by Andrew C. McCarthy –
— Editors Note: Down With Hillary Clinton – the sooner the better. —
Mrs. Clinton is the perfect example of why impeachment, not criminal prosecution, is the appropriate response to public corruption. The test of fitness for an office of public trust is whether an official is trustworthy, not whether she is convictable in a criminal court. Consequently, as I outlined in Faithless Execution, “high crimes and misdemeanors” — the Constitution’s trigger for impeachment — need not be violations of the penal code. As Hamilton explained, impeachable offenses are misconduct stemming “from the abuse or violation of some public trust,” and are thus properly “denominated political, as they relate chiefly to injuries done immediately to the society itself.” A public official may not be indicted by a grand jury for an extensive pattern of deceiving Congress and the public. There is no such penal offense. But it is most certainly grist for impeachment.
In impeachment, the official is held to a higher standard of conduct because public office is an extraordinary privilege, not a fundamental right. Public office is a trust with awesome attendant powers; a person may be manifestly unfit for it without having committed indictable crimes. Therefore, high crimes and misdemeanors — which, again, need not be indictable penal offenses — are easier to prove: Congress may fashion its own rules for the proceeding, there is no judicial oversight, and no requirement that all essential elements of criminal offenses be proved beyond a reasonable doubt under strict rules of evidence — Congress must merely determine that violations of the public trust have occurred and that they warrant removal of that trust.
By contrast, because a criminal prosecution does involve the potential deprivation of fundamental rights, the standards of proof are more exacting and the protections of judicial due process are guaranteed. | August 23, 2016