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Setting Necessary Boundaries on Trump’s Misconduct

"The president does not get to declare an emergency as a substitute for a bill the legislature refused to pass. This is a blatant overthrow of the constitutional framework distributing power across three branches of government."

A billboard in Times Square, funded by philanthropist Tom Steyer, calls for the impeachment of President Donald Trump on November 20, 2017 in New York City.  (Photo: Spencer Platt/Getty Images)

Yesterday, in anticipation of Trump’s false declaration of a national emergency, Nancy Pelosi warned that such behavior set a bad precedent and invoked the possibility that, once a Democratic president is elected, he or she could declare a national emergency over gun violence. This was not the proper response.

The proper response is to declare that the House of Representatives will immediately move to impeach the president for violating his oath of office and subverting the three-branch constitutional framework, among his other high crimes and misdemeanors, and that the GOP members of the Senate are going to be held publicly accountable for their support of Trump if they fail to convict him for this absolutely intolerable overreach of presidential power.

Importantly, the public must be clear that its representatives are empowered to remove the president at their own judgment. That is, impeachment is a political judgement, not one applying criminal law burdens of proof. In an impeachment proceeding, a defendant president is not so easily protected by claiming there is no proof of a criminal intent as he would be in a court of law. Nor can the defendant president argue that conviction is not appropriate because the facts are such that it is plausible one might conclude there is a real emergency. The Senate does not have to overcome reasonable, or plausible, doubt before convicting.

The Senate need only find in its own judgment that the claimed emergency does not actually exist and that Trump’s fake emergency declaration was made in bad faith.

With these findings, Trump's action may be conclusively deemed an attempt to subvert the legislative process in violation of the Constitution, which certain amounts to a High Crime.

The president does not get to declare an emergency as a substitute for a bill the legislature refused to pass. This is a blatant overthrow of the constitutional framework distributing power across three branches of government. Our founding leaders created this constitutional framework explicitly to prevent an individual who gains access to power in our democracy from becoming a tyrant who might overthrow the system from within.

In the history of our nation, there are few, if any, moments in which a sitting President has threatened to defy this constitutional framework at such an elementary level. This moment is more important than the issue of the Wall, the money used to build it, the problems it creates, and the falsely represented problems it does not solve. This moment is about the three-branch system of government that protects our democracy from tyranny and oligarchy.

The case for finding that there is no crisis is easy. We have a whole host of real crises, which have not met the standard for declaring a national emergency as yet: gun violence, climate change, millions without access to health care, the poisoned water in Flint, Michigan, and so on. Compare the scope and impact of these crises with the actual numbers and impact of illegal border crossings, which are decreasing, and it is obvious there is no real emergency involving illegal border crossings.

Then, add to this, the easily demonstrable fact that the proposed wall, which is the goal of the fake emergency declaration, would not effectively address this emergency if the emergency actually existed. We know that the way most people come to reside in our country illegally is by overstaying their visas. We also know that the proposed Wall does nothing to secure our ports, our airports, our coasts, or our northern border. We also know that Trump has offered no due diligence analysis to the legislature addressing these criticisms, which would be appropriate before a sitting president should take the extraordinary step of declaring a national emergency.

Finally, we know that the President is a compulsive liar who promised during his campaign that Mexico would pay for his proposed wall and whose ego and political capital are highly invested in getting that wall built. Based on these findings, the majority of Americans are quite clear that there is no real emergency and that Trump’s declaration is in bad faith and is thus a deliberate attempt to overthrow the constitutional framework of our government. The elected representatives of the American people have no excuse for reaching any different conclusion.

Certainly, the court process should go forward simultaneous with an impeachment process in the legislature. But we should not count on the Supreme Court standing up for democracy. We already experienced in our recent history the far-reaching abomination of Bush v. Gore, and since then, the justices appointed by Republican presidents have only become more brazen in ruling against the interests of an egalitarian, democratic society. This is another reason to impeach Trump. When the people and the people’s elected representatives demonstrate that they have strong “accountability muscles” that they are already exercising against the president, the Supreme Court will be far less likely to risk being next in line in the impeachment cue for also playing a role in subverting the Constitution.

This is how the people take back their government. It’s not by a sarcastic handclap in the State of the Union or by a threat to use Trump’s same tactic of subverting the Constitution when it’s your turn. The leadership we need has the moral compass to set a swift and clean boundary, to impose a consequence that sets the right precedent, a precedent that affirms our constitutional framework through exercise of procedures set forth in that framework specifically for the purpose of preventing tyrants and oligarchies from taking over from within.

Democrats and everyone who stands against Trump's administration need to do two things right now. First, we need to do everything we can to ensure the House immediately impeaches Trump for violating his oath of office and acting to overthrow the constitutional framework. Second, once impeachment proceedings are begun, we all, voters and elected officials alike, need to make a full court press against the Senate Republicans to convict or face losing their seats in the next election.

Make no mistake, our nation has been held hostage to the insanity and megalomania of Donald Trump way past the time when the president should have been impeached and convicted. The reason we have been held hostage as long as we have, while the damage to our nation goes from severe to worse and worse and worse, is that the Republican Party office holders vote always in support of Trump and the Democratic Party leadership has lacked the moral compass and leadership to make a full court press for impeachment. That is, the oligarchy has both our political parties disabling our government while a madman runs amok.

Now is the time for the people to demand clarity and swift action from the Democratic Party. We must hold them accountable if they fail to do so. And if they act appropriately, then we must persuade the Senate Republicans that we will hold them accountable also if they fail to convict. As we do this, we will be sending a powerful message to the Supreme Court that we are ready to hold them accountable too if forced to do so. And finally, we will really begin the process of holding Donald Trump accountable too.

Our democracy is sick, people. We, the people, are the cure. Let’s go protect our constitution. To do that, there must be a consequence for the assault on our democracy that has just occurred. This is a necessary boundary we must set to protect and preserve government of the people, by the people, for the people. We are past the time where Trump can walk back his conduct. We are past the time where the two political parties or the Supreme Court can be tolerated to abet his remaining in power. This is how we regain our sanity and start dealing with our real emergencies.

This is the world we live in. This is the world we cover.

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Hank Edson

Hank Edson is an author, activist and attorney based in San Francisco. He is the author of The Declaration of the Democratic Worldview (Democracy Press, 2008).

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