Alternative to Impeachment & Conviction – Censure

The Constitution provides a sketchy basis for impeaching a president. The indictment – called impeachment – emanates from the House of Representatives with less than explicit constitutional clarity. Based on legislative and judicial history, the notion of “high crimes and misdemeanors” does not require a per se statutory violation. Generally, over the years it has come to focus on morally unacceptable behavior, abuse of power as well as statutory violations. Obstruction of justice is a very common component of the articles of impeachment.

Although it is hardly 100% clear that there is even a Democratic majority (a majority is enough) in the House to vote for the impeachment of Donald Trump, heels dug in on both sides suggest that the Senate super-majority required to convict and remove a president from office is exceptionally unlikely. As much as Republicans fear the revelation of more embarrassing facts, the Dems fear a voter backlash that could boost Trump’s electability. “Enough!” is the cry.

The evidence is already overwhelming that the President abused his power, willing to trade national security for personal political gain and embraced unequivocal policies of obstruction of justice and obstruction of Congress to stop the underlying investigation. We have one of the most iron-clad cases of malfeasance sufficient to merit removal of a sitting president from office ever generated in our history. Including statutory violations. As a lawyer, having poured over much of the evidence against Mr Trump, I am beyond convinced that if this were up to a normal judicial trial, the President would easily be convicted.

But Republicans in Congress vary from “no proof of guilt” to “so what.” If there were a secret ballot in Congress, I suspect Mr. Trump would have been long-gone. But having purged moderates from their ranks and pledged undying fealty to populist Trump, the GOP machine is irretrievably “all Trump, anything Trump, all the time.” While they will pay for this perfidious and disingenuous stance as younger voters rise to a majority, they are terrified of losing the evangelical base they see as necessary to maintain political power today.

Enter Peter Wehner, a senior fellow at the Ethics and Public Policy Center, who served in the previous three Republican administrations and is a contributing New York Times opinion writer, a visiting professor at Duke and the author of The Death of Politics: How to Heal Our Frayed Republic 

After Trump, to explain the level of desperation that holds Trump in office (NY Times Op-Ed, December 6th): ”We are facing an existential moral crisis… That at least is the view of many Christians who have given their full-throated support to President Trump. Some of them will privately admit that he is deeply corrupt, but the justification for their support of him goes something like this: Mr. Trump may be unethical, unscrupulous and morally dissolute, but he is by far the lesser of two evils.

“After all, they insist, Mr. Trump may be personally immoral, but he is also a viciously effective street fighter for their cause. He is also the only person preventing a takeover of America by the Democratic Party and progressives — and that, they insist, would produce a moral calamity nearly unmatched in American history.

“The view that Mr. Trump is all that stands between America and a moral cataclysm was encapsulated by Eric Metaxas, an influential evangelical author and radio talk-show host, who said in 2016, ‘The only time we faced an existential struggle like this was in the Civil War and in the Revolution when the nation began.’ He added, ‘We are on the verge of losing it as we could have lost it in the Civil War.’

“This wasn’t just election-year rhetoric. Last year, Mr. Metaxas told the journalist Jon Ward that while he did not mean to compare Hillary Clinton to Adolf Hitler, ‘Christians who think the Church in America might have survived a Hillary Clinton presidency are something like the devout Christian Germans who seriously and prayerfully thought it un-Christian to be involved in opposing Hitler because to do so would have dirtied their hands with politics.’” But he did. Removing Donald Trump from office, even with an evangelical Vice-President poised to take over, would represent a demonic victory against Christian values to this GOP-politically-critical base.

But there is another path, a backroom negotiation between Congressional leaders in Congress, with necessary support from both sides of the aisle, to trade stopping the entire impeachment process in exchange for a simple censure – perhaps limited to the Ukraine incident. It would stop further embarrassing inquiry into the Trump administration, avoid the circus of a Senate trial but put on record that such “trade-offs” are not acceptable to either party. It would, at some level, require a moderate admission of “wrongful behavior” by Republicans but would provide the Dems with a clear statement that Trump’s actions were unacceptable.

So, what is a congressional “censure”? I reached back to a report (updated on December 8, 1998) – obviously long before the current crisis (and hence totally neutral to it) – from the Congressional Research Service to explain that process: “There is no express constitutional provision which authorizes Congress to ‘censure’ the President or any other executive branch official. A censure of the President does not appear to be, and has not traditionally been, part of the impeachment process, which involves an impeachment in the House and a trial and conviction in the Senate. A censure of the President is clearly not part of Congress’ express authority to ‘punish’ its own Members (Article I, Section 5, clause 2), nor would it be in most cases within the inherent contempt powers of legislatures to protect the dignity, privileges and proceedings of the institution and its Members…

“Rather, a ‘censure’ has been and would most likely be in the nature of ‘sense of the Congress,’ or sense of the Senate or House, resolutions which have developed in congressional practice as vehicles to state opinions or facts in non-binding, nonlegislative instruments. The House and Senate have, on infrequent occasions, and mostly in the 19 Century, expressed their disapproval, reproof or censure of

executive officials, including the President, or certain of their actions in simple resolutions.Precedents indicate that one action of the Senate (Andrew Jackson in1834, although expunged in 1837) and two actions of the House (Tyler in 1842 and Buchanan in 1860) may be categorized in a broad definition of a congressional ‘censure’ of a President.”

In short, Congress can “censure” a president, even if all that vote entails is an expression of opinion without tangible penalties. It is an imperfect solution that will displease both parties. But with Rudy Giuliani back in Ukraine, doubling down soliciting seemingly dramatically corrupt members of the ousted Ukrainian administration to offer “proof” of Biden corruption, perhaps even the GOP will opt to avoid further embarrassment from Trump and his representatives. While the evangelical base and other pro-Trump factions are likely to be unmoved but willing to accept this expedient to “move on,” the nation can allow the 2020 vote to be the ultimate decider.

                I’m Peter Dekom, and a brokered congressional censure may be the best solution to one of the worst constitutional crises this nation has ever faced.