John Faso: Impeachment Mistake | WAMC

John Faso: Impeachment Mistake

Dec 13, 2019

Last March, Speaker Nancy Pelosi said that, “impeachment is so divisive to the country that unless there’s something so compelling and overwhelming and bipartisan, I don’t think we should go down that path, because it divides the country.  And he's just not worth it.”

Yet, just eight months after she uttered those words, the House of Representatives is moving towards impeaching President Trump.  This is likely a political mistake for Democrats; worse, it is bad for the nation.

Many people believe that America has never been as divided as we are today. 

Yet, such an opinion ignores history. The years in the aftermath of the Civil War were highly divisive and politically charged.  The Civil War was our bloodiest war. A direct line can be seen from that War to the effort in 1868 to impeach President Andrew Johnson.

Johnson was the pro-union Democrat who didn’t follow his fellow Tennesseans into the Confederacy in 1861.  In an effort to attract Border State votes, President Lincoln selected Johnson as his running mate in 1864. 

The Lincoln-Johnson ticket narrowly won, but the President fell victim to an assassin’s bullet soon after he began his second term in 1865. Johnson was opposed by the radical Republicans who controlled Congress because he had supported slavery and thwarted their efforts on Southern Reconstruction.

Congress wanted to tie Johnson’s hands.  So they passed the Tenure in Office Act, intending to limit Johnson’s ability to fire cabinet officers on the theory that once the Senate confirmed a cabinet official, the President was unable to remove that official without the approval of the Senate.  Republicans were particularly determined to keep Secretary of War Edwin Stanton in his position because of his authority over military matters in the South.

When Johnson fired Stanton, the battle was joined.  The articles of impeachment against Johnson charged his violation of the Tenure in Office Act. The House impeached Johnson, but the Senate failed to reach the necessary two-thirds vote for removal by a single vote.

Most commentary on the Johnson impeachment tends to focus on the narrow margin by which Johnson’s removal was thwarted.  Mostly overlooked, was the impeachment charge: the violation of the Tenure in Office Act.

Today, few would contemplate restricting the ability of a president to fire a cabinet officer.  Yet, 151 years ago a president was almost removed for the violation of an Act which modern constitutional scholars view as plainly unconstitutional. In 1868 however, the political stampede deemed Johnson guilty and wanted his removal from office.

Now, in a similar moment of passion, the House of Representatives is rushing to impeach the President. After months of alleging “quid pro quo”, “bribery” and “extortion”, the two articles of impeachment mention no such charges.  Those charges have vanished like a morning fog. Instead, President Trump is accused of “abuse of power” and “obstruction” of Congress.

Both charges should concern all who respect the separation of powers in our constitutional framework.

The abuse of power allegation is so vague as to be meaningless.  This charge amounts to little more than a manifestation of the anger and frustration at the way in which President Trump conducts himself. But the charge suffers from the lack of corroboration from those who actually spoke to Trump.  Not a single witness has provided direct evidence as to Trump’s intent regarding Ukraine. Impeachment without proof sets a dangerous precedent for future presidents.

Next, the obstruction charge is similarly lacking.  Democrats are refusing to press their subpoena demands in court on fact witnesses who have actual knowledge of Trump’s actions, such as former National Security Advisor John Bolton. The Pelosi team refused to go to federal court because that didn’t fit in their schedule for impeachment. They wanted it done before Christmas and didn’t want this process to extend into the 2020 presidential campaign season.

Numerous lower level officials from the administration did testify and only one – Ambassador Gordon Sondland – testified that he had personal interaction with President Trump.  Sondland’s testimony was inconclusive as to Trump’s actions over Ukraine. Failure to seek court rulings on subpoenas to secure testimony of critical fact witnesses completely undermines the obstruction charge.

Nonetheless, the House will likely vote to impeach; and the Senate will likely vote to acquit.

Afterwards, it will be fair to ask what has been gained and would the nation have been better off if Speaker Pelosi had followed her own advice and not pursued a partisan impeachment?

The impeachment of Andrew Johnson, despite all his obvious flaws as President, over the Tenure in Office Act is now viewed as a major mistake.

The impeachment of Donald Trump on vague and unproven charges, will likely with the passage of time, be viewed the same.

Former Representative John Faso of Kinderhook represented New York's 19th House district in the 115th Congress.

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