Editor’s note: This commentary is by Dan Smith, of East Montpelier, who is an attorney in Montpelier, practicing in the field of milk market regulation, who formerly worked for the Legislative Council, and on the Northeast Dairy Compact in Congress.
[P]resident Trump’s conduct of his office is fundamentally damaging our constitutional system. Abetted by his subordinates, now including the attorney general, the president is overreaching in an expansive use of executive power across both domestic and foreign policy fields.
The Mueller report documented substantial evidence of the president’s legal overreach. In response, the House of Representatives is fulfilling its constitutional obligation to check the president by conducting an oversight review of the president’s actions described in the Mueller report.
Trump is obstructing this oversight process by refusing to allow administration officials to testify and failing to turn over requested documents. This further overreach by the president threatens the basic constitutional balance of power between the legislative and executive branches of government. The House has again properly responded to this basic constitutional challenge with its preliminary consideration of impeachment.
The president’s congressional overreach has been empowered by the Senate’s failure to fulfill its constitutional responsibility, in companion with the House, to check the president. The Senate has refused to support the House’s oversight process for the Mueller report, and the leadership has made clear it will not consider impeachment under any circumstances.
The House must not be deterred by the Senate’s abdication of its constitutional responsibility. As the branch of government co-equal in power to the executive, Congress must take formal action to challenge the president’s overreach.
For this reason, as part of its preliminary impeachment inquiry, the House should adopt a resolution to censure Trump.
Formal censure would establish a factual and legal statement of record by the Congress of the president’s unacceptable conduct of his office, for the present and for posterity. The Senate’s censure of President Andrew Jackson provides precedent for this historic benefit of formal presidential censure by a single chamber of Congress.
A formal censure proceeding would also advance the House’s preliminary impeachment inquiry by informing the public about the president’s misconduct in a high-profile manner. The proceeding would also create a valuable record for the upcoming election debate. The censure of Sen. Joseph McCarthy provides a ringing example of this high value and impact of a modern, public censure procedure.
The Senate’s censure of Jackson, in 1834, has a direct parallel to the present. The Senate censured him for withholding documents from Congress related to his actions to dismantle the Bank of the United States. Sen. Henry Clay, otherwise known as the “Great Compromiser” of his time (and representing Kentucky) introduced the censure resolution.
Jackson was the first president to test, if not exceed, the boundaries of executive power. His censure resolution stands as an early important mark of our effective system of governmental checks and balances, which has so distinguished our country’s historic experience.
The more modern censure of McCarthy provided the effective remedy for a political turmoil directly parallel to the present. The country experienced years of havoc caused by the Senate’s inability to rein in McCarthy’s bullying demagoguery, under the tutorship of Trump’s future mentor, Roy Cohn. Finally, in June 1954, Sen. Ralph Flanders (representing the then-bedrock Republican state of Vermont) introduced a censure resolution.
The Republican-controlled Senate moved swiftly once spurred into formal action by Flanders’ resolution. A special committee considered the censure resolution, with televised hearings, and less than six months after the resolution’s introduction, the full Senate voted to censure McCarthy.
Also once put to the formal test, half of the Republican senators joined the Democratic members in voting overwhelmingly for the censure resolution and to put an end to McCarthy’s tirade and abuse. McCarthy’s career came to a crashing end soon after.
A resolution to censure Trump was previously introduced, in 2017, following his incendiary comments about the white nationalist rally in Charlottesville, Virginia. Seventy-nine Democrats, including now House Judiciary Chair Jerry Nadler, and with the endorsement of now Speaker Nancy Pelosi, sponsored the resolution.
This censure resolution should be reintroduced, with relevant findings added from the Mueller report. Following the lead of the McCarthy Senate proceedings, a special House committee should immediately be convened to consider the resolution, allowing for a full House vote by year’s end, well in advance of the presidential primary season.
The formal censure of McCarthy is the enduring example of our political system, and the rule of law standing down a political bully and demagogue. During the censure proceedings, the special counsel for the Army, Joseph N. Welch, asked the senator: “Have you no sense of decency, sir, at long last? Have you left no sense of decency?”
The time has come for this question to be put to Trump. The House should act without further delay and resolve to censure him.
