Sunday, January 4, 2009


Long before he became Vice President or President (the only man to hold both offices without ever being elected to either one of them!), Gerald Ford was asked for his definition of “an impeachable offense” for a President. The question was a good one, and since Ford was a Congressional leader he was an appropriate person to ask. The Constitution specifies only that a President may be impeached for “Treason, Bribery, or other high Crimes and Misdemeanors.” Except for Treason and Bribery, the Constitution is silent on “other high Crimes and Misdemeanors.”

Ford said, “An impeachable offense is anything a majority of the House says it is.” He was not joking. Technically, the Senate must act upon any bill of impeachment voted by the House. The Senate has no authority to reject an impeachment without a trial or ignore it altogether. The House will send a team of lawyers to press their impeachment, and the Senate must entertain them. Ford’s plainspoken, unambiguous answer is relevant today, not for impeachment, but with respect to the actual exercise of Congressional power. There is the real possibility of the Senate refusing to seat Roland Burris, the new, interim Senator from Illinois. Can the Senate refuse to seat a legally appointed member? The power of the Congress to accept or reject its own membership is as simply stated in the Constitution, as is the power of impeachment. Both powers are granted… but neither has proper grounds specifically delineated, defined or distinguished from possibly improper, even illegal reasons for exercising either authority.

So, was Ford right? Could the House impeach a President… for any reason, simply by calling whatever their reason of choice might be “a high Crime or Misdemeanor?” Can the Senate refuse to accept the certificate of appointment from the State of Illinois? The answer is: Sure. Why not? Who’s going to stop them? One might say, “Hey, they can’t do that!” But – again – who will stop them?

In 1966 the House refused to seat Rep. Adam Clayton Powell of New York. The reasons, and the merit of them, or lack of same, are not important here. It’s enough that Powell was indeed denied his seat in Congress. He sued. The House sits for only 2 years, and then an entire new House is elected, so Powell asked the federal courts for an expedited hearing. They refused. His lawsuit, therefore, followed normal procedure, at normal speed. It was still in the courts, unresolved, when Powell won a new election in 1968. The new Congress, in January 1969, voted to accept him. Nevertheless, his lawsuit against the previous Congress continued.

The Supreme Court eventually heard the case and voted in Powell’s favor (7-1 with one Justice not voting) – but it took 3 ½ years to get the decision. Since the Congress from which Powell had been excluded had ended already, he received no actual relief from his court victory.

This time around, should the Senate balk at seating Burris, there is nothing to make the Senate leadership justify their refusal. All they need to do is… do it. Once done, Burris will not become a Senator. He won’t get credentials, an office, a desk, a salary… nothing. He may well sue – as Adam Powell did. And he may well win – as Adam Powell did. And it may well take Roland Burris 3 to 4 years to get his vindication – as it took Rep, Powell. And, what will Burris get from such a victory – if and when it comes? He’ll get the same relief Powell got… nothing. So, what’s the point?

Illinois will hold another election in 2010 to fill the same Senate seat. While a legal case initiated by Burris may not be ruled moot (the Supreme Court refused to dismiss the Powell case as moot) in the real political world the issue will be meaningless because a newly, duly elected Illinois Senator will take his or her seat in January 2011.

What’s all the fuss about then? Nothing, really.

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