Trials & Witnesses - Assignment Example

External Assignment Cover Sheet Annette Wojtyna Return 42/9 Harrier Drive Address: BURLEIGH WATERS QLD 4220 RESEARCH ASSIGNMENT Trials & Witnesses LAW10490 Date Due: 14 February 2007 Unit Assessor: Andrew Hemming Phone: 0403 777 213 Student ID: 21259566 Word Count: Assignment Style Checklist (for students to complete) This Exam: Is typed, or if not typed, the writing is legible  Text font size is at least 12pt  Is typed/written on one side only of A4 sized paper  Footnote font size is at least 10pt  Is double spaced  Has been referenced and footnoted in accordance with the Style Guide  Has page numbers and student ID (but not name) on the top of each page  Has case names and titles of statutes in italics (preferably) or underlined  Has a left-hand margin of at least 4cm and a right-hand margin of 2cm  Has a bibliography on a separate page  Declaration I hereby declare I have read the rules concerning penalties which apply to academic dishonesty including plagiarism and agree to be bound by the university rules in this regard (please see reverse). To the best of my knowledge the work I am submitting attached to this declaration contains no materials written by another person except where due reference has been made. I have not previously submitted this work or any version of it for assessment in any other unit offered by Southern Cross University or any other institution. I declare that I have kept a copy of this assignment. Signed: Date: January 2007 QUESTION 2 Select a significant political trial and critically analyse the political, social and legal consequences of this trial. In so doing, consider the trial’s ramifications both at the time as well as how historians view the trial today. Impeachment of United States President Andrew Johnson 1 Introduction The failure to impeach United States President Andrew Johnson was a landmark political event; it shaped the independence of the future executive branch of government socially, politically and legally. The events occurred during an era of political turmoil in the United States, the reconstruction of the country. President Johnson’s vociferous opposition to the will of Congress could have ousted him from his position through impeachment.. However, the failure of the motion established the independence of the executive branch of government. Secondly, this trial highlighted the fact that presidential impeachment is inevitably conditioned by political and legislative debates of the day and therefore cannot be equated to regular trials. The third significant aspect of this trial was the debate generated around the explicit construction to be attributed to the ambiguous term ‘high crimes and misdemeanours’1 as grounds set out in the United States Constitution for impeachment of a president. In this aspect, impeachment motions in the present day are also conditioned by the social context, because they are still influenced by the contemporary public view . The precise legal construction of ‘high crimes and misdemeanours’ also still remains a contentious issue. However, the media today plays a crucial role in all major political issues through its influence upon the shaping of public opinion, which contrasts with the impeachment trial of Johnson, as the media did not play such a momentous role then, in influencing political developments. 2 Brief Summary of Events Andrew Johnson was elected Vice-President of the United States and took office on 4 March 1865.2 Consequently, with President Lincoln’s assassination on 15 April 1865, Johnson was elevated to presidency.3 The impeachment was the culmination of a series of conflicts between President Johnson and the radical republicans, who were pressing for rights to be accorded to African Americans in the era of reconstruction – such as granting them full citizenship and the right to vote.4 Nonetheless, Johnson started reconstructing the southern states when congress was not in session, seeking to retain vestiges of the old slavery system, including repressive labour laws. He permitted the arrest of unemployed African Americans for vagrancy, segregated schools and enforced other punitive Black Codes.5 As a result of these repressive policies which the Confederate States were eager to implement, representatives from these 11 former confederate states were denied seats in congress when it reconvened. Social equations in American society were changing, seeking to eschew the established system of slavery, however the repressive labor laws promoted by President Johnson were a regressive measure. Should you mention the political impact here? Maybe a sentence summing up the political consequences in a little more detail e.g. why the 11 representatives were denied seats? In April 1866, congress decreed a Civil Rights Act, which granted extensive rights to former slaves or African Americans, including the right to own property and the right to sue in the courts.6 Conversely, President Johnson vetoed this Bill, claiming that it would cause “discord among the races” and was an invasion of the rights of the Southern States.7 Yet, congress was able to override the veto, since the Radical Republican representation was high. This Bill highlights the growing conflict between the legislative and Executive branches of Government.. (should you mention the legal impact here?maybe a sentence about how this had not been done before or something like that?) Subsequently, Johnson also opposed the passing of the Fourteenth Amendment to the Constitution that guaranteed civil liberties to all citizens.8 This amendment specifically provided that no State was permitted to “deprive any person of life, liberty or property without due process of law…[nor deny]…the equal protection of the laws.”8a The existing social system characterized by slavery was an inequitable one, since the slaves had no rights at all but were totally subject to their masters. However, in order to throw off the shackles of slavery, a social reorganization of society was mandated, in order to provide equal rights to the former slaves. Since slavery had been more prevalent in the Southern States with their large plantations, the Southern States and President Johnson were more resistant to such changes in the law as the passing of the 14th Amendment. (should you mention somewhere the social impact in a few more details or make it more obvious when you are discussing the social impact? Eg This effected the Southern States socially because….)The elections in November 1866 brought the radicals into a majority position in the senate and the congress as a result of which all of Johnson’s vetoes against legislative measures such as the Military Reconstruction Act, the Tenure of Office Act and the Command of the Army Act failed.9 Moreover, the southern states were required to ratify the Constitution with the Fourteenth Amendment before they could be readmitted to the Union.10good Johnson constantly challenged the validity of Acts passed by congress,11 defying rather than cooperating with them, which intensified friction between Johnson and the radical republicans good. The conflict between the executive and legislative branches of Government reached a (social/political/legal climax?)climax when Johnson attempted to expel the radical Secretary of War, Edward Stanton from his cabinet in violation of the Tenure of Office Act and sought to re-establish direct contact with the military governors.12 Congress represented the perspective of the northern States that sought to abolish slavery while President Johnson spoke up for the preservation of the former social system riddled with slavery. On 21 February 1868, Stanton barricaded himself in his office and refused to leave. This fuelled the impeachment motion against President Johnson as the conflict between the executive and the legislative branches of Government reached its climax. maybe extend this sentence, The notion to impeach Johnson was fuelled by his attempt to ……...13 3 The definition of Presidential Powers The fact that President Johnson sought to dismiss Stanton without congress approval was the factor propelling the impeachment motion (oh! Ignore the comment from the previous sentence). When compared to the modern day distribution of powers between the Congress and the President of the United States, the notion that Johnson would need the approval of congress to expel an executive from his cabinet and that his failure to do so would make him impeachable - is laughable. However, presidential powers were not so clearly defined in 1866 as compared to 2007. should you put a date here rather than say day? Day is used a lot , present day, in his day etc day. (Is this the start of a new paragraph?) Justice Rehnquist of the Supreme Court of the United States has explored the Johnson trial in detail and offers a lucid account of the events that transpired. He clearly separates the emotional issues that muddled the impeachment and explains how the scope of executive function has (should you mention political/legal/social changes? The changing equations between executive and legislative branches of Government is a political change) altered in the present day, spurred to an immense extent by the (political/ legal/social) failure of the impeachment motion against Johnson.14 Such failure assisted to set a precedent that discouraged future congresses from attempting to unseat a president whose views were considered unorthodox or untimely (good). Chief Justice Rehnquist also explains that the presidential power to hire and fire employees of the executive branch of government at his sole discretion remained indeterminate until 1953, when in the case of Humphrey’s Executor v United States;15 the court held that President Franklin Roosevelt had the power to expel William Humphrey, who was the Federal Trade Commissioner. good The Johnson impeachment was the first step in the set of (political/social/legal?) political developments that clarified and refined the scope of presidential powers. It may be categorised as an early instance of the testing of the balance of powers of the president and the congress. By holding that the dismissal of Stanton did not amount to an action deserving of impeachment, a fundamental milestone was achieved in the American system of government, establishing the independence of the executive branch and strengthening the separation of powers mandated by the Constitution good. In highlighting the significance of this development, Rehnquist CJ is of the view that if the impeachment motion had been successful, it would have impeded the effective functioning of the executive, by restricting the exercise of its powers and placing future Presidents in the precarious position of over-reliance on the will and whims of Congress. As a result, volatility in President-Congress relations or malice exercised by Congress towards the President could have adversely impacted impartial Governing. 4 Constitutional Grounds The impeachment motion against Johnson was brought on the basis of Article II, §4 of the Constitution of the United States, for ‘high crimes and misdemeanours’.16 Under this provision, 11 Articles of impeachment were framed. The first eight dealt with Johnson’s alleged illegal removal of Stanton from office.17 Article 9 was framed around Johnson’s violation of the Command of the Army Act since he had tried to usurp the leadership of congress in requiring the military commanders to report directly to him, thus disregarding the Constitution.18 Articles 10 and 11 dealt directly with the struggle for supremacy between the executive and legislative and the president’s scant regard for congress. The impeachment trial began in congress on 5 March 1868 and was presided over by Supreme Court Justice Salmon Chase and the prosecution headed by Thaddeus Stevens and Benjamin Butler.19 On a voice vote on Article 11 of the charges, only 35 votes of guilty were polled, which fell one short of the majority vote required for a successful impeachment motion.20 The dissenter was Edmund Ross, who refused to succumb to pressure from his fellow radical republicans and voted ‘not guilty’ on the charge of impeachment of the president for removing Stanton from office.21 Accordingly, the impeachment motion could not stand and Johnson remained the president.22 5 Developments in Constitutional Interpretation in Impeachment Trials One of the salient characteristics which plays an immense role in impeachment trials was identified by Keith Whittington.23 Whittington distinguishes between constitutional interpretations that might apply in other cases as opposed to the instance where a president is to be impeached. There is an irrevocable political and popular context within which such a presidential impeachment trial occurs, since it is akin to a trial by jury in that members of congress are required to offer an opinion on the guilt of the president through their vote of ‘guilty or not guilty’. He offers the view that unlike other cases, the judiciary is influenced to a great degree by constructed meaning, that is, political and legislative debates surrounding the issue, as they go about their duty of constitutional interpretation.24 Hence, Johnson’s impeachment trial, that occurred more than a century ago, is similar to impeachment motions in the present, in that a decision can rarely be made based purely upon the facts of the case. Applying the law to the facts to arrive at a verdict is complicated in an impeachment motion, since the president is no ordinary person but the Chief Executive of the Country, while the prevalent political and/or legislative debates of the day will inevitably condition the opinions of those offering their verdict on his/her guilt.good For example, Johnson’s impeachment motion was brought on the grounds of ‘high crimes and misdemeanours’. However, in voicing his opposition to the new Acts of congress, it could be argued that Johnson was only highlighting the lopsided nature of such Acts passed in the absence of representation of the Southern Confederate viewpoint in the congress. The offending actions were (a) firing Stanton and (b) verbal battles with congress. Such acts cannot be deemed heinous enough to be classed as ‘high crimes and misdemeanours’. Moreover, the degree of guilt that could be ascribed to Johnson’s actions would have depended to a great extent upon the political environment prevailing at the time – the popular public view as existing through its elected representatives good. Therefore, the question of unanimity in the allegation that Johnson was guilty of high crimes is itself debatable. Such difficulties in whether or not presidential actions can be classified as ‘high crimes and misdemeanours’ persists today. In order to classify as a high crime, a Presidential action should be akin to treason or repugnant to the constitutional context of his/her duties. Barring the above, the slotting of political acts into the category of criminal acts becomes a difficult exercise at best, especially since no specific definition for such crimes is available in the Constitution. ?? is it also difficult to determine a high crime and misdemeanour due to the ambiguous notion of the term? Has it ever been defined?. For instance, as indicated by Tassel et al, in discussing the impeachment trial of ex-President Bill Clinton (do you need dates of his trial here?), the major dispute among those for and against the impeachment of the president was one of facts vis-a-vis the law.25 Despite the preponderance of facts that may exist to support a conviction, the question is whether the law can be successfully applied to those facts to substantiate the required level of offence? Those supporting the impeachment of ex-President Clinton were vociferous on what they considered to be the ‘facts’ of the case, but those opposing the impeachment were of the view that even if all the alleged facts against President Clinton were found to be true, they did not amount to what constitutes impeachable offences under Article II, §4 of the Constitution, that is, ‘high crimes and misdemeanours’.26 good Richard Pious further insinuates that there is a distinction which must be made between the public conduct and the private life of a president and his/her own beliefs.27 In view of the fact that he/she is the popular, elected representative of a majority of the people of the United States and any motion to remove him/her from office cannot stand effectively without demonstrated support from the people in the form of representative votes from the members of congress, who are supposed to present the views of the people of their constituency.28 The presidential office is the head of the executive branch of government, which stands on par with the legislative branch – the congress. Hence the proposition that a president can be removed at the whim of congress, by the standards applied by congress, or if he/she does not support the views of congress is untenable in that it does not support the balance of powers specified in the Constitution28a (do you have to reference the Constitution here?). As the Chief Executive of the United States and in order to exercise the powers of his/her office as specified in the Constitution, the president must be allowed to function with some degree of independence and freedom from the interference of Congress. A President’s personal opinions and ideas as manifested in his private life can be subjected to Congressional demands or disapproval only in so far as they may affect the effective discharge of his/her official duties, but the freedom of expression and expression of every individual is guaranteed under the First Amendment to the constitution of the United States. Hence a President cannot be subjected to an impeachment motion for free expression of his opinions, albeit they may run contrary to the Congressional perspective. Pious acknowledges another paramount issue. He states that the Constitution is “incomplete, ambiguous or silent on key issues involving impeachment of a President”.29 Therefore a precise and determinative analysis of the Constitution in order to derive the principles and rules that drive an impeachment becomes a complex issue, one where judicial authority requires flexibility in its exercise. To a large extent, such interpretative decisions must rely on constructed meaning, derived from political and legislative debates in order to address the lacunaeI in the Constitution; such as issues on precise rules and criteria for impeachment. On this basis, Whittington has proposed that constitutional interpretation in such matters as presidential impeachment is crafted through dialogue rather than by objectively extracting the intent behind the constitutional principles.30 In particular, he is also able to apply this in the framework of the impeachment trial against United States President Johnson by assessing the nullification crisis and the role of federalism, including the political context, in the determination of the final decision on impeachment.31 Arriving at a precise definition of what exactly constitutes ‘high crimes and misdemeanours’ remains contentious.32 As pointed out by Forrest MacDonald in his testimony before the senate in 1998,33 determining the seriousness of an offence and when it is deserving of impeachment is a difficult issue. In this milieu, he has also cited the opinions of Supreme Court Justice Joseph Story, who equates such offences to political misconduct and thus in an impeachment trial, the issue that would arise is in determining the level at which political misconduct would merit a removal from office, especially when that office is the respected one of the president of the United States, as represented through the popular vote of the people.34 6 Social and Political Aspects The Johnson impeachment trial was resurrected in recent times with the impeachment motion against former President Clinton, where similar grounds were offered in support of impeachment – that of bringing disrepute and ridicule to the respected office of the President of the United States.35 As opposed to the alleged overstepping of boundaries of power of office alleged in Johnson’s case, the spur in the Clinton impeachment motion was oral sex in a bathroom of the presidential offices. There was an analogous failure to amass the required number of votes to effectively carry through an impeachment motion in congress. When the allegation of high misdemeanour is viewed in the framework of the political and legislative debates of the day as they existed in Johnson’s time, it may be illustrated that the debate over reconstruction and the extent of the human rights that were to be accorded to slaves was a contentious issue, because it reflected public opinion at the time.36 The presidential veto power as visualised in the Constitution serves precisely to encourage congress to rethink a legislative or other provision that may be flawed and thereby imposes a system of checks and balances between the executive and legislative branches of government. As a result, the exercise of Johnson’s veto could not have been deemed to be equivalent to high misdemeanours, neither could his conflicts with the congress. The spur that drove the impeachment motion was the attempt by Johnson to eliminate Stanton from office, thereby illegally contravening an Act that was already law. When detected from a purely factual perspective, it would seem that a violation of the law would demand the necessary punishment. However, in interpreting such a violation of the law, the political framework of the Act cannot be neglected – the environment of segregation and deconstruction cannot be ignored and construed meaning must therefore be derived. The political environment of the 1886 reflected a divisive element in society on the issue of slavery, therefore the prevailing public view in the South could have supported Johnson’s perspective. Racism was not strictly illegal in 1886 as it is in 2007, therefore the question of whether a violation of the law had actually occurred would have depended upon the legislative context in 1886 – i.e, a society just beginning to out away racism. Maybe you mention here legal/political/social issues need to be taken into account? In the present day environment, where racial discrimination has been outlawed,37 the actions of Johnson in endeavouring to veto those Acts that would have brought equality to the slaves would rise in violation of the constitutional mandate of equality for all people. Conversely, when viewed in the context of an environment where the popular southern vote could have extended to support of restrictive Black Codes, Johnson’s actions could have been acceptable due to the social…... In deciphering the intent of the framers of the Constitution in defining what exactly ‘high crimes and misdemeanours’ constitutes, in Johnson’s day (1886) anti-slave sentiment could have been acceptable rather than a crime, since no contrary laws existed. good Moreover, the framers of the Constitution intended their document to be flexible rather than rigid; to be responsive to the prevailing issues and politics, needs and requirements of future generations as well as their own. Therefore while a racist policy would contravene the spirit of equality enshrined in the Constitution, it would not be actionable under the law, if the existing milieu of the 1800s, as represented in the will of its people, did not support such a policy. good Articles 10 and 11 dealt directly with Johnson’s divergences with the congress, in the exercise of his veto powers to prevent justice by failing to provide equal human rights, with “said utterances, declarations, threats and harangues [being] highly censurable in any, are particularly indecent and unbecoming in the Chief Magistrate of the United States”.38 Consequently, Johnson was accused of having brought the office of the President of the United States into contempt and ridicule. Although here again, it must be said that an impeachment motion cannot be fuelled by emotional considerations, but by the law and the existing political debate. Rehnquist is able to clearly assess the extent to which Johnson’s actions contributed to the tabling of the impeachment motion. He implies that to some extent, President Johnson’s own conduct was responsible for the impeachment motion that was brought against him. If Johnson had tempered his comments and put forth his disagreement in a more rational and calm manner, perhaps the impeachment would not have occurred. This raises the issue of the prestige associated with the Office of the President of the United States and the need to uphold a modicum of decorum and decency in order to maintain the respect of the public for that high office. However, a failure of that decorum cannot be the sole grounds for impeachment, unless it is accompanied by other more serious offences, such as treason for example. This would weaken the executive and affect the proportionality in distribution of powers between the legislature and the executive. (legal?). As Pious indicates, democrats and republicans deal with constitutional analysis from diverse angles and offer different interpretative approaches to the question of impeachment.39 Unlike other issues, where the question of impeachment of a president is concerned, it is largely popular law rather than constitutional law that fashions the debate and determines the definitive outcome. While the radical republicans in Johnson’s time saw him as deserving of impeachment, the confederate states would have applauded his moves, since they supported the Black Codes laid out by Johnson. Accordingly, an impeachment under the count of ‘high crimes and misdemeanours’ would not necessarily mean a removal at the pleasure of congress and this may not have been the intent of the framers of the Constitution.40 7 Role of the Media Pious highlights some discrepancies in the methodology to impeachment during the time of Johnson and the present time where the impeachment of President Clinton was proposed. He identifies how the media plays a substantial role in this issue in the present day – since the “presumption of guilt could be fostered by a media feeding frenzy”.good41 Additionally, where an impeachment is concerned, there may be a reluctance to impede with the mind and decision of the public as reflected in the election results and their popular choice for their president. He also specifies the divergence generated by the media in terms of the difficulties inherent for a public figure to keep their private life ‘private’, whereas this was not the case during the impeachment of Johnson.42 The social and political surroundings prevailing at the time of an impeachment motion would therefore appear to considerably refine the definition of what would construe an impeachable act. For example, the impeachment of Richard Nixon occurred because a majority of the public viewed the interference with the democratic process as a reprehensible act and an abuse of power.43 The images broadcast by the media on the illegal activities that took place only served to heighten the perception of ‘guilty’ in the minds of the public. Nixon’s offences would fall into the category of political offences that are equivalent to serious political misconduct. Whilst the offences of Clinton were broadcast on the media with an equally high profile, the offences related to his private life rather than political misconduct of the punishable kind.. Consequently, the former impeachment motion was successful, the latter was not. This illustrates that the influence of the media and the full blown coverage of every aspect of Presidential and Congressional life could prove disastrous in modern times44 and could seriously affect the integrity of the lawful constitutional process by implying or subverting actual guilt. Nevertheless, from a legal perspective, the construed meaning that would be applied to constitutional interpretation would determine the ultimate result. Consequently, the seriousness of the offence must still be evaluated within the context of what constitutes a high misdemeanour in the framework of the political and legislative debates of the day. The social implications are therefore imperative good in a presidential trial which will differ from ordinary jury trials in the high profile of the subject and their role as the flag bearer of the executive branch of government, endowed with power by the vote of the people. 8 Conclusion On the basis of the above, it may be concluded that the precedent on constitutional interpretation of impeachment grounds set out in the Johnson trial stands even today. In determination of the legal meaning and interpretation of the constitutional term ‘high crimes and misdemeanours’ the construction that will be made will depend upon the prevailing standards that exist when the impeachment motion is processed. The element of impeachment is still riddled with the confusion and lack of clarity of constitutional provisions that existed in 1886. Impeachments are still largely conditioned by prevailing political and legislative debates which influence the decisions rendered in such cases. (this is confusing too, maybe use some punctuation or break it into 2 sentences?). In view of the non-specific nature of the phrase as it is framed in the Constitution, it appears definite that the intent of the framers of the Constitution was that the meaning ascribed to the term should be in accordance with the views of the people, as exemplified through their elected representatives. The sensationalist element involved in an impeachment trial is one aspect that definitely exists only in the present and was not characteristic at the time of Johnson’s trial good. Accordingly, there are some serious ramifications that may condition the political debate, since most members of congress are likely to moderate their views or opinions in the interest of appearing favourable in the media, just as members of the public are likely to be influenced to view an accused president as guilty or not guilty, in accordance with the manner in which the media frames the issues. The social situation which exists today is far different from that which existed in Johnson’s time. The critical affairs shaping the political scenario in the present day are those other than racist reconstruction or the allegation of a misdemeanour for the removal of an executive. The balance between the executive and legislature has altered considerably since the days of Johnson, as evidenced through the enhanced powers of present day American Presidents in the world scenario. However, the examination of the Johnson trial is important in revealing that the ambiguity in interpretation of constitutional impeachment provisions still exists and the input of the media adds a fresh element that did not exist before. The most momentous political and legal implication of the Johnson trial is the clear delineation of presidential powers which exists today. The fact that a president can dismiss his/her officers at will is now an established principle and in times of war or crisis, a president may even be able to respond to the crisis without seeking congressional approval. Consequently, the Johnson trial is remarkably noteworthy in that it has served to establish the independence of the executive branch of government. 8 Bibliography Read More