The constitution of the Republic of Cyprus is modelled on that of the US except that instead of having a number of states in a federation, Cyprus had two communities in a quasi unitary state. There are many similarities and differences but the impeachment of the president under the two constitutions is as topical as it is illustrative.
An incumbent president in both countries is immune from prosecution. The origin of this principle in the US is from the days when it was still a British colony. Just as under the British monarchy the sovereign could do no wrong the founding fathers thought it wise to retain immunity for the head of state after independence in 1776.
The corollary of such immunity, however, is the right of the elected legislature to impeach a wayward president for reprehensible conduct involving abuse of power. Benjamin Franklin put the bar a bit lower, insisting that if a president ‘renders himself obnoxious’ he is liable to impeachment – a course that in his view was preferable to assassination.
I am not sure why Benjamin Franklin counterposed assassination to impeachment; perhaps it was because in his day it was normal to remove the head of the king rather than the king from his throne – Charles I of England was beheaded for high treason in 1649 and Louise VI and his wife Marie Antionette were sent to the guillotine during the French Revolution in 1793.
The modern rationale for impeachment is that it is an antidote to immunity from prosecution as a check on the executive in the case of crimes of a public nature such as treason, bribery and other high crimes and misdemeanours.
According to Chief Justice John Marshall (1801-1835) the term ‘high crimes and misdemeanours’ carries the same meaning it had in England at the time of independence: reprehensible conduct usually of a criminal nature involving abuse of power – the most common being impeding a criminal investigation. So the writing is on the wall, and if I were Donald Trump I would stop messing with the director of the FBI or the attorney general or the special prosecutor in their investigation of his floundering administration.
Once removed from office a president is no longer immune from prosecution. The procedure on impeachment, however, is very different to a criminal trial in that it is essentially a political rather than a judicial process. The decision to prosecute is made by the House of Representatives that requires a simple majority to launch the process. The trial itself takes place before the Senate and the order for impeachment requires a two thirds’ majority.
So far as Trump is concerned I do not have access to evidence concerning collusion or impeding a criminal investigation. But applying Benjamin Franklin’s lower threshold, Trump most certainly ‘rendered himself obnoxious’.
The case to answer on obnoxious conduct is based on facts I observed myself. In particular words and deeds concerning senator John McCain who died last week. John McCain was a Vietnam veteran and war hero. He was captured after he was shot down during the Vietnam war in 1967. At the time his father was the admiral in command of US Pacific fleet. McCain was a prisoner of war for more than five years during which time he was tortured. He was, however, offered early release out of turn owing to his father’s position, but being a noble and honourable man he turned down preferential treatment in favour of his fellow POW whose turn it was. Hands up anyone who can see Trump doing that?
The president did not fight in Vietnam. His father was a German property tycoon who made his money in property in New York and spoilt his son rotten. By the time Trump was eligible for military service the Vietnam war was in full swing, but he chickened out. About the time McCain was shot down and suffered multiple fractures on his right leg and both arms, Trump deferred military service on account of a bone spur on his foot – a minor condition normally associated with old age easily treated with analgesia. He was a young man at the time capable of walking while playing golf, a sport in which he is now proficient.
If I were instructed to settle the indictment for the impeachment of Trump I would pitch it by reference to conduct unbecoming the Commander in Chief as follows: Donald J Trump while president of the US and Commander in Chief, notwithstanding failing to serve his country in time of war on account of spurious bone spur, shamelessly slandered a war hero, one Senator John McCain and other POWs, suggesting by innuendo that captured servicemen were not heroes, notwithstanding the said John McCain, having been tortured by the enemy heroically refused preferential treatment over his fellow POWs. Furthermore that after the death of the said John McCain the president caused the flag over the White House and other public buildings to be raised from half mast with indecent haste, an act so obnoxious as to amount to an abuse of power, not mitigated by the fact that he relented, since he only did so after protests by war veterans.
In light of president’s failure to serve his country in time of war and his slander of veteran POWs and his abusive failure to honour the death of a brave and noble soldier, President Donald Trump is liable to be impeached for the misdemeanours identified herein.
I commend this indictment to the House of Representatives as sound in fact and arguable in law in the sense posited by Benjamin Franklin to wit the president has rendered himself obnoxious and is unfit to hold the office of president and Commander in Chief.
In Cyprus, an incumbent president is immune from prosecution for all offences except treason and those involving dishonesty or moral turpitude. He is immune for all offences committed in the execution of his function as president, although he is liable to prosecution for all other offences after he leaves office.
Prosecution for treason requires a resolution of the House of Representatives carried by a majority of three-fourths of the members, provided the motion to debate such a resolution is signed by one-fifth of the total membership. All prosecutions of the president are preferred by the attorney general and tried by the High Court. In prosecutions for dishonesty or moral turpitude, the leave of the president of the High Court is also required. The president is suspended from the functions of his office for the duration of the trial.
There has never been a prosecution of a sitting president in Cyprus. There was an attempt to unfrock Archbishop Makarios in 1973 by three local bishops, and although it was an attempt to remove him from being head of the church, it was an attempt to impeach him as president. It failed as did a number of assassination attempts. Perhaps that is what Benjamin Franklin had at the back of his mind when he said impeachment is preferable to assassination.
Alper Ali Riza is a queen’s counsel in the UK and a part-time judge