Rounds Delivers Remarks on Articles of Impeachment

WASHINGTON –U.S. Sen. Mike Rounds (R-S.D.) today spoke on the Senate floor about the impeachment trial. Votes on the two articles of impeachment against President Trump are scheduled for tomorrow. Rounds will vote to acquit the president.

 

“Our Founding Fathers included impeachment– effectively overturning the will of the American electorate– to be used only as a last resort,” said Rounds during his remarks. “This impeachment process, driven by partisan desire, was rushed and lacked any proper form and substance. This is an attempt by the House to undo the results of the 2016 election and impact the 2020 election.”

 

“When the House is ignited by partisan passions, eager to reach a desired result, the Senate must be cool and firm in its heightened review. In recognizing the haste and half-hearted attempt by our colleagues in the House, the Senate must also recognize these articles of impeachment to be wholly insufficient, not warranting a removal from office. Let this decision lie in its rightful place. With the electorate.”

 

“The Senate has conducted a fair, impartial trial,” Rounds concluded. “We did our due diligence and fulfilled our constitutional duty. And now, it is time to bring this process to a close and get on with the business of the American people who sent us here. I will vote against the articles of impeachment, in keeping with the constitutional intent our framers expected.”

Rounds full remarks as prepared for delivery, as well as citations:

 

Mr. / Madame President, today I rise to discuss the decision on whether to remove the president from office based on the Articles of Impeachment sent to us by the House of Representatives.

 

Our Founding Fathers included impeachment– effectively overturning the will of the American electorate– to be used only as a last resort.

 

They trusted the Senate, requiring more solemn judgement than their counterparts in the House, to decide whether an allegation by the House has the substantiality to require removal from office.

 

According to Commentaries on the Constitution by Joseph Story, the Framers saw the Senate as a tribunal “removed from popular power and passions . . . and from the more dangerous influence of mere party spirit,” guided by “a deep responsibility to future times.”[1]

 

This impeachment process, driven by partisan desire, was rushed and lacked any proper form and substance. This is an attempt by the House to undo the results of the 2016 election and impact the 2020 election.

 

Article II, Section 4 of the Constitution states, “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.”

 

During the debates of the Federal Convention of 1787, James Madison, Alexander Hamilton and others relied heavily on Sir William Blackstone’s work, Commentaries on the Laws of England, which Madison described as “a book which is in every man’s hand.”[2]

 

Within his work, Blackstone discussed “high misdemeanors” which included many crimes against the king and government, including maladministration.

 

According to Blackstone, maladministration applied to high officers in public trust and employment and was punished by the method of parliamentary impeachment.[3]

 

It is from this understanding that the framers selected “high crimes and misdemeanors” for the impeachment clause in our Constitution.

 

The term “high crimes and misdemeanors” had a limited and technical meaning that was well-known to the framers.[4] It was a term of art.

 

As early as 14th century England, high crimes and misdemeanors were a category of political crimes against the state and were tried in parliamentary impeachments.

 

It should be understood that the word, ‘high,’ in high crimes and misdemeanors, is a modifying adjective and also applies to the word misdemeanors.

 

“High misdemeanors” was applied in impeachment proceedings conducted by parliament long before there was such a crime as a ‘misdemeanor’ as we know it today.[5] Misdemeanors alone referred to criminal sanctions for private wrongs.^[6]

 

High crimes and misdemeanors were charged against officers of the “highest rank and favor with the crown” or who were in “judicial or executive offices” and because of their stations, were un-indictable by ordinary rules of justice.[7]

 

For those individuals who were not indictable by the ordinary rules of justice, the Founding Fathers, in their subtle brilliance, sought to have something akin to crimes and misdemeanors that allowed them to impeach for great and dangerous crimes committed against the state.

 

As we know, the Founding Fathers specifically adopted the phrase, “high crimes and misdemeanors.”

 

The emphasis on “high misdemeanors” is important in this context because the House of Representatives has not alleged treason and they have not alleged bribery. Their case rests on whether the articles charged are the types of “high crimes and [high] misdemeanors” intended by our framers.

 

In defining high misdemeanors, Blackstone stated  “…the first and principal is the mal-administration of such high officers…”[8]

 

However, the founding fathers specifically chose not to include maladministration as a basis for impeachment.

 

When George Mason and James Madison debated the specific language of the impeachment clause, Mason stated:

 

“Why is the provision restrained to treason and bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined.”[9]

 

Mason then moved to add after bribery, “or maladministration,” to which Madison replied, QUOTE “So vague a term will be equivalent to a tenure during pleasure of the Senate.”[10]

 

The framers knew what they were adopting when they chose “high crimes and misdemeanors.” They explicitly rejected maladministration and other vague terms in favor of more specific allegations, which had a limited and technical meaning.

 

In the first article of impeachment before the senate, the question is whether ‘Abuse of Power’ as a charge on its own is an impeachable offense.

 

The answer is no. “Abuse of Power” does not have a limited meaning and is as vague as maladministration.

 

The framers actually discussed abuse of power and rejected it.

 

At the Virginia ratifying convention, James Iredall, one of the first Justices of the Supreme Court, stated:

 

“No power of any kind or degree can be given but what may be abused; we have, therefore, only to consider whether any particular power is absolutely necessary. If it be, the power must be given, and we must run the risk of abuse.”[11]

 

In the first article of impeachment, the House has claimed that the abuse of power is within the scope of high crimes and misdemeanors.

 

I believe the founding fathers saw abuse of power as an inherent risk within the delegation of that authority. The framers did not intend impeachment proceedings to be brought every time an abuse of power is alleged.

 

In the second article of impeachment, the House alleges the president obstructed Congress when he refused to comply with congressional subpoenas.

 

The president rejected the legitimacy of those subpoenas.

 

The House then failed to pursue redress through the courts, rejecting the courts rightful role in settling disputes between the two branches of government.

 

The Separation of Powers doctrine recognizes executive privilege as a lawful exercise for the president to protect both presidential and deliberative process communications.

 

The House showed a deliberate disregard for the proper role of the judicial branch and now expects the Senate to gather evidence after they have already impeached.

 

Alleging an Obstruction of Congress charge, before the House exhausted its remedy for judicial relief, would change the balance of power between our co-equal branches of government and ignore the rightful place the courts hold in arbitrating differences between the executive and legislative branches.

 

No branch of government is above the Constitution— we are obligated, under oath of office - to support and defend it. 

 

Article 1, Sections 2 and 3 of the Constitution state, “The House shall have the sole power of impeachment,” and, “The Senate shall have the sole power to try all impeachments.”

 

The framers intentionally separated these authorities.

 

The Senate does not have the authority to impeach; however, the Senate does have the authority to judge the sufficiency of articles presented to it.

 

The Senate, as a trier of facts, should not overstep its role. It is the House’s responsibility to bring the evidence to make their case, not simply make an allegation.

 

This does not mean that the Senate cannot call witnesses, but it most certainly should not be the Senate’s obligation to do so because the House failed to do so in the first place.

 

Upon the founding of the Senate, James Madison explained that the Senate would be a "necessary fence" against the "fickleness and passion" that tended to influence the attitudes of the general public and members of the House of Representatives.[12]

 

George Washington is said to have told Thomas Jefferson that the framers had created the Senate to ‘cool’ House legislation, just as a saucer was used to cool hot tea.[13] 

 

For impeachment, there can be no difference.

 

When the House is ignited by partisan passions, eager to reach a desired result, the Senate must be cool and firm in its heightened review.

 

In recognizing the haste and half-hearted attempt by our colleagues in the House, the Senate must also recognize these articles of impeachment to be wholly insufficient, not warranting a removal from office.

 

Let this decision lie in its rightful place. With the electorate.

 

The Senate has conducted a fair, impartial trial. We did our due diligence and fulfilled our constitutional duty.

 

And now, it is time to bring this process to a close and get on with the business of the American people who sent us here.

 

I will vote against the articles of impeachment, in keeping with the constitutional intent our framers expected.

 

Thank you Madam/Mr. President. I yield the floor and ask unanimous consent that citations for my remarks be printed in the Record.

 

Citations:

 

[1] 2 Joseph Story, Commentaries on the Constitution § 743 (1833).

[2] 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, at 501 (Jonathan Elliot 2nd ed. 1987).

3 4 William Blackstone, Commentaries on the Laws of England, *122.

4 Raoul Berger, Impeachment: The Constitutional Problems 74 (1973).

5 4 Blackstone at *121.

6 Berger at 61.

7 Id. at. 60; See also id. “The House of Lords was reminded of this history by Serjeant Pengelly during the impeachment of Lord Chancellor Macclesfield in 1725: your lordships are now exercising a power of judicature reserved in the original frame of the English constitution for the punishment of offenses of a public nature, which may affect the nation; as well in instances where the inferior courts have no power to punish the crimes committed by ordinary rules of justice; as in cases within the jurisdiction of the courts of Westminster Hall, where the person offending is by his degree, raised above the apprehension of danger, from a prosecution carried on in the usual course of justice; and whose exalted station requires the united accusation of all the Commons.”

8 4 Blackstone at *122.

9 2 The Records of the Federal Convention at 499. The impeachment of Warren Hastings was a failed attempt between 1788 and 1795 to impeach the first Governor-General of Bengal in the Parliament of Great Britain. Hastings was accused of misconduct during his time in Calcutta particularly relating to mismanagement and corruption.

10 Id.

11 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, at 95 (Jonathan

Elliot 2nd ed. 1987).

12 U.S. Senate, “Senate Created,” at http://www.senate.gov/artandhistory/history/minute/Senate_Created.htm (January 3, 2020).

13 Id.

 

 

 

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