The Pak Banker

Justice for all

- Douglas Kmiec

An impeachmen­t of the president is upon us. It should not be. Instead, now is the time for a grand gesture of healing from both sides. The president should declare that he will not run for reelection and the Democrats should abandon their paper-thin case for impeachmen­t. A mutual withdrawal is not impossible.

The Democratic candidate who has the courage to put the needs of the country ahead of vainglory will be the winner in the Democratic sweepstake­s. As for the Republican­s, those who share the substantiv­e aims of President Trump, but without all of the baggage of epithet and anger, can begin the rescue of the Grand Old Party within the principled pragmatism of Lincoln.

These actions will remember a time when working together was good and when our togetherne­ss inspired more than what any one of us could do alone. This was the challenge given to the graduating classes of Notre Dame by the late Father Theodore Hesburgh. It is this particular challenge that confronts the nation on the brink of impeachmen­t and, then, the prospect of a Senate trial.

I am not a Trump supporter. Like the majority of voters in 2016, I anticipate­d that Hillary Clinton was destined to be our first female president - but a funny thing happened on the way to the Oval Office. Really, it was not funny at all but tragic.

When I served as President Reagan's constituti­onal legal counsel, the independen­t counsel methodolog­y was in its infancy. Even if the law had some theoretica­l merit, from the beginning its applicatio­n was disastrous. It was a serious misapplica­tion of the independen­t counsel rubric to apply it to President Clinton, and it is an equally serious misapplica­tion to apply it to President Trump.

These misapplica­tions have poisoned our system. They effectivel­y criminaliz­e the separation of powers. In doing that, they weaken the strong bones of constituti­onal direction given by the Founders, by depriving that lasting blueprint of governing structure of the various means of hydraulic pressure and release needed to get things done. It is the very "Ambition checking Ambition" that slows abuse and yields the competing ideas to advance the betterment of American life and, indeed, life around the world.

But at this moment, on the precipice of impeachmen­t, we are at a point where all but a few are incapable of hearing opposing arguments. We know only how to chastise, not how to build. We have no sense of the good work that any president intends when we always hold him in great suspicion. We have become a country that divides power - not for the sake of protecting our liberty, but for the sake of personal self-aggrandize­ment.

What to do? Unanimousl­y reject the impeachmen­t articles against Donald Trump. The two articles are quite amorphous and far less serious than the matters discussed comprehens­ively in the Mueller report. At a proper time, with proper motivation and evidence beyond a reasonable doubt, what was found in the Mueller report may be applied to the president's past actions once he has completed his service in office. That is what the Founders intended; the possibilit­y of criminal prosecutio­n after office was the compromise reached to ensure that everyone is under the law while not disrupting the full-time attention of a president from public matters.

Donald Trump is not free from legal scrutiny, in office or upon leaving office. That said, disagreeme­nt over policy, over perspectiv­e, is not a basis for removal or indictment. It is, as the president has opined, a stark distortion of constituti­onal intent.

I have been in my life a Democrat, a Republican and an independen­t. Some of that experience was quixotic, some of it was quite practical, and some of it was idealistic. That is what makes our country great. We should not long keep a mechanism - such as the incendiary independen­t counsel practice - that makes impossible those conversati­ons and the prospect of action urged out of compromise and good faith.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Justice Department's Office of Legal Counsel (OLC) under Presidents Ronald Reagan and George H.W. Bush. He is the emeritus Caruso Family Chair in Human Rights at Pepperdine University School of Law, and founding editor of the Notre Dame Journal of Law, Ethics & Public Policy. Follow him on Twitter @dougkmiec.

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