Constitutional foundations for impeachment
The rule of law, described as the rules that must be followed if a public, political action is legitimate in the sense that it is part of the small "c" constitutional tradition of a community, includes as one of its many parts and requirements an agreed-upon understanding that it is, or it constitutes (the language is suggestive), a "common law" habit, or precedent or regular practice or time-honored tradition.
Sometimes, in the absence of an antecedent, ancient history, such rules for procedure or process are laid out in a founding document, such as the Big C American Constitution. Laying them out in the Constitutional Congress of the year 1787 was necessary in the 18th century, during America's formative history, because some of the Founders' ideas were so exceptional (that is, brand new at the time) that there was no local history toward which newly robed American judges could look back.
However, in 1787, just as is true today, a special, unique sense of historical consistency or ancient, time-blessed legal refinement is necessary when setting out or (even more so) when operating under procedures possibly ending with the deeply "anti-democratic" action of removal from elected office, or from other highly legitimate position of political authority, a person who, absent some extraordinary process, is "entitled" to continue in office.
That is, the entire sequence of actions, beginning to end, that are undertaken under the name "impeachment" must satisfy the most stringent scrutiny to ascertain not just fairness but constitutional, common law, historical consistency. Any novelty, or denial of precedent, or inconsistency with tradition is highly suspect, given that the impeachment process is itself infrequently undertaken and is, almost always, not just a "smash" of standard elective or selective process, but also a boiling stew of politics, partisanship, peculiarity, unfamiliar to the constituent population, and unfamiliar even to those politicians, lawyers and public figures who manage it, and who may be subject to its workings.
And that brings us to the two points made in this essay: In the US House of Representatives, Democrats so far have ignored their national history of good practice. What must change to make the process legitimate? On my side (so far) I have not reminded you readers of the nonlocal, English history of impeachment that was familiar to the Founders at the time of the writing of the US Constitution. What is that history, and how might it help us today to criticize or support current actions between President Donald Trump and his enemies in the Democratic Party?
Well-informed readers will already know the outlines of the procedural flaws and general inadequacy of the initial "rules" (or rather lack of established rules) characterizing the beginning of the unofficial Trump impeachment process. Trump was inaugurated president on January 20, 2017. Here are some examples of the timeline of his problems.
It is a fair assumption that only actions taken by an accused official taken after a high office has been obtained are impeachable. But a New York Times article dated January 27, 2017, was headlined: "Trump's foreign business ties may violate the Constitution." Vanity Fair magazine printed an essay dated February 2, 2015, titled: "Democrats are paving the way to impeach Donald Trump."
US Representatives Brad Sherman and Al Green submitted to Congress their draft resolution titled "Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors" on June 12, 2017. President Trump's accusers say he worked with Russia, but in fact, the only evidence of American politicians with Russian ties is the fact that the Clinton Foundation, operating prior to October 2016, paid UK spy Christopher Steele US$160,000 to produce the "Steele Dossier." This material was used by the Foreign Intelligence Surveillance Court to investigate low-level Trump associates.
Steele received much of his material from spy-type sources in Russia and Ukraine. The file, leaked to the press, smeared Trump and perhaps helped motivate the long-lasting "Mueller investigation" into claims it was Trump, not Hillary Clinton, who had politically important connections with Russia and Ukraine. Notice how much "look-ahead" is implied by the timeline of actions by Democratic Party institutions, all laying a foundation that has proved useful in current impeachment goings-on.
But much (and much more) of this shortrun history is known. What is less known is the long- run history of Anglo- American impeachment processes and standards. That historical narrative shows a connection between the American Constitution at the time of its enactment and the UK- Warren Hastings/ Edmund Burke affair. The UK Hasting impeachment went on from 1785 to 1795, perfectly bracketing the fateful dates 1787- 89, during which the American Constitution took form and was enacted.
My summary of the big picture sketched out in the Hastings affair goes thusly: Up from nowhere, abandoned by his failed father, a solicitor who ran away to the West Indies just after his wife, Warren's mother, died and left her newborn son in the hands of an uncle who quickly sent him away to care and schooling of still others, proved to be a good scholar who, after several false starts and early disappointments, finally rose from penurious clerk to become the first governor-general of India. He "went local," becoming a "real Indian" during his long service with the East India Company, endearing himself to what we would today call the Indian nationals of his time.