Low Crimes and Misdemeanors: A Geek Looks at Impeachment. Pt II


The second and mercifully final part in a meandering, unreadable exploration of impeachment.

In Part I we wrestled with impeachment as with a barrel of slugs. Hopefully, Part II will go better. But let’s recap:

  • Last time we talked about how the perception of the state has changed through history. Both in the middle ages and today we seem to imagine the state as the government, while we the people are something else–a culture, a society, a civilization–that is not the state. But in ancient times and during the American Revolution the state was seen as the people while the government was something else.
  • We translated the phrase ‘high crimes and misdemeanors’ into contemporary English to discover that it is not a legal threshold for guilt, but a catch-all for wrongdoing by those in public (‘high’) office. And we went off on a fun tangent to explore high treason and petit treason.
  • We noted how the Clinton impeachment in the 1990s has left the impression of impeachment as a legalistic process similar to trials in the courts of the judicial branch, but it was originally a political process that was part of the checks and balances of government.
  • We noted that to the founders impeachment was largely intended for situations where the laws didn’t go or where the laws couldn’t go (because the office holder used prerogatives of office to block the law). They didn’t need impeachment to replace ordinary legal processes because they viewed office holders as subject to ordinary legal processes.
  • We saw how impeachment and trial for impeachment were assigned by the constitution to the House of Representatives and Senate respectively to use as they see fit. Thus (according to the constitution), it is entirely within the legitimate prerogatives of the House to impeach Trump and entirely within to legitimate prerogatives of the Senate to acquit him. Impeachment is whatever the House says it is. Guilt is whatever the Senate says it is.
  • We noted in passing that the founders of the U.S. killed one another over insults, so insulting language was not a trivial matter.
  • Finally, we concluded by noting some of the misgivings this constitutional version of interpretation leaves us with today.

In short there’s no foundation, no standards, no place to stand. Even if you despise Trump you can probably imagine how a republican House of Representatives might use the process I’ve described above the next time a democrat holds the presidency. What about respecting elections? If there are no actual legal standards for impeachment, what keeps the federal bureaucracy or the opposition party from stonewalling or undermining any president anytime? Besides all that how can something as complex as the U.S. government be managed if the president is subject to any local or federal court anywhere in the country? But if the president isn’t subject to ordinary legal processes then doesn’t impeachment need to be a formal legal process?

In short, the writers of the constitution basically empowered the House to do whatever they want and Senate to do whatever they want. How can such a system function in governing a planet-encircling empire of military bases, global treaty obligations, and international financial institutions?

The answer is, it can’t! But before we get into the detail, another point needs to be raised. Regardless of whether you love or hate Trump, is what he is accused of really worse than other things that he and other presidents have done?

  • President Bush started a war by invading Iraq under (deliberately?) false pretexts, yet he wasn’t impeached for it by the democratic congress back in the day.
  • Bush also authorized torture and warrantless surveillance, yet he wasn’t impeached.
  • President Trump just assassinated an Iranian general who was legally visiting our supposed ally, Iraq. That’s not only a blatant war crime. It’s clearly an act of war without authorization from congress, yet there doesn’t seem to be any move to impeach him for that.
  • Most democrats (including me) hate the separation of children from their parents. There’s not space to go into this in this post, but many think of this as impeachable (whether you do or not) but there was no move to impeach Trump for it.
  • Trump simply declared that a signed, binding treaty with Iran was void. He did this without any congressional authorization. That’s unbelievably impeachable. But not impeachment for that.
  • Hell, as a democrat I’d impeach Trump’s for loosening of water protections.

Now you, reader, will claim that these things might or might not be wrong but they’re not impeachable, but as I painstakingly set out in the first part of this journey, according to the constitution anything is impeachable if the House says it is. That strikes most of us as unworkable today (Because it is!) but don’t pretend the constitution does what you want it to.

Finally, along the lines of why did the House impeach Trump for wanting the Ukraine to investigate Joe Biden’s worthless kin, might not we all benefit from finding out the details of all that?

To summarize: Why do the democratic leaders of congress believe that asking the Ukraine to spill dirt on a political rival is worse than starting unnecessary wars, breaking treaties, throwing kids in cages, removing vital water protections, or sticking client states with the ne’er-do-well kin of our ruling classes?

To understand you have to walk a mile in the shoes of the ruling classes. The rulers of  empires love the empires they rule. We non-rulers often forget that. The American empire is very different from the Roman Empire, the Muslim Caliphates, Chinese Empires, or the colonial empires of Great Britain and Spain, but in all these cases the empire is to its ruling classes like our hometowns or our families are to the rest of us. This isn’t because the rulers are bad people (though they often are) nor because power corrupts (though it often does), but simply because their situation is different than ours. For the rest of us the empire is far away, a distant abstraction that may impact life from time to time but usually that influence is too gradual and slight for us to notice. Meanwhile our direct mental world is of our daily jobs and our hometown issues (zoning hearings, schools, parking). These are the immediate spaces of our lives.

But for Nancy Pelosi or Mitch McConnell or Donald Trump, it’s the opposite. More than opposite really, because the empire is both their hometown and their daily job, while we are their abstraction. We may impact their lives from time to time but usually our influence is too gradual and slight for us to notice. Meanwhile national and international affairs are their daily jobs and the ‘hometown’ issues that directly impact their well-being. Their personal successes and failures, achievements and setbacks, glories and dirty secrets are all forged in the affairs of the empire.

Second, like all groups of people, be it football players, knitting circles, or prison inmates, the rulers of empires have a code of behavior that they enforce. Do prison inmates really think that snitching is worse than being a mass murderer? Yes! If you think about it, you can probably imagine why. Likewise, do the democratic leaders of congress really think that Trump asking the Ukraine to spill dirt on a political rival is worse than starting unnecessary wars, breaking treaties, throwing kids in cages, or removing vital water protections? Yes! Yes, they do.

Third, from their prospective, they’re right! Unnecessary wars, breaking treaties, throwing kids in cages, removing water protections, and dumping the worthless kin of imperial ruling classes on client states will absolutely undermine and gradually weaken an empire in the long run. That’s how all empires eventually decline and fall. But that’s the long run. In the short run, allowing client states to have power over the imperial government is worse. Letting Hunter Biden screw up Ukrainian utilities weakens the Ukraine, but weaker provinces, in the short run, means the ruling power is stronger by comparison. Actually, having a way to give their awful children cushy jobs is part of what makes empire great to those who rule them. Just look at what Trump has done with his own miscreant offspring.

Let me pause to point out that while the rulers love their empires, and empires usually are good for the rulers, empires aren’t necessarily great for everyone else. A typical English family at the height of the British Empire under Queen Victoria was worse off in most respects than a typical English family under Queen Elizabeth just before the empire got started. Spain was the most powerful country in Europe before Columbus set foot in the Americas and was a basket case a century later. 90% of Americans gain very little from the commercial web of military bases, international organizations, and trade policies that make up the U.S. empire. And the client states like the Ukraine that take the place of colonies in our system, benefit from the empire even less. Most of the world more often than not is harmed by the existence of the U.S. empire.

Moreover empires in the long run gradually increase the power of the executive branch of the government and its agents (armies, agencies, police, and prosecutors) and gradually weaken all other institutions, including not just the legislative and judicial branches, but also regional and local governments, and even private institutions like churches, clubs, art, and social life. There aren’t many universals in history, but there’s one that is always true: Empires gradually empower the center at the expense of the colonies, the governing classes at the expense of the governed, and the executive branch of the government and its agents at the expense of everyone and everything else.

At least this was the understanding of that movement in history which led to the American Revolution and the U.S. constitution. That’s how they thought about their own situation in conflict with King George III. That comes from and feeds into the consideration of the state not as a domain of the government but as a commonwealth.

In other words our country was founded by people who were actively rebelling against an empire, generally distrusted empires, and created a constitution specifically designed to prevent empires.

Now we today note the countless contradictions and hypocrisies in the creation of the United States. We have entire cottage industries devoted to pointing them out and discussing them: slavery, men and women, republics versus democracies, banking, property versus happiness, and on and on. Just as bible-quoters can find justifications for a thousand contradictory points of view in the scriptures, we can all find justifications for a thousand contradictory points of view in the constitution and the other written materials from the founding of the United States. And the constitution by overt amendment and covert reinterpretation has digested a lot of change.

But empire? It simply can’t be digested. A world-spanning empire of military bases, global financial institutions, client states, and permanent alliances cannot be governed by a constitution designed by politicians who abhorred large standing armies, global financial institutions, client states, and permanent alliances.

So our rulers, including Trump, make it up as they go. They start wars without declarations of war, they spy on citizens in countless ways, they use brutal police powers, and so on. And issue by issue, not seeing the big picture, or perhaps seeing it as a big picture, an abstract story in the distance, we cheer them on.

Our rulers, including Trump, are not master manipulators doing this to fool us. Our rulers, including Trump, believe in what they’re doing, love the empire they imagine themselves serving, and assume that because history has brought them to power, it must in some way support them as long as they do what is right, fight for their values, overcome their adversaries, and defend their various codes. The problem isn’t that they’re deliberately doing what they know to be wrong. The problem is that what they believe is right, is bad for the rest of us. They believe the state is theirs to defend and exploit. Too many of us seem to agree.




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