OPINION: Impeachment Is The Exception, Not The Norm

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Elad Hakim Attorney
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Judge Kavanaugh has not been confirmed to the Supreme Court, yet some Democrats are already talking about a judicial impeachment should he take his place on the bench.

According to California Democratic Rep. Eric Swalwell:

“If the Republicans rush through a nominee where you have unanswered sexual assault allegations, I can promise you that Democratic senators will be interested in going and looking at those allegations, and if Judge Kavanaugh lied under oath, you could see a judicial impeachment, and that’s not good for anybody, so we should try and avoid that.”

Article 2, Section 4 of the Constitution states, “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 3 mentions good behavior of judges, without defining it. According to the Congress.org website, produced by CQ-Roll Call Group, this is taken to mean that the reasons for impeachment of a federal judge aren’t limited to criminal acts.

To impeach a Supreme Court Justice, a simple majority of the House must pass articles of impeachment. The process then moves to the Senate, where a trial is held. Finally, and crucially, it takes a two-thirds majority vote by the Senate to actually convict a Supreme Court Justice on any count. Conviction on any count would then remove the Supreme Court Justice from his/her position.

Impeachment is an exception, not the norm. Notwithstanding, some Democrats have used this term very loosely, first with regard to President Trump and now with Judge Kavanaugh. Remember when Maxine Waters stated, “Seventy percent of Democrats who have been polled say that [Trump] should be impeached, I’m with the 70 percent”? The use of this term by some on the left has become part of their regular vernacular.

If Judge Kavanaugh or President Trump committed a crime, lied under oath, or committed an impeachable offense, then one or both should face the necessary consequences under the law. Notice the use of the word, “if,” which implies that proof is required, and that guilt is not pre-supposed or assumed.

In Federalist #65, Alexander Hamilton made the following comments regarding impeachment:

The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

While some modern-day Democrats appear to use the term impeachment quite freely, they would be well-served to consider the words of some of their predecessors. During the impeachment process involving former President Clinton, some prominent Democrats warned against impeachment. As stated in the Washington Post:

“Wilentz, along with a group of other prominent Democrats – Samuel Beer, a retired Harvard government professor, Bruce Ackerman of the Yale Law School and former attorney general Nicholas deB. Katzenbach – argued that even if Clinton did commit perjury as the Republicans charge, he should not be impeached, because impeaching a president is such a grave and momentous decision that it must be reserved for extreme cases of “political crimes against the state,” as Katzenbach put it.”

Essentially, they were putting the committee on notice: Use the impeachment process to score a political point at your peril – future generations will not forgive you.

“Nothing could be more improper than to use the impeachment process as a punishment,” Katzenbach said.

The final two points are especially important and instructive regardless of whether the person facing possible impeachment is the president or a judge. The impeachment process should not be used to score political points and should not be used as a punishment.

To date, there has been no proof/evidence of an impeachable (or any) offense/crime against President Trump. With regard to Judge Kavanaugh and the alleged incident involving Dr. Ford, there is only an allegation without any apparent corroboration.

In the United States, this does not defeat the presumption of innocence. Therefore, people need to promptly hear from the accuser (Dr. Ford) and the accused (Judge Kavanaugh), under oath. They deserve to be heard. This will also allow those on the Committee to independently assess the credibility of the accuser and the accused.

To threaten Judge Kavanaugh with possible impeachment before he has even testified, however, is inappropriate and nonsensical and appears to presume his guilt rather than his innocence. As Fox News reports, Hawaii Democratic Sen. Mazie Hirono “called for an independent FBI investigation of Ford’s claims, before explaining why the presumption of innocence and due process should not apply to Kavanaugh’s case.”

To impeach a Supreme Court Justice or a president, there must be an impeachable offense. Currently, there is no proof that President Trump or Judge Kavanaugh committed any offense/crime.

To Hirono’s point, Judge Kavanaugh has undergone multiple background checks (including an FBI background check that is conducted for all presidential nominees for the Supreme Court). According to Greg T. Rinckey, a lawyer who specializes in federal employment issues, “the FBI generally looks into criminal or national security issues when conducting background checks.” “Of course, if something like this comes up in a background check, they’d report it.”

Dr. Ford and Judge Kavanaugh should promptly testify, under oath, and without further delay. Nobody knows the facts of what allegedly happened/transpired better than they do. Until such time as they testify (or the local authorities in Maryland discover evidence supporting her allegation after (and if) she files a criminal complaint in Maryland), the continued calls for impeachment appear to be premature, irresponsible and politically motivated.

Elad Hakim is a writer and a practicing attorney.

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