Dwyer: Judicial Misinterpretation That May Facilitate Fall of the Republic

In the heat of contested debate between the advocates of President’s Trump impeachment and his defenders, an issue of much larger importance than the fate of Mr. Trump’s presidency has evaded everyone’s attention:

If the pro-impeachment House majority has its way and keeps investigating the President for possible “high Crimes and Misdemeanors” as it pleases then how he, and future Presidents, who happened to be disliked by the House’s majority, are supposed to carry on their executive power vested in them by the Constitution?

Granting the House an un-Constitutional investigative power in search of impeachable offenses will allow the House’s majority to weaponize it against any President it doesn’t like. In particular, the said majority may easily overwhelm the President with endless inquiries and subpoenas to the point that he and the Executive Branch will not be able to fulfill their Constitutional duties. Such an obstruction of Presidential executive power, if and when it takes place, will likely weaken our country to the point that it may no longer resist the external and domestic threats. And the fall of the Republic may follow.

One does not have to look further than to current pre-impeachment efforts by the House of Representatives to see that the above possibility is likely to materialize.

Power to investigate for impeachable offenses
Although the Constitution gives the House of Representatives “the sole Power of Impeachment”, it does not give it an authority to investigate the President for possible impeachable offenses. I particular, the Constitution does not delegate to the House the power to engage in “fishing expeditions”, that is, investigations in search for possible crimes when there is no evidence that some specific crimes have been committed.

Investigations and searches of that sort fall squarely under the authority of the Executive Branch, as the Section 3 of Article II of the Constitution (“he [the President] shall take care that the Laws be faithfully executed”); more specifically, under the authority of the Department of Justice. In order to avoid an obvious conflict of interest, investigations that were supposed to produce sufficient evidence of impeachable offenses were delegated to Independent Counsels who would not be subjected to President’s influence and pressure. For instance, Presidents Nixon and Clinton were investigated for possible impeachable offenses by Independent Counsels but not by the House or its designees.

Surely, the House may investigate if the evidence produced by an outside investigation is sufficient to conclude that the President committed impeachable offense or offenses, but has no Constitutional authority to conduct such an investigation under its own auspices.

Judicial misinterpretation of the existing power of Congress to investigate
The Supreme Court has long maintained that “it is beyond dispute that Congress may conduct investigations in order to obtain facts pertinent to possible legislation and in order to evaluate the effectiveness of current laws.” Although there has been no Supreme Court ruling (not yet) regarding the authority to investigate the President for possible impeachable offenses, a possibility that it will be issued is real. Judging from Court’s past decisions regarding the presumed power of Congress to investigate, there is a reason to be concerned that the future ruling in this respect may be as objectionable as these past decisions were. In the worst-case scenario, the said future ruling may facilitate fall of the Republic, unless the Court properly recognizes the likelihood of such a consequence under the current circumstances of one party attempting to weaponize the Constitution against its political adversaries and conflating the idea of checks-and-balances with hostility and contempt towards the duly-elected President.

The U.S. Congress has a number of enumerated powers, for instance, those listed in Section 8 Article I of the Constitution. The “necessary-and-proper” clause allows Congress “To make Laws which shall be necessary and proper for carrying into Execution the foregoing powers”. If the Court insists that the power to investigate is one of the powers of Congress then it should be left to a legislation (passed by both houses of Congress and signed by the President or – in th case he vetoed it – passed by the two-thirds majority of both Houses) and not to courts to confer it. As of now, the Congress has chosen to not legislate the said power, so there is on legal basis (other than the Supreme Court’s invention) to grant it. And when the Court attempts to fill that vacuum, an imperfect – if not reckless – ruling may likely ensue.

For instance, in Watkins v. United States (1957), the Supreme Court indicated that “The power of Congress to conduct investigations, inherent in the legislative process, is broad, but it is not unlimited”, but it failed to spell out a complete list of limitations of such a presumed power. This is a major flaw of the case law (the Court’s decision) that is not submitted to nearly as much debate, checks, and scrutiny as the legislative acts are.

Below, is a (non-exhaustive) list of proposed limitations that need to be expressly imposed on any Congressional investigation that pertains to political matters.

– No hypocrisy allowed. (What standards of conduct did the President violate that the majority party and its officials, in particular, past Presidents, are scrupulously following, and why does such violation fall into the category of “high crimes and misdemeanors”?)

– No selective prosecution allowed. (Are political adversaries prosecuted and sternly punished for every violation they might have committed, no matter how small, technical, or inconsequential, while political allies are not?)

– Presumption of innocence is mandatory.

– No weaponization of Congressional power for political or partisan advantage allowed.

– No tampering with evidence or witnesses allowed.

– No “fishing expeditions” (subpoenas, searches, and interrogations in search for a crime) and campaign “dirt” research allowed.

– Due process of law is mandatory.

– All 6th Amendment protections are mandatory, except that “an Impartial jury of the State and district wherein the crime shall have been committed, which district shall have been ascertained by law” is replaced by “The Senate of the U.S.”.

As of now, none of the above have been articulated, and the House’s majority shows no signs of intention to self-constrain itself along these lines.

A naturalistic fallacy
Many judges and commentators seem to believe that the House should be left to its own device with its pre-impeachment actions and investigations, trying to terminate any discussion of it with a cliche “This is how the system works.” Such inference is an instance of naturalistic fallacy that concludes a value from facts. For instance, it could be used to applaud the infamous political trials of Stalin’s perceived contenders in Soviet Union in 1930s. The very fact that things are certain way now does not imply that the status quo is desirable and should be upheld by the Court.

Granting the House of Representatives investigative powers in impeachment cases seems reckless as it may likely turn the House into modern-day Inquisition that weaponizes its presumptive power in order to perpetually investigate the President that the House’s majority doesn’t like for possible “Treason, Bribery, or other high Crimes and Misdemeanors”. Even if legally valid (a doubtful proposition), it is certainly detrimental for our national well-being and survival. One can only hope that the Supreme Court will be prudent enough to see the future case when it is brought before it from the perspective of self-preservation of the Republic.

Conclusion
The framers of the Constitutions did not envision that branches (or their parts) of the Federal Government may become hostile to each other, or to the Republic, to the point that they would actually attempt to weaponize their powers for their own political advantage rather than exercising them in good faith for the good of the Republic and the Nation. Today’s Democrat Party is not self-restrained by the said good and the bedrock principles that are foundations of this country, disrespecting even some of those principles spelled out in the Constitution and its Amendments. The Supreme Court may have an opportunity to weigh-in on this critical issue in the context of Congressional pre-impeachment investigations; if they decide it wrong then the Republic may fall and the Court will forever share the blame for it.

November 3, 2019

~ The Author ~
dwyer_thumbMr. Dwyer has been a continuing contributor to the Federal Observer. Mark Andrew Dwyer’s recent columns are posted at:
https://federalobserver.com/?s=mark+andrew+dwyer
Links to his other commentaries can be found here: http://www.oocities.org/readerswrite/List_date.htm

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