Private persons can only offer advice and have no coercive power if their advice should not be accepted. And the law should have coercive power in order to induce others effectively to virtue, as the Philosopher says in the Ethics. But the people or a public personage has such coercive power and the right to inflict punishment. … And so, it belongs only to the people or a public personage to make law. Summa, ST I-II, Question 90, Article 3, Reply to Objection 2)
GOP Congressman Louie Gohmert is one of my favorite Representatives in Congress. A report I read recently with the headline, “Gohmert: Mueller ‘Hoping he will affect the election and screw over’ Trump,” confirmed my good opinion of him. In the course of describing Mueller’s efforts to position himself to have an electoral effect that damages President Trump’s ability to govern, he notes that “Mueller should be investigated, but instead he is the special counsel.”
As I read it, a rhetorical question immediately came to mind: “That may be right, but who was the Frankenstein responsible for creating this ungovernable monstrosity?” And the answer came just as readily: “The Congress, and in the first instance, the GOP leaders in the House of Representatives.” As a matter of Executive Administration, the president has the responsibility to hold all members of his executive body to account for their actions.
But when allegations are bruited about that imply charges of malfeasance against the president himself, what is to be done? If the president fires the person investigating the implied charges, his adversaries will certainly portray it as proof as an indication of guilt. If this probability leads the president to refrain from removing him, the investigator may pursue his bias, with no accountability.
President Trump’s situation illustrates the very good reason leading lights of the founding generation approved the Constitution provisional that made Congress responsible for dealing with allegations of malfeasance against the president of the United States. Only the House of Representatives has the Constitutional power to lay such charges against him. Therefore, only the House of Representative has responsibility for investigating them, from the moment they become a public concern. It is impertinent to pretend this responsibility should be avoided until some other government entity oversees the work of establishing the charges are credible. This work is vital to the decision to bring or refrain from bringing them forward in a bill of impeachment.
Since no other U.S. government entity can impeach, no other entity has the responsibility for assuring they have been properly investigated. To vote on an impeachment bill out of hand, without proper investigation, is a self-discredited farce. And, as we are witnessing every day, the pretense of leaving an investigation to the branch the president has the responsibility to oversee puts him in an impossible situation and has the potential to turn what should be an objective investigation into a biased witch-hunt. Such an inquisition gives the investigator an opportunity to balkanize the executive bureaucracy, crippling the presidency.
Many ascribe to Lincoln the wise saying that, absent effective enforcing power, law is just good advice. It seems to me that, if the ascription is correct, this is a fine example of Lincoln’s genius for expressing complex truths directly and simply. In the passage from his “Summa Theologica” quoted above, St. Thomas Aquinas expresses the same common sense more indirectly, so that some reasoning is required to notice his words are congruent with Lincoln’s thought. But he too points to the necessary relationship between the lawmaking function and the coercive power of punishment.
Once we understand this intrinsic relationship, we realize the “separation of powers” featured in the U.S. Constitution ought not to be taken for granted. The French philosopher Montesquieu, whom the leading lights of the Founding generation seriously consulted, observed that judicial power is an aspect of executive action (since every decision to act requires a judgment of circumstances in light of the provisions of law). Combine Montesquieu’s observation with the reason and common sense that makes lawmaking questionable in the absence of law enforcing power, and the doctrine of “separation” starts to appear untenable.
Yet and still, all the experience of the past two hundred and fifty years or so verifies the tenet, universally respected at the time of the founding, that oppressive, unjust tyranny inevitably results when control of executive, judicial and legislative power is consolidated in the same hands. We call the result by many names – e.g., dictatorship, totalitarianism, one-party rule – but it is invariably connected with the repression of decent liberty, and the spectacle of multitudes arbitrarily imprisoned, abused and killed.
We can confirm, therefore, that the patriots of the founding generation were not wrong to make provision for the separation of powers. But neither were they wrong to allot to the representatives of the body politic in the legislature the power to oversee the use and abuse of power by the other branches and call them to account for it. The premise of just government stated in the Declaration of Independence is governments derive their just power from the consent of the governed. As the body held most frequently accountable, by periodic election, to the governed; and the one intended to represent their good character and refined judgment, it makes sense for the Congress to take responsibility for holding the government as a whole accountable to them.
This is why the Constitution vests the power to impeach and remove all civil officers of the U.S. government, including the president, in Congress’s hands. It is why even the judges and justices of the judiciary are subject to impeach and removal by majority vote. It is also why the power to impeach and remove the president is hedged about without a special set of requirements, intended to assure that officer’s ability to defend the nation against foreign and domestic foes, including the temptations of unruly passion that have, more often than not, been the reason pure democracies did not long endure.
Is the United States now poised to add to that history of failure? Is the prudent balance of powers the preeminent founders intended the U.S. Constitution to foster and preserve now failing? If so, that failure owes much to the fact the Congress is now refusing to understand and perform its vital task. If the overall government of our nation has become a swamp, it’s because the representatives of the people are failing to use their power to open the sluice gates and remove noxious malefactors. Once they correct this failure, Congressional elections may once again provide the opportunity periodically to refresh our national government’s capacity to produce wholesome results that preserve both our individual rights and our common good.
The House should commence the process of impeachment against both Rob Rosenstein and Robert Mueller, citing the need to investigate growing evidence of bias, and addressing the inherently anti-Constitutional nature of the special counsel position. Then every true Representative should do everything possible to turn the midterms into a referendum on Congress’s Constitutional responsibility to Drain the Swamp – as they earnestly call on voters to provide the majorities needed, in both Houses to do it now.