The political talking heads are telling us that, according to the Constitution, the Democratic majority in the House is not required to hold a vote approving an impeachment inquiry, nor are they required to provide President Trump with due process rights. According to an originalist interpretation of the Constitution this may be true. However, according to precedent, transparency and basic fairness, it is not. Therefore, President Trump’s White House counsel released a letter on October 8th notifying the House leadership the administration would not cooperate with what they described as an “illegitimate” impeachment inquiry. Mr. Trump is right to rebuke the inquiry, especially after two years of the Democrats’ manufactured outrage over so-called Russian collusion. Yet, according to a new CBS News Poll, 63% of Americans believe Mr. Trump should cooperate with the inquiry. Here is why they are wrong. [Click Here to Read More].
The U.S. Constitution (including the Bill of Rights and subsequent
amendments) details the framework of roles and responsibilities for our three
separate but equal branches of the federal government. As head of the Executive
branch, President Trump has the responsibility under the “Take Care” clause of
the Constitution to make sure that our nation’s laws are faithfully executed. This
clause requires enforcement of all anti-corruption laws including the Foreign
Corrupt Practices Act (FCPA). The FCPA makes it a crime for U.S. persons, including federal
government officials, to make payments to or otherwise
influence foreign government officials to obtain or
retain commercial business, or to direct such business to any person. President
Trump, under the administration of the Attorney General, cannot put on blinders
and ignore conflicts of interest or possible corruption solely because it
involves someone who has decided to run against him for President.
While serving as the Obama administration’s envoy to Ukraine, Vice
President Joe Biden established a quid pro quo by demanding then Ukrainian
President Poroshenko fire his Prosecutor General or lose $1 billion in U.S. loan
guarantees. Under the normal course of diplomatic affairs, establishing such a
quid pro quo tied to foreign aid is not an issue. However, the fact that
Biden’s son Hunter was a highly paid Board member of Burisma Holdings, a
Ukrainian gas company that was being investigated by the Prosecutor General who
was ultimately fired, it is possible that Hunter Biden benefited financially
from his father’s actions. This is as clear a conflict of interest as one could
imagine, one that may have violated the FCPA or other anti-corruption laws.
That is why President Trump encouraged Ukrainian President Zelensky to restart
an investigation into Joe and Hunter Biden, to determine what the facts are and
to confirm whether anti-corruption laws were violated.
During President Trump’s now infamous July 25th phone call
with Ukrainian President Zelensky, the White House transcript of that call
shows Trump requested that Zelensky work with Attorney General Barr to
investigate Joe Biden’s involvement in the Burisma affair. This conflict
created by the Biden’s poor judgement is worthy of such an investigation. Had
Joe Biden not been a candidate for President, this whole Ukraine controversy might
have never caught the attention of the media. But Democrats don’t get to decide
what conflicts or violations of law get investigated by the Executive branch. Where
conflicts exist in prosecuting a case, the Attorney General decides as to
whether to appoint a special prosecutor. The fact that someone like Joe Biden is
running for the Presidency is irrelevant, because no one is above the law. Not
even President Trump.
The Constitution is a masterpiece of democratic jurisprudence, and we are
governed by laws subject to its framework and principles. However, neither the
Constitution nor our laws are perfect. There are times when they present public
officials with legal contradictions, not unlike the theological contradiction found
in the Bible between justice and mercy. The current political battle over
Ukraine and the resulting Democratic impeachment inquiry also reflects a
contradiction. President Trump may have benefited politically by prompting a foreign
investigation into Joe and Hunter Biden’s activities in Ukraine. Yet, the
Constitution obligates him to faithfully execute the law, including
anti-corruption laws. It is the President, not Congress, that must decide how
best to resolve this contradiction in a legal and constructive manner within
his constitutional authority.
President Trump had a choice to make between his election mandate to
“drain the swamp” and risking a political challenge by encouraging an
investigation in Ukraine. He made his choice, and Nancy Pelosi announced her
decision to initiate an impeachment inquiry. Thus far, the inquiry process has
been anything but transparent. Although several House committees have been
engaged to investigate, Ms. Pelosi designated the House Permanent Select
Committee on Intelligence to lead and direct the inquiry. Independent witnesses
testifying before this committee have thus far done so behind closed doors.
Further, because Ms. Pelosi has not allowed for a floor vote to approve an
impeachment inquiry, Republicans have effectively been shut-out of participation
in the inquiry process. As a result, partisanship has stained the inquiry
process. Democrats have tried to justify their closed-door investigative approach
by saying it is analogous to a grand jury proceeding, one where testimony is
kept secret from public view. This analogy lacks credibility because
impeachment does not result in a criminal indictment but rather a political
one. Any such political process should be open and bi-partisan, or it will
forever be tainted.
In October 1998, Republicans in the House of Representatives negotiated
and passed what would become a bi-partisan resolution outlining the powers and
rules under which they would investigate felony charges against President Bill Clinton.
This Investigatory Powers of the Committee resolution (Report
No. 105-795) outlined several procedural
requirements that were designed to ensure “a fair, thorough and independent
review of the facts.” Under the authorship of Congressman Henry Hyde (R-IL),
this resolution referenced its compliance with precedent and guaranteed both
Democrats and Republicans specific investigative powers. These powers included the
ability to subpoena documents and records, and the ability to compel attendance
and testimony of witnesses by subpoena or through separate hearings,
deposition, or interrogatories. These rules
ensured that witnesses could be called and cross-examined by both parties in
public. According to the resolution, these rules were established to ensure the
inquiry was “conducted in all respects on a fair, impartial and bipartisan or
nonpartisan basis.” All hearings were conducted under the auspices of the House
Judiciary Committee so they would be public inquiries. This is how statesmen
and women in both parties enable transparency when they put their country’s
interests ahead of politics.
Senator Ted Cruz of Texas recently stated his belief that President Trump has broken the Democratic Party, saying that hate is all that drives them. Senator Cruz is spot on, and their tactics in launching an impeachment inquiry reflect desperation. President Trump has offered to cooperate with the House inquiry, but only if Democrats follow precedent and schedule a floor vote approving the kind of transparency and due process a fair proceeding would call for. This is precisely what Republicans provided to former President Clinton during his impeachment. After two years of obstructing Mr. Trump’s agenda with false accusations of collusion with Russia, the President and the American people are entitled to both. Unfortunately, the Democrats have chosen a different path, one that looks surprisingly like the desperation of a hail-Mary pass.
If you want to understand more about America’s founding principles, here is something that you can do. Get a copy of Conquering the Political Divide – How the Constitution Can Heal Our Polarized Nation. This book provides the grounding we all need in basic civics and economics to help us defend our nation from progressive ideology. Order your copy today by clicking here.
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Eric A. BeckEditor-In-ChiefFree Nation Media LLCGreenville, South Carolina###