No John Yoo, the Framers Didn’t Establish an Election Year Limit on Impeachment

John Yoo is a professor of law at University of California at Berkeley.  Remind me never to recommend anyone go there. In a recent Fox News appearance, he tells Laura Ingraham that the framers of the Constitution would never have wanted a president to be impeached in an election year. Watch:

I am puzzled by this line of thinking. I don’t understand his basis for believing it. When I heard it, my mind went back to the discussion of impeachment during the Constitutional Convention. The delegates debated this exact point and rejected the thrust of Yoo’s argument. Yoo is partly correct in that some framers didn’t want impeachment at all because they believed the election process was sufficient to discourage a corrupt or bad president. However, other framers (including Madison and George Mason) argued that elections were not enough and impeachment was necessary to allow the removal of a corrupt and compromised executive.

Here is some of the discussion on this very point from the Constitutional Convention on the date July 20, 1787.

On the clause, “to be removable on impeachment and conviction for malpractice or neglect of duty,” (see the ninth Resolution), —

Mr. PINCKNEY and Mr. GOUVERNEUR MORRIS moved to strike out this part of the Resolution. Mr. PINCKNEY observed, he ought not to be impeachable whilst in office.

Mr. DAVIE. If he be not impeachable whilst in office, he will spare no efforts or means whatever, to get himself re-elected. He considered this as an essential security for the good behaviour of the Executive.

Lawyers Charles Pinckney from South Carolina and Gouveneur Morris from Pennsylvania moved to strike the impeachment clause from the Constitution. Discussion followed on the motion. North Carolinian William Davie specifically rejected the notion that periodic elections were sufficient to secure good behavior in a president.

Mr. WILSON concurred in the necessity of making the Executive impeachable whilst in office.

Mr. GOUVERNEUR MORRIS. He can do no criminal act without coadjutors, who may be punished. In case he should be re-elected, that will be a sufficient proof of his innocence. Besides, who is to impeach? Is the impeachment to suspend his functions? If it is not, the mischief will go on. If it is, the impeachment will be nearly equivalent to a displacement, and will render the Executive dependent on those who are to impeach.

Initially, Morris did not favor impeachment but as the discussion wore on, he changed his mind. Relevant to Yoo’s claim, the framers did debate the notion that elections had something to do with impeachment but impeachment as the sole power of the House eventually won out.

Colonel MASON. No point is of more importance than that the right of impeachment should be continued. Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice? When great crimes were committed, he was for punishing the principal as well as the coadjutors. There had been much debate and difficulty as to the mode of choosing the Executive. He approved of that which had been adopted at first, namely, of referring the appointment to the National Legislature. One objection against Electors was the danger of their being corrupted by the candidates, and this furnished a peculiar reason in favor of impeachments whilst in office. Shall the man who has practised corruption, and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt?

George Mason asked two questions that every Republican should ask today: “Shall any man be above justice? Above all, shall that man be above it who can commit the most extensive injustice?”

The Justice Department seems to have placed Donald Trump above the law. However, is it right that the man who can commit the “most extensive injustice” be above the law? As we see in this debate, the framers voted to include impeachment as the answer. No one is above the law.

Doctor FRANKLIN was for retaining the clause as favorable to the Executive. History furnishes one example only of a First Magistrate being formally brought to public justice. Every body cried out against this as unconstitutional. What was the practice before this, in cases where the Chief Magistrate rendered himself obnoxious? Why, recourse was had to assassination, in which he was not only deprived of his life, but of the opportunity of vindicating his character. It would be the best way, therefore, to provide in the Constitution for the regular punishment of the Executive, where his misconduct should deserve it, and for his honorable acquittal, where he should be unjustly accused.

Mr. GOUVERNEUR MORRIS admits corruption, and some few other offences, to be such as ought to be impeachable; but thought the cases ought to be enumerated and defined.

Mr. MADISON thought it indispensable that some provision should be made for defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate. The limitation of the period of his service was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive magistracy was very distinguishable from that of the Legislature, or any other public body, holding offices of limited duration. It could not be presumed that all, or even the majority, of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides, the restraints of their personal integrity and honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members would maintain the integrity and fidelity of the body. In the case of the Executive magistracy, which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

Madison told his fellow delegates that the “limitation of the period of his service was not a sufficient security.” In other words, the fact that the president has to face the voters isn’t a sufficient security against a president who deserves impeachment.

Later in the debate, Gouverneur Morris changed his position:

Mr. GOUVERNEUR MORRIS’S opinion had been changed by the arguments used in the discussion. He was now sensible of the necessity of impeachments, if the Executive was to continue for any length of time in office. Our Executive was not like a magistrate having a life interest, much less like one having an hereditary interest, in his office. He may be bribed by a greater interest to betray his trust; and no one would say that we ought to expose ourselves to the danger of seeing the First Magistrate in foreign pay, without being able to guard against it by displacing him.

Note that the framers were quite worried about foreign entanglements on the part of the president. If we are concerned about what the framers intended, then we should include that in our calculation. Much of the impeachment saga involves Donald Trump’s foreign entanglements and the efforts of the House of Representatives to find out the facts about them. Every step has been met with resistance and obstruction from Trump.

The delegates voted and the motion for impeachment carried:

On the question, Shall the Executive be removable on impeachments, &c.? — Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Georgia, aye — 8; Massachusetts, South Carolina, no — 2.

Impeachment for Maladministration?

The Convention took up impeachment again on September 8, 1787 with the grounds for impeachment and removal being the focus of debate.

The clause referring to the Senate the trial of impeachments against the President, for treason and bribery, was taken up.

Colonel MASON. Why is the provision restrained to treason and bribery only? Treason, as defined in the Constitution, will not reach many great and dangerous offences. Hastings is not guilty of treason. Attempts to subvert the Constitution may not be treason, as above defined. As bills of attainder, which have saved the British constitution, are forbidden, it is the more necessary to extend the power of impeachments. He moved to add, after “bribery,” “or maladministration.”

Mr. GERRY seconded him.

Mr. MADISON  So vague a term will be equivalent to a tenure during pleasure of the Senate.

Mr. GOUVERNEUR MORRIS. It will not be put in force, and can do no harm. An election of every four years, will prevent maladministration.

Colonel MASON withdrew “maladministration”; and substituted, “other high crimes and misdemeanors against the State.”

On the question, thus altered, —

New Hampshire, Massachusetts, Connecticut, Maryland, Virginia, North Carolina, South Carolina1 , Georgia, aye, — 8; New Jersey, Pennsylvania, Delaware, no, — 3.

Perhaps professor Yoo is influenced by this debate. By this time, Gouverneur Morris favored impeachment but still felt that the periodic election would be a deterrent to a president accused of maladministration. However, the central action taken here by the delegates was to add “high crimes and misdemeanors against the United States” to the reasons for impeachment. No limitation was added on when the House and Senate could act on their Constitutional duties.

One founder — Gouverneur Morris – might be advanced to say a framer wouldn’t favor an impeachment inquiry for maladministration since he believed elections should decide those matters. However, Yoo makes a significant error to appeal to the framers as a group when the only authority is the Constitution. Also, the debates and votes of the delegates demonstrate that the consensus was to hold the president accountable via impeachment by the House and trial by the Senate.

The Nashville Statement and Sterling K. Brown: Is This Us?

Emmy winner Sterling K. Brown brilliantly plays Randall Pearson in the NBC drama This Is Us. According to his Twitter account, he is also “a childSterlingKBrown of God.” In a 2016 Facebook posting just after the Pulse nightclub shooting in Orlando, Brown expanded on that by saying that he grew up in St. Louis as a Christian. He also said that he has three family members who are gay and he believes #gaylivesmatter. You can read the whole post below or at his Facebook page but for the sake of discussion, here is a quote about Christianity and affirmation of gay people:

I’m tired, y’all. I’m tired of folks using The Bible, or any religious text to justify the withholding of love. To justify the promotion of intolerance. And ultimately, the death and destruction of what God made. My heart aches for the innocent, and I can no longer play the role of Switzerland. If you have a problem with loving gay people, then you have a problem with love, and thus you have a problem with God. Because what is God, if not love? The conditions which many Christians place on “how best to love” someone who is different than themselves has got to stop.


Brown gives every indication of growing up in a tradition which is consistent with the Nashville Statement (see these prior posts for background on that statement). Brown’s Facebook posting is quite inconsistent with the Nashville Statement. And then there is the matter of Article 10 which reads:

WE AFFIRM that it is sinful to approve of homosexual immorality or transgenderism and that such approval constitutes an essential departure from Christian faithfulness and witness.
WE DENY that the approval of homosexual immorality or transgenderism is a matter of moral indifference about which otherwise faithful Christians should agree to disagree.

Nashville logoAlthough he doesn’t specify his personal beliefs, Brown’s statement of support for LGBT people is remarkable. It sounds like there is some conflict in his family about the matter and yet he has come forward with a strong statement of support.
Dear Council of Biblical Manhood and Womanhood, is Sterling K. Brown one of us?

The Nashville Statement and God's Design

Nashville logoAs they say in journalism, the Nashville Statement has legs.  Mark Galli has a critical editorial about the NS in November’s Christianity Today. The President of NS sponsor Council on Biblical Manhood and Womanhood Denny Burk answered that a couple of days ago. Downstream, I am now responding to Burk.
Because it is behind a paywall, I can’t read all of Galli’s op-ed. However, my main focus is what Burk has to say in reply. In particular, I want to briefly discuss God’s design and sexual orientation and gender identity.

God’s Design

Article 7 of the NS says:

We deny that adopting a homosexual or transgender self-conception is consistent with God’s holy purposes in creation and redemption.

In his CT op-ed, Mark Galli criticized Article 7 of the NS for this position which stigmatize some Christians who consider themselves gay even though they refrain from gay sex.* Burk isn’t having it:

In response to this, I would simply point out that Galli’s criticism is not that Article 7 of the Nashville Statement is false or unsupported in scripture. His argument is simply that those who embrace a gay identity might disagree with it. He may be right that some who embrace a gay identity will not wish to support the statement, but that fact should not be confused with a substantive critique of Article 7 on the merits. Nor should it obscure the fact that Christians who experience same-sex attraction can and do endorse the statement (e.g., Sam Allberry, Rosaria Butterfield, Christopher Yuan).

Burk says Galli doesn’t use the Bible to criticize the NS, then Burk resorts to a defense which relies less on the Bible and more on natural law. As I will demonstrate below, Galli and Burk both look to nature but see different things. Burk continues:

Notice that Article 7 focuses on God’s purpose in his creation design and in his redemptive work through Christ. The careful reader will recognize that this article is concerned with the revelation of God’s design in both nature and scripture. In what sense does Galli think it consistent with God’s design to embrace a transgender self-concept? In what sense is it consistent with God’s design to embrace a gay self-concept? Does Galli think that adopting such self-concepts are a part of God’s original design in creation? Does Galli believe that people will embrace a gay or transgender self-concept in the new heavens and the new earth?
Galli offers us no guidance on these questions, but they are precisely the kinds of questions that ordinary Christians are asking and that Article 7 of the Nashville Statement answers. And I believe the statement does so in a way that is consistent with both natural law and scriptural revelation.

Burk looks at nature, sees the typical arrangement, calls it God’s design and asks Galli questions. He wants Galli to answer that embracing a transgender or gay self-concept isn’t consistent with God’s design. Burk wants him to say that such self-conceptions were not part of the original plan nor will they be part of the eventual eternal state. Therefore, we shouldn’t affirm them now.
Let me now speak for Galli and ask some questions of my own. Mr. Burk, what about the exceptions? Do they not exist? Are they not valuable? In what sense do you think it is consistent with God’s design to pretend that LGBT people don’t exist now? Do you think straight and cisgender people become undesigned if we acknowledge that non-straight and transgender people exist? If those people who exist in exception honestly acknowledge it, will anyone be excluded from the new heavens and the new earth? Can’t the typical and the atypical coexist in your world? They do in mine.
Galli points to one part of nature and says the NS doesn’t fully capture it. Burk comes along, points to a more orderly part of nature and says everybody is supposed to be straight and cisgender even if they aren’t.

Exceptions Happen

In fact, there are many exceptions to “design” in nature.  Among humans, some people have extra bones or teeth, some have webbed toes, some are missing limbs. Some couples are unable to have children. Among sheep, some rams attempt to mate with other rams. This does not alter the behavior of the straight rams. Arguing against LGBT people from God’s design is a weak argument because LGBT people also exist in God’s world. I don’t believe they are a surprise or have thwarted His plans. The basic means of furthering the species is intact even if a small percentage of people aren’t going to find love and attachment in the usual way.
 
Oppose same-sex sexual behavior if that is your conviction, but don’t tell LGBT people that their very existence is an attack on God’s created order and then tell them in the next breath that your statement to that effect is “an expression of love” for them.
Read my other posts about the Nashville Statement here.
*The issues are similar for transgender persons but for simplicity, I will focus on sexual orientation.

Church of South India Pulls Out of State Council of Churches Over Admission of Believers' Church

The Church of South India was a charter member of the Kerala Council of Churches in India. However, according to a news report in The Hindu, CSI has pulled out of the KCC in response to the admission of K.P. Yohannan’s Believers’ Church into the KCC.
The background of the move involves the insistence by the CSI that Yohannan (also the CEO of Gospel for Asia) was not consecrated officially as a bishop and has no authority as such.

The latest development has to be viewed in the backdrop of the controversy over the episcopacy claims of the Believers Church that its head, K.P. Yohannan, was consecrated by the CSI Church.
However, the CSI has outrightly rejected this claim of the Believers Church, saying that the former has never done such a thing at any point of time.
The CSI Moderator, Bishop Thomas K. Oommen, told The Hindu that the regional forum of the CSI Synod members had unanimously decided to disassociate with the KCC and its programmes.

Admirer kissing the hand of K.P. Yohannan. From his 2017 birthday video.
Admirer kissing the hand of K.P. Yohannan. From his 2017 birthday video.

Yohannan and several bishops created the Believers’ Church due to the need to have a church in India to receive donations from abroad. However Yohannan claimed recognition from CSI when in fact the relationship is nonexistent according to CSI. The leaders of that denomination felt so strongly about it that they pulled out of the KCC to protest the recognition of Believers’ Church. To CSI, Yohannan is a lay person pretending to be a Bishop.

Did the American Founders Want the Bible in Schools?

Tim Barton, son of self-styled historian David Barton, wants you to believe the founding fathers wanted the Bible taught in schools.

Tim Barton, son of self-styled historian David Barton, wants you to believe the founding fathers wanted the Bible taught in schools. Watch:

In the video, Barton focused on Benjamin Rush, a Philadelphia physician and signer of the Declaration of Independence. Barton said,

But what’s cool about him is when we became a nation, he wrote a series of essays to help guide and shape America, and what we thought and how we did it, and one of the essays he wrote was on education. It’s this essay right here and it was on the defense of the use of the Bible in schools. He’s arguing that we need the Bible in every school in America. Benjamin Rush believed that if we were going to make it as a nation, the way we had to do it was use the Bible in schools.

The caption for the video on Facebook is:

Who was the Father of Education in America? Here is the proof that our founders wanted the Bible in schools. Watch. Like. Share.

Is Rush’s letter proof the founders wanted the Bible in schools?
In 1791, Rush wrote a letter on education to Jeremiah Belknap which was republished by the American Tract Society in 1830. In the letter, Rush Benjamin_Rushdefended the use of the Bible in schools. However, Rush’s defense should raise a question. If the Bible was in such wide use, then why would Rush need to argue for its inclusion?
In fact, Rush said in his letter that the Bible in schools was out of fashion, so to speak.

To the arguments I have mentioned in favour of the use of the bible as a school book, I shall add a few reflexions.
The present fashionable practice of rejecting the bible from our schools, I suspect has originated with the deists. They discover great ingenuity in this new mode of attacking Christianity. If they proceed in it,.they will do more in half a century, in extirpating our religion, than Bolingbroke or Voltaire could have effected in a thousand years. I am not writing to this class of people. I despair of changing the opinions of any of them. I wish only to alter the opinions and conduct of those lukewarm, or superstitious Christians, who have been misted by the deists upon this subject. On the ground of the good old custom, of using the bible as a school book, it becomes us to entrench our religion. It is the last bulwark the deists have left it ; for they have rendered instruction in the principles of Christianity by the pulpit and the press, so unfashionable, that little good for many years seems to have been done by either of them. (emphasis added)

What? The Bible was rejected from schools during the 1790s? Eliminating the Bible was a fashionable practice?
Rush calls using the Bible in school a “good old custom” and blames another problem on their disuse:

The effects of the disuse of the bible, as a school book have appeared of late in the neglect and even contempt with which scripture names are treated by many people. It is because parents have not been early taught to know or respect the characters and exploits of the old and new testament worthies, that their names are exchanged for those of the modern kings of Europe, or of the principal characters in novels and romances.

Rush apparently viewed a lack of biblical naming to be a problem which would be addressed by returning Bibles to education. Since Rush complained that parents didn’t get Bible instruction in school, the use of the Bible in school must have dropped off long before the 1790s, at least according to Rush.
With his letter, Rush was going against the trend not setting the pace.

One Founder Doesn’t Mean All Founders

Another problem is that Barton generalizes from Rush to all founders. This, of course, is not appropriate method. At least one other founder spoke against using the Bible with young children — Thomas Jefferson. On that subject in his Notes on the State of Virginia, Jefferson wrote:

Instead therefore of putting the Bible and Testament into the hands of the children, at an age when their judgments are not sufficiently matured for religious enquiries, their memories may here be stored with the most useful facts from Grecian, Roman, European and American history.

No doubt some founders were fine with the Bible as a text and other were not. The problem here is the generalization to the point of misinformation. There was no national policy on the subject and some schools required Bible training while others did not. By the 1880s, many schools had stopped using the Bible (see the Cincinnati Bible Wars) at all.
If Wallbuilders would like to feature another essay by Rush as an example for current practice, I have a suggestion below:
rush bloodletting
 

I Will Be on Moody Radio's Up for Debate Program at Noon to Discuss Repeal of the Johnson Amendment

At noon, I will be on the Moody Radio Network program Up for Debate with Julie Roy to discuss the repeal of the Johnson Amendment. Repeal would allow churches to endorse political candidates. I don’t believe this is a good idea.
 
Opposing me will be Erik Stanley of Alliance Defending Freedom. You can listen online here: https://www.moodyradio.org/upfordebate
As background, see my post opposing church endorsements of political candidates.

Southern Baptist Ethics Commission Stands Behind Russell Moore

I just saw this tweeted a bit ago. There is commentary from the Executive Committee of the Ethics and Religious Liberty Commission and from Dr. Russell Moore.
The summary from the Executive Committee is as follows:

In many respects, it was the trustee system that allowed for the Conservative Resurgence in our denomination. As committed Southern Baptists with a great appreciation for our Convention, we take our fiduciary responsibility as trustees of the ERLC as a sober and serious stewardship. As an Executive Committee, we believe that Dr. Moore has taken appropriate measures to address this situation. We realize that divisions do not heal overnight, and as needs arise our Board will be happy to address them. But in terms of leadership and support, Dr. Moore is the man to whom it has been entrusted to lead this entity—speaking prophetically both to our culture and to our Convention. He will continue doing so with the confidence of our support.

Moore has been the subject of controversy due to his opposition to Donald Trump during the election season. Moore came out strongly against Trump’s morals and alienated Trump supporting Southern Baptists. Some had called for Moore’s resignation and threatened to withdraw financial support unless Moore is replaced. We will see what happens.

This Just In: CPAC Rescinds Speaking Invitation to Milo Yiannopoulos, Publisher Pulls Book (UPDATED)

You knew this was coming:


After vocal reactions from a wide range of conservatives, CPAC rescinds the invitation.
For background on this matter, see posts from yesterday (here and here).
One wonders what took so long and what tipped the scale toward disinviting Yiannopoulos. Last night at 8:17pm, ACU chairman Matt Schlapp was still defending Milo as a speaker.


This was long after the video interviews had been widely available and distributed via Twitter.
UPDATE: Just in:

Saddleback Pastor Rick Warren to Speak at the National Prayer Breakfast

So he says. He may be the keynote speaker but then again that isn’t supposed to be disclosed until the day of the breakfast which is tomorrow. There are many opportunities to speak at the many meetings going on this week in Washington, D.C.
The National Prayer Breakfast is hosted by Congress and conducted by the Fellowship Foundation. I attended as a guest of the Fellowship in 2010 when the Ugandan Anti-Homosexuality Bill was under consideration.
President Trump will most likely speak as has every president since Eisenhower.
Founder Doug Coe’s presence is uncertain but may show up if he feels up to it.