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Why not impeachment?

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Andrew McCarthy writes in National Review,

Since the newly revealed e-mails put the lie to Clinton’s always risible claim that these communications were unrelated to State Department business, they tend to be double-whammies. First, their substance is stunningly corrupt, often showing how she and her staff ran the State Department as an annex of the Clinton Foundation, the enterprise Bill and Hillary used to monetize political influence to the tune of hundreds of millions of dollars. Second, even the most innocuous of the e-mails that concern State Department business illustrate that Clinton brazenly lied to Congress and the public for over a year: maintaining that the destroyed e-mails involved yoga, Chelsea’s wedding, and other personal matters, not the operations of government.

Republicans keep telling us they are “constitutional conservatives.” Well, how about it? The remedy provided by the Framers to deal with corrupt executive-branch officials (including former officials who might seek to wield power again) is impeachment, not criminal prosecution. That is because, for the well-being of the nation, the critical thing is that power be stripped from those who abuse it, to prevent them from doing further damage. Whether, beyond that, they are prosecuted for any criminal offenses arising out of the wrongdoing is beside the point.

The Framers would have thought laughable the suggestion that corrupt members of the president’s cabinet — officials who had taken their corrupt actions with the president’s knowledge and support — would be prosecuted by the president’s own law-enforcement agents. Indeed, at the time the Constitution was adopted, there were no such agents. Law-enforcement was handled by the states, and the attorney general was basically the president’s lawyer. There was no Department of Justice until 1870, nor anything like the FBI until 1908. That did not stop the Framers from including impeachment in the Constitution, nor cause Madison any hesitation in regarding impeachment as Congress’s “indispensable” tool.

In impeachment, the official is held to a higher standard of conduct because public office is an extraordinary privilege, not a fundamental right. Public office is a trust with awesome attendant powers; a person may be manifestly unfit for it without having committed indictable crimes. Therefore, high crimes and misdemeanors — which, again, need not be indictable penal offenses — are easier to prove: Congress may fashion its own rules for the proceeding, there is no judicial oversight, and no requirement that all essential elements of criminal offenses be proved beyond a reasonable doubt under strict rules of evidence — Congress must merely determine that violations of the public trust have occurred and that they warrant removal of that trust. By contrast, because a criminal prosecution does involve the potential deprivation of fundamental rights, the standards of proof are more exacting and the protections of judicial due process are guaranteed.

…Again: The point is for Congress to strip the undeserving official of trust and power. Whether she also warrants criminal prosecution is separately determined by executive branch prosecutors.

Thus, impeachment is more analogous to a civil lawsuit than a criminal proceeding. A person can be prosecuted for a crime even after being civilly sued for the same misconduct. Like impeachment, the civil suit has a lower burden of proof and legal standards that are not as exacting because it is not the functional equivalent of a criminal case. Just as impeachment is only about removing a corrupt official’s power, the civil suit is merely about compensation for damages. Neither involves the potential loss of liberty that a criminal conviction does.

For once, I have some sympathy for Attorney General Loretta Lynch. Why should the Justice Department do for Congress what Congress is unwilling to do for itself? Congressional Republicans want Mrs. Clinton indicted in order to show that she is unfit for the presidency. But impeachment by the House would show the same thing, and the impeachment case is considerably stronger than the perjury case. Why should Lynch do the heavy political lifting? If Republicans think Mrs. Clinton is unfit, what’s stopping them from acting on their own, as the Constitution empowers them to do and as the Framers would have expected them to do?

Oh, one last thing. Let’s say the roles were reversed: The Democrats hold congressional majorities, and their presidential nominee is the dodgy real-estate mogul, while the Republicans are running a demonstrably corrupt former secretary of state. Would the Democrats have the slightest hesitation about impeaching the GOP candidate? I’m betting not only that the House would already have voted articles of impeachment; Senate Democrats would already have found the Republican votes they needed for conviction. Anyone doubt me on that?

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