Archive: Opinions

It was more than three years ago that I decided to 'retire', although that word really hasn't much cache with me or a plurality of people who have reached the age of sixty five. I'm still working part time, and when I left the counseling world I told people that one of my desires was to help older people (especially vets) 'do their history'. As Amos Webber said, "We all got history" and I could learn a lot by listening and writing down a person's memories of growing up, especially, perhaps, the war vets who were slowly dying off.

For some reason, I didn't get a real chance to begin this quest until last month, when listening to a lifelong resident of Mecklenburg. Lynn and I sat after church on Sunday mornings and I recognized that this eighty-five year old was a perfect opportunity to recreate some local history, and I began asking him questions, trying to recreate the Mecklenburg of the Depression, the once thriving village that was doomed to oblivion after World War II, but Lynn never left. As a farmer, and a farmer's son, his vision, insight and viewpoint are unique and my weekly efforts to journal all of this are important to him, I think, and even more important to me.

As individuals move through their lives, days and weeks merge into months and years, and into what can rightly be called history. Our own history, and the country's, roll inexorably and unstoppable. Sometimes we say 'We're witnessing history', but outside of events like Kennedy's assassination, 9/11, , or in Lynn's case Pearl Harbor and V-J Day, we rarely stop to ask "What were you doing when...?"

But we are living in historic times, I think, though our witness may be through imperfect lens. Though I may speak more of my 'Wednesday History Lessons With Lynn' in the near future in this column, I want to look at our current events as history in the making, with a look not only at the present, but with the necessity of the historic lens of the past, as well as the important concept of precedent. All this from the angle of the Presidency and impeachment, which I am worried is not going to be a repeat of the past, but perhaps replete with 'firsts'.

To begin: A quick note about a judicial finding this past week that nary caused a blip on the 'news' radar: In a hearing before Judge Christopher Cooper of the D.C. District Court, an attorney for American Oversight (a progressive watchdog group) arguing in a Freedom of Information case, claimed 'the public interest weighs heavily in favor of disclosure.' The case was brought to order the Trump administration and the State Department to release documents and correspondence relating to Rudy Guiliani's visits and business dealings with certain Ukraine businesses and persons, arguing that Rudy is a private citizen and not subject to executive privilege. The judge agreed that Giuliani has no official position other than the President's personal lawyer, and that the State Department had not a legal leg to stand on in any denial of Freedom of Information suit. The State Department has less than thirty days to turn over all documents relating to Giuliani and his dealings, emails, phone calls and notes, possibly with the result of criminal indictments, which have already been handed down in the case of his two Ukrainian-born accomplices. These two, captured and arrested before they could fly away from authorities, may 'flip' on Giuliani in order to pull their own chestnuts out of the fire. This case has parallels to the Supreme Court decision in 1974 ordering the release of the Oval Office tapes which brought Richard Nixon down in a matter of days.

To keep this historically simple (I just wrote that, didn't I?) I will cite one historical reference to 'executive privilege' which both Trump and Richard Nixon claims/have claimed in presidential affairs, and is historically significant.

The Founders knew darn well their own historical background in reference to 'executive privilege'. The English House of Commons had 'impeached' Charles I for treason in 1649, charging that he had colluded with 'foreign adversaries' against his domestic political rivals. They (House of Commons) wanted his diplomatic communications, and the King refused, stating "The King can do no wrong". An early form of executive privilege, and still ripe in the minds of Madison, Hamilton, and the Framers, and the basis for the article in the Constitution regarding removal of the president.

Charles lost the debate, his correspondence, the trial and eventually his head.

Fast forward to 1796, in the first attempt to use, and challenge, an American President's claim to 'executive privilege'. It was the Jay treaty with Britain, quite controversial, and Congress (the House investigating, and the Senate considering approval of the treaty) wanted to see the correspondence between President Washington and John Jay, the diplomat in Britain. Washington refused, writing: "...It does not occur that the inspection of the papers asked for can be relative to any purpose under the cognizance of the House of Representatives except that of an impeachment, which the resolution has not expressed." Treasury Secretary Oliver Wolcott wrote that 'the House' would have a right to those papers 'when an impeachment is proposed and a formal inquiry instituted'.

Since an inquiry has been formally instituted in the potential impeachment process by three different committees as of this writing, it is not necessary for a formal impeachment vote in the whole House, since the correspondence may be considered as 'evidence', especially considering that the current committees are holding their sessions in a quasi-grand jury setting to assess the evidence. Since Giuliani is not a State Department employee, he is not protected by privilege, and the papers are an allowed part of the inquiry as evidence to be considered. Need it be added that a refusal to turn the papers over, if affirmed by higher courts and potentially the Supreme Court, may even be considered an article of impeachment itself, as were the White House tapes in 1974.

Let's make it clear that there is no formal procedure or prescription for 'how' the House may proceed in these types of 'inquiry'. Just as 'high crimes and misdemeanors' has a broad spectrum of interpretation, the process of how the House up to an impeachment vote is totally left to the House itself, ambiguity being an intentional result of the Founders for maximum effect and applicability in the future.

But, if we use precedent, and we are, after all, a nation of laws (even in Washington D.C.) then precedent is in favor, so far, of allowing the House any and all correspondence/evidence, if indeed it is conducting an investigation in the process of a motion to call for an impeachment vote. And, if there was an effort to utilize a foreign power to influence domestic political affairs, (a la the Jay Treaty was, as well) then indeed there appears to be cause for a vote to impeach, and all evidence is fair game. Another way of putting this is that the president's acolytes saying that they don't have to comply with any orders to turn over evidence until AFTER an formal impeachment vote just doesn't hold water. Or, as they say in North Carolina, 'that dog don't hunt'.

By the way, in attribution, the above point by point analysis concurs with the opinions of Jean Galbraith of Pennsylvania Law School and Michel Paradis of Columbia Law School.

So, in step one of this lesson in the current historical tsunami, remember the names American Oversight (the original plaintiffs) the DC District Court (akin to Judge John Sirica in 1973-4) who have ordered the Giuliani documents turned over, and, curiously, Mike Pompeo, the Secretary of State, who was a plaintiff in a case where the House, in 2013, sued the same State Department for the correspondence of then Secretary of State Hillary Clinton investigating the Bengazi tragedy. Three years later, Pompeo's argument as a congressman from Kansas revealed the private email server of Clinton, and that 'victorious argument' has now been turned against Pompeo as he stonewalls for Giuliani. Sauce for the goose, as they might say.

This is only the first argument/case I will mention, with more historical precedents on the way. As I said in the beginning, often we don't realize history is happening before our eyes. See if you can find this case (American Oversight) in the news archives while I prepare next week's 'Thoughts' on what Alexander Hamilton and James Madison discussed in the Federalist papers concerning Congress's control of the executive, which both men considered a bone of contention and 'the imperial presidency'.

Leaving you until next week with the musical question: "Would Alexander Hamilton Impeach Trump?" And, why does it matter?