The U.S. Constitution as Calvinball

We have been awash in analyses of the recent letter to Congress penned by White House Counsel Pat Cipollone. In it, Cipollone outlines the Mis-Administration’s “reasoning” for why it will refuse to participate with Congress’ impeachment inquiry.

This flood of analysis comes mostly from Constitutional scholars and features detailed dives into the legal abyss, which can leave one’s head spinning. (Although some are quite amusing. My favorite came from a George Mason Law School professor, who said Cipollone “must have been sick the day they taught law at his law school.”)

But I have a simple approach to help everyone understand exactly what’s going on. Just think of the U.S. Constitution as Calvinball.

The hip and sophisticated among you will know instantly what I’m referring to. For you poor uninformed others, Calvinball was a sport invented by the lead character of the classic comic strip “Calvin and Hobbes”. Calvin, a six-year-old boy, had an unpleasant experience trying out for a school baseball team. Being by nature a rebellious sort of lad, Calvin reacted poorly to all the rules and regulations of baseball, or any other organized sport. So he invented Calvinball.

The main thing to know about Calvinball is that there are no rules, it’s improvisational sport. Equipment runs the gamut from badminton rackets to water balloons to “time fracture wickets.” Points are not scored in a traditional numerical manner, rather you find scores like oogy to boogy or Q to 12. New rules are introduced throughout the game simply by calling out “New rule!”

Now look at what the Constitution has to say about impeachment: “The House of Representatives … shall have the sole Power of Impeachment.” (Article I, Section 2, Clause 5)

And that’s about it. No rules, not a one, for how to actually go about impeaching an Officer of the United States. So the White House, in true Calvinball fashion, is running around the Washington playground shouting, “New rule! New rule!”

So, for example, when the White House letter claims that the House impeachment inquiry is “constitutionally invalid” because there hasn’t been a full House vote on having an inquiry, it’s the political equivalent of saying, “You just ran into the invisible sector. You have to cover your eyes.” (Original comic here.) 

Cipollone’s letter also faulted Congress for not providing “due process” to the president, saying he should have the right to confront his accusers (anonymous and protected whistle-blowers, for example), cross examine witnesses, and all the other familiar-sounding trappings of a criminal trial (which impeachment is not). “The new rule is that we have to jump everywhere until someone finds the bonus box.” (Original here.) 

The White House’s arguments are about as serious as Calvinball rules. That’s because they weren’t meant to be serious legal arguments. Cipollone’s letter was not a legal document, it was a political document, intended to shore up support among Psycho Prez’s fabled “base” and to provide Congressional Republicans with talking points for their continuing efforts to delay the inevitable. It is obfuscation and nothing more.

The Constitution does differ from Calvinball in one significant respect. While the section on impeachment lacks any hint of rules, Article I, Section 5, says, “Each House may determine the Rules of its Proceedings….” In other words, unlike Calvinball, where each player can declare a “new rule”, the Constitution says only Congress gets to make up the rules as it goes along. 

In other words, Congress is allowed — and expected — to play Calvinball. The White House is not. The score stands at oogy to boogy

P.S. – For a serious discussion of the actual Constitutional rules, and how they’ve been applied historically, I highly recommend an essay by Frank O. Bowman, III, a former federal prosecutor, professor of law, and author of the recent book, “High Crimes & Misdemeanors: A History of Impeachment for the Age of Trump.” You can read White House Letter Distorts Both Law and History on Impeachment at Just Security.

Trump graphic is by DonkeyHotey, licensed under Creative Commons. Calvin and Hobbes panel is by Bill Watterson, reproduced under fair use standards. The official C&H website is here. Calvin and Hobbes comic strips can be found online at GoComics.

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