Schwab: So long ‘original intent,’ ‘rule of law’ and Constitution

But as a lovely parting gift, please accept more executive privilege and presidential ambition.

By Sid Schwab / Herald columnist

I’m old enough to remember when Patrick Henry, during the Constitutional Convention, expressed concern about a too-powerful executive:

“If your American chief be a man of ambition… how easy is it for him to render himself absolute! … and, sir, will the American spirit solely relieve you when this happens?”

And I’ll never forget James Madison’s answer:

“There is one security in this case… if the President be connected, in any suspicious manner … the House of Representatives can impeach him; they can remove him if found guilty… . This is a great security.”

Or maybe I’m remembering a time when Americans considered those concepts to be of vital importance, and so did their proxies in Congress. The questions are at the heart of what became the United States: in what institutions should power reside, and in what proportions; in what way can that power be held in check; and, when necessary, how should its abuse be redressed?

What I definitely remember is that during the Clinton impeachment, Sens. Tom Daschle and Trent Lott, leaders of the Democrats and Republicans, respectively, negotiated rules for the trial that were approved by all 100 senators. The proceedings included witnesses and some 90,000 documents Clinton had delivered, as asked. Because of course it did.

Midnight-in-Moscow Mitch (YouTube: tinyurl.com/midnitemitch) involved no Democrats. Rather than honoring the trust our founders placed in Congress, Mitch’s oath-breaking trial, rigged to ensure exoneration, looks to be about renouncing that trust and ignoring the abuses that worried Mr. Henry, in the face of which, if they occurred, Mr. Madison assured the assembly that his remedy would preserve the Republic.

Barring an outbreak of integrity to which Republican Congress-people have so far shown remarkable immunity, the conclusion is foregone. Fittingly, Trump’s most Foxworthy lawyers joined Republicans who were involved last time around, manufacturing breathtaking reversals: back then, Ken Starr argued that obstruction of Congress in an impeachment inquiry was itself an impeachable act. The Alan Dershowitz of yore insisted that the committing of specific crimes was not required for impeachment. What happened? Trump. Like an oil spill, Trump happened.

On day one, Team Trump declared the Constitution unconstitutional. That’s what it means when impeachment is characterized as an attempt to undo an election, and, even more audaciously, to abolish our right to vote. Likewise, claiming it’s Democrats who rigged the process, and, as Trump has whined, that he wasn’t treated fairly in the House impeachment. Bullwash. Trump was offered all the time he wanted, and all the documents and witnesses he wished to produce. He stonehenged.

Aiming past the chamber and into the heads of the Foxified, Trump’s lawyers lied repeatedly; asserting Republicans were excluded from depositions; that Trump wasn’t invited to examine witnesses; and, invoking the orphan/chutzpah circularity, because Trump blocked witnesses and documents, demanding them now means Democrats have no case. Also: “Trump is a man of his word.”

Beyond declaring the Constitution null and void, all they had was to claim Trump did nothing wrong. Not arguing that he didn’t seek to extort Ukrainian President Zelensky for his own political purposes; he did. But it was perfectly fine, they said. He hates corruption, they said. While holding a “For Sale” sign picturing the Brooklyn Bridge.

Do Republicans prefer unlimited presidential power, or not? Do they believe Americans should hear all relevant evidence in something as momentous as impeachment, or not? No matter their answers, their current cover-up proves they know Trump is guilty and don’t care. Trump’s proves he knows, too. Not one Republican senator voted to allow important new evidence. None of Trump’s lawyers offered a compelling reason why. Their refusal proves their contempt for all Americans, including Trump’s supporters. Not to mention the Constitution.

Unconcerned, Trump’s lawyers defended executive privilege to justify refusing congressional subpoenas. There will always be disagreements about limits on such privilege. But to claim there are none, especially regarding impeachment, arguably the most consequential action Congress can undertake other than declaring war, is to remove all constraints on presidential power.

Given Republicans’ behavior to date, this is unsurprising; but it couldn’t be more at odds with their favorite shibboleths: “original intent” and “the rule of law.” Why are no true conservatives demanding that Republicans show spine? Because none remain. Didn’t they exist, once, or am I misremembering that, too?

Grave as it is, impeachment demands abandoning cynical arguments. If a “president” can block all evidence of malfeasance, “how easy is it for him to render himself absolute!”

Email Sid Schwab at columnsid@gmail.com.

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