Can’t Impeach Trump? Go After His Cabinet.
On July 21 and 22, 1864, Confederate soldiers under John Bell Hood went on the offensive in an attempt to blunt William T. Sherman’s advance toward Atlanta. Union artillery forces dug in behind fortifications at a place called Leggett’s Hill east of the city. A Confederate battalion charged the hill. Encountering withering fire, many of the rebels died and others fell back. Though their commander, Col. Harris Lampley, was wounded as well, he refused to retreat, and loudly cursed his troops as cowards.At this point, a Union colonel jumped over the earthworks, one Iowa volunteer later recalled. The officer seized Lampley by the collar, spun him around to face his decimated rebel force, and shouted, “Look at your men! They are all dead! What are you cursing them for?” Lampley ended the day as a Union prisoner; Hood’s offensive failed, and Atlanta fell on September 2.The daring Union colonel was named William W. Belknap. By war’s end, his heroism and skill had earned him the brevet rank of major general; after the war, President Ulysses S. Grant appointed him secretary of war. In that office, he earned one ignominious distinction: He is the only cabinet secretary in American history to be impeached.So far, anyway.Impeachment fever has gripped the U.S. since roughly the day after inauguration 2017. (You think you’re interested? Check out Donald Trump’s tweets!) Although Speaker Nancy Pelosi has frozen talk of removing the president, making a lot of Democratic voters angry, let’s remember that the impeachment power is not just for presidents. And there is more than enough evidence of high crimes and misdemeanors in the executive branch to fuel multiple impeachments of Trump appointees.If Pelosi won’t dare impeach Trump, perhaps she’ll deign to impeach his stooges.“Grant the Acrobat,” Joseph Ferdinand Keppler, in the humor magazine Puck, February 4, 1880, depicted Grant’s quest for a third term as weighted down by his compromised appointees. William Belknap is in the top row, on the right. (Library of Congress)She should start with Labor Secretary Alex Acosta. Yes, Acosta resigned Friday, after his newly publicized role in a sweetheart plea deal for Jeffrey Epstein made his position untenable. (Epstein, who was accused of paying multiple minors for sexual contact and for procuring other minors, agreed to plead guilty to state charges and register as a sex offender, but spent just 13 months in county jail and was allowed out 6 days a week on “work release.”) But Acosta remains impeachable.To understand why, study the sad fate of William Belknap.[Yoni Appelbaum: Impeach Donald Trump]High Crimes and Misdemeanors, a forthcoming history of impeachment in the age of Trump by University of Missouri law professor Frank O. Bowman III, includes the rich story of Belknap’s fall from grace. (In fact, High Crimes and Misdemeanors is about the only place to learn that story—there’s no mention of the Belknap case in Ron Chernow’s biography Grant.) Briefly put, Secretary of War Belknap and his wife Carita developed a taste for the Washington high life, and soon became desperate for extra cash. Belknap found it in the War Department’s control over “trader posts” on military reservations in the American West.Belknap wangled sole power to award these “traderships.” Next, he required U.S. troops in the West to buy their needs at trader posts, which charged exorbitant prices. He and Carita then cut a three-way deal: the official trader at Fort Sill, Oklahoma, paid an annual kickback to a New York contractor, who in turn gave half the proceeds to Carita. After Carita died, her sister Amanda took her place, both as kickback collector and as Belknap’s wife.It was a sweet deal for a while, nearly doubling Belknap’s government salary; but in 1874, Republicans lost control of the House of Representatives. Democratic Representative Hiester Clymer in due course became chair of the committee charged with oversight over Belknap’s department, just as rumors surfaced of something rotten in the trader-post system, and Clymer pounced. (He and Belknap had been roommates at Princeton; but in Washington, business is business.)[Read: Impeachment is the song of the summer]Here’s the most relevant part for our time. Clymer’s impeachment hearings launched on March 1, 1876. The next morning, Grant asked for and got Belknap’s resignation. That very afternoon—after learning of the resignation—the committee impeached him anyway and referred the matter for a Senate trial.This made perfect sense, partly because of history and partly through the interplay of two constitutional provisions. As Bowman documents, the English Parliament created impeachment in the 13th Century. “It was invented as a means of asserting parliamentary power against the Crown,” Bowman told me in an interview. Verbal criticism of the King himself involved some risk of disembowelment or similar unpleasantness, and were probably useless anyway. Impeachment of a minister “struck back at what Parliament perceived as executive tyranny or the invasion of Parliament’s privilege.”The Framers knew this history—and they knew that English parliamentary tradition allowed impeachment of officials after they left office. (In the most famous case, Warren Hastings, governor-general of India, was impeached in 1785 and acquitted nine years after he left office.)Now for the constitutional provisions. Article II § 4 states that the president, vice president, and “all civil officers of the United States,” can be impeached for “high crimes and misdemeanors.” English impeachment could lead to penalties up to and including beheading; the Framers thought that was a bit much. Thus, Article I § 3 limits the punishment for impeachment and conviction to “removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” Belknap was no longer secretary of war, but congressional Democrats argued that he remained at least theoretically eligible to serve in elected or appointed office—unless he was impeached by the House and removed by the Senate.[Garrett Epps: What pleases Trump has the force of law]At his Senate trial, Belknap didn’t even deny his crime; instead, he argued that his resignation barred a trial. The senators voted to proceed, and then voted 35-25 to convict him—a majority, but less than the required two-thirds. Belknap was then indicted by the Department of Justice; but Grant intervened to halt the prosecution. Belknap went back to Keokuk and died in 1890.Why would Congress have bothered with this mummery? Grant’s foes were not terribly worried about a Belknap comeback—but, Bowman told me, the Democrats would take any chance “to move against Grant’s corruption.” The proceedings amassed a 1,200-page record, distributed at government expense, laying out the corrupt payments in detail.Now back to Acosta. I asked Michael Gerhardt, University of North Carolina law professor and author of The Federal Impeachment Process: A Constitutional and Historical Analysis and this year’s Impeachment: What Everyone Needs to Know, whether Acosta’s conduct in the Epstein case might constitute an impeachable offense. Gerhardt responded that conduct before taking office has in the past served as grounds for impeachment. He cited the 2010 case of Thomas Porteous, a federal district judge who was charged with—among other offenses—taking kickbacks as a state-court judge before his federal appointment. Porteous was not only convicted and removed—he was also disqualified from future office (making him one of only three people ever given that additional penalty). Bowman agreed; since the Porteous case, he said, “the precedent is now clear” that conduct before taking office can be grounds for impeachment.In addition, Acosta testified under oath about the Epstein case during his confirmation hearings. If that testimony was false or even just incomplete, or if there were falsehoods or omissions on the forms he submitted to the Senate, Gerhardt said, Acosta could be charged with “a fraud on the Senate.” And if anyone thinks his conduct as a prosecutor is too far afield from a post as Labor Secretary, there’s no reason the House can’t also impeach him as a former U.S. Attorney.[Read: What Trump’s generation learned about the Civil War]Pelosi already dismissed the idea of impeaching Acosta, but there are urgent reasons why the House should do a Belknap on the former labor secretary: Acosta’s deal with Epstein was arguably tantamount to a coverup of depraved sexual conduct; not only that, depraved sexual conduct against minors; not only that, depraved sexual conduct against minors by a former friend of Donald Trump’s.Acosta’s inaction cries out for investigation—an investigation I for one do not trust the Trump/Barr Justice Department to carry out.And that mistrust suggests another appropriate impeachment target: William Pelham Barr, esq. Even Pelosi recently told reporters that Barr “lied to the House. That’s a crime.” It’s not just a crime: lying to Congress under oath is what we call a high crime. Gerhardt agreed that false or misleading testimony—especially by the head of the Justice Department—could be enough to justify removing Barr. Bowman is already on record, during the long ago days of the George W. Bush administration, calling for the impeachment of Bush’s attorney general, Alberto Gonzales, for his role in the political jimmying of U.S. attorney offices.A House investigating committee could also demand an explanation from Barr for his conduct at the end of the Mueller investigation and during the Census fiasco. And an impeachment proceeding would give the House a strong argument to compel him to turn over Justice Department records, which he so far has been reluctant to do.Alas, these cabinet impeachments are probably a con law nerd’s dreams, no more realistic than a serious impeachment probe of the president himself. If Pelosi has made a political judgment to hold back, that’s only to be expected. “If we know anything about impeachment from 1376 on,” Bowman said, “we know it is designed to be a political process.”So be it. But to paraphrase the immortal Rick Blaine, Pelosi’s business is politics, mine is running a saloon. And in my saloon, we drink to accountability, to investigation, to legislative courage, and to William Belknap’s lonesome ghost.
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