We asked him, in the conversation slightly modified below, what is meant to limit the power of the Kings of England over the present President of the United States.
CNN: I found it very interesting to see how you linked the idea of imputation to the Magna Carta and how the lords used it almost as a form of protection against the king. Is there anything left of this original meaning in the way it is applied today?
ARCHER: For centuries, the kings and queens of England were the dictators of their day, with the added advantage of being able to claim a divine right to rule. They sought almost absolute power when they could. The other power centers of society – hereditary aristocrats (landlords), landowners, clergy, merchants, lawyers, judges, and others – banded together in parliament and fought for the king to reign under the law with the right to do so. obligation to serve the entire kingdom, not just his personal interests.
Parliament could not use the impeachment to dismiss the king himself, but he used it to overthrow the king's ministers who promoted absolute royal power and denied the authority of Parliament and the laws. They accused such ministers of subverting the "old and well-established form of government" of the kingdom and introducing tyranny.
Under our Constitution, impeachment extends to the person who heads the executive, the president. And the basic theory of the most important English impeachments is incorporated into our Constitution. We can dismiss a president when his conduct subverts our form of government – the rules and norms that make up our constitutional order – and threatens the tyrannical government of the chief executive branch without regard to the legislature or the law. I would say that's exactly the situation we are now facing.
Is there a precedent for the removal of Trump?
CNN: You describe in detail the impeachment proceedings of Andrew Johnson and Bill Clinton and the indictment of Richard Nixon. Which of the following is the closest to the Democrats' possible effort against Trump?
ARCHER: Nixon is the closest to the offenses he has committed. Nixon's problems began with illegal efforts to gather information against his Democratic opposition in the 1972 elections, but multiplied when he tried to lie, pardon, bribe, attempt of the CIA and FBI association in a cover-up, dismissing the special prosecutor Archibald. Cox, verbal perjury, specious claims of the privilege of the executive, etc., to obstruct the investigation. He put the icing on the cake by challenging the legitimate subpoenas of the House Judiciary Committee. The parallels with Trump's conduct with regard to the investigation of Russia and other investigations are not accurate on all points, but they are very close.
A possible and frightening difference between Nixon and Trump is that Nixon was ultimately a lawman in that, while committing offenses and trying to evade their responsibilities, he nevertheless believed in the constitutional structure of the United States and that its laws apply to it. So when things went bad and he was ordered to produce incriminating material, he did it. I am quite sure that Trump does not understand or believe in the American constitutional system. And I'm not sure Trump thinks he's bound by the law.
Johnson's case is very different from Trump's on the facts and the historical context. It was a fundamental difference between Johnson and the majority in Congress on the right approach to post-civil war reconstruction and the role of black freedmen in American life. Johnson was ready to give power back to the shameless ruling class of the defeated South and give blacks the status of permanent peons. Congressional Republicans wanted a global restructuring of Southern society, including rights for liberated blacks. The struggle for destitution was opposed between two rather articulated and conflicting theories about what America should become.
One can try to overlay a coherent idea of America to Trump's escaped, but the problem with Trump is not that he tries to move the country towards an uncomfortable, but consistent, vision of Future, but that it destroys the future. constitutional to satisfy one's ego and search for personal wealth and power. In this respect, the struggle between the congressional Democrats and Trump resembles some clashes between Parliament and the English crown.
Nevertheless, Johnson's dismissal can give us at least one lesson: the House impeached Johnson, but he escaped conviction and impeachment by a vote in the Senate. As a result, the effort to remove him is often referred to as failure and misuse of the power of impeachment. I do not agree. Johnson should have been indicted and convicted because his vision of America's future was fundamentally flawed AND that he would not accept the Congressional judgment to the contrary. Although he was not removed from office, his dismissal paralyzed him politically and forced him to give up some of his most uncompromising positions in reconstruction. The lesson to which I will return later is that indictment without dismissal can sometimes be useful.
What are the limits of crimes and serious crimes?
CNN: You detail many crimes and offenses, including the obstruction of justice, the abuse of the power of grace, lying and greed. Can the Democrats basically say that anything they do not like is a crime and / or a serious crime?
Archer: Yes and no. From a purely procedural standpoint, Gerald Ford was right when he stated (at an unsuccessful attempt to dismiss Judge William O. Douglas) that an impenetrable offense is what the majority of deputies and 2/3 of the Senate say it is. Indeed (despite what Mr Trump seems to think), the decisions of the Congress on what constitutes or is not impenetrable behavior are not "justiciable", that is to say that they can not be the object of a judicial review. (I know Alan Dershowitz has said the opposite, or something, but he's completely wrong and, as always, desperately trying to keep his name in the media.)
That said, there are some generally accepted historical parameters for what is qualified and not accountable. Conventionally, they must constitute "great" offenses, that is to say that they do not necessarily have to be crimes, but must constitute serious offenses against the law or the constitutional order. In general, they involve abusive use of the president's office, although most experts recognize that very serious acts of conduct by private individuals would count. For example, despite Mr. Trump's famous boasting, a president who has committed a private murder is surely impenetrable. President Clinton escaped condemnation to the Senate for a variety of reasons, but many of them have surely concluded that his conduct, although shameful and criminal, was private, rather unimportant, and irrelevant. his presidential role.
I could go on, but the bottom line is that a set of generally shared views about the types of conduct that can not be achieved must generally go beyond the limits of what Congress is prepared to take seriously when considering impeachment. We are talking about historical norms, not applicable law. Of course, as we are reminded every day in the current administration, standards are fragile things once those in power decide to ignore them.
Is dismissal possible with a Republican Senate?
CNN: Some Democrats want to dismiss Trump, but it seems extremely unlikely that they can remove him from office with a Republican-led Senate. Does this essentially eliminate the impeachment?
ARCHER: I do not think so. I respect the apparent view of President Nancy Pelosi that an impeachment would be politically disadvantageous for Democrats. However, Trump's attack on American constitutional structures and values is so profound and so dangerous that it calls a reaction. If this answer can not revoke it, it can at least explain to the American people the facts about its behavior and, or more importantly, why what it does is so bad, so contrary to our constitutional history and so dangerous for us. our future. A properly conducted impeachment inquiry is the tool that the Constitution gives Congress to carry out this task.
Removal is a power conferred on the House by the express wording of the Constitution. Therefore, in an indictment investigation, the power of Congress to require information from the President is at the highest level – far more than the more general control powers of Congress to investigate the activities of the executive power to for other legislative purposes. In addition, an imputation inquiry – and the hearings that would be part of it – could draw the public's attention more than anything else Congress could do. Let's be honest. It may be that nothing can cut the steady stream of TV and social media broadcasts and focus the country on what Trump did and on why it is constitutionally unacceptable. But the best solution is probably indictment.
In addition, the lesson of the story is that indictments may succeed in the political sense even if they do not return the offending official. British history is replete with examples of officials who have been removed from the House of Commons and who have not been condemned by the House of Lords but who have nonetheless been politically destroyed.
Similarly, just prior to the American Revolution, the Massachusetts colonial legislature removed Chief Justice Peter Oliver from the sin of accepting a salary from the Crown. Oliver was not convicted because the royal governor dissolved the legislature before he could be tried in the upper house (perhaps, insight from Senator Mitch McConnell's approach). But he was nevertheless forced to leave his post as a result of a general outcry and the principle that US judges should be accountable to US legislatures, and not the far royal government, was established in the US. The spirit of the patriots.
I gave the example of President Andrew Johnson above. He was not removed from office, but he was politically crippled and his approach to reconstruction hurt, though (unfortunately) not killed.
What should the democrats do?
CNN: As someone who has spent more time studying the indictment than anybody in the country, what would you advise the Democrats who are considering doing it now?
ARCHER: I do not pretend to tell Congress what it should do. I will simply say to the Democrats that if you are going to do it, do not do it as a noble, but useless gesture. If you are going to do this, (a) use its power to extract information about presidential misconduct that you could not otherwise obtain, and (b) structure it so as to educate convinced but ill-informed citizens about the conduct of Trump and why he endangers the health of the American republic.
What should everyone remember about being removed?
CNN: What is the thing that all Americans should keep in mind about impeachment?
ARCHER: The impeachment is the defense of the Constitution against a president who, deliberately or because of defects of character, threatens the republican government. The drafters made impeachment difficult because they did not want the Congress to exclude the presidents of their supporters. Nevertheless, the drafters wanted this to be used if, in one way or another, an obviously unfit person was to become president and endanger the constitutional order that they had so carefully built. Donald Trump is the contingency for which they gave us the weapon of dismissal. The question is whether our policy is so broken that we do not even have the will to take it back.