The rule of law, described as the rules that must be followed if a public, political action is legitimate in the sense that it is part of the small “c” constitutional tradition of a community, includes as one of its many parts and requirements an agreed-upon understanding that it is, or it constitutes (the language is suggestive), a “common law” habit, or precedent or regular practice or time-honored tradition. Sometimes, in the absence of an antecedent, ancient history, such rules for procedure or process are laid out in a founding document, such as the Big C American Constitution. Laying them out in the Constitutional Congress of the year 1787 was necessary in the 18th century, during America’s formative history, because some of the Founders’ ideas were so exceptional (that is, brand new at the time) that there was no local history toward which newly robed American judges could look back.
However, in 1787, just as is true today, a special, unique sense of historical consistency or ancient, time-blessed legal refinement is necessary when setting out or (even more so) when operating under procedures possibly ending with the deeply “anti-democratic” action of removal from elected office, or from other highly legitimate position of political authority, a person who, absent some extraordinary process, is “entitled” to continue in office.
That is, the entire sequence of actions, beginning to end, that are undertaken under the name “impeachment” must satisfy the most stringent scrutiny to ascertain not just fairness but constitutional, common law, historical consistency. Any novelty, or denial of precedent, or inconsistency with tradition is highly suspect, given that the impeachment process is itself infrequently undertaken and is, almost always, not just a “smash” of standard elective or selective process, but also a boiling stew of politics, partisanship, peculiarity, unfamiliar to the constituent population, and unfamiliar even to those politicians, lawyers and public figures who manage it, and who may be subject to its workings.
And that brings us to the two points made in this essay: In the US House of Representatives, Democrats so far have ignored their national history of good practice. What must change to make the process legitimate? On my side (so far) I have not reminded you readers of the non-local, English history of impeachment that was familiar to the Founders at the time of the writing of the US Constitution. What is that history, and how might it help us today to criticize or support current actions between President Donald Trump and his enemies in the Democratic Party?
Well-informed readers will already know the outlines of the procedural flaws and general inadequacy of the initial “rules” (or rather lack of established rules) characterizing the beginning of the unofficial Trump impeachment process. Trump was inaugurated president on January 20, 2017. Here are some examples of the timeline of his problems.
It is a fair assumption that only actions taken by an accused official taken after a high office has been obtained are impeachable. But a New York Times article dated January 27, 2017, was headlined: “Trump’s foreign business ties may violate the Constitution.” Vanity Fair magazine printed an essay dated February 2, 2015, titled: “Democrats are paving the way to impeach Donald Trump.”
US Representatives Brad Sherman and Al Green submitted to Congress their draft resolution titled “Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors” on June 12, 2017. President Trump’s accusers say he worked with Russia, but in fact, the only evidence of American politicians with Russian ties is the fact that the Clinton Foundation, operating prior to October 2016, paid UK spy Christopher Steele US$160,000 to produce the “Steele Dossier.” This material was used by the Foreign Intelligence Surveillance Court to investigate low-level Trump associates.
Steele received much of his material from spy-type sources in Russia and Ukraine. The file, leaked to the press, smeared Trump and perhaps helped motivate the long-lasting “Mueller investigation” into claims it was Trump, not Hillary Clinton, who had politically important connections with Russia and Ukraine. Notice how much “look-ahead” is implied by the timeline of actions by Democratic Party institutions, all laying a foundation that has proved useful in current impeachment goings-on.
But much (and much more) of this short-run history is known. What is less known is the long-run history of Anglo-American impeachment processes and standards. That historical narrative shows a connection between the American Constitution at the time of its enactment and the UK-Warren Hastings/Edmund Burke affair. The UK Hasting impeachment went on from 1785 to 1795, perfectly bracketing the fateful dates 1787-89, during which the American Constitution took form and was enacted.
My summary of the big picture sketched out in the Hastings affair goes thusly: Up from nowhere, abandoned by his failed father, a solicitor who ran away to the West Indies just after his wife, Warren’s mother, died and left her newborn son in the hands of an uncle who quickly sent him away to care and schooling of still others, proved to be a good scholar who, after several false starts and early disappointments, finally rose from penurious clerk to become the first governor-general of India. He “went local,” becoming a “real Indian” during his long service with the East India Company, endearing himself to what we would today call the Indian nationals of his time.
He governed as they governed themselves, in the style of Asia, but without serious corruption, depravity or self-enrichment. He studied Hindu thought, he built Indian-style institutions of higher learning, he respected the people he ruled, as a representative of their conquerers, sometimes as a warrior, but also as an “honest Roman.” His reforms mixed English and Indian traditions, job descriptions, rules and regulations in a way that deeply displeased the “old guard” back home, none so much as it did Edmund Burke. Acquitted in 1795, but his reputation stained, his fortune depleted, Hastings somehow managed to repurchase his country seat in Daylesford, Gloucestershire, where he died a recluse in August 1818, warmed by the memory that in 1814 the future George IV called him “the most deserving yet also one of the worst-used men in the Empire.”
Let me state explicitly the point I am trying to make: Hastings was a man who raised himself up, who lived most of his life away from his homeland, as a servant of a people whom he ruled but respected. Most of all, he lived his public life as a practical man, almost bereft of ideology or theory. He was an “outsider.” and his enemies were consummate “insiders,” who deplored his style, even while they could not realistically ignore his accomplishments.
Yes, to state the obvious, Hastings reminds me of Trump, and Hastings critics – at least the top tier of intellectual “never Trumpers” like Bill Kristol (founder of the conservative Weekly Standard magazine) – are modern counterparts of Burke.
Then and now, sophisticated political philosophers like Edmund Burke have a world vision based on natural law, ancient traditions and scholarly preferences that emphasize the role of Thomas Jefferson’s class of “natural aristocrats” of merit and virtue. Those genuinely wise savants are able to govern out of a sense of duty, recognizing that the raw demos, the mob, the people (characterized by Jefferson’s opposite number, Alexander Hamilton, as a “great Beast”), have passions, enthusiasms, innovations and hungers that, without wise guidance, governance and control, are inconsistent with long-run prudence, balance and foresight needed if genuine liberty and freedom from public opinion are to characterize political processes.
Donald Trump’s political brilliance and success (don’t forget, he beat at least 16 of the best Republican competitors then extant to get the nomination and then he defeated the anointed Democratic champion, first woman to be nominated (etc) Hillary Clinton, Trump then becoming president against all predictions (made by folks who don’t understand his abilities). But Trump, despite his more-or-less Ivy League education (Wharton School, 1966-68), is not a traditional Burke-type conservative political philosopher. He is a nationalist: That is, he does not pursue policies that are in the general interest of the entire human race. Rather, he plays the “Great Game,” metaphorically inspired by Empire-minded UK masterminds during the 19th century, when the British Empire’s governors fought with Russia for control of “The Jewel in the Crown,” India.
For him, America comes first, ahead of all others, needy or not. For him, it is not so much how you play the game, as long as you win it. Not the gentleman’s way, but it is the winner’s way. His speech is rhetorical in the best tradition of Cicero: But Cicero’s purpose, as he himself says, is not to inform, but to persuade, to convince, to win over. Only if adverse advocates are present and give their best in debate will “truth” come out, as it does (and did in Cicero’s time) at the end-point of the working of the court-based system of adversarial advocacy, conducted in front of a well-informed, civic-minded jury of peers paying the careful attention needed to bring final judgment to the entire proceeding.
Trump’s cabinet, his administrative apparatus, his entourage are not there to instruct him or remind him of his controlling ideology: He has no need of an ideology beyond what requires to be a winning negotiator. He put a clearly defined list of goals before the voters, a list that was not entirely consistent with his Republican Party. For example, he promised to “bring troops home” from wars that many Republicans support. At the same time, he promised support to Israel, a pledge impossible to keep without an implied willingness to defend with our best military assets “our natural friend“ in the war-weary Middle East.
Therefore President Trump, like Warren Hastings, has gone his own way when governing an unruly and profoundly complex social, political, military and economic concatenation of moving parts, as opaque to standard pre-Trump analysis as was the India of the Hindi Raj to the Rockingham Whigs.
Trump long ago “went native”: a necessary strategy if one is to survive in New York’s real-estate world of unions, mayors, contractors, rent controls and property taxes. I am reminded of a scene in an old Woody Allen movie when Woody is informed by a beautiful blonde that differences of opinion in her New York boyfriend’s world are settled by fellows who shoot opponents in the head, but always through the eyes so the dead man’s family can have on open casket the occupant of which has a more-or-less intact skull.
Trump has a record of remarkable success in a town, in a world, where, for example, his aggregated economic numbers are the best in US statistical history. But he brought about that success in a way that is highly deserving but yet he is currently being worst-used. Yet, like Hastings (whose way of running India was imitated by all successors, despite the impeachment), history will show that Trump’s innovative political stratagems, from his use of social media to his amazing economic miracle of building a package combining minimum inflation, maximum employment, capital accumulation (the stock market), all in the international trade context of American interest first, has created a record few others will later match.