Kobach: The Founding Fathers’ Nightmare

"Washington, 2013" by gregorywass is licensed under CC BY-NC-SA 2.0

As the impeachment star chamber of Adam Schiff continues in its secretive, one-sided manner, it’s worth pausing to consider what our country’s Founding Fathers would think of this spectacle.

The Founder who said the most about the impeachment process was Alexander Hamilton, most notably in Federalist Paper Number 65.

In Federalist 65, Hamilton defended the impeachment process laid out in the yet-to-be-ratified Constitution.  However, he admitted that it wasn’t perfect.

The greatest danger was that the impeachment process would be abused for partisan purposes.  Hamilton feared that an opposing party’s desire to impeach a president might be so strong that they would “enlist all their animosities, partialities, influence, and interest on one side….”

He wrote that, in such a case, the strength of the political parties—not the actual culpability of the president—would determine the outcome: “in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

Sound familiar?  Adam Schiff and Nancy Pelosi have abandoned the procedural protections that occurred in previous impeachments, most importantly open hearings, the right to confront and cross-examine one’s accuser, and the right to call one’s own witnesses. Those protections are at the very core of due process.  Without them, it is easy to distort evidence to make an innocent person appear guilty.

And what about their charge against President Trump? Would the alleged quid pro quo – even if it did exist – constitute “treason, bribery, or other high crimes and misdemeanors,” as required by Article II, Section 3 of the Constitution?

The Founders chose this definition of an impeachable offense over the broader term “maladministration,” in order to narrow what would be considered an impeachable offense and to guard against impeachment being abused for partisan political ends.

With respect to foreign affairs, the Founding Fathers set the standard for impeachable offenses quite high.  The President either had to commit outright treason, defined in Article III, Section 3, of the Constitution as “levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.,” or he had to betray the interests of the United States in favor of the interests of a foreign country.  As James Madison put it, a president “might betray his trust to foreign powers.” Hamilton used similar terms in describing all impeachable offenses: they involved “the abuse or violation of some public trust.”

With this definition in mind, it’s clear that President Trump’s telephone call with Ukrainian President Zelensky does not involve what the Founders would consider an impeachable offense. In no way did President Trump provide aid and comfort to an enemy of the United States; in no way did he elevate Ukrainian interests at the expense of American interests; and in no way did he otherwise violate the public trust through deception or betrayal.

It is also relevant that Secretary of State Pompeo and numerous others were listening in on the call. It is unlikely that any president would knowingly do something inimical to American interests or betray the trust of the American people while so many American officials were listening.

In short, the Schiff sham is exactly what the Founding Fathers did not want the impeachment process to become – a partisan exercise, devoid of due process, concerning non-impeachable actions by a president.

Kris W. Kobach was a professor of constitutional law during 1996-2011 at the University of Missouri-KC.  He is currently is the General Counsel of We Build the Wall.  He served as the Secretary of State of Kansas during 2011-2019.  An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the 10 ICE agents who sued to stop Obama’s 2012 DACA executive amnesty.  He also served as U.S. Attorney General John Ashcroft’s chief adviser on immigration law and border security.


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