Against Undoing the Vote Taken by the American People

February 5, 2020

Mr. President, I have long maintained that most, if not all of the most serious vexing problems within our federal government can be traced to a deviation from the twin core structural protections of the Constitution.

There are two of these protections one that operates along a vertical axis, the other a horizontal. The vertical protection we call federalism, which states a very simple fact that in the American system of government most powers are to be reserved to the states.

It is only the powers enumerated in the Constitution, either in Article I section 8 or elsewhere, that are made federal. Only those things that the founding fathers appropriately deemed unavoidably, necessarily, national or that we have otherwise rendered national through a subsequent constitutional amendment, as was the case when James Madison wrote Federalist 45. The powers reserved to the states are numerous and indefinite, while those that are given to the Congress to be exercised federally are few and defined.

The horizontal protection operates within the federal government itself, and it acknowledges that we’ve got three co-equal independent branches within the federal government. One that makes the laws, one that executes the laws, and one that interprets the laws where people can’t come to an agreement and have an active, live dispute as to the meaning of a particular law in a particular case or controversy.

Sadly, we have drifted steadily, aggressively, from both of these principles over the last eighty years. For roughly the first hundred and fifty years of the founding of our republic we adhered pretty closely to them. But over the last eighty years or so we have drifted steadily and this has been a bipartisan problem. It’s one that was created under the flawed leadership of Republicans and Democrats alike.

We have essentially taken power away from the American people in two steps. First by moving power from the state and local level and taking it to Washington in violation of the vertical protection we call federalism. And then a second time, moving it away from the people’s elected lawmakers in Washington to unelected, unaccountable bureaucrats placed within the Executive branch of government. These bureaucrats are neither elected by the people, nor accountable to anyone who is electable. And thus, they constitute essentially, a fourth branch of government within our system, one that is not sanctioned or contemplated by the constitution and doesn’t really fit all that well within its framework.

This has made the federal government bigger, and more powerful. It has occurred in a way that has made the American people less powerful. It’s made government in general in particular this government, the federal government, less responsive to the needs of the people. It has been fundamentally contrary to the way our system of government operates.

What one might ask, does any of this have to do with impeachment?

Well, in my opinion, everything, or at least a lot. You see this distance that we have created in these two steps, by moving power from the people to Washington, within Washington, handing it over from elected lawmakers to unelected unaccountable bureaucrats, has created an understandable amount of anxiety among the American people.

Not all of them necessarily recognize it in the same way I do or describe it with the same words, but they know something’s not right. They know that when their federal government requires them to work many months out of every year just to pay their federal taxes, only to be told later it’s not nearly enough and hasn’t been enough for a long time, such that, we’ve accumulated twenty-two, twenty-three trillion dollars in debt. And when they come to understand that the federal government also imposes some two trillion dollars in regulatory compliance cost on the American people, that this harms the poor and middle class. Makes everything we buy more expensive, it results in diminished wages, unemployment and underemployment.

On some level the American people feel this, they experience this, they understand it. It creates anxiety. It was that very anxiety that caused people to want to elect a different kind of leader in 2016, and they did. It was this set of circumstances that caused them to elect Donald J. Trump as the 45th President of the United States, and I’m glad they did. Because he promised to change the way we do things here, and he has done that.

But as someone who has focused intently on the need to reconnect the American people with their system of government, Donald Trump presents something of a serious threat to those who have occupied these positions of power. These individuals who while hard-working, well intentioned, well-educated and highly specialized, occupy these positions of power within what we loosely refer to as the Executive branch. But it is in reality, an unelected, unaccountable fourth branch of government.

He has bucked them on many levels, and has infuriated them as he’s done so. Even as he is implementing the American people’s wishes to close that gap between the people and the government that is supposed to serve them.

He’s bucked them on so many levels, declining to defer to the opinions of self-proclaimed government experts, who claim that they know better than any of us on a number of levels.

He pushed back on them, for example, when it comes to the Foreign Intelligence Surveillance Act, or FISA as its sometime described. When he insisted that FISA had been abused in efforts to undermine his candidacy, and to infringe the rights and the privacy of the American people. So, he took that position, Washington bureaucrats predictably mocked him, but he turned out to be right.

He called out the folly of engaging in endless nation-building exercises, as part of a two-decade long war effort and has cost this country dearly in terms of American blood and treasure. Washington bureaucrats mocked him again, but he turned out to be right.

He raised questions with how US foreign aid is used and sometimes misused throughout the world, sometimes to the detriments of the American people and the very interests that such aid was created to alleviate. Washington bureaucrats mocked him, but he turned out to be right.

President Trump asked Ukraine to investigate a Ukrainian energy company, Burisma. He momentarily paused US aid to Ukraine, while seeking a commitment from the then newly elected Ukrainian President Vladimir Zelensky, regarding that effort.

He wanted to make sure that he could trust this recently elected President Zelensky, before sending him the aid. Within a few weeks his concerns were satisfied, and he released the aid.

Pausing briefly before doing so isn’t criminal, it certainly isn’t impeachable, it’s not even wrong.

Quite to the contrary, this is exactly the sort of thing the American people elected President Trump to do. He would, and has decided to bring a different paradigm to Washington. One that analyzes things from how the American citizenry views the American government.

This has in some respects, therefore been a trial of the Washington DC establishment itself but not necessarily in the way the house managers apparently intended. And while the house managers repeatedly invoked constitutional principles, including separation of powers, their arguments have tended to prove the point opposite of the one they intended.

Yes, we badly need to restore and protect both federalism and separation of powers. And it is my view that the deviation from one, contributes to the deviation from the other. But here in order to do that, we’ve got to respect the three branches of government for what they are, who leads them, how they operate, and who is accountable to whom.

For them to view President Trump as somehow subservient to the career civil servant bureaucratic class that has tended to manage agencies within the federal government, including the National Security Council, the Department of Defense, the Office of Management and Budget, individuals in the White House, individuals within the State Department among others, not only mischaracterizing this problem, it helps identify the precise source of this problem.

Because President Trump took a conclusion different than that offered by the so-called “interagency process” the House managers argue that that amounted to a constitutionally impeachable act. It did not, it did nothing of the sort. Quite to the contrary, when you actually look at the constitution itself, it makes clear that the president has the power to do what he did here.

The very first section of Article 2 of the Constitution, this is the part of the Constitution that outlines the president’s authority, makes clear that the executive power of United States government shall be vested in the President of the United States.

It is important to remember that there are exactly two federal officials who are elected within the executive branch of government, one is the vice president and the other is the president. The vice president’s duties, I would add, relatively limited. Constitutionally speaking, the vice president is the president of the Senate and thus performs that in a quasi-legislative role. But the vice president’s executive branch duties are entirely bound up with those of the president. They consist of aiding and assisting the president, as the president may deem necessary, and standing ready to step into the position of the presidency should it become necessary as a result of disability, incapacitation or death.

Barring that, the entire executive branch authority is bound up within the presidency itself. The president is the executive branch of government. Just as the judges who sit across the street, themselves amount to the capstone of the judicial branch. Just as 100 Senators and 435 representatives are the legislative branch. The president is the executive branch. As such, it is his prerogative within the confines of what the law allows and authorizes and otherwise provides to decide how to execute that.

It is not only not incompatible with that system of government, it is entirely consistent with it, indeed authorized by it, that a president should be able to say, “Look we’ve got a newly elected President in Ukraine. We’ve had long-standing allegations corruptions within Ukraine, those allegations have been well-founded in Ukraine. No one disputes that corruption is rampant in Ukraine.”

A newly elected president comes in, this president, or any president in the future decides, hey, “We’re giving a lot of aid to this country $391 million for the year end question. I want to make sure that I understand how that president operates. I want to establish a relationship of trust before taking a step further with that president. So, I am going to take my time a little bit, I’m going to wait maybe a few weeks in order to make sure that we’re on a sure footing there.” He did that and there’s nothing wrong with that.

What’s the response from the House managers? Well, it gets back to that interagency process. As if people, who the American people don’t know or have reason to know, because those people don’t stand accountable to the people. They’re not elected by the people, they’re not really accountable to anyone who is in turn, elected by the people.

The fact that these people involved in the interagency process might disagree with a foreign policy decision made by the President of the United States. Well, the fact that this President of the United States might take a different approach than his predecessor or predecessors does not make this president’s decisions criminal. It certainly doesn’t make them impeachable, it doesn’t even make them wrong.

And Mr. President, in the eyes of many, I believe most Americans they want the president to be careful about how the United States spends money. They want the United States to stop and reconsider from time to time, the fact that we spend a lot of money throughout the world on countries that are not the United States. We want a President of the United States to be able to exercise a little bit of discretion in pushing pause, before that president knows whether he can trust a newly elected government in the country in question.

And so, to suggest here that our commitment to the Constitution, to suggest here as the House managers have, that our respect for the separation of powers within the constitutional framework somehow demands that we remove the duly elected President of the United States is simply wrong.

It’s elevating to a status completely foreign to our constitutional structure, an entity that the Constitution does not name. It elevates a policy dispute, to a question of high crimes and misdemeanors, those two are not the same thing.

At the end of the day, this government does in fact, stand accountable to the people. This government is of, by and for the people. We cannot remove the 45th President of the United States for doing something that the law and the Constitution allows him to do without doing undue violence to that system of government to which every single one of us has sworn an oath. We’ve sworn to uphold and protect and defend that system of government. That means standing up for the American people and those they have elected to do a job recognized by the Constitution.

I will be voting to defend this president’s actions. I’ll be voting against undoing the vote taken by the American people some three and half years ago. I’ll be voting for the principle of freedom, for the very principles that our Constitution was designed to protect. I urge all of my colleagues to reject these deeply, factually, and legally flawed articles of impeachment to vote not guilty.

Thank you, Mr. President; I yield the floor.