I begin with a simple premise. Separation of powers is not always as separate as it seems. The founding fathers knew the three separate but equal branches would by necessity have some overlap of governmental responsibility and powers. Even more simply put, there are times where the President “makes” laws. These are called Executive Orders. Abraham Lincoln’s Proclamation of Emancipation was an Executive Order banning slavery in the South. Congress has enforcement powers pursuant to many of its laws. The 13th, 14th and 15th amendments all contain an enforcement clause specifically giving the legislative branch the power to enforce its own mandates. There is also much talk recently about the Congressional “inherent” power to enforce its contempt power. 30 days in the hole known as the Capitol Jail? Which is in fact Washington’s unused Tomb? It’s got Bars, perhaps even a ghost or two.
Then there is the Judicial Branch. Within the British Commonwealth judges’ court rulings along with codifications of local customs and ritual comprise what we call the common law. ????
In many ways, everybody does a little of everything all the time. What is rare is a situation where all three branches are specifically tasked with duties, powers and a specific role within a singular government event. Seems like it might be pushing the separation aspect, doesn’t it? One such extraordinary proceeding is impeachment.
“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.” – U.S. Constitution, Article II, section 4
As a practical matter, Article II presidential impeachment refers to Congress, pursuant to its power of executive oversight, investigating and, if warranted, with a mere majority of House approval, “impeaching” the president, meaning they recommend the Senate follow-up by convening a trial-like proceeding by which a sitting president can be punished for the actions including removal from office. Although, under no Constitutional mandate to do so, once the Senate does initiate formal proceedings, the Senators themselves act more like judges than jurors. Separately, they will each weigh the evidence and without any actual formal burden of proof, much less beyond a reasonable doubt, if 2/3rds of the Senate agrees on removal, the President will be, for all intents and purposes, fired for cause. No two weeks-notice, no severance and no pension. The VP assumes the office (one of the VPs only known uses) and all rights and privileges thereof. Except, probably, not Pence who has shown himself to be no stranger when it comes to Russians, the NRA, leaving Indianapolis Colts games and general adherence to the Trump soon-to-be exposed party line(up) of crime and corruption. He’ll most likely be impeached too, remember, impeachment and prison isn’t just for presidents anymore!
As for the Judicial branch’s role in all this, the Chief Justice of the US Supreme Court “presides” over the Senate’s mock trial where all of the Senators serve as mini-judges. Although not spelled out, I would assume Chief Justice Roberts’ role would be one close to a referee, or perhaps, as a mediator facilitating the accuracy of Senate rules interpretation, although there will be the Senate parliamentarian present, and the quelling of quasi-family spats between various White and Capitol Hill officials. I can hear it now. “Play Nice!”
But really, just what the heck does the Chief Justice do? Well, we do know William Rehnquist, the last CJ to preside over an impeachment hearing, you know the monumentally civilization-changing highly partisan and totally political kabuki theater one for Bill Clinton? Found the time to discover that his defiled little basic black chief justices robe, you know the one he covered with gold stripes he put on the sleeves so he would look like, I guess, Michael Jackson, would fetch about $30,000.00 at Sotheby’s auction.
Seeing as Roberts doesn’t seem the type to add sparkles and glitter to his attire, maybe he will bring a book to read. I would.
If you want it, here it is, come and get it.
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