• Daniel Ethan Finneran

On A Second Impeachment

Most people, sadly, are quite neglectful of the breast pockets by which their buttoned-shirts are adorned. They detect in them neither fashion nor function, style nor utility—least of all a subject meriting an essay’s opening paragraph. Rather, they look down (in more ways than one!) at their meager breast pockets and see only the obsolescence of a humble, single square compartment unnecessarily placed about the chest. These poor pockets, recipients of such cold oversight and daily abuse, find themselves fated to exist unloved in that most vital of spots, that central location of the human form beneath which, with its impatient thrusts to the future and constant rhythms of change, the jaunty heart beats.

To these people, so sartorially-savvy and impeccably-modish, the breast pocket is nothing but a vestigial bunch of fabric, a superfluous stitch of cloth, to which modern hands seldom deign to pay a visit, and never dare entrust their pricey Apple gadgets and pixelated Google screens.

I, however, think the breast pocket is neither obsolete, nor unprepossessing. It lacks, in my opinion, neither function nor appeal. Compared with so many others, I treat my breast pocket in a different way, and esteem it to a far higher degree. To my own pocket’s continual delight, and the envy of all those other pockets unvisited by their callous owners, I’ve made this loyal little compartment a central part of my dress. I celebrate its every corner and stitch and thank some unnamed, original tailor for his foresight and the enduring application of his ancient skill.

In it, like a protective sheathe enfolding an elegant blade, I slide my small, battle-tested, war-wearied, mini paperback Constitution. This thin, unremarkable book, atop whose weakly-stapled binding and ink-stained jacket, the strongest of all world republics still stands, accompanies me wherever I go. In business attire or casual raiment, it never abandons me. With one movement of the hand, it’s in my possession, and—with but one more, an unfolding of the cover to reveal an awaiting preamble—it fully possesses me.

If asked to do so, I’d fail in recounting to you the feelings of an idle moment, as I’ve not had the misfortune of enduring one, so long as this book rests within my reach. The temptation mindlessly to gaze upon the improbable lives of Facebook friends or scour the acrimonious corners of Twitter has been confronted and, better yet, defeated by the calm presence of this noble book. Unlike so many unliberated “users” (to whom, sincerely, my deepest sympathy extends) I’m willingly captivated by the beauty of my Constitution’s words, and shocked by the simplicity of their instruction.

More than ever, I turn to it in search of guidance for what will be an unprecedented event in the history of American politics: the second impeachment of one president, a man to whom the office no longer belongs. Doubtless, it’s a story with which all are acquainted, and—more likely even than that—a tale around which strong opinions have been decidedly drawn. Still, the peculiarity of its nature warrants a brief review.

President Donald J. Trump, a vexing figure to whom the distinction of a second tenure was so painfully denied, was first impeached by the House of Representatives in the waning days of 2019. After having conducted a conversation over the phone with Ukrainian president Volodymyr Zelensky, a notorious tête-à-tête during which he encouraged the foreign leader to look into the Biden family’s affiliation with the scandal-prone Burisma holdings, President Trump was accused of two sins: first, having abused the Executive power with which he’s vested and, second, having obstructed the Congress with whom, on equal terms, he’s supposed to co-exist. The Senate, trying the case as presented, acquitted Trump of each charge.

In so doing, a majority of that august body of one hundred politicians easily found in the Constitution a rationale for its final opinion. While the conversation with Zelensky may have offended propriety, and his subsequent actions may have flirted with poor judgment, misconduct, and bad behavior, President Trump was found neither to have committed treason, bribery, nor high crimes and misdemeanors. With that, he was unburdened of the Legislative threat, and freed to carry on to fight another day.

That next day arrived sooner than expected. On the sixth of January, toward the conclusion of two months spent as a lame-duck Commander-in-Chief, President Trump delivered a speech at the Ellipse outside the lawn of the White House. Among a torrent of extraordinary claims and inveterate gripes, he urged his audience to “peacefully and patriotically” demonstrate at the Capitol Building, the location at which, at that very moment, both Houses of the Legislature were gathered for the counting of the states’ various certified votes.

The rest is too terrible for a detailed recounting, especially for those into whose gentle memories, so many scenes of violence and savagery are still painfully burned. Presumably acting on the president’s directive, thousands marched to the Capitol Building at the end of the Mall. Some determined peacefully to make their protestations heard; others, perhaps reminded of the BLM and Antifa riots of the summer, opted for a more belligerent and uncivilized approach. The latter group, to which nearly one thousand contributed their barbaric strength and zeal, penetrated the Capitol and endangered our glorious democratic process. Though their ultimate aim was unfulfilled, the damage they caused was immense.

One week later, President Trump was, for the second time in his brief career, impeached by the House of Representatives. Now, the article on which his somewhat-tarnished legacy is dependent, and his future political aspirations hinge, is one: incitement to insurrection.

Legal minds, far cleverer than that to which I’ve only the feeblest claim, immediately sensed something inauspicious about so knotty a charge. Incitement being so high and difficult a standard to prove, might the House have chosen some alternative offense of which, frankly, there seemed to be no dearth (solicitation to criminal activity, for example, in the case either of Georgia’s Secretary of State Brad Raffensperger or Vice President Mike Pence, might’ve much more fruitfully sufficed). The fact that the president explicitly exhorted his audience to “peacefully and patriotically” make their discontent known works, I think, very strongly in his favor. This, I’m sure, is a point to which even his most fervid enemies have come to resign themselves.

Thus, the precise article of the impeachment is, on its own right, a grave and weighty question by which every unbiased legal mind ought to be encumbered. Weightier still, though, is the question of whether or not it’s even Constitutionally legitimate to impeach and convict a president who no longer enjoys the fruits of his office? Is it possible for so displaced a man, a figure from whom his Executive power has been lawfully stripped, to be removed from the office over which he no longer presides?

For the answers to these questions, by which many a night has been rendered sleepless, I reach for my breast pocket, as is my wont. There, as reliable as always, I find awaiting my grasp my miniature Constitution, that great little book through which I feverishly proceed to flip. I’m disappointed to learn, however, that this is an unusual predicament to which the Constitution offers no loud, unequivocal, and distinct answer. While not completely silent, it’s an issue to which the Constitution only faintly speaks. It does so with an unclear and muffled voice into which we, as terribly fallible interpreters, must do our best to read.

In Section 3 of Article I, we’re told that “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States”.

Of course, every Democrat, and a growing cabal of foresightful Republicans, are focusing on that sentence’s second part. On its own, unattached to any other qualifying statement by which it might be better contextualized and refined, the impeachment and conviction of a president who’s already been ushered out of office would be unobjectionable. The trouble is the conjunction by which it’s immediately preceded: it reads, to the frustration of those intolerant of such trivial things, “and” instead of “or”.

If the Founders chose, with their eminent wisdom and grammatical skill, to insert “or” between those two clauses, there would be no difficulty in convicting a president who’s since abandoned his office. His current occupation of said post would have to deemed irrelevant to the case. The fact, however, that our Founders opted to insert “and” in this clause seems to make occupancy of the office a necessary precondition to removal and, having satisfied that quite specific requirement, future disqualification.

In an attempt to convict a president who’s no longer in office, and to punish a man to whom the tranquility of a private life and the ease of a citizen’s fortune is now fully reserved, one, perforce, extends further than to his removal, merely.

There is, of course, one final consideration of which our Founders were undoubtedly conscious, but to which their grand political document makes no explicit reference. In pondering it, then, I return to my breast pocket that powerful little book, that unfailing north star by which our ship of state is, in most cases, unerringly guided. I leap from that balanced, nearly faultless vessel, and swim across the ocean to that island of our intellectual birth.

My mind jumps to the impeachment trial of the infamous Warren Hastings, the broken English nabob upon whom the indefatigable Edmund Burke—greatest of all conservative minds and most prescient of all politicians—discharged his vitriol, eloquence, and scorn. It was, as any Brit at the time would tell you, the trial of the decade, as it nearly lasted a decade (a verdict was returned after the passage of seven years, and, centuries later, history’s still unwearied when commenting on the event).

Hastings was impeached for crimes allegedly committed while serving the crown in that exotic land of India, that vast Asiatic domain by which her majesty’s grand empire was dazzlingly bejeweled. While Hastings’s guilt was suspected, it was never confirmed. Relevant to our current situation, however, is not the ugliness of his foreign pelf or the gravity of his dehumanizing offenses, but the fact that he was impeached only after having resigned his office. A return to private life was no protection against Burke’s relentless pursuit. Hastings was vulnerable to every penalty of which his inhospitable peer might find him deserving. Removal from office was no immunity to his prior sins and he was made, at great personal expense, to answer for the depravity of his past.

In this current, unprecedented situation with which our Senators are faced, to which every American they represent offers an enthusiastic but often half-baked opinion, a similar conclusion might be drawn. In arriving there, the Constitution in my cherished breast pocket brought me more than half the way; history, unconfined to the fabric of any shirt, guided me to the finish. In a word, the Hastings’s standard ought to apply, so long as our Constitution suffers no abuse.

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