Vol. 11 No. 2 July 2020 DOI: https://doi.org/10.18196/jgp.112119 240 AFFILIATION Université 8 mai 1945 Guelma, Algeria CORRESPONDENCE: dekhakhena.abdelkrim@univ- guelma.dz CITATION:“Dekhakhena, A. (2020). Trump’s Impeachment: The Greed for Presidential Power andtheLimit of the Constitution. JurnalStudi Pemerintahan. 11(2). 240-269 ARTICLE HISTORY: Received: January 12nd, 2020 Accepted:June 10th, 2020 Trump’s Impeachment: The Greed for Presidential Power and the Limitsof the Constitution ABDELKRIM DEKHAKHENA ABSTRACT Prompted by populist rhetoric Donald Trumphas spent histime in officetrying to bend the conventions of the American presidency to his will. Since taking office, he has repeatedly taken unilateral actions to defy Congress and push the limits of his own power.Now he appears to be trying to override a core principle of democracy: that no one is above the law. Faced with an impeachment inquiry, Trump has openly defied the core constructs of the Constitution. President Donald Trump is incensed by the idea of co-equal branches of government and rejects the House’s right to investigate him. The main aim of this paper is to find out the extent of constitutional limits put on the Executive and the validity of the system of check and balance and to what extent executive privilege would save Trump. Thus, this paper reveals that regardless of the result of the impeachment process, it is critical that those on both sides of the political spectrum work to assure that the growth in presidential power is at least checked, if not reversed. Keywords: Impeachment, Congress, US President, Constitution, Check and Bal- ance, political parties ABSTRAK Didorong oleh retorika populis, Donald Trump telah menghabiskan waktunya di kantor untuk mencoba membengkokkan konvensi kepresidenan Amerika sesuai keinginannya. Sejak menjabat, ia telah berulang kali mengambil tindakan sepihak untuk menentang Kongres dan mendorong batas kekuasaannya sendiri. Sekarang ia tampaknya mencoba untuk mengesampingkan prinsip inti demokrasi: bahwa tidak ada seorang pun di atas hukum. Dihadapkan dengan penyelidikan pemakzulan, Trump secara terbuka menentang konstruksi inti Konstitusi. Presiden Donald Trump marah dengan gagasan cabang pemerintahan yang setara dan menolak hak DPR untuk menyelidikinya. Tujuan utama dari makalah ini adalah untuk mengetahui sejauh mana batasan konstitusional yang dikenakan pada Eksekutif dan validitas sistem check and balance dan sejauh mana hak istimewa eksekutif akan menyelamatkan Trump. Dengan demikian, makalah ini mengungkapkan bahwa terlepas dari hasil proses pemakzulan, sangat penting bahwa kedua sisi spektrum politik bekerja untuk memastikan bahwa pertumbuhan kekuasaan presiden setidaknya dikendalikan, jika tidak dibalik. Kata kunci: Impeachment, Kongres, Presiden AS, Konstitusi, Check and Bal- ance, partai politik JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 241 INTRODUCTION Since the nation’s founding, Congress and the Execu- tive have struggled for supremacy. The 20th Century witnessed a steady if irregular expansion of presidential authority that has been carried over into this first decade of the 21st Century. The clash between the executive and legislative branches has raised fundamental questions about the power of the presidency, the balance of pow- ers under the U.S. Constitution and the state of Ameri- can democracy. The delegates to the Constitutional Con- vention of 1787 gave surprisingly little attention to the executive branch of government. In contrast to the protracted debates over the powers of Congress, the powers of the presi- dent were definedfairly quickly and without much discussion. Over the nation’s long history, with only short interruptions, power has flowed increasingly to the Executive Branch. The reasons are numerous but include the successful and desirous exercise of power by ambitious presidents from Lincoln to the two Roosevelts, the growth of the administrative state in the 20th century, and the realization that Congress is ill-suited com- pared to the President to make timely responses to national se- curity threats and crises.A good many presidents since Woodrow Wilson have asserted that the Constitution is challenging. Presi- dents are understandably unwilling to admit that their battles with Congress are not the result of a blunder in the design of the Constitution. They are the result of Checks and balances. The federal government was meant to be powerful but limited, and the Constitutional order was created to preserve those limits. Vol. 11 No. 2 July 2020 DOI: https://doi.org/10.18196/jgp.112119 The power of the President is something that has been ex- pandingsincethefoundingofthe United States (Greene,1994, p.123,125), raising the needto consider the implications of this expansion within the constitutional structure of separation of powers, no matter which party controls the White House.This expansion in presidential power has created a constitutional imbalance between the executive and legislative branches, call- ing into doubt the continued efficacy of the structure of separa- tion of powers setforthbythe Framers.Becausemany, if notall, the factors that have led to increased presidential power are the products of inevitable social and technological change, they are not easilyremedied (Marshall, 2008). Donald Trump has spent his time in office trying to bend the conventions of the American presidency to his will. Now he appears to be trying to override a core principle of democracy: that no one is above the law. Faced with an impeachment inquiry, Trump has openly defied the core constructs of the Constitution. He was irritated at the idea of co-equal branches of government and rejects the House’s right to investigate him. He has deployed a convoluted logic in which he has declared that the courts cannot investigate him because as president he cannot be charged with a crime but also that Congress cannot impeach him because its inquiry is politically illegitimate. Trump’s White House has ignored document requests and summons and readily invokes executive privilege - going so far as to argue that the privilege extends to informal presidential advisers who never held White House jobs (Cox, p. 1384). Theimpeachment standoff follows a pattern Trump has estab- lished throughout his presidency as he has jettisoned experienced advisers andfloutedconventions. Thefact that hesurvivedthe special counsel’s Russia investigation without paying much of a political penalty left him all the more emboldened (Lemire, 2019). JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 242 One day after Robert Mueller’s faltering testimony brought an end to that threat, Trump unleashed a new one by asking Ukraine’s presidentto investigate his political foe Joe Biden (Lee,Daniel, Lieberman, Migliozzi, and Burns, 2019).That prompted the fast-moving impeachment inquiry that Trump resisted.The White House’s refusal to cooperate with the House impeachment inquiry amounts to an unabashed challenge to America’s longstanding constitutional order. Although the Con- stitution created a federal government of limited powers, the Supreme Court has ruled that the government has certain ‘im- plicit’ powers that are necessary for it tofunction properly. LITERATURE REVIEW The capacity of chief executives to fulfill their tasks and exer- cisetheir powers to affect theoutput of government have been the focus of unremitting analysis. Scholars such as (Richard J. Ellis, 2013), (George C. Edwards III & William G. Howell, 2011), (George C. Edwards, III, Kenneth R. Mayer, &Stephen J. Wayne, 2018) illustrate their analysis by fully integrating timely and fas cinating examples. Guiding their analysis by the examination of two broad perspectives on the presidency -the constrained presi- dent (“facilitator”) andthedominant president (“director”) they show how different cases illuminate our basic understanding of the presidency, making presidential power and leadership the perfect vehicle for understanding the president and his impact on the office and policy. (Charles W. Dunn, 2011) and (Richard Elliott Neustadt, 1990) explore the growth of presidential power, investigating its so- cial, political, and economic impact on America’s present and future.They discusstheroleofthepresidency in a government designed to require cooperation with Congress and how this relationship is further complicated by the expectations of the public. Vol. 11 No. 2 July 2020 However, the emphasis on the unitary executive, agoverning style that continues to be highly controversial, is flawed as few examples of this type of presidential leadership exist. The President to act as ultimate decider on policy actions is con- strained by things like Congress, his own prestige and ability to persuade, and the competing interests within his own administration in addition to his personality. Presidential image would give a more realistic and less ideal- ized view of presidential decision-making. Nonetheless, we of- ten learn more about a president from his failures then his suc- cesses. The focus on policy failures rather than successes, then are we really getting an accurate view of leadership? Presidents seem to have taken more powers upon themselves from the 1990’s onward with Congress and thus playing less of the role ascribed to them. While I was tempted to agree thinking about the Clinton and Bush administrations or even Obama, couldn’t we say that elements of Neustadt’s logic help explain the cur- rent governmental dysfunction evidenced by the battles between the Trump White House and Congress? RESEARCH METHOD Understanding the historical practices of Congress with re- gard to impeachment and its outcome is central to fleshing out the meaning of the Constitution’s impeachment clauses. For that reason, examining the history of actual impeachments is crucial to determining the meaning of the Constitution’s im- peachment provisions and the president’s response. Consistent with this backdrop, this paper begins with an examination of the growth of the executive power and its influence on impeach- ment, including the perspective of the Framers. 243 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 244 Through a closer examination of presidentialpower andthelimitsput bythecon- stitution, this paper looks into the potential problems encoun- tered by the political system over the impeachment of President Trump and the implications this might have on the present and future policies. The main aim of this paper is to find out the extent of consti- tutional limits put on the Executive and the validity of the sys- tem of check and balance and to what extent executive privilege would save incumbent Trump. Through the examination of archival research and secondary source materials produced by historians on previous cases, the paper outlines the different weaknesses and obstacles that hinder the well functioning of the impeachment process. This paper responds to the scattered state of constitutional and practical impeachment manipulations by identifying and exploring a series of key issues common to impeachment. These manoeuvres have exacerbated the balance of power within the structures of the government.Specifically, the U.S. is the world’s oldest democracy, with a purely presiden- tial system, an old constitution, a stable two-party system in which the parties regularly alternate inholding the presidency and a systemof checks and balances among the three branches. Thus, this paper reveals that regardless of the result of the impeachment process, it is critical that those on both sides of the political spectrum work to assure that the growth in presi- dential power is at least checked, if not reversed.The result is that a presidential impeachment carried out in the early 21st century simply cannot carry the gravitas of previous examples. Vol. 11 No. 2 July 2020 THE MODERN PRESIDENCY: TOOLS OF POWER The growing expectations that the public has of presidents creates a gap between expectations and formal powers. Presi- dents seek to bridge this gap, by using personal attributes and cultivating strong public support. They have increasingly cen- tralized, at the expense of many of the cabinet officials, policy- making authority as a means of maximizing their own power to control the political environment. The American Presidency has changed dramatically over American history. Beginning with George Washington, many presidents have used their implied and informal presidential powers to enhance their personal influence, and often the power and potential influence of later presidents. Many of these implied powers, whichareassumed as granted under the Constitution although not explicitly listed, stemfrom apresident’s responsi- bilities during times of national emergency or crisis. For example, early presidents, including Washington and Jefferson, didn’t hesitate to exercise their commander-in-chief authority by or- dering Navy ships into hostile waters without an express decla- ration of war from Congress. And in his bold Louisiana Pur- chase, Jeffersonshowedthat a president who acts decisively might successfully compel others tofollow his lead after the fact. A president’s informal powers, or the powers to persuade others to follow his lead, derive in part from his use of the vis- ibility and prestige of the office itself. As America’s only nation- ally elected leader, the president is considered the county’s ‘first citizen’ who stands and acts for the American people as a whole. Some presidents, such as Lincoln, Wilson, Theodore Roosevelt, and Franklin Roosevelt, drew upon their informal powers during times of national crisis to increase their influence over oth- ers in Congress and the executive branch. Other presidents, including Lyndon Johnson, drew upontheirpersonal skills and intimate knowledge of legislative processes to pass bold national initiatives such as the Civil and Voting Rights Acts (“The Mod- ern Presidency”, 2017). 245 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 246 During the twentieth century, the presidency itself was trans- formed. Asthey presided over two world wars, a major depres- sion, and a Cold War, several twentieth century presidents in- creased their powers and influence at the cost of Congress and other government institutions. Presidents now compete with Congress insetting and enacting thecountry’s legislative agenda, and the White House is the focal pointfor setting foreign and domestic policy. Presidents Nixon, Reagan, and Clinton, for example, conducted specific foreign policy initiatives almost wholly from within the White House, sometimes at the cost of a consistent and unified U.S. foreign policy. The institutional presidency has also grown during the twen- tieth century. It includes the White House Office (WHO) and the Executive Office of the President (EOP). These offices sur- round modern presidents in layers of bureaucracy that they can use to enhance their power and influence. However, some presi- dents have found that the White House bureaucracy can actu- ally makethem feel isolatedand out-of-touch. A key position is White House chief of staff. The chief of staff serves as the president’s ‘gatekeeper,’ and is often credited or blamed for helping or detracting from the support and effectiveness of re- cent presidents (“The Modern Presidency”, 2017). Although the presidency offers a range of formal, implied, and potential informal powers, modern presidents struggle with theinherent limitations of the office and often have difficulty coping with conflicting public expectations. For example, most Americans want their president to be a ‘regular person’ who understands them and their daily struggles. Yet, many Ameri - cans also expect their presidents to rise above commonality and command the international stage. Similarly, Americans usually prefer pragmatic approaches to governing and executive leader- ship, but alsoexpect presidentstoleadwithvisionary policyini- tiatives. Modern presidents must meet these and other conflict- ing assumptions in a political environment where institutional challenges, including the opposing party in Congress and orga- Vol. 11 No. 2 July 2020 nized special interests, daily attempt to thwart or fundamentally reshape the president’s policy initiatives. THE STRUGGLE FOR POWER Inthetwentieth centurythe power of theexecutivehas been extended significantly. Chiefs of the Executive have major re- sponsibilities, and their public profile is markedly high. Much of their increase in power derives from the growth in govern- mental interventionism, but the globalization of economic and political concerns has also added to their responsibilities and recognition. In 1933, the Great Depression accelerated a funda- mental change in political behavior and lead to the emergence of modern presidency.The sheer scale of economic dislocation and hardship required a national lead, and the administration of Franklin D Roosevelt was only too willing to respond. Since then, the American system has become a very presidential one and the political process now requires a continued sequence ofpresidential initiatives in foreign policy and in the domestic arena to function satisfactorily. As enthusiasm for presidential power increased in the1960s, there was general agreement that the federal government should have a significant role in the nation’s economy and in creating and maintaining a welfare system. This growth of ex- ecutive power prompted (Arthur Schlesinger, 1973) to argue that the concept of the constitutional presidency had given way by the1970s to an imperial presidency, a revolutionary use of power very different from what had originally been intended. He was largely basing his argument on the Nixon presidency and con- cluded that the institution no longer seemed to be controllable via the supposed constitutional checks and balances. At the Phila- delphiaconvention, some of the framers argued that the presi- dent should be subordinate to Congress.The scope of a president’s power depends largely on the views of the president.Congress has delegated a great deal of authority to the president because Congress hastime to provide only gen- 247 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 248 eral outlines for public policy. The President of the United States is certainly the mostpow- erful person in the world - but, interestingly, the Constitution’s drafters did not expect this to be the case.In fact, James Madi- son, the Constitution’s principal architect, worriedthat the ‘bal- ance of powers’ tilted toward the House of Representatives. But from the start, presidents worked to protect and expand their turf-and they generally succeeded. George Washington set the precedent; when Congress requested documents pertaining to the controversial Jay Treaty, he refused to turn them over, in- troducingthedoctrine of executive privilege and making a point about the autonomy of the executive branch. Overthe course of the nineteenth century, other presidents added new weapons to theoffice’s arsenal of powers. Andrew Jackson was the first to make extensive use of the veto and Abraham Lincoln read broadly into his wartime powers as com- mander-in-chief. But with Teddy Roosevelt and the arrival of a new, morecomplex century, theoffice’s powergrewat aneven faster rate.Part of this growth in thepresidency might beclassi- fied as organic - the inevitable result of the historical process. As the nation’s economy grew, the government needed to assume a larger regulatory role. As the world shrank, enabling the United States to increase its international presence, the fed- eral government needed to expand its diplomatic presence. And many of the new demands placed on government could not be easily met by Congress. Take foreign policy, for example. Con- gress may be well suited to the task of drafting educational re- form legislation - but 535 people cannot negotiate treaties or efficiently respond to a national security crisis. And even complicated domestic legislation can be difficult for Congress tomanage. When confrontingthe scientific com- plexities of environmental supervision or the financial intrica- cies of banking regulation, Congress’s 535 members rarely man- age to agree on more than the broad outlines of a legislative proposal. Consequently, many of the details are left for the presi- Vol. 11 No. 2 July 2020 dent to work out after he is handed the bill for implementa- tion. The president gets to decide how to prioritize the legisla- tion’s content and how to interpret its critical sections. And the president also possesses the authority to appoint the staff that will oversee or run any agency or board created by the congres- sional act. Thus, there was a certain ‘natural’ tendency for the presi- dency to expand as history progressed. But there were other factors contributing to the growth of the office, as well. For ex- ample, the presidency is more unified than the legislative branch. Theexecutiveofficecenters ononeperson- andtherefore, the office more easily speaks with one voice.A president who knows how to use that voice is particularly powerful. The most effec- tive presidents of the modern era have known how to work the national media that emerged at the turn of the twentieth cen- tury. Theodore Roosevelt was the first to recognize that the presi- dential office was a ‘bully pulpit,’ a great podium from which to shape public opinion. Franklin Roosevelt and John Kennedy were also effective communicators. Ronald Reagan was, hands down, the best at turning the presidential pulpit to his advan- tage. The ‘Great Communicator’ was masterful not only at de- livering a message, but also at controlling the delivery of that message (Shmoop, 2008). Substantially, the Executive became anequivocal positionpregnant withthepossibility of theabuse of power. THE 1970S TO THE PRESENT DAY Suchabuses of presidential power did occur – Vietnam and Watergate were but the most significant. Many Americans real- ized for the first time in 1974 the tremendous stock of power in the hands of the President. The principle of a separation of powers had been incorporated into the Constitution to prevent a concentration of power in one part of the government. Watergate and the revelations of the misuse of power by the Executive Branch during several past presidencies reminded 249 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 250 people of the message spelt out by the Founding Fathers – a system that placed too much responsibility in the hands of one man must offer temptations forwrongdoing. The nature of the presidency at a particular moment depends considerably upon the incumbent. Great men tend to make great Presidents, but the active presidential leadership of the 1960s andthehabit of congressional compliance is out of fash- ion. It is commonplace among academics of recent years to think more about the limitations of the office than of its opportuni- ties for leadership, even if those Presidents they admire have been those who imposed their stamp upon the office. Presidents, either bytheir nature, by coincidence, or acom- bination of both, are never keen on the idea of giving up power and always seem welcoming to the idea of acquiring more. There- fore, through the years, the President of the United States has built up so much power that each election round brings with it enormouscomplications. Consequently, even if the Oval Office was occupied by anindividual otherthan Donald Trump, it would still beaworthwhileandtimely debate. It is afundamentalclash of ideas. Onthe one hand, there’s anidea of convenience. In many instances, some could argue, that it is better to act imperfectly than to delay the perfect action. Had Congress been the actor for nuclear launches in the 1940s, the outcome of World War 2 arguably could have been different. The ability to actswiftly is crucialincertainsituations, andallowingthe Presi- dent such power arguably protects Americans and national se- curity. On the other hand, it is against the very core of demo- cratic principles to place the most important decisions in the hand of a single individual. That is, two minds are better than one. The 2016 election may haveproduced Donald Trump, de- spite losing thepopular vote, but such afeat is not new in the American system of democracy. Thename Donald J. Trumpalone isenough tospark heated debate acrossthe country. It is nearly impossible tonot hold an opinion of the individual who currently holds the most power- Vol. 11 No. 2 July 2020 ful position in the world. Beyond the controversial figure him- self, however, lies a fundamental question related to how pow- erful the most powerful person in the world should be. The question ofseparation of powers necessitates enduring disagree- ment over the specifics (Flaherty, 1996, p. 1816-20). The fact that the office is currently occupied by one of the more polariz- ing figures does not establish this topic as debatable – it has been debated long before Trump entered into the public view and it will continue long after he leaves it. However, the current polarization of Trump specifically and America broadly makes a nationwide discussion over separation of powers and checks and balances essential for the future generation. DISCUSSION AND RESULTS Understanding America’s presidency requires to do more than assess the relative merits of the presidents. It requires acareful look at the institution, its Constitutional character, and its his- tory. The framers of the Constitution thought Congress would be the most important branch of government but theinstitu- tional structure they devised led to the gradual and inexorable growth of presidential power (Ginsberg, 2016). 251 GROWTH OF THE PRESIDENCY AND THE CONSTITU- TIONAL LIMITS Because of the vast array of presidential roles and responsi- bilities, coupled with a conspicuous presence on the national and international scene, political analysts have tended to place great emphasis on the president’s powers. Some have even spo- kenof “the imperial presidency,” referring tothe expanded role of the office that Franklin D. Roosevelt maintained during his term. President Theodore Roosevelt famously called the presi- dency a ‘bully pulpit’ from which to raise issues nationally, for when a president raises an issue, it inevitably becomes subject to public debate. A president’s power and influence may have limits, but po- JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 252 litically the president is certainly the most important power in Washington and, furthermore, is one of the most famous and influential of all Americans. The powers of the president of the United States include those powers explicitly granted by Article II of the United States Constitution to the president of the United States, powers granted by Acts of Congress, implied pow- ers, and also a great deal of soft power that is attached to the presidency (“Annotated Constitution Article II”).The role of the presidency has changed dramatically over the last several hun- dred years. First of all, when the founders created the presidency, they left it kindaloose. They weren’texactly veryspecific about what a president woulddo. As George Washington, was aman of virtue and that he in his behavior would set the precedence for the next president after him, the job is basically handed off by tradition from president topresident. The founders projected two things: they did not want a king they had just gotten rid of and designed a government that would resist mobrule. Those werethe twothings they were try- ing to get in between. But, a president has a lot of room to move in between the two of them.Obviously the constitution talks about the powers of the president. However, it provides little hint that the president would become as powerful as he has in modern times. What happened was, when they originally created the presidency they needed somebody who can move quickly. But, as people wanted quick action they handed over more and more power to the president. Substantially, Congress, which used to fight with the president a lot, during the Second World Warandthenonintopresent day, has given up a lotof its power to the president. Theestablishment of thepresidency in 1789, bytheframers of the Constitution of the United States, was an act of political creativity. The presidency had no real counterpart in historical experience. The framers aimed to have a strong, but respon- sible, chief executive, and to this end the office was made to consist of a single incumbent whose power would not be shared Vol. 11 No. 2 July 2020 with a cabinet or council. The president would be elected by a sourceoutside the legislature - the Electoral College- andthus could govern without beingindebted to Congress. The Consti- tution granted the presidency powers of its own. Believing, how- ever, in balanced government, the framers created a strong Congress and a judiciary to check the chief executive. The first incumbent of the office, George Washington, was an assertive executive who was active in both foreign and do- mestic affairs and who interpreted his powers broadly and de- fended them against congressional encroachment. Thomas Jefferson exploited the presidential role of party leader and won exceptional congressional support. Under his weaker successors, however, the office was eclipsed by Congress.Andrew Jackson revivedthepresidency byreinterpreting it as an organ of popu- lar leadership. Abraham Lincoln, in the crisis of the Civil War, largely on his own claimed authority, expanded the armed forces, imposed a naval blockade, and used funds from the Treasury without congressional appropriation. Although Congress rati- fied many of Lincoln’s acts after the deed, it soon reacted against theexpanded power that hehadgiventhepresidency; his suc- cessor, Andrew Johnson, was impeached and narrowly escaped conviction. Presidents want to accumulate power to accomplish their ends – it is just that some presidents are more effective than others inaccumulating this power (Neustadt, 1960). Thus, it would be possible for a President to wield absolute power and authority, and often wields that power unjustly, cruelly. And that is pre- cisely what the Founders wanted to prevent. They were far more worried about what an over-mighty executive might do than they were about the laws a recalcitrant Congress wouldn’t pass.Of course, they didn’t simply want a weak executive. In foreign policy, they wanted a strong one. Even today, presidents tend to move from domestic policy (The economic policies of Donald Trump, for example) to foreign policy (the Iran nuclear deal) as they realize how constrained they are at home.But ultimately, 253 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 254 there’s a reason Congress is on top of Capitol Hill - looking down on the White House. Nothing reaffirms the Founders’ wisdom more than the fact that presidents complain so much about the Constitution: If it gave them the power they want, it would be worthless. Yet, the fact that presidents since 1789 have regularly signed bills into law shows the error of their complaints (Bromund, 2017).Yet in a curious way, Trump has a point - not about the Constitution, but the system that surrounds it. Over time, that system has become more and more constraining.Much of this system is not law,but natural practices of incumbents. Instead, it consists of rules made by administrators, drawing on powers unwisely - of- ten unconditionally - delegated to presidents by Congress. A strong belief that government power corrupts and destroys individual liberty hasexisted in the United States since the 18th century. The federal government was supposed to be powerful but limited. The Constitutional order was created to defend thoselimits.Butits wallswerebreached by theinrushof Wilson’s progressivism. As Trump’s complaints testify, the constraints of that order endure - but now, perversely, they make it harder to restore its limits (Bromund, 2017). The American operating sys- tem now defaults not to limited government, but to big govern- ment. BALANCING THE PRESIDENT’S POWER With this background, the drafters of the new constitution faced a delicate balancing act when they met in 1787 in Philadel- phia. On one hand, most everyone despised the idea of a king or any similar autocrat who would threaten America’s hard fought freedoms. On the other hand, most realized that for practical reasons, America needed a president-someonein whom America’s executive power would be vested. The Constitution did a superb job of striking that balance. Specifically, how the Constitution empowers and constrains the President. In Article 2: “The executive Power shall be vested in a President of the Vol. 11 No. 2 July 2020 United States of America,” known as the vesting clause, this short but potent sentence gives the President enormous power and responsibility toenforcefederal laws. Thevastness of this power lies in large part in the discretion given the President to decide just how to carry out the laws. For too long, the power of the executive branch has long exceeded the narrow set of powers and expectations set out by the U.S. Constitution. Unfortunately, there is little sign of this changing, with President Trump and the Democratic candidates alike perpetually seeking to push the limits of executive author- ity. Just becausesomeone is elected president doesn’t meanthey can do whatever they’d like. And even for those who claim a ‘mandate,’ any purported mandate must beconstrained bythe limits of the constitution. While presidents have a tendency to take on an almost cultish devotion among their strongest sup- porters, Americans ought to see the dangerous path of infusing a single individual with so much power. Though there is still plenty of information to sort through, there is legitimate cause for concern about President Trump’s apparent order to hold up congressionally approved aid to Ukraine ahead of a call with Ukraine’s then newly-elected president Volodymyr Zelensky. HOW DOES THE CONSTITUTION CHECK AND BAL- ANCE THE VESTING CLAUSE? The clash between the executive and legislative branches has raised fundamental questions about the power of the presidency, thebalanceofpowersunderthe U.S. Constitutionandthestate of American democracy.The Separation of Powers devised by the founding fathers was designed to do one primary thing: to prevent the majority from ruling with an iron fist (“Federalist Papers No. 51”). Based on their experience, the framers shied away from giving any branch of the new government too much power. Theseparation of powers provides a system of shared power known as ‘checks and balances’ (Taylor, 2017). The checks and balances have become the US Constitution’s 255 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 256 greatest weakness over the last three decades. Since 1995, US government at federal level has arguably become dysfunctional. Legislation on key areas does not get passed as Congressional leaders refuse to time table legislation or leaders of the minority party in the Senate filibuster it - see, for example, immigration reform or gun control. Key pieces of legislation are seriously diluted by Congressional Committee chairs with links to big business –eg. The Affordable Care Bill (‘Obamacare’). Senate leaders refuse to confirm presidential appointments, for example the Republicans’ treatment of Merrick Garland in 2016. Bud- gets do not get passed and the federal government shuts down as a result, as in 1995, 2013 and 2018-2019. Interestingly, all of the examples cited above were when one party controlled one or both houses of Congress and the other party controlled the White House. This is known as ‘divided government’ or ‘gridlock’. This situation has become increas- ingly common in recent years. So, the checks and balances - potentially the US Constitution’s greatest strength compared to the UK - has arguably become its greatest weakness as US government grinds to a halt. Under Article 1 Congress can check executive power in many ways. First, only Congress - not the President - can actually‘make’ laws. Second, if Congress dislikes how the President is enforcing a law, it can block the President’s actions by amending the law or passing a new law. Third, while the Constitution empowers the president to ensure the faithful execution of the laws made by Congress and approved by the President, Congress may itself terminate such duties by impeachment and restrict the presi- dent. Congress can impeach the President if he truly fails to execute the laws (and that failure rises to treason, bribery or another high crime or misdemeanor) (Lenhart, 2017). Presidents have accumulated vast powers and great armies under their command. Nevertheless, they have always con- formed to the “rule of law”. Yetone need lookno further than other countries lacking rule of law to see how easy it is for a Vol. 11 No. 2 July 2020 president, even an elected one, to amass power to the point wherehe is no longer subject to checks and balances, and then the precious liberties of the citizens are in peril.The Constitu- tion employs several techniques as limits on executive power. One is impeachment. Afew questionedits necessity, butformost of the delegates to the constitutional convention in Philadelphia in 1787 giving Congress the right to impeach the President was an obvious move. It was not to be used lightly. It was an emergency break against authoritarianism. Outside the convention, proto-demo- cratic radicals warned of the danger in investing in one man so many kingly privileges. What if a would-be dictator bribed his way into office? What if he colluded with foreign powers, or abused his power: would it be sufficient simply to wait until the next election to remove him? Impeachment was a possible solution. Impeaching a president is the most consequential thing Congress can do - other than declaring war. So, President Trump not only should be impeached, he must be impeached if America’s democracy is to remain intact. This actually is a practice deeply rooted in English history and legal precedent, as is the phrase the Founders included in the Constitution as the criteria that would justify it: “treason, brib- ery or other High Crimes and Misdemeanors.” The Founders did not discuss in any detail what this phrase meant, but that was because they thought it was pretty obvious – it meant crimes against the state, not personal crimes (“Presidential Impeach- ment”, 2019). A president shouldn’t be impeached for dodging taxes, swindling people as a private businessman, or any other criminal offences that had no direct bearing on the exercise of hispresidential powers. Suchmatters could bedealt withonce the man left office (one respect in which the president retained kingly powers wasinhisapparent immunity fromprosecution). Impeachment was not about punishment - it was simply about preserving the republic by removing from office someone who constituted a danger to liberty. 257 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 258 EXACERBATING PARTY POLARIZATION No one ever imagined impeachment would be anything other than a national trauma. The Founding Fathers saw impeach- mentassafetyvalve, butthey alsoworried itwoulddevolveinto partisan bickering if put into action. Alexander Hamilton out- lined his fears about how partisan the impeachment process would become in the Federalist Papers, writing: “The prosecu- tion of them,” he predicted in Federalist paper no. 65, “Will seldomfailtoagitate the passions of thewhole community and todivide it intoparties, more or less friendly orinimical, tothe accused”. Thus, it will so often, spur”the pre-existing factions, and will enlist all their animosities, partialities, influence and interest on one side, or on the other”; and in such cases “there will always be the greatest danger, that the decision will be regu- lated more by the comparative strength of parties than by the real demonstrations of innocence or guilt.” An impeachment was well known to be the beaten road for running down a hated or successful political rival. This shows how the impeachment process could play out: beset by partisan- ship and broken down by factions. Republicans who spoke al- most universally accused Democrats of looking for an excuse to impeach Trump, while Democrats are injecting an urgent new argument into their already fast-moving im pe achm ent drive: President Donald Trump poses such a flagrant threat to the republic. The Democrats have taken pains to frame their impeachment inquiry as a defense of national interests. This was precisely why the constitution makes impeachment a tricky business. First, the House of Representatives needs to pass articles of impeachment – a list of charges – by a majority vote. At that point the president has been impeached but he has not yet beenremovedfrom office: hiscasethen goes tothe Senate, which convenes itself as a court and hears evidence on both sides. Only if the Senate then votes to convict by a two- thirds majority does the president then have to leave office. Vol. 11 No. 2 July 2020 WHAT ARE THE HISTORICAL PRECEDENTS FOR IM- PEACHMENT? History therefore suggests that a pre-requisite for any serious moves towards impeachment is not the committal of an im- peachable offense but partisan opposition from Congress. Even so, the severity of the alleged offences makes a difference - there are numerous examples of presidents who have faced a hostile Congress but who have never been anywhere close to impeach- ment, though the wilder fringes of the opposition demanded it George W. Bush after 2006) and Obama after 2010 being re- cent examples). The alleged offences and the clarity of the evidence matters - and it undoubtedly helps if the president’s crimes can beboiled down to a simple idea by the media (“he lied under oath” or “he covered up a crime”). Congress has sometimes taken seriously the views of constitutional lawyers and tried to distinguish be- tween what is truly an “impeachable offence” and what is not. For example, in his first term as president Richard Nixon seriouslyunderpaid histaxes, whichsome at thetimebelieved to be a criminal offense, but he wasn’t impeached for that, and nor should he have been. And now in September 2019, Speaker of the House Nancy Pelosi has announced impeachment proceedings against Presi- dent Trump. Some Democrats wanted the House to impeach as soon as they took control after the 2018 elections (coming into effect in January 2019). There is a case that Trump’s contacts with Russia before the 2016 election, his firing of FBI Director James Comey and many other actions rise tothelevel of being “impeachable”. This is the view of some conservatives like Jen- nifer Rubin as well as liberals like Robert Reich and scholars like Alan Lichtman, and even a tiny number of dissident Republi- cans (“Presidential Impeachment”, 2019). Therequirement thatthe president besubjecttore-election was “not a sufficient security” thought James Madison. The presi- dent might “lose his capacity after his appointment. He might 259 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 260 pervert his administration into a scheme of peculation or op- pression. He might betray his trust to foreign powers.” And Presi- dent Trump has been accused of all these things - of not being mentally stable, of abusing his office to enrich himself and his family, of conspiring with Russian secret services in the crime of computer hacking to aid his election, as well as of disclosing clas- sified information to the Russian ambassador. PREVIOUS CALLS FOR TRUMP’S IMPEACHMENT Efforts to impeach President Trump have been made by a variety of people and groups (Revesz, 2017;Gold, 2017). The first efforts in the Republican-controlled Congress were initiated in 2017 by Representatives Al Green and Brad Sherman, both Democrats (D), in response to Trump’s obstructions of justice in the Russian influence investigations begun during the first year of Trump’s presidency (Singman, 2017; McPherson, 2017). A December 2017resolution of impeachment failed in the House by a 58–364 vote margin (DeBonis, 2017). Following the 2018 elections, Democrats gained control of the House of Representatives and made Nancy Pelosi the new Speaker. While initially opposed any move toward impeachment, she supported multiple committees’ respective investigations into Trump’s actions and finances (Werner and DeBonis, 2018; Fandos, 2019). New allegations involving Trump surfacedon Janu- ary 17, 2019, claiming he instructed his long-time lawyer, Michael Cohen, to lie under oath about Trump’s conflict-of-interest in- volvement with the Russian government to erect a Trump Tower in Moscow (Leopold and Cormier, 2019). This invoked renewed requests for an investigation and for the president to “resign or be impeached” should such claims be substantiated (Barnes, 2019). Soon after the release of the Mueller report, Trump began urging an investigation into the origins of the Russia probe, wanting to “investigate the investigators” and possibly discredit the conclusions of the FBI and Mueller (“Trump Steps up Calls Vol. 11 No. 2 July 2020 for Investigation”, 2019). In the wake of the inquiry, the White House thre atenedtoshut down all major legislation as political leverage (Bennett, 2019). Trump and his surrogates engaged in a misinformation campaign to discredit impeachment (Stanley- Becker and Romm, 2019),with Giuliani taking a lead role (Pilkington, 2019). Efforts focused on attacking Joe Biden and his son (“White House ‘Tried to Cover Up”, 2019) and attempt- ing to discredit the whistleblower over their motivations and formakingthecomplaint basedonhearsay(Pilkington, 2019). The White House officially responded to the impeachment proceedings in aletter from White House Counsel Pat Cipollone to House Speaker Pelosi that it would cease all cooperation with the investigation due to a litany of concerns, including that there had been no vote of the full House, and the secrecy of the proceedings.Subsequently, On October 31, the House of Repre- sentatives voted 232–196 to establish procedures for public hear- ings (“Trump Impeachment”, 2019). On December 10, the House Judiciary Committee unveiled their articles of im- peachment: one for abuse of power and one for obstruction of Congress (“Read the Articles of Impeachment”, 2019; Wagner, 2019). Three days later, the Judiciary Committee voted along party lines (23-17) to approve both articles (Siegel and Faulders, 2019). On December 16, the House Judiciary Committee re- leased a report specifying criminal bribery and wire fraud charges as part of the abuse of power charge (“Democrats Accuse Trump”, 2019). On December 18,the Housevotedtoimpeach Trumpfor both charges (Shear and Baker, 2019). The historic vote split along party lines, much the way it has dividedthenationoverachargethatthe 45th president abused the power of his office and scarified national security for per- sonal greed.No Republicans voted to impeach Trump.Narrow in scope but broad in its charges, the impeachment resolution said the president “betrayed the nation by abusing his high of- fice to enlist a foreign powerin corrupting democratic elections,” says the 650-page report.Actually, Republicans have focused 261 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 262 heavily on criticizing the impeachment effort as politically bi- ased. Rep. Debbie Lesko (R., Ariz.) railed against what she called “the most unfair, politically biased, rigged process that I have seen in myentire life.” She said it was the “most partisan im- peachment” in the US history (2019). IMPEACHMENT ARTICLES:TRUMP IS A THREAT TO THE CONSTITUTION The House voted to impeach President Trump as a threat to the Constitution whose conduct must not go unpunished. Im- peachment debate played out in one- or two-minute bursts from Republicans and Democrats. House Democrats charged Presi- dent Donald Trump with at least two articles of impeachment - abuse of power and obstruction of Congress - making him only the fourth president in U.S. history to face such a formal effort to remove him from office.The House Judiciary Committee approved two articles of impeachment against President Trump. “No one, not even the president, is above the law,” said Chair - man Jerrold Nadler (D-NY), head of thecommitteethat drafted the articles. “We do not take this action lightly, but we have take nanoath to defend the Constitution,” shere it erated(“Read articles of impeachment”, 2019). Democrats say Trump’s pressure on Ukraine to investigate his Democratic rivals - which came while he withheld a prom- ised White House visit for Ukraine’s president, Volodymyr Zelenskiy, and nearly $400 million in congressionally mandated security aid for the Eastern European country - is an abuse of power. “President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Consti- tution if allowed to remain in office” the abuse of power article states. The Constitution does not directly mention abuse of power among the reasons that Congress can impeach a presi- dent. Instead, “treason, bribery and high crimes and misdemean- ors” are listed. Democratic lawmakers, legal experts and prece- dent support the approach. Vol. 11 No. 2 July 2020 Itisagainst thelaw tosolicit aforeign entity to interfere in a US election, and for anycandidate to accept contributions of ‘value’ of any kind from foreign entities;bypressing Ukraine to investigate Biden’s son, the president could be said to be seek- ing toextract acontribution of valueto his re-election bid. Trump then publicly called forChina to investigate Hunter Biden, and implied that his tariff policy might change if itdid, which would also seem to be an invitation to break this law. He also labelled hisCongressional critics ‘traitors’, and the whistle-blower a ‘spy’ who should be exposedand possibly executed (“Trump Publicly Urges China”, 2019). Trump has resisted Congressional demands to interview officialssuch as secretary of state Mike Pompeo. All of this could be read as constitutingcontempt of Congress. Trumphas said he did nothing wrong and that House Demo- crats’ allegations are“flimsy, pathetic, ridiculous articles of im- peachment” (Gypson, 2019). The abuse of power charge is cen- tered on the allegation that Trump predicated the release of $391million of congressionally approved military aid to Ukraine and a White House meeting for Ukrainian President Volodymyr Zelenskiy upon an announcement by Ukraine that Joe Biden, a potential 2020 election rival of Trump, and Biden’s son Hunter would be investigated (Ballhaus, Restuccia, and Hughes;Gypson, 2019). “President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of political benefit,” said the first article of impeachment intro- duced Tuesday by House Democrats. In so doing, President Trumpused thepowers of thepresidencytoimperilthenational security, undermine the US democratic process and harm the national interest. The second charge, obstruction of Congress, focuses on Trump’s attempts to block congressional oversight by prohibit- ing federal officials from complying withrequests and subpoe- nas for testimony and evidence. “In the history of the republic, no president has ever ordered the complete defiance of an im- peachment inquiry or sought to obstruct and impede so com- 263 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 264 prehensively the ability of the House of Representatives to in- vestigate ‘high crimes and misdemeanors,’” the obstruction of Congress article states. The president has also refused to send an attorney to partici- pate in the hearings, which would have given him a chance to present evidence in his defense and question witnesses. “The president’s continuing abuse of power has left us no choice,” said House Intelligence Committee Chairman Adam Schiff, whose committee conducted the bulk of the investigation into Ukraine. Republicans argue Trump was working within his authority to direct foreign policy and had legitimate concerns about cor- ruption in Ukraine. They say Democrats had always intended to impeach him and were just looking for a reason. “There’s nothing that has actually come close to an impeachable offense,” Judiciary Committee ranking member Rep. Doug Collins, R- Ga., told reporters after the announcement (“House Democrats Announce Two Articles of Impeachment”, 2019). Collins was incredulous that Democrats would want to charge Trump with obstructing Congress during such a short investigation and said the charge of abuse of power is too broad. White House press secretary Stephanie Grisham said in a statement that Democrats have announced the “predetermined outcome of their sham impeachment.” “The announcement of two baseless articles of impeachment does not hurt the presi- dent; it hurts the American people, who expect their elected officials towork on theirbehalfto strengthen our nation. The president will address these false charges in the Senate and ex- pects to be fully exonerated, because he did nothing wrong,” she said (“Democrats Unveil Two Articles”, 2019; “Articles of impeachment, 2019”). Trump was finally impeached, and impeachment devolves into a partisan brawl. Even with the House leadership’s an- nouncement, the Republican majority in the Senate does not conceal that it is going to exonerate the president, through a Vol. 11 No. 2 July 2020 speedy trial that would manipulate or even without trial. That is why the Speaker of the House, Nancy Pelosi, decided not to formally raise the charges to the Senate, and not to appoint ‘commissioners’ for the prosecution before the Republican majority agreed with the Democratic minority in the Senate on the nature of the trial procedures and summoning witnesses from the administration who refused to testify before the par- liamentary committees (Frazin, 2019). Because there is no precedent for this case, a constitutional dispute arose over whether the President actually was charged. And there is another opinion that the President was not for- mally charged by the House of Representatives as long as the charges were not brought to the Senate (Feldman, 2019). While another constitutional opinion, which seems to be stronger, says that the president has officially been accused, because the power to accuse is the exclusive prerogative of the House of Represen- tatives, whether the president was tried in the Senate or not (Tracy and Segers, 2019). All modern presidents have exceeded constitutional limitations on their power and thus could have, and maybe should have, been impeached. The reason they were not impeached is that a majority of Congress members support allowing presidents to wage war abroad and destroy liberty at home without being constrained by Congress. The only real dis- pute among the political class is which party should wield the levers of power. CONCLUSION The Republican-controlled chamber is expected to acquit, meaning Trumpwould remain in office. In the scope of time, the impeachment of President Donald J. Trump will be remem- bered as a much broader statement about his presidency. Whateververdict the Senate adopts will inevitably create a pre- cedent with potential consequences for future administrations. Too broad and simplified an account of Trump’s conduct may risk encompassing less objectionable executive branch conduct, 265 JURN AL STUDI PEMERINTAHAN (JOURNAL OF GOV ER N MENT & POLIT ICS) 266 which could facilitate later effort stouse impeachment as apar- tisan political tool. While these concerns are often over stated by those who oppose Trump’s impeachment, they reflect real concerns that there were no doubts on the minds of the former executive branch attorneys advising House Democrats on the impeachment proceedings. Thefounders alwaysknewthat noconstitutionthey devised could, in and of itself, preserve liberty and republican govern- ment. All of President Trump’s scandals are fusing together into a momentous fight over his staggeringly broad claims of expan- sive presidential power. Trump’s broad claims of executive im- munity lead to criticism he is acting above the law.The issue of President Trump’s impeachment highlights theamount of divi- sion, chaos, and faltering values that American political life lives in, especially with a president willing to use all means to achieve his personal interests, even if this leads to damaging his country’s interests and image in the world, and this may be what drives his opponents to move forward to contain his harm. The Trump impeachment features a rigged system designed to ignore the constitution and the desires of the people. To date, Senate Republicans have given no indication that they would break with Trump. 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