Federalist 69: Hamilton Foresaw Bush's Rebellion, Pelosi's Complicity
You are encouraged to closely study Federalist 69 on issues of impeachment, Presidential pardons, and independent House power to strip the President of any hope of a pardon.
Here is one view. Let's assume for the sake of argument you do not agree with the above interpretation of Article I S 3; and Article II Section 2. There is language which suggests what the Framers intended: Hamilton's Federalist 69.
Keep the following in mind as you read this, the alleged treason of permitting spies in Guantanamo, but blocking the FBI from reviewing that activity.
These issues are ones for the House to debate, not for the Speaker or President to assert.
Let's review Hamilton's comments no pardon in Federalist 69.
Note there is no mention of "judgment," merely Hamilton mentions "all cases", without mentioning a conviction.
Hamilton: "Thirdly. The power of the President, in respect to pardons, would extend to all cases, EXCEPT THOSE OF IMPEACHMENT."
Arguably, once the President is charged by the House with any crime -- those charges brought in criminal court outside impeachment -- are immune to pardon.
Note the mention of "political" consequence. Here Hamilton repeats the "all cases", does not use the word "judgment":
Notice also, Hamilton is saying something important here: The pardon is linked with a criminal trial and an impeachment. The governor of NY can pardon in (a) all criminal cases; and (b) cases of impeachment. The criminal case is separate than the impeachment case.
Hamilton: "The governor of New York may pardon in all cases, even in those of impeachment, except for treason and murder. Is not the power of the governor, in this article, on a calculation of political consequences, greater than that of the President?"
The Speaker has no power to screen the President on the eve of an investigation. The question is whether, after an investigation, the illegal treason is challenged. This means the all attempts can be pardoned; but where there is an actual offense, not just an attempt, that offense by the Executive cannot be pardoned.
But notice the issue: There are two things happening: A criminal trial, and an impeachment. The latter is while they are in office; the former is after leaving office. That is incorrect. A sitting President may be prosecuted by a prosecutor or impeached by the House.
Hamilton: "All conspiracies and plots against the government, which have not been matured into actual treason, may be screened from punishment of every kind, by the interposition of the prerogative of pardoning."
This means the President, who does not bring his efforts into an illegal end, should enjoy the option of enjoying a pardon. But the opposite means that once the President achieves the illegal outcome, the President should have known that the House -- with the impeachment -- would deny him of a pardon in any future criminal case.
This means the President tried after leaving office, cannot enjoy a pardon; to leave the pardon on the table would reward the President for hiding not just attempts but the illegal effects of his conspiracy. That President's activity cannot enjoy the gift of a pardon from another executive.
Propaganda Strategy: Shifting Attention From Actions of Executive To Legislature
Here, Hamilton says a State governor could shield people, until there was an overt act. The issue is not the action of the Senate or House; but the actions of the conspirators:
Hamilton: "If a governor of New York, therefore, should be at the head of any such conspiracy, until the design had been ripened into actual hostility he could insure his accomplices and adherents an entire impunity."
We look at the results, not the attempt: Was there illegal activity? If there was, and the House charges but the Senate refuses to convict, the President is not immune to a trial because of a promise of a pardon. Rather, once convicted in court, the House impeachment would thwart the President from enjoying a Constitutional pardon.
President Cannot Do What Hamilton Said A Governor Might Do
Hamilton says the President has less assurance than a governor he will be immune to sanctions. Hamilton says the President cannot be given the option to shield people, as a governor might. Note closely, he separates "impeachment" and "conviction". They are not the same:
Hamilton: "A President of the Union, on the other hand, though he may even pardon treason, when prosecuted in the ordinary course of law, could shelter no offender, in any degree, from the effects of impeachment and conviction."
"And" in our view means, impeachment is different from the trial phase: "Offenders cannot be shielded from the adverse consequences of both an impeachment by the House or a conviction by the Senate."
Once a criminal trial starts -- on those charges subject to the impeachment -- the President cannot pardon someone, and block a trial or conviction; or overturn that conviction. The effect of impeachment by the House is expressly one Hamilton says no defendant can be insulated.
Hamilton wanted to ensure the President -- who engages in war crimes -- could not be sure of any pardon. Hamilton reminds us that the President could not reasonably believe he would avoid consequences by simply avoiding a Senate Conviction. Rather, the threat of a House impeachment -- outside, unrelated to the Senate -- must discipline the President to not engage in that offensive conduct.
Today's problem is the President did not waiver in his rebellion, despite the threat of being denied a pardon. It is not a well grounded legal argument for the President to assert, "I thought I was above the law. I believed it." No, this President asserted he was above the law. He is not.
The House impeachment, not just the Senate trial, opens the door to a criminal prosecution of the President; and denies the President of any hope for a pardon.
Hamilton reminds us that a President, believing he only needs to carry 34 votes in the Senate and ignore the House, could engage in genocide and crimes against humanity. That is impermissible.
Hamilton: "Would not the prospect of a total indemnity for all the preliminary steps be a greater temptation to undertake and persevere in an enterprise against the public liberty, than the mere prospect of an exemption from death and confiscation, if the final execution of the design, upon an actual appeal to arms, should miscarry?"
Hamilton foresaw Pelosi might support the President, and thwart the House from investigating:
Hamilton: "Would this last expectation have any influence at all, when the probability was computed, that the person who was to afford that exemption might himself be involved in the consequences of the measure, and might be incapacitated by his agency in it from affording the desired impunity?"
Hamilton warned us in so many words: Those who are involved may have a vested interest in not acting, not confronting, and taking impeachment off the table.
Indeed, one issue is treason. The Question is whether the House will consider the possibility this Speaker and President have jointly committed treason in secret, and made excuses to induce the House not to assert its power:
Hamilton: "The better to judge of this matter, it will be necessary to recollect, that, by the proposed Constitution, the offense of treason is limited "to levying war upon the United States, and adhering to their enemies, giving them aid and comfort''; and that by the laws of New York it is confined within similar bounds."
This does not mean that the charge of treason must be on the table before the Speaker is challenged, removed, or forced to start an investigation.
It does mean we need to have an investigation to find out what happened, and why Pelosi is spending this much time removing a legal option to deny the President a pardon. Until the investigation is complete, it is reasonable to remove Pelosi pending a House review under the House Ethics rule. If warranted, the evidence of her alleged rebellion and cooperation with the President may be presented to war crimes prosecutors or adjudicated before a United States Criminal court.
We the People need to know why the House, Pelosi, and the President appear quick to avoid facts. Hamilton suggested we be proceed with caution. Pelosi and the President are not sharing Hamilton's caution.
The prospect of an acquittal in the Senate incorrectly gave the President a green light to beleive he was above the law, would not be held to account, and could defy the Law. Hamilton intended for the threat of a House impeachment to dissuade this President. It appears Addington, the GOP, and Pelosi convinced themselves, each other, and this President -- as long as the DNC did not have enough votes to convict -- nothing could happen.
Hamilton's language in Federalist 69 must be openly discussed by the nation at large, the media, and on the House floor. The issue isn't what Hamilton meant; but what Addington, the President, and Pelosi construed the language to permit or prevent. What they did or would have us believe they believed has no relationship to what the Framers intended; or what the express language recognizes: An impeachment is not the same as a judgement.
The Framers intended for this risk to be a deterrent:
All the legal issues and cases -- subject to the House charges in an impeachment -- may never be pardoned by any future executive.
This crew ignored the foreseeable consequences -- a conviction, without prospect of a pardon -- and destroyed war crimes evidence; then induced the DNC to believe any House action would be bad for the DNC. No, the House action is bad for the President and his alleged war crimes co-conspirators.
A plain reading of Hamilton's words in Federalist 69 strongly suggests the reason the President blocked the FBI General Counsel Valerie E. Caproni from reviewing the DoJ OLC memoranda on torture was that it was evidence the President wanted to suppress from the FBI. The President cannot explain what happened to the FBI war crimes evidence at Guantanamo. Those files have disappeared. That is not a defense, but a subsequent offense warranting the House review, not an issue to sweep under the table.
Hamilton would reject any assertion that the President faces no consequences until the minority party has 67 votes in the Senate. Hamilton intended for the threat of a House impeachment alone to deter the President by denying the President of any hope of a pardon; and expose this President after a trial in the Senate to another trial, and have no hope for a pardon.
Denying a pardon does not mean the President is unfairly subjected to prosecution. He may be acquitted, but that is something Hamilton intended for this President to fight for in court, not coast along, smugly assuming nothing would happen.
Hamilton and the Framers intended for the President to be deterred, and have no hope of coasting through a trial, and avoiding consequences for attempting to shred the Constitution. The House has the power to strip this President of any hope for a pardon merely by doing what Hamilton intended: Removing the President from all assurances he might enjoy immunity for illegal activity. That prospect -- a foreseeable risk known to the President's private counsel -- is this President would have us believe he never imagined.
Non-sense. He knew what he was doing, what he was ignoring, and what the foreseeable consequences were. He ignored the law and the consequences. He views himself as above the law and reality: Hence, is reckless handling of Katrina, the failure to adjust in Iraq, and the inability to defeat people living in caves in Afghanistan.
Indeed, the threat of a war crimes trial and adjudication of war crimes failed to inspire this President to comply with the laws of war, but the opposite: He thwarted the FBI General Counsel from examining the legal arguments used to thwart Geneva restrictions against all POW abuse.
This President has a problem. So does the Speaker. So does the White House and DoJ and DoD staff counsel. This is connected to the DoD emails, the FISA violations, rendition, POW abuse, Abramoff, and McClellan's book. The same people, the same coordination, and the same excuses to pretend they had a belief; but distract attention from the known lack of evidence of an imminent threat. Their beliefs do not seem credible. They do not appear to have reasonably relied on any orders.
Their job as a defendant will be to prove -- despite Hamilton -- that they believed they were above the law, would face no consequences, and only the Senate was relevant. No, the only issue is the Supreme Law and the Geneva Conventions; and what they did. Whether the Senate does or does not convict is unrelated to what Hamilton intended the House to have: A large stick to wave before the Executive. Pelosi has no power to take that stick off the table.
We the People have a very large stick. It is the Constitution, and our inherent power to discuss what must be done to ensure this abuse -- despite Hamilton's assurances -- does not happen again. Pelosi cannot remove that debate from the public forum.
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