The States have Standing

There is a mythology in Washington that holds that Senators and Representatives owe loyalty only to the people in their state or district. This mythology dates to the time before the Civil War when members of Congress argued their higher loyalty was to their state than to the Constitution. There is another mythology, of similar origins, that holds that judges cannot be held accountable for corrupt actions or for ignoring the law.

The fact is: Every member of Congress swears an oath to the Constitution, not to their political party or to any constituency, and federal judges, under Article 3 of the Constitution may serve only “during good Behaviour”. No officer of the Constitution, in any of the three branches of government, has any power to engage in corrupt activities or activities not prescribed by law.

One of the tragedies of the Trump era is the spreading (baseless) conventional wisdom that if politicians won’t enforce the law on themselves, then they cannot be held accountable, and democracy crumbles. Our system is built from checks and balances against such unfettered abuse of power — in more ways than we generally pay attention to.

We have come to use the phrase “the United States” to mean a single nation, so that when the President swears his oath to the United States, we consider ”the United States” to be a synonym for the People, their Constitution, and the country they together comprise. This is not, however, how the Constitution was written.

The 10th Amendment is instructive: Its language distinguishes between the United States, the Constitution, the People, and the States. Specifically, it reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The language contains a number of specific legally relevant insights:

1. The States hold a different level of jurisdiction, though with an obligation to protect basic and universal rights, and adhere to the Constitution.
2. The Constitution binds the States to each other, asking them to sacrifice some sovereignty in exchange for mutual protection.
3. The Rule of Law is the binding fabric, through which the Constitution unites the States, the People, and the Federal government.
4. The States and the People have standing in Federal court to challenge injustice, including as carried out by public officials at a higher level of jurisdiction.
5. Should the Federal government give into corruption that puts the others (the Constitution, the States, and the People) at risk, the others have standing to challenge that government under the law.

The implicit, but obvious, purpose of the 10th Amendment is to provide assurance to the States and the People that the Constitution and the protection of transcendent rights will govern, not an unchecked executive or an unrepresentative Congress.

When Donald Trump sought to extort personal favors from a foreign head of state, he directly violated the ‘emoluments’ clause of the Constitution (Article 1, Section 9, Clause 8) and the ‘impeachment and removal’ clause itself, which explicitly prohibits bribery (Article 2, Section 4). He sold out the country, its Constitution, its People, and the contract of joint protection among the States.

By selling his office and committing such grave crimes, Donald Trump betrayed his oath ”to preserve protect and defend the Constitution of the United States.” He undermined our national security not only by selling his office and compromising himself on the world stage, but by aiding Russia in its genocidal campaign of aggression against the people of Ukraine — a vital geostrategic US ally, NATO frontier state, and fledgling democracy.

The States gave up some of their sovereignty, to be bound by a Constitution of mutual union, in exchange for a guarantee that the law would rule and the federal government would work to protect both the physical integrity of the States and the transcendent rights of their people.

Any federal officer, in any of the three branches of government, who puts partisan or personal prejudice ahead of their duty to honor the rule of law, betrays their oath to the Constitution, and so to the States and the People. The States have standing to challenge such brazen lawlessness and misuse of high office — in whichever of the three branches it occurs.

Healthy legal order suggests that challenge should take place through judicial process. It is often said that the only check on federal judges is through the decisions of other federal judges. This is, in part, true, but only in part.

• The Attorneys General of the States can bring challenges to unlawful use of federal office by action in federal court, and judges may consider and agree with such challenges.
• Should such actions uncover evidence of criminal conspiracies, actual and specific abuses of office, bribery or extortion schemes, or electioneering, criminal charges could then ensue against the specific officials involved — including under state laws, where the crimes discovered relate specifically to that level of jurisdiction.
• Article 3 of the Constitution requires that federal judges serve only “during good Behaviour”.
• Impeachment is one remedy for federal judges who do not meet that test, but so is criminal prosecution — should they be entangled in any organized criminal enterprise.

No person holding federal office is empowered by any law, at any level of jurisdiction, to use their office to aid any person in the abuse of theirs. In other words, no Senator, no judge, no executive official, has any lawful power to use their office to assist the president in concealing or escaping justice for his crimes.

With the evidence already in the public domain, it is obvious a RICO investigation should be underway, with multiple grand juries considering criminal indictments of some or all of the co-conspirators. One of those is underway in New York, and it involves the laundering of Russian and Ukrainian money through a SuperPAC set up to aid Donald Trump’s political career.

Because the Constitution gives the States the power to administer elections, any transfer of laundered foreign money to candidates in any state could result in state-level investigations and prosecutions, and should.

The Impeachment of Donald J. Trump is the business of the United States Congress and the Chief Justice of the Supreme Court, but the ramifications of Trump’s corruption extend to prosecutions that can, and should, be carried out by the States, in defense of their right, and the People’s right, to a government that honors the Rule of Law.