DAVID ARTHUR WALTERS
By a natural enough illusion of the imagination a Senate, with its veneration-preaching denomination, is apt enough to be presented in the character of a deposit or Treasury of undefined and undefinable wisdom in the shape of a set of recondite maxims-a sacred deposit, transmitted from a hand to hand like a secret in factitious religion, in magic or in trade:--a security against improvident change, and the evils liable to be produced by it. Illusion all this. (BENTHAM: Anti-Senatica)
Honolulu, January 1999
Now that President William Jefferson Clinton has delivered his version of the State of the Union to a joint session of the United States Congress, the constitutional state of the United States should be reconsidered.
The President is consulting with his attorneys as to what is is regarding the Monica Affair; he refuses, however, to testify about what is really is in this particular case of the third-person-singular-present-indicative of "be" because everyone know what is is in this case and the polls indicate that he is, nevertheless, the most popular president that has ever lived in scandalous circumstances.
The Senate is debating how high high is in the context of the high Crimes and Misdemeanors clause of the sacred Constitution. It appears that many senators have taken noble seats on the high thrones of Conscience from whence they overlook from empyrean heights the facts and the laws for the sake of the eternal Public Good. But alas, Conscience cannot be produced on the stand as a material witness.
The People so beloved and befeared by all elected officials are complaining about the interminable expense and delay in bringing the impeachment process to a foregone conclusion. There are, of course, many exceptions to the "People", exceptions who thrive on due process. Ironically, some Libertarians who hate due process find consolation in the popular opinion that this monkey wrench in the political works will greatly diminish the number of laws passed.
Many of us thought that due process would be taken seriously in the United States Senate, and that the politics of "mobocracy" in the House would be tempered by the law of a few cool heads in the Senate. In other words, we thought that reason would curb passion. We thought rightly in colonial times, but we mistakenly divided reason and passion and compounded the error by placing them in the wrong chambers. For the greatest happiness of the greatest number is better established in the house of many than in the house of the few dead set against it.
Yes, we believed we could parse human nature and express those divisions with branches of government. Politics is a question of who rules and law a question of how. We the people wanted to restrain the few aristocrats who ruled with brute irrational force, to restrain them with the rational laws of the many. But our mistake was fatal: we kept the few above us in the Senate and placed the many at their feet in the House because the aristocrats, naturally covetous of their personal fortunes, persuaded us in our poverty that we, the many, are passionate and irrational and that they, the powerful few, are rational and reasonable.
The myth endures to this day by means of many wires, pulleys, mirrors and sleights of hand. The division of our Congress is a false division. We rid ourselves of the most tyrannical features of the mother country but one: the Senate. We justify its existence by reciting the aristocratic catechism that it acts as the "check" of reason on passion, but it is really an anachronistic vestige of the evils that produced the American Revolution. It is an appendix inflamed by unnecessary expenses and delays that should be extirpated from the body politic it poisons, and its true nature is now revealed in an impeachment trial that is a travesty of justice.
Pertinently, as much as those of us who are the noble descendents of real aristocrats regret it, the mother country is at this moment engaged in the final stage of her long efforts to fully rid herself of the House of Lords, the example badly imitated by her colonial epigones, the nouveau aristocrate. The British "check" is a 600-year old check of blue blood whereby lords inherit their titles and thus enjoy the benefit of familial integrity over centuries of tradition. Over our present century liberals have ended the House of Lords' power to reject House of Commons' bills by threatening the Lords with the creation of a large number of artificial, liberal peers. Money bills approved by Commons become law if not passed without amendment in one month. Other bills automatically become law if passed twice by Commons. Life peerages were created without limits on their number and women were entitled to serve. In 1998 a Parliamentary Reform Bill was introduced to abolish the House of Lords in order to democratize Parliament and to thus curb the Crown's prerogatives of appointment and patronage. Those who believe in the "check" theory lament the contemplated demise of the true check of inheritance drawn against the electorate. Even so, perhaps the aristocrats are safer hidden amongst the great flock, at least until some atavistic restoration; indeed, quasi-aristocrats in America broke ranks when some of them, disappointed with the division of spoils and the arrogance of their brethren, led the popular revolt against the royalist federalists; however, having their turn at the reigns, it did not take them long to abuse the power inherent in their flawed institution. Therefore, according to the "check" theory, the United States Senate is a bad check issued from a false sense of superiority derived from the usurpation of power by a few men in accidental circumstances.
None of the above is intended to demean the good and faithful senators who have served us very well; rather, it argues to place those heroes in the House where they can do the most good along side the rest of our representatives. It also argues for the historical rehabilitation of some of those villains who fought so valiantly against the theft of the law by a few successful men.
Now then, to continue with the enduring illusion as we observe it in the impeachment trial: Consider the behavior of the Senate. We expected the passionate impeachment would get a reasonable response in the Senate. And what is reasonable in these matters except the law, which is the perfecting of reason over centuries? We heard our elected representatives and senators recite in their incantations many of its terms such as: due process, equal justice under the law, the rule of law instead of men, impartial justice, judge, jury, trial, crime, court, and so on. Despite the concerted effort to degrade the process to a trivial political event, lawyers will valiantly try to practice law. Just say "court" and "trial", and lawyers will start practicing. What else should we expect or demand of them? Perchance to walk without legs? So why not let them practice? Why does the Senate continuously work to cripple and obstruct the practice of law when they are mostly lawyers themselves? We should think hard on that question.
Yes indeed, impeachment proceeds with a political question of who rules, but who rules in a free country must be finally determined by the practice of law. Yet many senators do not want to be juror or judge according to due process of the law of the land, for they have already decided the question before the trial began and have decided according to personal interest and party prejudice, thinking that their present wisdom is so infinite that no possible argument or evidence could change their mind. They have, of course, taken a high oath, but what is an oath to Truth to someone who does not believe in it, or an oath to God to an atheist? Still, the politicians squirm to get out of the box. Just listen to them wriggling: if the process is against them it is political, and if its for them it is legal; or, if the law is against them the process should be political and not legal, and so on and so forth. Oh, and yes, they are jurors and not judges, and are in their capacity seemingly unfamiliar with the fact that the true American jury is a jury of judges who protect their peers from prosecutors who would hide behind a judge's robes on the bench; and that the presiding judge is supposed to be an impartial referee who guarantees that due process of law is observed and fully practiced; and that if the sentence is determined by legal code and if the accused is found guilty, the outcome is inevitable. No, the highest court in our land, the high Court of Impeachment, with the Chief Justice of the United States Supreme Court presiding, apparently have a most novel idea of our law, and have forgotten Edward Coke's famous remark that there is a higher law above the king, a reason above his reason, a law common unto us. That is why Sir Coke changed the word "fee" to "bribe" during the impeachment of Lord High Chancellor Francis Bacon and with that change virtually impeached all the ministers.
But to proceed with this impeachment: We all know a man as well as a coin has two sides. Lawyers and politicians should, hopefully, appear ridiculous when they take one side and then another in the same argument whenever it suits them to do so, either from design or from stupidity. After a great deal of flip-flopping it is hard for us to distinguish between their head and their tails. Alternatively, if cogent, non-contradictory arguments are given on each side, we might tend to agree, as judges, with both sides at the same time and be therefore rendered indecisive.
The suspension of judgement between two arguments reminds us of the great warrior of illumination, Arjuna. When he saw his beloved relations, friends, and teachers preparing to kill each other in opposing armies, he did not want to fight. He was appalled by the atheism, the immorality, and the sexual licentiousness that had led to the demise of the traditional family and the general corruption of society, placing its members in a social living hell. Nevertheless, he was reluctant to wage war on any of his people who were blinded by the forces of darkness. He threw down his weapons in despair after considering what the lawyers now call a "hard case." But Krisna made the choice easy for him, and advised him to take heart and fight for the Truth, That which Is is, because the performance of that sacred duty is the greatest honor and pleasure of the righteous warrior.
So the lawyers of the House of Representatives and the White House fight on, but truth is subverted by a great impediment to the process: the Senate. The Senate has too many senators who do not see that the real battle is a spiritual one for the permanent standard, and not a political and merely historical battle for the impermanent consequences of vice and corruption. Since the Senate's verdict is a foregone conclusion in its own mind, even the House managers are going along, much to the injury of the profession of law, with the perception that impeachment is, and should be, a political "trial" and not a criminal one according to the rule of law.
What? Since when are political trials good? Please pay attention to the coin flipping in the air. Is a political trial good or evil depending on the flip of the coin of current political advantage? On whether it is a popular head of state or a despicable tail of a dissident? On whether it is a show trial to acquit or a show trial to convict, and either side without any real due process of law whether they want it or not?
Well, we have on the one hand the bad political trials of certain victims of popular persecutions: Socrates, Jesus, victims of the Inquisition, Captain Dreyfus, the Jews on many horrible occasions and, as we all should know, several egregious instances within our own borders. Although these persecutions were popular, they were instigated and perpetuated by a prejudiced, politically powerful elite who desired a political "trial" for their victims instead of a criminal trial.
And now, supposedly we have good political trials for all those people accused of crimes to be acquitted because we like them, or because our bellies are full, or we believe that evil rules the world and should continue to do so, or what not. Are we then to have another Hitler's People's Court with a verdict rendered not according to the process of ordinary courts or, in extraordinary courts, according to the principles of that process, but according to a show court set up above the law to render judgements according to prior prejudice? Such a court would be a collective Joseph Goebbels with his typical instruction to the court: "This man must go" in its alternate version "This man must stay."
Consider the following brief description of the fatal defects of a political trial and consider whether they are relevant to the Senate sitting in the impeachment trial of President Clinton.
A political trial is a morality play where guilt or innocence is assumed or conviction or acquittal is certain. It is a politically choreographed propaganda event where the judges are not independent of political pressure nor are they really impartial. Any oath taken is merely taken as formal justification to do with impunity whatever is predetermined; the oath is a sanctified excuse to acquit or convict regardless of guilt or innocence. Political trials are most often conducted according to self-created ad hoc rules. The most important discussions are usually held in closets and behind closed doors. Procedural requisites of the law of the land are not really followed, procedures such as: the opportunity to call and fully examine and cross-examine as many witnessed as are needed to find the truth. Political trials ignore the fair process and fair play that is a fundamental guarantee of legal proceedings; they are "mock" trials, or "show" trials.
Now then, it would seem that the high Court of Impeachment should be conducted according to the law of the land that it presides over, regardless of the guilt of innocence of the accused high officer. It would certainly seem that those who make the law should be subject to the laws made and not above them as uncommanded commanders.
It is now obvious that the Senate, which is the only device for removing the most powerful man in the world from office, is a most dangerous instrument in its capacity as a court because it has the power to nullify the ordinary duties of a judge and jury and, using the word of Senator Tom Harkin, to "exculpate" itself of the fault and guilt of a travesty of justice. As a quasi-jury trying its peer, the President, it has the power of jury nullification to leave him in office and to therefore be an accessory in high crimes and misdemeanors, including treason and bribery under cover of a manipulated and uninformed public opinion.
The possibility of the collusion of the President and Senate in conspiracies to obstruct justice is most evident in impeachment trials. Under the misguided perception of its legitimacy, the fundamentally flawed system provides elected officials with the opportunity to further the corruption of the society by their bad example. A president together with one friend more than 1/3 of the senate body can run roughshod over the country and suspend its laws and its legitimate business for the sake of even trivial private pleasures. We have here the possibility of a mere 34 morally bankrupt politicians corrupting a population of 270 millions while those millions go inch by inch to their eventual ruin like sheep, thinking all the while that the corruption is a trivial affair. The electorate are lulled into a false sense of security by the right to vote, failing to see that the vote counts for naught when elections are controlled by party machines which are in turn operated by big money interests; in fact, the pursuit of money is the only party left for most of the electorate who stand by unwittingly while the powerful few "exculpate" themselves from responsibility to moral and ethical and legal standards of behavior and thereby elevate themselves above facts and law to a height where nobody can see them.
An egregious example of the intentionally misdirected public opinion is the majority view confirmed by the polls that the prosecutors of the case against President Clinton should not be allowed to publicly produce live witnesses either before the Senate or before the public; rather, the case should rest on the one-sided testimony of unseen witnesses. Such an abuse of process serves this defense well, perhaps, but it does not serve a free country at all. Imagine the consternation of the individuals in favor of this abuse when it is turned on them and they are prohibited from producing as many live witnesses as they might need to prove their case, in a public trial, and the prosecution is allowed to rest its case on several boxes of paper said to represent sworn testimony given in secret to a grand jury.
Another example: one of the grounds for the motion to dismiss the case against President Clinton was that if the offenses were proven they would not require his removal as high crimes. The motion failed and immediately thereafter arrangements were being made for acquittal or for some way to convict and acquit at the same time. Now, imagine what we would think of Supreme Court Justice John Marshall if he, in the treason case of Aaron Burr, had ruled, in response to the motion to end testimony, that treason must be an overt act having two witnesses and that, since so such witnesses were produced after days of testimony, the jury should convict Aaron Burr by the twelfth of the month.
Welcome to the Inquisition. Reversion to trial by ordeal, before it was stolen by the authority and used as an instrument of torture, would be better than such a travesty of justice. We might as well place a portable swimming pool in the well of the Senate, have the Chief Justice bless the water of justice, and throw impeached presidents therein to be convicted or acquitted according to the perceptions of buoyancy.
Again, and it bears repeating, the Senate trial casts an unfavorable light upon the Senate for it reveals the possibility of public corruption and a definite opportunity to conspire for sinister ends. It is said that the very infrequency of impeachment makes discussion of its reform irrelevant to immediately pressing issues. That is not true . The trial of President Clinton begs for the reconstitution of the United States in truth. The very rarity of impeachment should give us pause for serious reflection. Impeachment all too often results from the accidental and rare discovery of incriminating evidence. Although we rightly fear the prospect of prosecutorial misconduct and the invasion of privacy, we still need to establish for the apprehension and prosecution of high criminals a permanent Independent Court of High Impeachment with the carefully defined duty to constantly audit all high offices for misdemeanors therein as defined by a written criminal code; to impeach and try cases according to due process of law; and to convict and sentence offenders. Trial will be by jury and sentences will be determined by law; every high officer will know in advance exactly what is prohibited and what the penalty for violation will be. Sentences by the Independent High Court of Impeachment will include removal of office when prescribed. If the convicted officer is not immediately removed, imprisonment will commence at the conclusion of his term. The presidential pardon of any suspected or convicted president will be eliminated.
A few years of such vigilance will render high offices at least as clean as a thoroughly audited bank.
The new independent court will be funded by efficiency gains resulting from the downsizing and reengineering of Congress into a single chamber. Until the extraordinary criminal court is duly constituted, impeachment and trial subject to a 4/7 majority for conviction will be conducted under the auspices of the single chamber. So, for the interim, passion and reason will be restored to their original integrity and residence in one body, and the accused will have the benefit of a larger number of judges rather than the habitual arrogance of a small number. The interim restructuring will immediately dispense with the false dichotomy made by aristocratic analysis and will remedy the inversion of values of the existing system.
It is most important to reiterate here the main thrust of our argument; good habits of thinking must be acquired by repetitious practice to overturn the bad. In the impeachment trial of President Clinton we see the Senate in its true colors as a systematic obstruction of justice designed to place a few men above the rule of law. The Senate is an obsolete appendage, an anachronism of aristocracy, privilege, wealth, and private special interest now swollen out of all proportion to its purported social value. The minority interest it protects is the vested interests. Its actual purpose is concealed by deliberate over-complication of the people's business. It serves more to impede freedom by duplication of expenses and unnecessary delays, and subjects the nation to the danger of constant maladministration.
Therefore, the Senate has impeached itself in this case. If we do not have due process in the execution of our laws, how are we to obtain justice in the making of those laws? If we do not have the rule of law instead of men, we have the rule of senators and presidents instead of law.
We had better act very soon to save our country from the degrading debacle now spreading like a cancer from its nervous system. We must redeem ourselves from this national disgrace by uprooting the evils and cultivating the goods we have inherited.
We have learned to expect political prosecutions in the struggles for power. Now we must learn to demand a fair trial where both the prosecution and the defense have equal opportunity to present their full case under the rule of law.
Now is definitely not the time to simply devise an exit strategy for a particular hard case, to set a certain date for its foregone conclusion, and to brush it under the rug for historians after having a show trial which any fool can see is a very bad show.
Now is the time to bring the business of our nation up to date. We can proceed with the task of reconstituting the United States in truth by abolishing the Senate with all due respect to the noble deeds done therein by the nobility, and placing the people's legislative business in the people's house where it belongs.
It has long been the opinion of many thinking men in the Union along with Franklin that the Senate was a useless and perhaps a hurtful incumbrance and every day increases the number of the party that are against Senates; so that the probability is that the progress of civilization will lop off that unnecessary complication of power and make the Legislature one and indivisible.
Copyright 2000 David Arthur Walters