Publius-Huldah's Blog

Understanding the Constitution

Impeachment: All you need to know (and you do need to know it).

By Publius Huldah

1. It is NOT necessary that the President, other officers in the executive branch, or federal judges commit a crime before they may be impeached & removed from office.

Federalist Paper No. 66 (2nd para) & Federalist  No. 77 (last para) show that the President may be impeached & removed for encroachments, i.e., usurpations of power.

Federal judges may also be impeached & removed for usurpations of power (Federalist No. 81, 8th para).

Throughout The Federalist Papers, it is stated that impeachment is for “political offenses”.

2. The House has the SOLE power of impeachment (Art. I, Sec. 2, last clause).  The Senate has the SOLE power to try all impeachments (Art. I, Sec. 3, next to last clause).  The decision to convict is not reviewable by any other body – and common sense tells us what that means!  The House may impeach, and the Senate may convict, for any reason whatsoever; and their decision cannot be overturned.

3. The meaning of “Treason, Bribery, or other high Crimes and Misdemeanors” at Art. II, Sec. 4, is far broader than one might at first glance think.  Somewhere I saw a scholarly paper showing that the “high” refers to the status of the official – it does not refer to the severity of the offense.

Now, note well!  “Misdemeanor” has a broader meaning than “a lesser category of criminal offense”.  Webster’s 1828 Dictionary shows the primary meaning is:  “Ill behavior; evil conduct; fault; mismanagement.”

This shows that a President, Vice-president, and all civil Officers and Judges of the United States may be impeached, tried, convicted, and removed from office for “mismanagement”.

4. Errant members of Congress are never impeached – they are expelled by their respective Houses (Art. I, Sec. 5, cl. 2).

5. Military personnel are never impeached – they are court-martialed (see UCMJ – Uniform Code of Military Justice), and may be kicked out of the military as part of their punishment.  They also may be administratively discharged.

6. It is not feasible to criminally prosecute, under federal law, a sitting President: his prosecutors, the Attorney General and the U.S. Attorneys, all serve at the President’s pleasure.  He can fire anyone who dares to criminally prosecute him.  That is why sitting Presidents who have committed federal crimes must first be removed from office via impeachment, then be criminally prosecuted.  (Federalist No. 69, 4th para).

But do not forget: A President may – and should – be impeached & removed for usurpations of power, mismanagement, incompetence, or for any other reason deemed sufficient by Congress.

7.  The lawful methods of getting rid of a sitting President [whether eligible or not to hold the office], in addition to impeachment, are set forth in the 25th Amendment: Natural death, resignation, or inability to do the job.

8.  The 22nd Amendment permits Congress to make laws providing for succession where a President elect has not qualified.

Do not spin your wheels in fruitless insistence that a person (who may still be an Indonesian national) who occupies the office of President can’t be impeached because he is ineligible to hold that office.  The FACT is that he holds the office.  Impeachment is a lawful & constitutional method to rid ourselves of occupants of that office and of this particular blight. PH

August 8, 2013

PS added Dec 1, 2014:  Dr. Alan Keyes is great!

 

Postscript added August 25, 2018:  The West Virginia House has impeached their entire Supreme Court:  https://reason.com/blog/2018/08/14/west-virginias-entire-supreme-court-just

Let’s see more of that.  Rein in corrupt and usurpatious judges by impeaching them and removing them from the Bench.  It’s so nice to see some “men” doing what’s right.  congratulations, House!

 Update on December 21, 2019:

Some people are asserting that members of Congress are subject to impeachment. 

Let’s think that through:

1. Article II, §4, US Constitution provides:

“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

“[C]ivil Officers” refers to appointed officers in the Executive Branch and in the Judicial Branch. The first paragraph of Federalist No. 76 says:

‘THE President is “to NOMINATE, and, by and with the advice and consent of the Senate, to appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not otherwise provided for in the Constitution…’

THAT is how the President, Vice President and errant officers and judges in the Executive and Judicial Branches are removed from office.

2. How are errant members of Congress removed from Office?

They are “expelled” by their respective Houses.  See Article I, §5, cl. 2.

Now, THINK, People!

If one of the Houses wants to get rid of a Member, why on Earth would they go thru impeachment and trial [which would require the agreement of both Houses to get rid of the Member], when each House can do it on its own by simply expelling the Member?

Say the Senate wants to get rid of a Member who has done some horrible deed. Who can assert with a straight face that the Senate can’t get rid of the errant Member unless the House first impeaches the Senator?  What if the House refuses to impeach? The Senate would be stuck.

And just think what power this would give the House over the Senate!  US Senators who thwarted the plans of loons in the House would be subject to impeachment!  Yet the Senate would not have the corresponding power over the House.

THAT’S WHY our Framers, who were a whole lot wiser than we of today, provided that each House has the power to EXPEL a member.

    Other people are asserting that Impeachment is a “Bill of Attainder” 

Yes, some self-appointed “constitutional expert” over at “Conservative Tree House” is making this claim. 

So let’s think that through:

Impeachment and Bills of Attainder are very different: They both take place in a Legislative Body, but one is a criminal proceeding [bill of attainder] – the other is simply to remove a person from office [impeachment & trial].

A bill of attainder is a legislative FINDING of guilt in a criminal matter with no trial. They have been abolished in THIS Country. But they had them in England. The Parliament would pass a bill saying so & so is guilty of Treason – off with his head! And his Title, estates and lands are forfeit! And the [former] nobleman found about it when they came to arrest him to take him to the Tower of London to await his beheading.

Impeachment of the President and Vice President and other civil officers of the United States is provided for in our Constitution.

What goes on in the House – “impeachment” – is merely to formulate a list of accusations.  The TRIAL where the accused may present evidence, takes place in the Senate. The PURPOSE of an impeachment and trial is not to get a guilty verdict in a criminal case, but simply to REMOVE A PERSON FROM OFFICE. See Article I, Sec. 3, last clause.


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August 8, 2013 Posted by | Article II, Sec. 4, Bills of attainder, High crimes and misdemeanors, Impeachment | , , , , | 36 Comments

Gun Control, the Dick Act of 1903, Bills of Attainder & Ex Post Facto Laws

By Publius Huldah

The latest round of rubbish flooding our in boxes is an ignorant rant claiming that the Dick Act of 1903 (which the purveyors of rubbish claim respects our Right to be armed) can’t be repealed because to do so would “violate bills of attainder and ex post facto laws”.

Who dreams up this stuff? Does anyone check it out before they spread it around?

Of course we have the God-given right to keep and bear arms, to self-defense, etc., etc.  Our Declaration of Independence (2nd para) recognizes that our Rights come from God and are unalienable.

The 2nd Amendment to our federal Constitution recognizes that this God-given right to keep and bear arms is to be free from any interference WHATSOEVER from the federal government.

Our Framers were all for an armed American People – they understood that arms are our ultimate defense in the event the federal government oversteps its bounds.  See, e.g., what James Madison, Father of Our Constitution, writes in the second half of Federalist Paper No. 46!  The reason the Citizens – the Militia – are armed is to defend ourselves, our families, our neighborhoods, communities, and States from an overreaching, tyrannical federal government.

Accordingly, the federal government is nowhere in the Constitution granted authority to abridge, restrict, or infringe,  in any fashion whatsoever, guns, ammunition, etc. Thus, ALL such restrictive laws made by Congress, and ALL regulations made by the Bureau of Alcohol, Firearms, and Tobacco (ATF), are unconstitutional as outside the scope of the powers granted to Congress and to the Executive Branch by our Constitution. Restriction of arms and ammunition is NOT one of the “enumerated powers” delegated to Congress or the Executive Branch.

Furthermore, all pretended regulations made by the ATF are also unconstitutional as in violation of Art. I, Sec. 1, U.S. Constitution, which vests ALL legislative powers granted by the Constitution in CONGRESS.   Executive agencies have no lawful authority whatsoever to make rules or regulations of general application to The People!

In addition, the President and the Senate may not lawfully by treaty do anything the Constitution does not authorize them to do directly.   Since the Constitution does not authorize the federal government to disarm us, the federal government may not lawfully do it by Treaty.   See, https://publiushuldah.wordpress.com/2009/09/19/the-treaty-making-power-of-the-united-states/

But the assertion that one Congress may not repeal acts of a previous Congress is idiotic.

And the assertion that Congress can’t repeal the Dick Act because a repeal would “violate bills of attainder and ex post facto laws” shows that whoever wrote that doesn’t know what he is talking about. He obviously has no idea what a “bill of attainder” is, and no idea what an “ex post facto law” is.

This accurately explains what a “bill of attainder” is: http://www.historylearningsite.co.uk/Bill-of-Attainder.htm

An “ex post facto” law RETROACTIVELY criminalizes conduct which was not criminal when it was done.

Say you barbequed outside last Sunday. That was lawful when you did it. Next month, Congress makes a pretended law which purports to retroactively criminalize barbequing outdoors. So, now, what you did is a crime (for which you are subject to criminal prosecution); even thou when you did it, it wasn’t a crime. That is an ex post facto law.

Now, say Congress passes a pretended law making possession of firearms a crime and ordering everyone to turn in their guns. Only if you do not turn in your guns will you have committed a “crime”.  That is not an ex post facto law because if you turn in your guns, you won’t be criminally prosecuted. The “crime” is the failure to turn in your guns – not the prior possession of guns.

Such a law would be totally UNCONSTITUTIONAL, because gun control is not one of the enumerated powers of Congress. Thus, the law would be outside the scope of the powers delegated to Congress.

It would also be unconstitutional as in violation of the 2nd Amendment.

But it would not be an ex post facto law.  See postscript below!

People shouldn’t sling around terms, the meanings of which, they do not understand. It is immoral.

If TRUTH spread as rapidly as lies, our problems would have been resolved long ago.  But if People can come to love TRUTH more than they love the ignorant rubbish they circulate, perhaps it is not too late to restore our Constitutional Republic. PH

Endnote:

In Federalist Paper No. 84 (4th para), Alexander Hamilton says re ex post facto laws (and of the importance of the writ of habeas corpus):

“…The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny…” PH

Postscript added Jan 17, 2014:  None of us are infallible – all of us must be willing to rethink what we think we know.  I have rethought this and now believe that such a law would be an ex post facto law in violation of Art. I, Sec. 9, cl. 3 of the Constitution (if the Congress passed the law) or Art. I, Sec. 10, cl. 1 (if a State passed such a law).  At the time a person acquired the gun, it was completely legal to possess it.  To then make it unlawful to not turn in your guns – or to do as Connecticut did and say you have to register all your existing guns or it’s a felony – makes unlawful something which was lawful when you did it.  So mea culpa, Folks!  And never shrink from saying you were wrong when you were wrong.

Posted January 19, 2013; revised Jan 21, 2013; Jan. 17, 2014; May 22, 2016

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January 19, 2013 Posted by | 2nd Amendment, Bills of attainder, Bureau of Alcohol Firearms and Tobacco (ATF), Dick Act of 1903, ex post facto laws, gun control, Militia, Rulemaking by Executive Agencies | , , , , , , , | 58 Comments

   

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