Mitch McConnell Violated the Constitution in 2016 by Refusing to Have the Senate Officially Consider Obama’s Supreme Court Nominee
Article II, Section 2 of the Constitution simply states “The President…. by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court…” The clear implication is that the Senate must consider a presidential appointment to the Supreme Court at any time (no matter how close to a presidential election) and regardless of the president belonging or not to the Senate majority party. After a fair hearing and due consideration, the Senate can confirm the president’s appointment or reject it. But it cannot refuse to have a hearing. That would be in violation of the Constitution’s clear intent and be unconstitutional.
Senate Majority Leader McConnell clearly violated the Constitution by refusing to hold a hearing in early 2016 on President Obama’s choice for the Supreme Court, Merrick Garland. His spurious rationale was that a presidential election was to be held eight months later and that it would not be appropriate for the Senate to confirm an appointment so soon before the election. The fact is, the Constitution does not place any time limits on presidential appointments. In any case, eight months before an election is not unreasonably close by any measure. Realizing that, McConnell has just come out with the sham rationale that the Senate had a Republican majority at the time, and so the government was divided, Obama being a Democrat. Therefore, he asserts, the Senate did not have to consider Obama’s appointment of Merrick Garland. There is absolutely nothing in the Constitution to back up his false argument. He has egregiously violated the Constitution. He should be impeached and removed.
We cannot allow our politicians, whether Republicans or Democrats, to be dishonest. Bill Clinton should have been removed after being impeached by the Republican House for lying to the American people and for his disgraceful conduct with Monica Lewinski, but the Democratic Senate defended him in tribalistic fashion, refusing to follow ethics, and decided not to remove him. The Democrats’ rationale was that although they deplored Clinton’s behavior, they agreed with his policies. One can say that Clinton’s dishonesty (along with his corrupt pardon of Marc Rich the day before his presidency ended, in exchange for a large contribution to the Clinton Foundation) and the Democratic Party’s unethical behavior paved the way for Donald Trump and Mitch McConnell. Following the lead of the Democrats, many Republicans say they deplore Trump’s misbehavior but agree with his policies, so they defend him. Both our major parties have been disgraceful for decades. They should publicly acknowledge that, apologize, and pledge not to tolerate dishonesty and tribalism from now on.
How is it possible we have had so many dishonest politicians? Because we do not require our political candidates to be truly highly qualified. The result is that practically all our politicians are actually unqualified and their main attribute is to be glib speakers, often with questionable morality. They pretend to be knowledgeable and competent, but they are not. The result is failed economic, social, and foreign policies. For decades and decades.
Who is a truly highly qualified political candidate? The proper test is not experience or a prestigious CV. The proper test is being able to knowledgeably explain all the major mistakes in economic, social, and foreign policy over the past 100 years, and which would have been the correct policies. Not one of our presidents, senators, and representatives over the past 56 years (an arbitrary starting point) could pass that test. No wonder Lyndon Johnson’s “War on Poverty” went nowhere, no wonder we’ve had repeated foreign policy debacles, and repeated totally avoidable recessions and high unemployment. It’s about time Americans start requiring all political candidates to demonstrate they are truly highly qualified before running for office, and stop accepting unqualified candidates with empty slogans and no real solutions.
If that weren’t enough, we have our current political leaders, and even our legal profession, being hoodwinked by Attorney General William Barr’s spurious argument that sitting presidents cannot be indicted. Despite finding and detailing solid grounds for indicting President Trump on obstruction of justice, Special Counsel Robert Mueller decided to follow the Department of Justice’s Office of Legal Counsel rule, which asserts that sitting presidents cannot be indicted, since doing so would unconstitutionally intrude on and distract sitting presidents from their duties. Unfortunately for the nation, that DOJ rule is itself unconstitutional by violating the principle of “checks and balances”. That DOJ rule actually eliminates one of the most important “checks” on the executive, i.e., the check of the judiciary. That DOJ rule, with a shocking, scandalous origin, constitutes a serious danger for the nation, and must be rescinded. Immediately.
The rationale that indicting sitting presidents is unconstitutional because it would unduly intrude on or distract sitting presidents from their duties is patently fallacious and specious. In fact, indicting a sitting president is no more intrusive or distracting than impeaching. Since impeachment of a sitting president is constitutional, indictment of a sitting president must also be constitutional. It is scandalous that the DOJ rule against indicting sitting presidents has not been rescinded long ago. Those currently backing the rule to eliminate judicial checks on the executive branch are either third-rate constitutionalists or covert proponents of having untrammeled executive power and of defending criminal sitting presidents. It is no coincidence that the DOJ rule against indicting sitting presidents was written in September 1973, obviously at Nixon’s order, with Watergate unfolding! Nixon knew it was constitutional to indict sitting presidents, and that’s why he ordered the OLC rule. Incredibly, no one has yet noticed that fact, or connected the dots. The rule is vitiated, written with the corrupt intent to protect a criminal president, Nixon, who did not fear impeachment and removal since his own party controlled the Senate. The DOJ rule against indicting sitting presidents is Nixon’s rule! It obstructs justice. It is illegal. It is a fraud on the American people. Barr knows this.
The fact that the Constitution specifically provides for impeachment (Article II, Section 4) and not specifically for indictment of sitting presidents, does not mean indictment of sitting presidents is constitutionally excluded. In fact, impeachment and indictment are complementary, consisting of different procedures and different legal requirements, including different thresholds for determining guilt in criminal cases. The Constitution clearly provides for two checks on the executive branch, not one. In the case of a criminal president backed by a servile, corrupt, or incompetent Senate or House majority, removal from office would be precluded if impeachment were the only tool. The need for an alternative check on the executive, entirely separate from the Congress, should be obvious. That alternative check consists of the judiciary. That is the Constitution’s clear intent.
Congress must immediately address the issue of the unconstitutionality of the DOJ Office of Legal Counsel rule prohibiting the indictment of sitting presidents. Not to do so would be the height of incompetence, and a grave disservice to the nation and to democracy itself. Furthermore, attorneys general should be required to recuse themselves from all matters connected with the presidents who appointed them, in order to avoid even the semblance of conflict of interest. The judiciary must be made to rule on the constitutionality of Nixon’s OLC rule. A brave District Attorney should disregard the OLC rule and indict Trump on the basis of the Mueller Report’s findings, while Attorney General Bill Barr should be disqualified from enforcing the OLC rule as it applies to the president who appointed him. By enforcing the corrupt OLC rule, Barr appears to be guilty of obstructing justice and he too should be indicted.
© Edward Sonnino 2020
September 23, 2020
