Maladministration Or Abuse of Power?

Even before the presentations at the Senate week, Alan Dershowitz had been making the rounds, drawing a straight line between maladministration and abuse of power. It is important to understand the distinction.

Madison was right to object to maladministration, saying, “so vague a term will be equivalent to a tenure during pleasure of the Senate.” Democrats thought that G. W. Bush was practicing maladministration; after the 2006 elections, in which Democrats gained both houses of Congress, they could have impeached Bush for maladministration. Republicans took control of the House in 2010 and the Senate in 2014; they similarly could have impeached Obama for maladministration. If maladministration were grounds for impeachment, we would devolve into a parliamentary system, as Dershowitz correctly observes. Any President who lost the confidence of Congress would be out on her or his ear.

So we have to make a distinction between abuse of power and mere maladministration. The English Civil War established that abuse of power was not tolerable in our political life. It further separated us from politics on the European continent, where people often shrug and accept despotism. We were willing to do what many of the Europeans were not: fight for our rights.

If it were only my own particular case, I would have satisfied myself with the protestation I made the last time I was here, against the legality of the Court, and that a King cannot be tried by any superior jurisdiction on earth: but it is not my case alone, it is the freedom and the liberty of the people of England; and do you pretend what you will, I stand more for their liberties. For if power without law, may make laws, may alter the fundamental laws of the Kingdom, I do not know what subject he is in England that can be sure of his life, or any thing that he calls his own.
— Charles I at his trial for treason, January, 1649

Charles I always maintained that he was above the law, and only God could call a king to account. Parliament said otherwise, and he was beheaded on 30 Jan 1649.

There is a contract and a bargain made between the King and his people, and your oath is taken: and certainly, Sir, the bond is reciprocal; for as you are the liege lord, so they liege subjects … This we know, the one tie, the one bond, is the bond of protection that is due from the sovereign; the other is the bond of subjection that is due from the subject. Sir, if this bond be once broken, farewell sovereignty! … These things may not be denied, Sir … Whether you have been, as by your office you ought to be, a protector of England, or the destroyer of England, let all England judge, or all the world, that hath look’d upon it.
— Judge John Bradshaw, replying to Charles in his trial.

The story of Charles I was part of the English Constitution that preceded the American Revolution and formed the legitimate foundation for the rebellion. You can read Bradshaw’s rejoinder, substituting America for England and directing it at Parliament rather than the King. In the 1765 debate in the Virginia legislature over the Stamp Act, Patrick Henry referenced the experience of Charles I, which he expected all legislators would know and understand. While there was no verbatim record, his remarks have come down through history as:

Caesar had his Brutus, Charles his Cromwell and George the Third my profit by their examples. Sir, if this be treason, make the most of it.

It is manifestly clear that all of the Founders understood the meaning of the English Civil War and rejected the concept of a regal President who could declare “the law is in my mouth” and make it stick.

Amendment IX: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Amendment X: The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

We the People have strayed far from the ideals of the Constitution. We allowed the development of an imperial Presidency. We allowed the Ninth and Tenth Amendments to wither from disuse. We allowed Congress to delegate its powers to the Executive, or to independent agencies with no practical political accountability to anyone. We allowed a President and his court to intimidate the Supreme Court into going along with this back in the 1930s. This has been going on for decades, longer than most of us have been alive. We sold our birthright cheap to a strong person who promised to lead us out of one national emergency or another.

Now the chickens are coming home to roost. The façade only stood up as long as presidents were content to respect the norms of political conduct as they had evolved over the past century. Now we have one that manifestly does not; he told us so during the 2016 campaign.

The idea that abuse of power is not grounds for impeachment is ridiculous on its face. It does not deserve a serious refutation. Nevertheless, the distinction that Dershowitz raises, while he tries not to, is important. Abuse of power cannot be simply political conduct with which Congress disagrees. There has to be a meaningful standard that raises it from the politically controversial to the constitutionally mendacious. Where is that line to be drawn?