James M. Redwine

Donald Trump

A Delicate Balance

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Five-foot, four inch tall “Little Jimmy”, James Madison, Jr. (1751-1836), applied his gigantic intellect to melding the Natural Law theory of John Locke (1632-1704) and the Separation of Powers theory of Charles Montesquieu (1689-1755) into the Constitution of the United States. Locke and Montesquieu postulated that all things being equal no person should harm another in his/her life, liberty, health or possessions. They, along with Madison, also believed that every person who has power is apt to abuse it. Therefore, governments are necessary to keep individual power in check but the power of government must also be kept in check.

According to Edgar Bodenheimer (1908-1991) in his treatise on jurisprudence:

“The basic idea of the American Declaration of Independence as well as the Bill of Rights is the recognition of the natural and inalienable rights of life, liberty, and property, as conceived by Locke, while the main body of the United States Constitution is a practical application of Montesquieu’s doctrine of separation of powers. The connection between these two doctrines in the American government is made by the theory of judicial review. The United States Supreme Court has held that, in order to guarantee the enforcement of natural rights, the power to make laws must be separated not only from the power to execute laws, but also from the power to review laws with their regard to their conformity with higher principles, as recognized by the United States Constitution. Thus, in the United States the courts, and especially the United States Supreme Court, have assumed guardianship over natural law.”

See Bodenheimer, Jurisprudence at p. 146

This separation of powers has served America well since 1789. As is to be expected in matters as complex as government and politics the powers of the three branches have each waxed and waned from time to time. However, we have always managed to keep our democracy by remaining moored to the rock upon which it was founded. Just as our founders recognized that individuals and governments will abuse power unless checked, they also recognized the danger and guarded against any of the three branches having unfettered power. The wisdom of Madison, et. al., is once again being tested. Has the Executive Branch gone outside its traces and incited violence against the Legislative Branch? Has the Legislative Branch blurred the boundaries that should keep all three branches separate by both charging an impeachment and then filling the role of the Judicial Branch by having one of its own members serve as the presiding officer at the trial? And, has the Judicial Branch been marginalized because the Chief Justice of the Supreme Court will not be serving as the neutral and detached trial judge as designed by our Founders.

For as Bodenheimer points out, “Any abuse of its power by the legislature should be curbed by the Judiciary Branch of the government, to which falls the duty of declaring void all statutes which are repugnant to the Constitution.” See Bodenheimer, Jurisprudence, at page 148. Perhaps Chief Justice John Roberts and the rest of the Supreme Court are anticipating being confronted with such an issue later.

The crimes that were committed on January 06, 2021 are being investigated and several alleged perpetrators have already been identified and charged. Numerous others will and should be. America’s normal criminal justice system can fairly and efficiently provide due process to those involved. If Donald Trump committed any state or federal crimes either on or before January 06, 2021 he can be prosecuted separately from the impeachment. And if a pardon is considered it would cover only federal offenses.

In our current test of our charter’s application, the Legislative Branch has filed an article impeaching the head of the Executive Branch, former President Donald Trump. It is alleged he engaged in:

“[H]igh crimes and Misdemeanors by inciting violence against the Government of the United States” on January 06, 2021 and for in the months preceding January 06, 2021 repeatedly issuing false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the America people or certified by State or Federal officials.

The Article of Impeachment was returned against President Donald Trump on January 13, 2021 while he was still the acting President. On January 25, 2021 after Donald Trump’s term had ended, the Article of Impeachment was sent to the Senate for trial. The Senate has set the trial to begin February 09, 2021 with Senator Patrick Leahy, Democrat from Vermont, to preside and the senators to serve as jurors.

Article I, Section Three, of the U.S. Constitution provides that in the trial of the President of the United States the Chief Justice of the Supreme Court shall preside. For reasons not yet fully explained, Chief Justice John Roberts will not be involved, so only two of our three equal branches of government will be embroiled in this matter of grave national concern. It is suggested that this is because Donald Trump is no longer President. However, that does not take into consideration the bed rock reason why the Founders made it mandatory for the Judicial Branch to be involved.

The impact of this omission upon public confidence in the fairness of the process is worthy of consideration. After all, it is not Donald Trump’s fate that is most important, but the country’s faith in the process that determines that fate. However, this faith might be shaken by a trial where the role of a “neutral and detached magistrate” is filled by a member of the body that both files and prosecutes the charge. Symbolism is important and a level scales of justice is one of our nation’s most potent and delicately balanced symbols.

Briefly Speaking

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I.

The Salient Issue 

One method of grappling with what are the most vital issues America must resolve is to first eliminate those issues that blur our thought process. Five years of partisan ill will have sapped our nation’s psyche. Our health and our economy have suffered as we have found it more entertaining to castigate those who disagree with our political views than to make the hard choices required to battle COVID-19 and its devastation of our society. The events of January 06, 2021 and our reactions to them will either continue us on our downward spiral, or perhaps, America can remember and apply the healing lessons from our history.

Immanuel Kant (1724-1804) and Gerald Ford (1918-2006) would address the January 06, 2021 attack on our Capitol Building differently. Kant, the great German legal philosopher, would hold it immoral to not require retribution against President Trump for the death and destruction that occurred after Trump’s call for a march on Congress even though President Trump had only fourteen days left to serve when the riot took place. Kant’s position on the legal duty to punish is set forth in the following example. If we envision an island society that decided to dissolve itself completely and leave the island at a time prisoners sentenced to be executed were awaiting their fate, it would be immoral to leave the island without first carrying out the executions. Kant’s rationale for this seemingly needless act was that the blood guilt of the prisoners would attach to the general society if justice was not administered. An eye for an eye would be called for according to Kant.

In contrast, President Ford invoked the wisdom and healing of Jesus when Ford issued a pardon to disgraced ex-President Richard Nixon (1913-1994) for Nixon’s role in covering up the burglary of Democratic National Committee Headquarters. Ford issued the pardon in September only one month after Nixon resigned in August 1974 to avoid impeachment. Instead of retribution, Ford chose mercy, but not just for Nixon; America needed relief too.

Of course, neither revenge nor mercy can, by definition, be perfect justice. However, when it comes to crimes against the State there are larger issues than justice for individuals. The greater good may require a more involved response. Fortunately, we have the wisdom of our Founders and the courage of such leaders as President Ford to aid us in our decision-making process. 

II.

Separation of Powers

Our Founders built our Constitution on the general theory of three equal branches of government. The events since the election on November 03, 2020 give evidence of the abiding legacy left for us in 1789. After the election the Judicial Branch rendered numerous decisions that upheld the Rule of Law. Vice President Pence in the Executive Branch has refused to use the 25th Amendment for political purposes, and the Legislative Branch has resisted attempts to usurp the will of the electorate to de-certify the Electoral College results. Our governmental framework has been stretched but has accommodated pressures from many angles.

All three branches are working together to identify and prosecute those individuals who violated our seat of government with physical destruction and death. With the cooperation of numerous law enforcement agencies and the courts, along with the laws previously enacted by our federal and state legislatures, those who brought nooses, pipe bombs and twist-ties to their pre-meditated crimes are being identified; and if probable cause to commit crimes is shown, and guilt beyond a reasonable doubt is proven using due process of law, just punishment should result. Gentle Reader, next week, if you are available, we can consider the differing treatments of individuals and the issue surrounding the legal concepts of attenuation of culpability. As to President or ex-President Trump, I respectfully submit that continuing to have our country divided about half and half concerning Donald Trump is akin to President Lincoln’s prescient declaration that a house divided against itself will not stand.

With that in mind I submit for your consideration a Gavel Gamut article I wrote right after President Ford died in which it was suggested Ford sacrificed his political career for his country in 1974. I have slightly modified the original article:

III.

Pardon Me, President Ford

(First published 08 January 2007)

President Gerald Ford died December 26, 2006. In a life filled with public service, he will always be best known for his pardon of President Nixon in 1974. President Nixon had personally chosen Gerald Ford to replace the disgraced Vice President Spiro Agnew who resigned in 1973 amid disclosures of bribery while Agnew was Governor of Maryland. Vice President Ford served under President Nixon until Nixon resigned in August of 1974. One month after Nixon resigned, President Ford issued him a full pardon for any crimes Nixon may have committed while president.

At the time, many Americans, including me, were calling for a complete investigation of the Watergate debacle and especially Nixon’s involvement in it. It was a time of a media feeding frenzy and blood in the water. President Ford took the unprecedented step of going personally before Congress and flatly stating that President Nixon and then Vice President Ford had no deal to pardon Nixon if Nixon would resign.

I recall how dubious I was when President Ford stated that he issued the pardon only to help our country to start healing from the loss of confidence caused by Watergate. Yet, after a few months I began to have second thoughts about my initial reaction to the pardon. I realized how much courage it took for President Ford to go straight into the anti-Nixon firestorm sweeping the United States. As a country, we were almost paralyzed by the partisan fighting at home and the War in Vietnam. [Insert 4 years of partisan bickering during the Trump presidency and include at least 1 year of COVID-19.] We needed a new direction and a renewed spirit in 1974 just as we do today. Surely President Ford with his twenty-two (22) years in Congress knew he was committing political suicide by not giving us our pound of flesh. Still, he put his country first. Of course, the country rewarded his sacrifice by booting him from office and electing President Jimmy Carter to replace him.

But during the campaign of 1976, when President Ford came to Evansville, Indiana on April the 23rd, I took our son, Jim, out of school and we went to the Downtown Walkway to see the man who put country above self. For while William Shakespeare almost always got his character analysis right, when it comes to President Ford, “The good he did lives after him.” Julius Caesar, Act III, sc. ii.

Even President Carter, one of America’s most courageous and best former presidents said of his erstwhile political opponent President Ford: “President Ford was one of the most admirable public servants I have ever known.” And when it came to the pardon of President Nixon, Senator Ted Kennedy, while admitting that he had severely criticized the pardon in 1974, said that he had later come to realize that:

“The pardon was an extraordinary act of courage that historians recognize was

truly in the national interest.”

The National Inquirers

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Investigative journalism that uncovers and publicizes official corruption has an American tradition going back to John Peter Zenger who was born in Germany in 1697 and died in New York in 1746. Zenger was a printer who wrote exposé articles about our English cousins’ ham-fisted governance of New York, especially by the Royal Governor William Cosby. Cosby took umbrage at these early efforts to inform Americans about government malfeasance. Cosby had Zenger charged with libel but in 1735 a jury refused to convict Zenger because the jury determined that what Zenger wrote about Cosby was the truth. What Zenger printed about Cosby related directly and only to Cosby’s actions as governor. Cosby’s personal life was not in issue. Such subjects as the state of his laundry or personal habits were not material to Cosby’s official actions. There was no “need to know” any salacious scatology.

The First Amendment is our best protection from bad government but it should not be cited in support of mere muckraking. Gossip is fun, if it is about others, but it is not germane to curing our body politic of corruption or bad decisions. And a bipartisan cooperation on matters of national importance would be most welcome. We have certainly been blessed many times before with such attitudes. For example, Republican President William Howard Taft appointed Republican Henry L. Stimson (1867-1950) as Secretary of war (now Secretary of Defense) in 1911-1913. Then later two Democratic presidents, Franklin D. Roosevelt and Harry Truman, appointed Stimson for the same position (1940-1945). Stimson had the experience and knowledge America needed. His political party affiliation was irrelevant to understanding and meeting the threats to our country from Japan and Germany.

But even though Stimson was not naïve about foreign designs on American assets he famously eschewed delving into personal matters. Stimson’s most famous quote relates to secret Japanese dispatches. Stimson explained trust cannot be established by distrust. He succinctly posited: “Gentlemen do not read one another’s mail.”

As story after story and book after book come out about Joe Biden and Kamala Harris and Donald Trump and Mike Pence the muckraking inundates the investigative journalism. We do need to know our politicians’ philosophies, positions and past performances. But such information is sometimes obfuscated by “revelations” about their personal lives and peccadilloes.

The Right To Matter

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From www.270towin.com

It was not the British Parliament’s tax on tea that caused the Boston Tea Party on December 16, 1773; it was the denial of the Colonists’ right to be represented in Parliament.

It is not the sexual part of unwanted sex that matters to the Me Too Movement, we Homo sapiens have spent the last 200 to 300 thousand years engaging in sex; it is the “unwanted” factor that is objectionable.

And when our Founders were barely able to cobble together our Republic it was not the fact that some of the Thirteen Colonies had much greater populations than others or much greater wealth than others that almost caused the United States to be simply thirteen entirely separate entities; it was the fear by both the more populous and less populous colonies that their voices would not sufficiently matter.

There were many reasons why and how our constitutional democracy survived colliding circumstances, desires and egos but two of the most significant compromises were the Proportional Representative construct and the Electoral College.

Large states accepted the compromise that in the Senate each state would have two and only two Senators because their proportional influence was recognized by having the number of Congressional Representatives determined by population. Smaller states accepted this arrangement in like manner because they would have an equal voice in at least one of the two Congressional bodies, the Senate, even though they would have fewer Congresspersons than larger states.

Then there is the imaginative system of the Electoral College. The Electoral College determines who will be the Executive Branch leaders, the President and Vice President, via a method similar to the proportional representative system. And because the President has the authority to nominate all federal judges, whoever has influence over the election of the President has an indirect voice in the makeup of the third branch of our federal government, the Judicial Branch. Therefore, the Electoral College, whose only job is to meet every four years and vote for the Chief Executive and the Vice President, has some influence over two of the three Branches of our government. Of course, the Executive Branch contains the armed forces, the F.B.I., the D.E.A., etc., etc., etc. And these countless agencies assert immense power over all of us. We certainly want our opinions to matter when it comes to all those aspects of our government.

The number of Electors of the Electoral College is determined by totaling the number of Congressional Representatives each state has and each state’s two senators. The number of Congressional Representatives is derived from each state’s population. So, very similar to the general system of representative/proportional government, where all states have two and only two senators but have differing numbers of Congresspersons based on population, the Electoral College is based on every state having some Electors but more populous states having more Electors than less populous states.

Currently there are 538 members of the Electoral College based on 100 Senators and 438 Congressional Representatives. For example, Indiana has 2 Senators and 9 Congresspersons for a total of 11 Electors and Oklahoma has 2 Senators and 5 Congresspersons for a total of 7 Electors. On the other hand, California has 2 Senators and 53 Congresspersons for a total of 55 Electors. Indiana’s sister state of Illinois has 20 Electors, almost twice as many as Indiana, and Oklahoma’s sister state of Texas has 38, over five times as many as Oklahoma. The District of Columbia has no Senators but does have 3 Electors based on the 23rd Amendment to the Constitution. Three is the least number of Electors of any state. The U.S. Territories do not receive any Electors.

Whichever candidate receives 270 Electoral votes, the current majority of Electors, is elected President. Sometimes the candidate who receives the most popular votes does not receive a majority of the Electoral votes. This always reignites a debate to eliminate the Electoral College and go to a pure one person/one vote system. Such was the case in 2016 when the Democrat nominee Hillary Clinton received 3,000,000 more popular votes than the Republican nominee Donald Trump, but Trump received 304 Electoral votes, which was 77 more than Clinton received. Had this outcome been inverted I suggest the pro/anti-Electoral College debate would have also been inverted.

There certainly are legitimate arguments for modifying or even eliminating the Electoral College system even though the College has helped to assuage the constant yin and yang of large states versus small ones. As for me, having spent most of my life, so far, in either Oklahoma or Indiana, I do not wish to rely upon the tender mercies of the few lumbering giant states with huge populations of voters that might deign to turn a deaf ear to my concerns and those of the other residents of the numerous less populous states.

High Crimes And Misdemeanors

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Old Cadet Chapel, West Point

If you visit our country’s most hallowed military institution at West Point you will find America’s most infamous traitor, Benedict Arnold, is as reviled today as he was in 1780. Arnold had been one of General George Washington’s closest colleagues and was in command of Fort West Point when he plotted with British Major John André to surrender West Point to the British.

André was caught and hanged but Arnold escaped to England where he joined the British Army as a general and then engaged in battles against America. Such treachery is not easily forgiven. When you enter the venerable old Cadet Chapel at West Point you will find there is no mention of Arnold; his name has been removed from where others are displayed with honor.

Interior of Old Cadel Chapel

If even now America has not forgotten what treason truly is you can imagine how the Framers of our Constitution felt when they wrote our Constitution only seven years after Arnold’s betrayal. When Article II, section 4 of the Constitution was drafted treason was the first reason given for impeachment:

“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.”

Article I, section 5 gives the House of Representatives the sole power of impeachment and Article I, section 3, subsection 6 gives the Senate the power to try the charge of impeachment with a conviction, and subsequent removal from office, requiring a two-thirds vote.

We have had forty-five Presidents of which three have been impeached: Andrew Johnson (1865-1869); Richard Nixon (1969-1974); William Clinton (1993-2001); and now perhaps, Donald Trump (2017-?). Andrew Johnson and William Clinton were not convicted. Richard Nixon resigned. And Donald Trump’s situation is yet to be determined.

I do not know the significance of why America went from George Washington (1789-1797) to 1973 with only one presidential impeachment then has had two, and perhaps three, since then. My speculation is the bar for impeachment has been lowered from the behavior of a Benedict Arnold to a standard based on personality. Have we transitioned from treason to Tricky Dicky, Slick Willy, and, perhaps, Dodgy Donnie? If so, the cautionary statements of then Representative Gerald Ford and the Founding Father and main architect of the Constitution James Madison may be worth considering. “An impeachable offense is whatever a majority of the Members of the House of Representatives says it is” (Ford); and we should be aware “Maladministration” [or its kin] is, “so vague a term [as] will be equivalent to a tenure during pleasure of the Senate.” (Madison).

A short-hand interpretation of these admonitions is that America should not allow itself to become a nation based on the fluctuating opinions of those in Congress but only upon a system of law as sought by those who crafted our Constitution.

 

Sticks And Stones

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Special Consul Robert Mueller testified before Congress on July 24, 2019. During his six hours of testimony before the House Judiciary Committee the major emphasis shifted from concerns about the outcome of the 2016 presidential election to attempts by foreign countries to influence all of our elections.

Mueller testified that for many years and right up to our next election cycle in 2020 several foreign entities were involving themselves in our democracy. And while Mueller specified only Russia for 2016 he made it clear that we should be aware of other actors. Iran, Israel and even our first cousins the British, among numerous others, have sought to inveigle themselves into our governmental decisions.

We have often been subtlety and sometimes not so subtlety nudged toward or away from war or toward or away from alliances with other countries. The favored techniques in days before the internet were the planting of fake newspaper stories or biased books and movies. Today spy dossiers or misleading memes and tweets over the internet are the preferred methods.

But if the aim of a foreign country is to defame or embarrass a politician it seems silly to dispense dirty secrets or even create false ones when such disclosures and prejudiced articles appear in the newspapers and on television every day. For example, if a country wanted to defame Donald Trump it should just encourage Americans to read The New York Times or watch CNN. And if a foreign entity wished to bring down Hillary Clinton it should republish stories from The National Enquirer or push FOX News. There is no need for foreign attempts to bring down a candidate for public office when we do such a thorough job of that ourselves.

What is even more perplexing is why any foreign country cares about our elections when we care so little about the outcomes ourselves. About 40% of eligible voters do not vote in presidential elections and only about 40% trouble themselves to vote in mid-term national elections. And when it comes to state, county and city elections most of the voters are those hoping to get jobs from the winners.

The bottom line may be that foreign entities are often more concerned with the outcomes of our elections than we are. Maybe we should learn from them.