearings before the House Select Committee on Benghazi and
the Senate Judiciary and Homeland Security committees. (There is even a
Facebook page dedicated to her future impeachment.)
The real question is whether Brooks would succeed in persuading a House
majority that her use of the private server rose to the level of a high
crime or misdemeanor. In this respect, the CRS study doesn’t cite Ford’s
quip about Justice Douglas, but it nonetheless supports Ford’s view that
the phrase historically has been given a broad and robust reading,
suggesting that it pertains to conduct that results in serious violations of
the “public trust.” Such conduct usually is criminal in nature, but need
not be, at least in the strict sense.
This probably means that the end of Clinton’s email travails is nowhere in
sight. Her critics have alleged that, at a minimum, her use of a private
email server to conduct official business while she had ready access to a
government email account was reckless and foolish. Some critics have also
alleged that she should be indicted immediately for violating a variety of
federal laws, including statutes dealing with the mishandling of classified
information.
To compound Clinton’s problems, the FBI has opened an investigation of her
emails. According to Fox News, citing anonymous “intelligence sources,”
the bureau’s probe has widened to “look at whether the possible
‘intersection’ of Clinton Foundation work and State Department business
may have violated public corruption laws.”
If Clinton avoids indictment before the presidential election, demands no
doubt will arise that she be charged afterward. Whether a sitting president
can be indicted remains one of the big, unresolved questions of
constitutional law. Both Bill Clinton and Richard Nixon came perilously
close. There is no question, however, that a president can be impeached.
To date, Hillary Clinton’s defense has been threefold: that the attacks
against her are political rather than legal; that previous secretaries of
state such as Colin Powell and aides to Condoleezza Rice also used private
email to conduct official business; and that none of her emails contained
material that was classified at the time they were drafted, sent and
received.
No one can fault Clinton for fighting back. And when and if the dust finally
settles, she may be proved right on all three counts, especially the first.
Impeachment isn’t just a creature of the law. It’s also a means for
exacting political retribution and revenge.
But the political nature of impeachment is nothing new, and that fact offers
little consolation, much less absolution, for Clinton. This is especially
true when her diehard enemies, such as Brooks, are convinced that the law―
in addition to morality and God―is on their side.
And so we can expect the email crisis and the talk of impeachment in the
event of her inauguration to persist, sapping the nation’s energy and
attention in yet another Clinton family drama, writ large.
If only there was some alternative to Clinton’s nomination as the
Democratic candidate for president, we might avert the drama and potential
constitutional crisis it portends. Oh wait, there is … but that’s a
subject for a future column.
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