THE MUELLER MESS: Have The American People Lost Another Key Sovereign Power?

Robert Mueller Getty Images/Alex Wong

Alan Keyes Former Assistant Secretary of State
Font Size:

In an article published last week, I recalled prophetic thinking from America’s Founding generation. It leads one to ponder the ominous significance of the controversy that has the Democrat and GOP wings of the elitist faction duking it out over foreign interference in our government and politics. People on both sides of that brawl are claiming that the activities of the other side are “political.” After blocking its release because of national security concerns, President Donald Trump use that word to describe the Schiff memo. Meanwhile, the Democrats say the same of his decision to stifle the Schiff memo, particularly after he released the Nunes memo, reportedly overriding those very concerns.

In the present context, the word “political” is meant to imply actions taken with a view to their effect on the outcome of the next elections. Its use reminds me of the extent to which America’s leadership in this generation falls short of the reasoned common sense of the prevalent Founders of the United States. For example, Madison writes in Federalist 10 that different interests

…grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal tasks of modern legislation and involves the spirit of party and faction in the necessary and ordinary operations of government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, nut so many judicial determinations…And what are the different classes of legislators but advocates and parties to the causes they determine. (Federalist #10)

Put simply, when the people as a whole, by periodic elections, are the decisive arbiter of governmental decisions, those decisions must always be, tinged with respect for politics — which is to say the process in and through which the sovereign will of the people as a whole is constitutionally expressed.

When our politicians deride the political motivations of their adversaries, it seems fair to ask what sense it makes to assume that those motives could simply be banished from governmental decision-making under a democratic republican constitution. If our leaders, on all sides, now speak as if they would prefer to do so, isn’t that fact a sure sign that they tacitly agree in pursuing (or is it consolidating?) a regime change that effectively removes all but the façade of sovereign decision-making from the people’s hands?

When a putative sovereign really functions as such, don’t all the ministers of government naturally address the sovereign as they think through and set forth proposals for laws and actions? Since, in a democratic constitutional republic, the tenure of the key legislators and ministers of government is supposed to depend on the will of the sovereign citizen body (the body politic) it makes perfect sense for politics to be an ever-present concern of those who serve in government. The contrary fiction is actually a symptom of regime change, albeit not yet openly acknowledged.

In this respect, analysis tends to focus on elections. But, as America’s Founders knew, the true ensign of the people’s sovereign role is not just the power to elect fit characters to govern them. It is the power to accuse, try and remove characters who prove unfit, up to and including the one vested with the enforcement and military powers often associated with a hereditary monarch. In Great Britain, the king could not be removed but by rebellion, war and revolution. Whatever wrong the monarch might do, no charge could be laid against him, and no accountability be imposed, but under the shadow of such dire prospects.

The fact that all the high officials of the U.S. government may be removed by the direct or indirect action of the people is, when it functions properly, a good sign that, among us, the sovereignty of the people lives on. What are we to make, then, of the fact that this function of our national body politic has no permanently visible organ dedicated to making sure it is carried out with integrity? Instead, a makeshift ad hoc office, appointed by the chief executive, has been devised as a substitute. But the Constitution assigns the impeachment and removal function to the Congress. Why is it reasonable to allow the chief executive to determine the fate of his own case?

The irrationality of this arrangement becomes most glaringly obvious when it comes to the impeachment (accusatory) function the Constitution assigns exclusively to the House of Representatives. The Special Counsel charged with developing information about the conduct of the president is appointed and may be removed by the occupant of the Oval Office. If the president disapproves of the conduct of the investigation, any decisive expression of that disapproval may be cited as evidence that he has something to fear from it.

But if this induces the president to acquiesce, what authority exists to hold the investigator accountable? In a Congress organized along factional or party lines, any Congressional attempt to do so will be derided in some quarters (as we are seeing) as politically motivated. Moreover, as we are also seeing, the confusion of responsibility allows the U.S. Senate to usurp the initiative of the House of Representatives. But if the U.S. Senate acts in respect of the investigation, doesn’t this taint its ability to function with integrity as the jury at trial, the role the Constitution assigns it?

Given that any charge of impeachable offenses is supposed to originate in the House, shouldn’t the whole investigative/prosecutorial function and discretion reside where the Constitution places the responsibility for the outcome? Where the president is concerned, the fact that the chief justice will preside at trial suggests that — on questions of law and due process — that office ought to be consulted as well. But the present jerry-rigged mess allows the Congress to function without due accountability to the voters, even as it puts the chief executive in the impossible position of having formal authority to end a process in which he should, as its subject, never be allowed to interfere.

Any friend of the people’s constitutional sovereignty should be demanding to know why the Constitution is not being respected in the implementation of a function known to be an essential feature of that sovereignty. Why are our elected officials proceeding in a fashion that effectively renders the impeachment/removal process questionable in every respect? Are they intentionally sabotaging this vital aspect of the people’s sovereign role under our Constitution? Will this vital ensign of our sovereignty join the power to declare war, in the recycle bin of our governmental process — as so much discarded rubbish, not yet cast away? How long will we remain blind to the likelihood that this means our liberty is likewise standing in the airlock, waiting to be blown into the vacuum of historical oblivion?

Alan Keyes is a political activist, a prolific writer and a former diplomat.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.