NOTE: This piece was originally published on Apr 11, 2014
Mandeville, LA – Exclusive Transcript – “The worst decision we’d have in a trial in American history, the worst trial precedent in American history was the acquittal of Justice Samuel Chase a little over 200 years ago by the Senate. Chase had been a Supreme Court justice during the Alien and Sedition Acts crisis in 1798 to 1801.”-Kevin Gutzman, author, James Madison and the Making of America. Check out today’s transcript for the rest…
Begin Mike Church Show Transcript
Mike: President Obama said, he told Attorney General Holder: Don’t enforce DOMA. We’re not going to enforce the Defense of Marriage Act. Of course, the Supreme Court came in and said: That’s illegal. I don’t recall that I ever actually got to ask you about Kennedy’s decision that day on the DOMA, striking that act of Congress down. Of all things to strike down, that was a rather odd one to go after, wasn’t it?
Kevin Gutzman: The worst decision we’d have in a trial in American history, the worst trial precedent in American history was the acquittal of Justice Samuel Chase a little over 200 years ago by the Senate. Chase had been a Supreme Court justice during the Alien and Sedition Acts crisis in 1798 to 1801. Infamously, he was a hanging judge. In one case the trial of James Colander, who was a Jeffersonian republican journalist, Chase saw a book that Colander had written while Chas was on circuit, that is, was serving as a Circuit Court of Appeals judge in Maryland. He took this book and said to a man in Maryland: When I get to Richmond, Virginia, I’m going to empanel a grand jury, have the author of this book indicted, we’re going to try him, he is going to be convicted, and I’m going to throw the book at him. Then when he got to Richmond, he empaneled a grand jury.
He essentially refused to let them hear evidence that would have cut in any direction other than indicting Colander. They indicted Colander with an indictment that said essentially they had been railroaded. Then Colander was put on trial. He tried to get Senator John Taylor of Caroline to testify in defense. As defense counsel were questioning Taylor, Judge Chase interrupted and wouldn’t let Taylor finish his answers. Finally, so partisan was the judge’s behavior that one of the defense counsel said: Your honor, if you’re not going to let us present our evidence, I can’t continue in this role of defense counsel. Finally the lawyer resigned from the case and Taylor was excused from the witness stand without finishing his testimony. Then Chase presented a very slanted jury instruction, essentially telling them they had no choice but to convict Colander. Ultimately, rather than finding Colander guilty or not guilty, the jury said that in light of the evidence the judge had allowed them to hear, they had to find him guilty.
So this fellow was impeached by the house. Then his counsel said, in the trial before the Senate: The Constitution says that judges and high civil officials can be impeached and removed from office on conviction of “treason, bribery, and other high crimes and misdemeanors.” What’s been asserted here against Justice Chase is not treason, not bribery. He can’t be indicted for it, so it’s not a high crime or misdemeanor. By the narrowest possible margin, the Senate acquitted him. This argument about what the phrase “high crimes and misdemeanors,” that it meant essentially something that was an indictable offense in common law in a criminal court was just mistaken. The English precedent shows that a high crime or misdemeanor was not something you could be indicted for in common law. That was a low crime or misdemeanor. A high crime or misdemeanor was an abuse of your constitutional position, like, I don’t know, starting a war against Libya despite the fact you haven’t had a declaration, it wasn’t defensive, and the Speaker had told you there would be grave consequences. The thing is, Speaker Boehner told President Obama before the Libyan war, in a letter he wrote to him on letterhead: If you decide you’re going to be involved in this Libya thing, you have to get the consent of Congress. If you don’t do that, very graves consequences will follow.
Mike: Obama even said: No, I don’t. I think I have the authority. He said: Screw you, Boehner. He told Boehner to go pound sand.
Gutzman: That’s exactly right. This is precisely the kind of situation for which the impeachment power was intended. The only way for Congress not to have its constitutional position reduced from the one that the people who made the Constitution intended the Congress to have is by impeaching and removing executive officials who abuse their constitutional role, who take power from Congress. Clearly, launching a non-defensive war against an allied country and removing the allied country’s chief executive from office — actually, of course, Gaddafi was killed by the al-Qaeda-backed rebels we supported there. This clearly was unconstitutional, as Boehner said before the war started. That, like Clapper’s lying under oath, like Lerner’s refusal to say what was going on in the targeting of conservative organizations by the IRS, that’s the kind of situation in which impeachment is appropriate.
A lot of people, when they heard Gowdy’s speech in the house, were all revved up by it. The fact of the matter is, he was precisely wrong. If he thought there was an unconstitutional activity going on in the executive branch, he should have been recommending articles of impeachment. That’s what the powers of impeachment are for. That fellow Clapper should be out tomorrow. There’s no reason why the House isn’t impeaching him. What could be more brazen than sitting there and lying directly? Senator Wyden said: Is there a program under which the National Security Agency —
Mike: — is gathering blanket data on the American people?
Gutzman: No, he said: On millions or tens of millions of Americans? Clapper’s answer was: No. So, it’s a direct lie. It could not have been more of a lie than that. So he really needs to go. What happens here is, of course, if Clapper doesn’t go, we have a precedent saying that if you’re a high executive official, you can lie under oath to the Senate with impunity. There needs to be a response. It’s not for Congressman Gowdy to get a law that says we can bring a lawsuit. You can’t really bring a lawsuit because the Director of National Intelligence lied under oath.
Mike: That was Kevin Gutzman, author of James Madison and the Making of America, a great book that all of you should read.
End Mike Church Show Transcript