The Price Of Power

by James W. Huston

  He took a deep breath. “I think not. A pacifist is entitled to run for President in this country. It was founded by men who were fleeing for religious freedom, including Mennonites and Quakers. Men and women who believed that the Bible compelled them not to take arms against evil. They believed what their Lord and Savior taught them. ‘You have heard it said that you are to love your neighbor and hate your enemy. But I say to you, love your enemies.’ We are all familiar with the Sermon on the Mount. Many try to avoid its obvious conclusions, and much has been written or said about the pacifism implied therein. But I have never heard it said with any degree of persuasion that a person cannot hold the view of pacifism based on the New Testament with a clear and true conscience, and truly believe they are obeying the God who wrote the Ten Commandments with His finger.

  Even the senators who had been snickering were quiet. Potts lowered his voice and looked hard at Chief Justice Ross. “The ruling of this court, and of the Senate if it follows the court’s recommendation, cannot be that a pacifist is not a part of this country. The only exclusion for running for President in the Constitution is that the candidate be over thirty-five years of age and a naturally born citizen. It does not say thirty-five, naturally born citizen, and willing to conduct a war. To write such a requirement on the Constitution does violence to its structure. If the House wants a clause in the Constitution forbidding a pacifist from running for President and being elected, then propose an amendment!” he said, waving his arms and almost yelling. “Don’t throw such an accusation on the shoulders of a sitting President, and impeach him to embarrass him and achieve a political end. This matter must be dismissed without a trial. It must be decided as a matter of principle, as a matter of constitutional law, as a matter of right. Whether or not the President himself is a pacifist will be found out soon enough. But the point must be made, and made here, once and for all, that our country has room for politicians who do not believe in killing other human beings to achieve a political end. Based on the foregoing,” he said, his deep voice booming, “I hereby move that the impeachment of Edward Manchester be dismissed by this court and this Senate now. I thank you, Mr. Chief Justice, for your kind attention, and I thank each senator here for the audience granted to me to hear this motion. One other thing,” he said, putting his finger to his lip. “If the court is unwilling to grant the motion, then I’d ask the court right now to present the issue to the Senate for a vote. Can a pacifist be President? If so, then we don’t need to hear evidence.” Potts returned to his table and sat down.

  The audience in the gallery began to clap, deeply impressed by Potts’s speech. Chief Justice Ross immediately banged the gavel and demanded quiet. The clapping subsided. The Chief Justice surveyed the gallery above him, then spoke to Pendleton. “Mr. Pendleton, your response?”

  Pendleton was at the podium, facing Chief Justice Ross with no notes, as usual. He glanced at Dillon, who tried to swallow but couldn’t. Dillon was afraid the trial would end if Potts’s motions succeeded. They and the House were on the verge of disaster.

  Pendleton began, “Good morning, Mr. Chief Justice, ladies and gentlemen of the Senate. Let me first compliment Mr. Potts on his eloquent defense of pacifism. It might be noted that Mr. Potts at no time denied the allegation in the Articles of Impeachment that the President is in fact a pacifist. To be fair, he brought his motion in the nature of a demurrer, arguing only that the allegations are legally insufficient. However, if Mr. Potts is prepared to stipulate that the President is in fact a pacifist, then the Senate can vote and it can be decided here and now as to the legality of impeachment for pacifism. I offer that stipulation to Mr. Potts at this time.”

  Potts, caught off guard, addressed Chief Justice Ross. “I am somewhat taken aback by the offer, Your Honor. Perhaps Mr. Pendleton is not aware of the legal concept of a demurrer, or admitting certain facts only to test the legality of the allegation. It is not an actual admission or an implicit admission. I have no authority to accept any such stipulation hearing it here for the first time, and therefore reject it.” Potts sat down.

  “As I suspected,” said Pendleton. “The issue then before this body this morning is whether or not a President who is unwilling under any circumstances to fulfill a substantial portion of his position is fit to serve, and if not fit, whether he can be removed by impeachment.

  “We have heard this morning, appeals to the character of Gandhi, Jesus Christ himself, and the general concept of peace-loving individuals being unfit to serve as a President of this fine country.

  “Mr. Potts misses the point. He confuses the mandatory qualifications for becoming President with the requirements of the job of President. Surely we can agree that we do not only ask of a sitting President that he be over thirty-five years of age and a citizen. Surely we also expect him to do the job of President, appointing a cabinet, signing appropriate bills, defending the country from attack. The Constitution of the United States sets out certain requirements for the presidency. The President is to appoint certain officers. The President is to appoint judges. The President is to enter into treaties, to sign bills, to do a number of things. To take the oath of office. Is it Mr. Potts’s position that one could assume the position of President and refuse to do any of those things because it was against his principles? Can the President hold the title, take the money from this country, and not fulfill the obligations he has under the Constitution? I think not. If a President took office and went to the beach every day and refused to do his job, he should be impeached. No high crime. No misdemeanor.

  “One of the fundamental jobs of the President is to be Commander in Chief. It is clearly stated in the Constitution, Article Two, Section Two, that the President is in fact the Commander in Chief of the armed forces. Can a President who does not even believe in the use of the armed forces serve as their commander? Could Gandhi serve as a general in the United States Marine Corps? Of course not. It’s a ridiculous concept. Could Gandhi then serve as the Commander in Chief over a general? Over every general of the Army and the Air Force and the Marine Corps and every admiral of the Navy? Absolutely not. It would go against his character so deeply that he would be unwilling to employ the military.

  “The people of the United States vote for representatives and senators who pass a defense budget that is approximately twenty-five percent of the entire budget of the United States. It is something that the people, through Congress, have voted for again and again in order to protect themselves. You may think what you like about the current threats to the United States, but whatever they may be, the people of the United States have voted consistently and repeatedly to have a standing Army, Navy and Air Force to defend them from those threats.”

  Pendleton paused. “There has been a lot of talk over the last decade about the end of the cold war. The former Soviet Union has broken up into several countries, making Russia now smaller in population than Indonesia, where all of this difficulty arose. Yet there are still thousands of nuclear warheads within Russia which either are, or could be, targeted at the United States.

  “Is President Manchester prepared to keep the nuclear defense umbrella in place? Is it in place now? There is one person with the authority to launch or defend against a nuclear strike. President Manchester. Is he prepared to do so? Can it be that the President, elected by this country to act as Commander in Chief, is unwilling to do it? If he has laid down the arms of the entire defense establishment of the United States, the people of the United States can do nothing about it until he is up for reelection?

  “other than treason, it’s difficult to imagine a more serious breach of the obligation to defend the citizens of the United States than that represented by a pacifist becoming President of the United States, Commander in Chief of the military, and not disclosing it.

  “As to the legality of the Impeachment Articles, Mr. Potts did properly state the criteria—high crimes and misdemeanors. It is, therefore, left to this body,” Pendleton said vigorously, “to decide wha
t is a high crime—what is violative of the office and of the obligations of the President.

  “So what is a high crime or misdemeanor? Let us remember the excellent research done by the House Judiciary Committee when considering the impeachment of Richard Nixon. We cited it in our papers—”

  “The court is familiar with it,” Chief Justice Ross interrupted.

  “Good, yes. As the court will recall, the primary issue they wanted to deal with was whether crimes, indictable crimes, were the criteria for impeachment. The conclusion was very clear. It is not indictable offenses that are impeachable, it is a breach of the obligation of the office, which is undefined, and to be determined by the Senate.” Pendleton slowed and turned slightly toward Potts. “Hillary Rodham Clinton and Bernard Nussbaum helped write the memorandum that so states.”

  The crowd chuckled.

  “The House clearly agreed with that interpretation during President Clinton’s impeachment. It is left to the Senate to decide. This motion should be denied and the President tried here, now, today, to explain his position. Who knows, perhaps he’ll surprise us and tell us that he is not a pacifist. If he does, we can then ask him why it is he put the country through this and why he did not admit it before the Articles of Impeachment were issued, when he was first asked by the Speaker of the House of Representatives. But the evidence will prove that President Manchester is in fact a pacifist and unwilling to employ the military. Whether we like him as an individual or not, such a person cannot serve as President and must be removed.

  “If such a person were to reveal himself as a pacifist while running for office, it is extremely doubtful that person would ever be elected. That would give the people a chance to prevent it from happening. But when, as now, that person has not disclosed such a conviction to the public until after the oath has been taken, the office assumed, and the country faced with a direct attack, there is no means to remove such a person from office other than by impeachment. That tool is given to the Senate by the Constitution. And I should remind the Senate that the President took an oath, before you, Chief Justice Ross, on the day of his inauguration; before God and the whole world, he raised his right hand and swore to faithfully execute the office of President, to preserve, protect, and defend and preserve the Constitution of the United States. When the President took that oath, he submitted to the Constitution. And the Constitution requires that the President act as Commander in Chief of the military.”

  Pendleton moved to his chair, pulled it back silently, and sat down, folding his hands on the table in front of him.

  Chief Justice Ross regarded the attorneys through the top half of his glasses. “Anything else, Mr. Potts?”

  “No, sir,” Potts said without rising.

  “Very well,” Chief Justice Ross said. He adjusted his glasses and began to speak slowly. “As we all know, there is virtually no authority on this question. It appears that the Constitution as drafted left to the Senate to determine what exactly constituted high crimes or misdemeanors for the purposes of impeachment. Moreover, I am aware of no authority I have in presiding over the trial, to ‘dismiss’ the charges brought by the House. To allow me to do so would give me power over the House and remove from it the sole power of impeachment. I believe such an action would be unconstitutional. The Senate may vote not to convict for several reasons, or any combination. They may believe that it is fine for a President to be a pacifist and dismiss the charges, as Mr. Potts has asked.”

  Ross paused and surveyed the Senate. “The motion to dismiss is denied. I do not see it as within my province to determine a priori that such a charge is insufficient as a matter of law, when there is no authority so stating. I think the allegation is sufficiently serious that the Senate can decide whether it constitutes a high crime or misdemeanor.”

  The gallery buzzed. The Chief Justice expressed his disapproval by banging his gavel. “I really must insist on quiet. I will not say this again.” The gallery fell silent.

  “Now, Mr. Potts, your second motion is an attempt to preclude Mr. Pendleton’s ability to call the President as an adverse witness in his own case.”

  “Yes, sir.” Potts absentmindedly buttoned his jacket and pulled his cuffs out of his coat sleeves. “It seems entirely inappropriate for Mr. Pendleton to attempt to intimidate the President by calling him as an adverse witness in the impeachment case filed against the President himself. This is very much like a criminal charge in which the defendant is asked on cross-examination to testify against himself.”

  Pendleton rose slowly and faced Chief Justice Ross. “Mr. Pendleton?” Ross inquired.

  “Thank you, Mr. Chief Justice. There is a lot of authority, in fact in the Constitution itself, that this is not a criminal charge. Although the criteria for impeachment is ‘high crimes and misdemeanors,’ the Constitution itself says the only available punishment is removal from office. That by definition is not a criminal sanction and, therefore, this is not a criminal matter. Perhaps I can anticipate Mr. Potts’s second motion a little bit by indicating that it is inappropriate to even claim the Fifth Amendment.”

  Potts interrupted Pendleton. “The standard for the Fifth Amendment has never been whether or not the arena in which the testimony sought is a criminal one. It is a basic tenet of law that you can claim the Fifth Amendment privilege while testifying in a civil case, not just a criminal case. The question is whether or not your testimony can be used against you. People claim the Fifth Amendment privilege when testifying before Congress at hearings. It’s not a criminal matter, but that testimony could be used against that person. Unless there’s a waiver of criminal prosecution, which is not the case here, you cannot force anybody to testify anywhere in such a way that it might be used against him later.”

  Pendleton shook his head slowly. “What Mr. Potts says is true. What Mr. Potts has failed to say though is what criminal charge he believes is reasonably likely.”

  Chief Justice Ross glanced at Potts. “Mr. Potts? Can you give us an indication of reasonable possibility of criminal prosecution?”

  “As the President is not on the stand, Mr. Chief Justice, and as the context of his testimony is not before us, it is inappropriate at this point to state what criminal charge might or might not be forthcoming. I have personally learned by the representation of more than one client, that at the beginning of a trial in which your client’s testimony is required, you may not have a full understanding of the implications. I, therefore, would request that you, Mr. Chief Justice, withhold judgment on whether or not his election of the Fifth Amendment is appropriate until the testimony is called for…”

  “But you have requested by motion that your client, the President of the United States, not be required to testify at all.”

  “No, Your Honor. The motion said that he not be required to testify on direct examination as an adverse witness for Mr. Pendleton. He wants a chance to testify in his own case. Whether or not the Fifth Amendment privilege will be exercised at that point is another matter entirely.”

  “Mr. Pendleton?” Ross asked, awaiting Pendleton’s last comments.

  “Mr. Chief Justice, the ability to call an adverse witness is fundamental in civil trials throughout the federal court system.” Pendleton paused, his eyes moving from the Chief Justice to Roosevelt Potts. “This case will Probably be decided by what the President says. If he comes in here and declares to the whole world that he’s not a pacifist, I’d be the first to close my notebook and go home. He’s had numerous opportunities to do that since the Articles of Impeachment have been issued. He has not done that. Let’s ask the President whether or not he’s a pacifist. I want to do that early and I want to do it with him before this court. I should be allowed to do so.”

  “Here’s my ruling,” Ross said quickly. “The President may be called as an adverse witness by Mr. Pendleton in the impeachment trial. If in fact the President chooses to invoke the Fifth Amendment privilege, we will evaluate it at that time as to whether it is appropriate at all
, and if so, whether there is a reasonable likelihood of prosecution that would trigger the privilege. Now, your next motion, Mr. Potts, was…” He examined his list of items to be dealt with in the morning. “The next motion is to preclude the testimony of certain relatives of the President. Is that right, Mr. Potts?”

  “Yes, Mr. Chief Justice. I’ve seen a lot of trials in my day, Your Honor, but I don’t think I’ve ever seen the mother of a defendant called as a witness by the prosecution, essentially as a character witness, to show that he has bad character. Mrs. Manchester is an elderly woman who lives by herself in Harrisonburg, Virginia. She is a kindly, devout Mennonite woman. She is not the one on trial. She is not the one who has been impeached. Calling her as a witness would be simply a means to harass and annoy the President and would be unfair to this woman.”

  Chief Justice Ross turned to Pendleton, frowning. “Mr. Pendleton, don’t you think calling the President’s mother is a bit much?”

  “It is not, Mr. Chief Justice,” Pendleton said quickly.

  “Not only is it not ‘a bit much,’ but it is critical to our case. Everything must be proved now by circumstantial evidence since the President seems disinclined to talk about it. Again, that all may be short-circuited if the President comes in here and tells us how he feels. Until then, we need to look elsewhere. His mother will be called to testify that she raised him as a Mennonite. The beliefs of the Mennonites are well known and she’s perfectly well suited to tell us what they are. It’s as simple as that.”

  “Are there no other witnesses who could do the same?”

  “There are certainly no other witnesses who were responsible for raising him,” Pendleton said.