Category Archives: The Constitution

Impeachment: High Crimes and Misdemeanors (Part One)

Okay, buckle up folks. This one is going to be a little boring. I originally thought this would be one essay, but as I got into it, I realized the topic is too complex. I decided to break it into pieces. And there is the operative word” “complex”.  Contrary to the nonsense being bandied about today in the media and all over the Internet, impeachment is a very complex process. Because it is so serious, it is important that people understand not only how the process works, but what are the actual grounds to impeach an elected official, in this particular case, the President.

inpeachment 01

“Impeachment is the process by which a legislative body formally levels charges against a high official of government. Impeachment does not necessarily mean removal from office; it is only a formal statement of charges, akin to an indictment in criminal law, and is thus only the first step towards removal. Once an individual is impeached, he or she must then face the possibility of conviction via legislative vote, which then entails the removal of the individual from office.” (1)

Impeachment is a serious matter. Even more serious when concerning a President of the United States.  Impeachment has been used by the U.S. government nineteen times, but only twice for a President (Andrew Johnson, 1868, Bill Clinton 1998).  One US Senator was impeached (William Blount 1797). The remaining sixteen impeachments were of judges or cabinet officials.

The Constitution

So, what exactly is the authority for impeaching a President? It’s found in the Constitution, Article 2, Section 4, and reads like this:

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.

This very small passage gives rise to great discussion which we will attempt to cover, point by point.

First of all, what are “high crimes and misdemeanors”?  The Constitution names two of the “high crimes”; they are treason and bribery.

The Constitution is very specific about the definition of treason (Article 3, Section 3, Clause 1): “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

The Constitution does not define bribery.  It is generally accepted as an official taking money or gifts that influence the official’s behaviors.

The “Misdemeanors” part gets a little trickier. Originally the framers chose the word “corruption”, followed by “maladministration”. Ultimately they settled on “misdemeanors”, a term used in British law that could run the gamut from misappropiating funds, appointing unfit subordinates, not spending allocated money, or even threatening a grand jury. In other words, the very vagueness of the term allowed it to be used by prosecutors to charge almost anything they deemed as an abuse of power as a “misdemeanor”.

Of the nineteen actual impeachment processes since 1797, (mostly judges), the misdemeanors that have been charged included being habitually drunk, showing favoritism on the bench, submitting false expense accounts, making false statements under oath, and other similar charges. Of the eighteen impeachments, only nine resulted in removal of the official. In the remaining cases, the official either resigned or was acquitted.

Presidential Impeachments
Andrew Johnson

andrew johnson

Andrew Johnson was Abraham Lincoln’s Vice President, and assumed the Presidency when Lincoln was assassinated in 1865. Johnson, a Democrat, had immediate problems with the Republican-dominated Congress during reconstruction. Congress passed the Tenure of Office Act, which required Johnson to receive Congressional approval to fire any  member of the executive branch who had been approved by Congress. Johnson believed the Act was unconstitutional, and responded by firing the Secretary of War, a Republican. Congress responded by passing eleven articles of impeachment, including sending orders through improper channels and conspiring against Congress. In the Senate, only three charges were brought, and he was not convicted.

The case against Andrew Johnson seems clearly a partisan political attack, with little substance, giving some insight into just how nonsensical articles of impeachment can be.

Bill Clinton


Bill Clinton’s problems began when a special counsel was appointed to investigate Whitewater, an Arkansas land deal that Clinton had participated in twenty years earlier. In a good example of the “reach” of an appointed special counsel, the investigation expanded to include the firing of White House travel office staff, the misuse of FBI funds,  and Clinton’s affair with Monica LewInsky.  The House Judiciary Committee  presented eleven impeachable items, all related to the LewInsky affair. The Committee voted four articles of impeachment, including perjury before a grand jury, obstruction of justice, and misusing and abusing his office. Clinton was impeached, but not convicted by the Senate.

Some people believe that Richard Nixon was impeached. He was not, and avoided impreachment by resigning from office.

The Process of Impeachment

Impeachment proceedings begin in the House Judiciary Committee. Any bills of impreachment are referred to this committee. As part of the Judiciary Committee inquiry, the Committee may collect evidence, hold hearings and hear testimony of relevent witnesses. Typically the committee has both a majoriy and minority counsel, one for each party.  If grounds for impreachment are found, the Committee formulates the Articles of Impeachment. The committee then votes on the articles, and if passed, they are referred to the entire House of Representatives, which then debates the issues.

If Articles of Impeachment are approved, the House appoints managers, who act as procescutors for each article. A hearing on the matter is held in the Senate, with the Chief Justice of the Supreme Court as the presiding official. The hearings are conducted as a trial, with witnesses and testimony. The defendant is entitled to legal counsel, and may cross-examine witnesses. At the conclusion of the hearing, the Senate debates the issues in private. A two-thirds majority is needed for a conviction and removal from office.

The entire process can be quite lengthy. What follows is the timeline of the Clinton impeachment:

January – August 1994: Attorney General Janet Reno appoints Robert Fiske Jr. as special prosecutor in the Whitewater Investigation. He is replaced by Kenneth Starr in August.

January 1998: Starr receives permission to expand his probe to include the Clinton/Lewinsky relationship.

September 1998: House of Representatives receives report from Ken Starr (3183 pages of testimony and evidence).

October 5, 1998: the House Judiciary Committee recommends a full impeachment inquiry.

November 19, 1998: Starr presents his case to House Judiciary Committee

December 11, 1998: House Judiciary Committee approves three articles of impeachment.

December 19, 1998: House of Representatives approve two articles on impeachment.

January 14, 1999: Trial begins in Senate

February 9, 1999: Senate begins closed-door deliberations.

February 12, 1999: Clinton acquitted.

So this is the basic process. In future articles, we will discuss  more current issues, especially how they may relate to President Trump. Inasmuch as the media seems to have caught impeachment fever these days, it is likely there will be much to discuss.


(1) Impeachment — Wikipedia

(2) Gerald Ford — Wikiquote

(3) Presidential Impeachment Legal Standards

(4) Alan Dershowitz Unitary Theorty of the Executive

(5) Unitary Executive Theory

Constitutional Rights Foundation High Crimes and Misdemeanors

The Constitution (a layman’s point of view) The Second Amendment

Continuing our series on the Constitution, we come to the Second Amendment, perhaps one of the most controversial today.

The Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

These Amendments of the Bill of Rights are remarkably short. This one is only twenty-seven words. It does seem odd that such a short statement (a single sentence) could be so controversial, but it is.

The debate is, obviously, guns. Who can have them, who cannot, who says who can have what, etc.

Full disclosure, I am a gun owner. I used to hunt from time to time, but have not done so in many years.  I consider my guns as home protection. I am not in love with guns, nor do I fear them. They are tools for a purpose. I do not believe guns are inherently dangerous if used properly. A person who does not know how to use a power saw can cut their hand off. A person who does not know how to use a gun can harm themself or others.  Left alone, the power saw will sit on a bench for all time and harm nothing. A gun will do the same. They are inanimate objects, incapable of causing harm without human intervention. So let’s first dispense with the silly notion that guns kill. People kill. Guns and power saws do nothing on their own.

When I was growing up, people didn’t seem to think much about guns. Lots of people had them; many of the men in my neighborhood were hunters. I fired my first gun when I was twelve at Boy Scout summer camp. They taught us how to safely shoot .22 caliber rifles on a rifle range. It was fun.


A little later, an uncle gave me a .22 to use. The scouts had a target range at a farm nearby, and we use to walk there, carrying our rifles and ammunition. No one ever saw that as strange. My first rifle looked something like this one:

Keep in mind, if you will, I wan’t living in rural Kansas. This was suburban New Jersey, a dozen miles from Philadelphia.

My reason for this rather long background is to point out that as recently as forty years ago, guns were no big deal. No license required to purchase. You simply went into a gun store and bought any gun you wanted. The only license required was for hunting. You could own one gun or a hundred. Nobody cared. Today a person walking anywhere with a gun will bring out the SWAT team.

Looking back to the 1960’s is to make this point: lots of people owned guns, just as in 1775, when those folks living in Lexington and Concord Massachusetts became the first militia. These were essentially farmers and other residents who organized against the British. Since there was no “official” American goverment, there was no “official” militia. The first battle of the Revolutionary war was between British troops and average citizens.

So are these the “well regulated militia” referred to in the Constitution?It’s not absolutely clear. They were not sanctioned by the state, they were not created by the “official” government, the British. They were citizens who took up arms against the government.  I believe this is what the founders meant. Citizens taking up arms to protect themselves from the government, not the other way around.

Today, those who suggest the militia referred to in the Constitution is a state-organized unit, such as the National Guard have it exactly backward. The militia the founders meant was not of the government, but of the people!  State-sponsored military are not the same thing. I believe the founders knew that the only way to ensure lasting freedom was by the people themselves having equal power to the presiding government. No monarch, dictator, or facist ruler could take over the country as long as the citizens were armed.

There are those who say, well that was then, but this is now. The colonials were armed with only muskets. Today people have possession to “military-like” weapons. It begs the question to point out that the muskets back then were the same as those carried by the British Army. Under various laws since then, a citizen may not own a comparable weapon to the military.  Automatic weapons, for instance, may not be owned by civilians under current law. One other small thing that drives me insane: The media is constantly referring to guns as “semi-automatic”. This only means that one round is fired every time the trigger is squeezed. Every gun in civilian hands is semi-automatic. This is not a “special” type of gun, it is all guns that are not automatic. Those people make me nuts.

Technicalities aside, what are the real reasons that many want private gun ownership banned?

Crime: To be sure, there are more gun-related crimes in 2014 than there were in 1775, population growth notwithstanding. People  are murdered in this country every day with guns. Guns are used in robberies and all sorts of crimes. Criminals certainly have access to weapons. But because criminals use guns, is this a reason to deny the honest law abiding citizen the right to own a gun? Of course not.

According to the most recent numbers I could find from the Department of Justice, there were 414,562 guns “incidents” in 2011. This covers all incidents from accidental shootings, to crime with a gun, to murder. That same year, the population was about 310 million people. Doing some math, this indicates that the possibility of a citizen being involved in a gun “incident” that year was about .001 percent. Less than one tenth of one percent. So despite media claims of rampant crime, the United States is still pretty calm as far as gun-related crime goes.

To be sure, there are concentrations of crime, in cities, for example. There is also a high use of guns in certain types of crime, such as drug related crime. None of this, however, has a thing to do with regulating guns on average citizens. It is absolute nonsense to suggest that taking guns away from the public will reduce crime. It’s actually quite the opposite. Places with loose regulation regarding civilian gun ownership tend to have the lowest crime rates. Conversely places with the most onerous gun laws (Washington DC and Chicago for example), have the highest gun crime rates. Criminals can always get guns. Disarming honest citizens makes no sense whatsoever.

Goverment opression: I would argue there is a more serious reason that some want the public disarmed, much more serious than crime. And this goes all the way back to 1775, and those farmers standing in the field against the British troops. I believe the founders considered the possibility that the government could become repressive. After all, the reason for the revolution was to obtain freedom from the British who were opressing the American colonials.  Had Britain not behaved the way it did, it might be fair to say there would have been no revolution. I believe the founders wanted citizens to have the ability to rebel again if needed. They wanted the citizens to be armed to fight the government if it ever again became necessary.

Even as I write this, I am aware that discussing government opression in the United States sounds a little paranoid. Certainly in other places dictators rounded up guns to control the population, but this is America, nothing like that could ever happen here.

Really? Just a few short years ago I would have scoffed at such a notion. Today, I’m not so sure. We hear of the NSA spying on phone calls and electronic communication. More and more we see cameras mounted on street poles. There are drones. The notion of a “Big Brother” seems not so totally ridiculous any longer.

police camera

Government has grown exponentially in the last few decades, especially the Federal Government. Every agency, it seems, now excerts more and more control over the public. From the EPA and environmental regulations to the Department of Education dictating school lunches, government has become more intrusive into our lives. We seem to be living in a world where trust is diminishing rapidly. They don’t trust us, we don’t trust them.

Most recently, disturbances in Ferguson, Mo. bring us to this:

> on August 13, 2014 in Ferguson, Missouri.

Outrage In Missouri Town After Police Shooting Of 18-Yr-Old Man

The militarism of police across the country is disturbing. Police are not an occupying army, nor should they dress like one. Allowing local police forces to take on a military aura is not good. This is what we should see:


We are living in troubling times. Never in my life have I seen such uncertainty.

The Constitution: (A layman’s point of view) The First Amendment

When I was in high school, we briefly studied the Constitution in Civics class, and then promptly forgot all about it. I lived much of my life since then paying little attention to my “rights”. Nothing seemed to get in the way of me doing pretty much whatever I wanted, legally.

Today, however, things have changed. Every day it seems I hear some battle over the Constitution, especially the Bill of Rights. Infringement of our “Rights” seems to be around every corner. Many people seem to be afraid the government is on the verge of disolving the Constitution and turning us into a dictatorship of some sort. Whether of not that is true, and whether or not I agree is something for another post. In this post I’d simply like to look at these first ten amendments and discuss my understanding of them.

According to, the home site of James Madison, the author of the Bill of Rights,

“The ten amendments to the U.S. Constitution that we know as the Bill of Rights were not included in the original U.S. Constitution, but were passed by Congress and ratified by the states in 1791. Though once confident that the Constitution did not give the federal government any powers that could endanger individual rights (thus rendering a bill of rights unnecessary) and even worried that the listing of individual rights could be potentially dangerous to the people (if they were to be interpreted as the only rights of the people), James Madison eventually recognized that many people were unwilling to approve the Constitution unless such a bill of rights was added. Thanks to Madison’s influence, the U.S. Bill of Rights now affirms individual rights, including freedom of religion, freedom of the press, the right to bear arms, security against unreasonable search and seizure, and the right to trial by jury.”

So the Bill of Rights were essentially an afterthought, written only when it became clear that they were necessary for the public’s acceptance of the Constitution. Having just fought a revolution, those folks took their freedoms seriously.

The First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Pretty simple, right? Only forty-five words. But what does it say?

Let’s take the second part first – Freedom of Speech. My view is that it gives me the right to say pretty much anything, anywhere I want. If I want to say “Nixon is an asshole”, or “Harry Truman was a toad”, I can say that without any worry. Since both were public figures and both are dead, I also don’t have to worry about either one suing me for libel or slander (more on that later). I can stand in my front yard or on a public street and protest or complain about anything I like.  If I have a group of like-minded people, we can assemble peacefully on a street corner or in front of the White House and air our grievances, no matter what they are.  There is no such thing as a “free speech zone”, a concept that arose when people tried to corral protestors. I can say what I want, when I want, and where I want in public, with a few limitations:

I cannot, for instance, falsely yell “fire” in a movie theater, because it could cause a panic and endanger people. Notice I used the word falsely. Obviously if there were really a fire, it would be a good idea to call out. Other obvious actions, such as calling in a bomb threat, are not generally considered “free speech”. But again, that’s pretty obvious, and not largely questioned.  All in all, most everything in speech or writing is protected by this Amendment, including, sad to say, the right to burn the American Flag as a form of protest. As much as I dispise this, it gets dicey when we begin to parse what is free speech and what is not.

Hate Speech 

Which brings me to the next point, hate speech: We seem to be living in Brave New World these days when all kinds of derogatory speech can be considered “hate speech”. If I call someone a name that is offensive by race, sexual orientation, etc, I can be accused of hate speech. It may be crude, it may be offensive, it may be nasty. But is it protected under the Constitution?

So far, at least, the courts have generally ruled that “hate speech” in itself is not illegal. That doesn’t mean, however, if I call you a name, you can’t poke me in the nose. But it does mean I can legally say it. This is not a small distinction today. Many colleges, for example, have set up “speech codes” which confer punishment for speaking this way. A private college, of course, can do as it chooses within the confines of its property. A public college, not so much. Again, the courts have often ruled against such rules on public-owned campuses. And that is a good thing. It seems to me that many folks have gotten far too sensitive, and have come up with the notion they can create laws to control the behaviors of others. If you or I are hurt in some material way by speech or writing, we have civil recourse. We can sue for slander or libel if we prove we’ve been harmed by another’s speech. That’s plenty of protection.

Many countries around the world pose strict imposition on freedom of speech. We are the exception. When a nation can curtail the speech of its citizens, it can curtail other things as well. Our freedom of speech is not small change.


 Freedom of religion: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…

Wow, is this one misunderstood. In a nutshell, it means the government will mind its own business when it comes to religion. Many of the first settlers here came to escape some form of religious persecution. Clearly, this becomes a most important part of our laws.

Religion is protected in the United States. You can worship any way you choose without fear of the government. You can pick your church, or indeed start your own if you wish.  You can be as religious or non-religious as you choose: Freedom.

On the flip side, the government may not create a religion. Unlike other countries, there is no “official” or state-sponsored religion here, and thank God for that.

Separation of Church and State

Read the Amendment. Read it again. Notice there is nothing about said separation. It is not in the First Amendment nor anywhere else in the Constitution. It does not appear.

This notion, which far too many people believe is a law, came from a letter by Thomas Jefferson to the Danbury (CT) Baptist Association in 1802. Here’s what he said:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.

Jefferson was explaining to the Baptists that the First Amendment prevented the government from creating a religion, thus “building a wall of separation between Church and State”. He was not suggesting that religion had no place in government. Quite the contrary, religion permeated government at all levels from public prayer to national mottos (In God We Trust).

Today this “separation” nonsense gets bounced around like a ping pong ball. I call it nonsense because it amounts to some people getting “offended” by a prayer at a high school graduation, or the Ten Commandments posted at a city hall. Nonsense. Spineless government officials have backed away from challenges on this front for years now, allowing an erronious notion to become a “law” by default.

I’ve gotten more wordy that I planned. We need to understand our freedoms. We need to protect them. No one can ever be permitted to take them away from us, no matter what.