In his March 31 commentary (“Mueller provides evidence of what truly makes America great”), D.J. Tice celebrates the result from the Mueller investigation as both the work of a fair and honest prosecutor and a vindication of the rule of law.
But Tice also cautions us about flummoxed legions who expected a different result: “A frenetic ‘hunt’ may well continue,” he writes, “with American progressives (and deeply invested “never-Trump” Republicans) ceaselessly searching for some alternate form of dark sorcery …”
Mueller’s finding that there was no indictable collusion with the Russians is a good thing (although of course such a question has never had to be asked before).
But as a purely criminal investigation, Mueller’s probe was highly limited and constrained. Unlike independent counsel Ken Starr, who operated under a different law in investigating President Bill Clinton, no provision was made for Mueller to refer anything to Congress in the context of what America really needs today: full and proper impeachment investigations.
Our real problem is widespread misunderstanding about both what impeachment is, and what it isn’t.
Our unamended Constitution’s impeachment system was designed by the Founders to guard against one general danger and two potential manifestations. They feared the inherent risks in giving the inextricably bound-together powers and temptations of government to any one corruptible person or group. Their wary view of human nature was rooted in a history of abuses by both kings and parliaments.
More specifically, they knew of the English Parliament’s historical claims to purely judicial power — an ability both to “discover” what the law was without reference to any legal text and to apply it (and in the case of the bill of attainder, to sentence people to death). The establishement of America’s federal judiciary as a third and independent branch of government was partly a response to Parliament’s judicial activism.
Parliament’s claimed power to “discover” law case-by-case goes back to a passage called the “salvo” — from the 14th-century treason statute of King Edward III. After an enumeration of specific treasonable offenses, the “salvo” says:
“And because many other like cases of treason may happen in time to come, which a man cannot think nor declare at this present time, it is accorded, that if any other case, supposed treason, which is not above specified, doth happen before any Justices, the Justices shall tarry without any going to judgment of the treason, till the cause be shewed and declared before the King and his Parliament, whether it ought to be judged treason or other felony.”
Parliament was saying to lower courts: If you have a tough case, bring it to us — we will “discover” whether it is or is not treason.
This claimed judicial power reached a deadly climax in 1641, when the “Long Parliament” used the bill of attainder to “discover” that Thomas Wentworth, Earl of Strafford, had committed high treason. He was executed two days later. By 1648 a “Rump Parliament” — clearly acting under orders from an army — held a treason trial for King Charles I, who was also convicted of high treason and beheaded.
Here’s the key point that distinguishes the Mueller criminal investigation from our constitutional impeachment system: On the one hand, our Constitution forbids Congress from copying the bloodthirsty acts of the Parliament. But on the other hand, following the example of the treason statute of King Edward III, our Constitution, through the impeachment system, continues the process of “discovering” wrongdoing — actual or intended, criminal or not, treason or other “high Crimes and Misdemeanors” — without reference to any written statute.
The noncriminal Senate impeachment trial is a central American innovation in this process. As a kind of constitutionally mandated element of mercy, Senate judgment is limited to removing those found guilty from office and/or disqualifying them from future federal office. They potentially can later be tried in court, under rules of criminal procedure.
Mueller’s investigation and report were never intended as a substitute for House impeachment investigations. Those investigations can and should go forward, and they may “discover” wrongdoing that has not been “thought of” by statute. To protect we the people, Congress should always take action against such wrongdoing — by removing and/or disqualifying unfit officers.
Americans need to fundamentally reexamine our impeachment process. Unfortunately, any and all efforts along this line will fly in the face of our existing hyper-partisanship. Beyond that gale-force factor, there probably isn’t enough time to complete the process before November of 2020. From these considerations, a 2020 election including a centrist Democrat who can defeat Trump emerges as our best hope.
Bob “Again” Carney Jr. is a Minneapolis writer and inventor.