Brnovich Warns Sinema, McSally Of Dangers Of Accepting Articles Of Impeachment

"These articles represent a threat to the separation of governmental powers..."

Senator Kyrsten Sinema | Senator Martha McSally (Photos courtesy U.S. House of Representatives)

PHOENIX – On Wednesday, Arizona Attorney General Mark Brnovich sent a letter to Senators Martha McSally and Kyrsten Sinema advising them of the “dangerous precedent” set should the Senate accept the two articles of impeachment filed against President Donald Trump.

Brnovich did not join the attorneys general of 21 states that urged their senators to reject the impeachment of President Trump. Like Brnovich, they argued the impeachment “establishes a dangerous historical precedent.”

In his letter, Brnovich specifically wrote that the “articles represent a threat to the separation of governmental powers that our Founding Fathers embedded in our Nation’s Constitution.”

In an interview on KFYI’s James T. Harris show, Brnovich said that “if the process is allowed to move forward there is really no rule underlying the impeachment process. So what you end up doing is setting up a situation in which any party that has a majority in Congress can impeach a president regardless of whether there is a predicate offense as long as the majority agrees on it and I think that is very, very dangerous.”

Brnovich letter in its entirety:

Dear Senators Sinema and McSally:

As the chief legal officer of our State, I urge you to reject the two articles of impeachment against President Donald J. Trump contained in House of Representatives Resolution 755. These articles represent a threat to the separation of governmental powers that our Founding Fathers embedded in our Nation’s Constitution.

Like you, I was elected, and swore an oath to defend our Constitution and ensure that the State of Arizona retains its proper place in our federal system. If the Senate does not reject the articles of impeachment, it could fundamentally reshape the relationship between the branches of the federal government and undermine the division of power that protects us from a federal government that sits far away from the people.

Article I of the House’s impeachment resolution bases its claim of “abuse of power” on a flawed theory-that the President should be impeached and removed from office because he exercised his constitutional authority with at least some motivation that a House majority deems to be corrupt or self-interested. Article I alleges no stand-alone crime, or action beyond the authority of the President. Instead, Article I focuses on the existence of “corrupt purposes in pursuit of personal political benefit,” alongside otherwise available and valid executive action.

The Senate’s acceptance of this theory would reshape our government. It would make any president subject to removal by impeachment when a sufficient majority of the legislative branch disagrees with the rationale for an exercise of executive authority. Whether the dispute results from a pure policy disagreement, or a fear that a choice was made to benefit the President politically, there is no limitation on this theory of impeachment. If accepted, it will weaponize the impeachment process for political purposes, contrary to the Founders’ intent.

Were it to accept the legal premise that underlies Article I, the Senate would be blessing the impeachment of a president whenever a sufficient legislative majority believes it has identified a political motivation for an exercise of executive authority, even if that motivation represents the will of the electorate. For example, the theory would apply to a president who pursues a change in policy, vetoes a bill, compromises in the course of negotiations, or otherwise takes actions within the ambit of executive power to fulfill a campaign promise to the voters. That cannot be.

Article II of the House’s impeachment resolution “obstruction of Congress”- is equally flawed. The Senate should reject the idea that a president can be impeached based solely on a dispute between the executive and legislative branches about the scope of executive privilege absent a court order.

Executive privilege is designed to protect the independence of the executive branch and ensure separation of governmental powers. If a dispute arises about a privilege claim, the judicial branch is called upon by the Constitution to referee. And yet here, the House chose to employ the gravest tool in the Constitution and vote to impeach a president based on a dispute about the scope of executive privilege, which was never presented to a judge.

If not rejected by the Senate, the theory animating both articles of impeachment will upend the Framers’ design and desecrate the Constitution’s separation of governmental powers. Indeed, the Framers hesitated to give Congress impeachment power over the president, fearing it would be abused. Ultimately, the Constitutional Convention agreed to divide the power of impeachment between the House and Senate and set a high bar for removal from office to prevent impeachment from becoming a weapon of the majority. I urge you to decline the House’s invitation to erode our constitutional foundation.

The rule of law is the cornerstone upon which our Nation is built. And the rule of law is the law of rules. Here, there is no rule underlying the impeachment articles that could be accepted without a fundamental reshaping of our constitutional design. The Founders gave us an elegant document with a structure and system that has no equal. That document limited the ability to remove a President in order to protect the Nation’s electoral will and guard against erosion of our system of government.

To protect our democracy and the separation of governmental powers that is central to our freedoms, you and your colleagues must vote to reject the theories underlying the articles of impeachment against President Trump. Disagreement with the President’s actions should be expressed in the manner in which our Founders’ contemplated, namely, in the public square and at the ballot box in November. That is the way to ensure that the blessings of liberty remain available to ourselves and our posterity.

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