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  • Writer's pictureDavid L. Burg

12-5-2023: Will Republican Idiocy Never End? (published by Townhall)

We’ve long had two major political parties in this country: A destructive, anti-American party (Democrats); and a foolish, naïve one (Republicans). Rarely has this dichotomy been on sharper display than the present moment.

Last week, for instance, Republican Senator Markwayne Mullin from Oklahoma made an extraordinarily foolish statement on national television. During an appearance on Rob Schmitt Tonight – in my view the best news and commentary program on television – Sen. Mullin claimed Congress lacks Constitutional authority to remove Joe Biden from office unless he committed an impeachable crime during his presidency.

Where did Sen. Mullin get such nonsense? Certainly not from the Constitution itself, which states in Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

You don’t see a Constitutional word there about the timing of impeachable crimes, and for good reason: Suppose, for example, that before taking office President X had paid a hitman to murder his political opponent. Or his wife’s lover. Or perhaps President X had trafficked in child pornography. Or maybe President X had accepted millions of dollars from Country Y (an American adversary) on condition that, if elected president, he would direct U.S. foreign policy in Country Y’s favor. You get the idea – just let your imagination run wild (or read the newspaper).

Does Sen. Mullin truly believe that, if the American people first learned of this criminality after electing President X, then Congress would lack Constitutional authority to remove him merely because President X committed his otherwise impeachable crime before taking office? We know President X could not be criminally prosecuted while in office. So, according to Sen. Mullin, the people of the United States would have no recourse during his term in office? We’d simply have to wait out four insufferable years while President X’s pre-inauguration criminality did immeasurable damage to our country?

The idea is preposterous. As frequently is observed, our Constitution is not a suicide pact. The point of its impeachment provisions is to give Congress authority to remove any officer whose conduct – in the form treason, bribery, or other “high” crimes – demonstrates that he or she is unfit for office. Precisely when this criminality took place may be irrelevant to the House’s entirely appropriate decision to impeach and the Senate’s equally proper decision to convict and remove. Indeed, even otherwise governing statutes of limitation are inapplicable to Congressional impeachment and removal authority under the Constitution.

Our current situation demonstrates why the timing of an impeachable crime may be Constitutionally immaterial. There appears to be strong evidence that Hunter Biden violated – among other provisions of law, including those prohibiting tax fraud – the Foreign Agents Registration Act (FARA), a longstanding federal criminal statute that generally prohibits representing in the United States any “foreign county,” “foreign political party,” “person outside the United States,” or “partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country” without first publicly registering as a foreign agent. The obvious purpose of FARA is to protect the American people from clandestine foreign influence that presumptively could damage our country.

Hunter Biden seems to have done exactly this on behalf of Burisma Holdings Limited, a Ukrainian energy company organized under Cypriot law (among other foreign principals). There also appears to be strong evidence that – for many years before becoming president (at the earliest) – Joe Biden knowingly participated with Hunter Biden (and others) in a conspiracy to violate FARA on behalf of this Ukrainian foreign principal and for foreign principals in other countries, including China. Joe Biden’s overt acts in furtherance of this apparent conspiracy included, for example, dinners with foreign principals at Café Milano and elsewhere, pre-arranged “check-in” calls designed to demonstrate for foreign principals Hunter Biden’s unfettered access to his father, direct telephone conversations with foreign principals, permitting Hunter Biden to travel on Air Force Two to solicit foreign principals, etc. Under basic laws of conspiracy this conduct renders Joe Biden jointly and severally liable with his son (and others) for their apparent arrangement to violate federal law.

Our executive branch certainly believes FARA violations are “high crimes” given its extraordinarily aggressive prosecution of Paul Manafort – including subjecting him to solitary confinement, among the harshest sanctions we impose on anyone – for this very offense. In any event, it is entirely within the Senate’s discretion to determine whether FARA violations (or other potentially impeachable crimes) constitute “Treason, Bribery, or other high Crimes and Misdemeanors” within the meaning of Article II, Section 4 of the Constitution. But the argument that the House cannot impeach President Biden, and the Senate cannot convict and remove him from office, merely because his apparent criminality occurred before January 20, 2021, is ridiculous. There is nothing in our Constitution or other federal law supporting such an absurd notion.

So Congressional Republicans: Please don’t be dissuaded by nonsense. Joe Biden has long been a dire threat to the safety and security of our beloved country. If, as it appears, there is evidence the man engaged in an impeachable crime rendering him unfit for office – irrespective of its timing – then do your Constitutional duty: Impeach and remove him before he does irreparable harm to ourselves, our children, and our grandchildren. And one more modest request: Please study the Constitution before blurting out Constitutional claptrap.

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