Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts President Pence's first two decisions
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Tuesday, May 23, 2017
President Pence's first two decisions
Sandy Levinson
Imagine for the moment that Donald J. Trump exits the White House. There are, of course, four possibilities: Death, resignation, impeachment, or the invocation of the 25th Amendment. Should the first occur, then perhaps I should change the subject line to President Pence's first decision. Otherwise, the subject line holds.
Comments:
Taking the (extremely) hypothetical seriously for the moment, I would, of course, prefer for VP the man who I supported during the primaries: Rand Paul. Not that he's a likely choice.
Far more likely would be Scott Walker. Executive experience, popular among conservatives, and the John Doe witch hunt is thankfully past. Except for my personal ideological preferences, probably a superior pick.
That out of the way, would I be right to guess that you TDS has advanced to R(epublican)DS? You reaction to a President Pence suggests it might have.
Recall that Pence is a Revengelical, a conservative and a Republican in that order. Perhaps if he were to become president as a result of Trump's resignation, eforts should be undertaken for a female Veep, like Elaine with her experience.
I haven't fully read Sandy's post and wanted to avoid Brett hitting the "jackpot" with 3 photos in a row. Do I tect photoshopping? In any event, Sandy, I'm glad you're back to remind Trump's voter base of the Forgotten that they remain forgotten - by the Trump Administration.
"Imagine for the moment that Donald J. Trump exits the White House. There are, of course, four possibilities: Death, resignation, impeachment, or the invocation of the 25th Amendment."
Much more likely is he'll exit via defeat in 2020, though Democrats are good at snatching defeat from the jaws of victory (especially given our undemocratic method for selecting our Presidents). The obsession with ousting Trump in some way other than electoral defeat is, imo, unhealthy for those who oppose him. "loyalties are to Christianity, conservatism, and the Republican Party (in that order)" Any man who could say that and then sign on as the VP of the self declared "p*&%y grabber" is full of it. Either his Christianity is meaningless or his integrity, or both. Appropriate to Sandy's invaluable work on the general subject, consider how flawed is our Constitution in that if our Chief Executive is ever impeached, his hand picked VP, chosen almost always for being a 'company man,' loyal to the nominee-then-President, becomes President.
This is OT, but I'd be interested in hearing Prof. Levinson's reaction to this statement by Prof. Balkin: "In Type Two crises, people follow what they believe the Constitution requires, leading to political paralysis or disaster."
Prof. Balkin denied that the current situation was a "crisis", as so defined, but this definition leads me to wonder if Prof. Levinson agrees. There are 2 hardwired provisions of the Constitution which have left us in the lurch, namely the EC and the unrepublican design of the Senate. In addition, tradition gives to the states the power to draw House district lines, and the Court has failed to halt the obvious gerrymanders. It seems to me that these factors could qualify our ongoing tragedy as a Type Two crisis.
So far, we've heard from one hard core conservative (twice) on a Pres. Pence Veep selection. Will this be a short thread? I'm not a hard core conservative and suggested Elaine because of her years of TV Veepness. That was before I read Sandy's post fully. My choice of Elaine was Pence's apparent fear of lust of biblical proportions by avoiding one-on-one with a female without a threesome at a minimum. Upon further consideration, I'll stick with Elaine even though that might increas Steve Bannon's Seinfeld royalties. But I think Pence as a Ted Baxter type would continue the full employment of comedians played-off against Elaine.
By the Bybee [expletives deleted], regarding Mark's comment, it should be emphasized that Jack Balkin characterized the current situation as constitutional rot, which is short of a constitutional crisis. Further by the Bybee [expletives deleted], I'm aware of recent heavy snows in the Mile Hight State (of mind), So I've commissioned an Uber St. Bernard bearing a note to check this post for the response of the other hard core conservative. My guess is Ted Cruz, runner up to Trump with his failed Canadacy. Maybe this thread could be expanded to focus on how Trump might use his pardon power before exiting, stage extreme right.
Nelson Rockefeller "thoroughly competent"? Perhaps, if you use that term independently of morality and believe that Rockefeller's commission of mass murder and torture at Attica was thoroughly competent. If so, though, I would not give Ford "immense credit" for picking him.
As to the question, I think I'll pass, but perhaps something about his current role, which is somewhat tangentially connected.
Dave Barry once noted a lieutenant governor has two jobs: wear a suit and check now and then to see if the governor is still alive (physically or otherwise). The vice president's constitutionally mandated job isn't much wider though perhaps presiding over impeachments might come up at some point. Joe Biden never ever had a chance to break ties in the Senate though Pence already has since the vote is closer now. The other official role is found in the 25A. He's acting President when required and has a special role to kick in the incapacity process. Pence has a duty to show judgment in doing these things and maybe at some point that tiebreaker in the Senate will have some bite. He also has other roles given to him and his judgment so far there appears to have been mixed. This includes some dubious (he was either lax in a core way or is lying ... might be a mixture of both) things involving things under investigation. Worrying about President Pence is a bit premature though it's useful to think ahead and hypothetical are typical in various contexts.
Sandy,
Given there is zero evidence Trump committed a high crime or misdemeanor, the GOP controls the Congress, and most sane Democrats are backing away from the I-word, Trump is going nowhere. If some unhinged Democrat assasinated Trump, Pence's choice for VP would be largely irrelevant unless Pence plans to give him or her a real portfolio like Trump has given Pence. What you should be concerned about a President Pence is he is a very competent politician who could move conservative reform through Congress much easier than Trump. Pence lacks the baggage of a Trump and would not provide the Democrats in and out of the media with easy opportunities for defamation and distraction.
There's strong evidence that obstruction of justice occurred, that Trump complained of Comey's investigation, asked Comey to drop the matter and when he did not fired him.
Perhaps SPAM might have considered a different "if" in his comment, such as:
"If some Republican, hinged or unhinged, assassinated Trump, ...." as that may be more predictable as Democrats wish to play out a post-Watergate Trumpgate that is worrying Republicans. In the meantime, SPAM might consider oiling his own hinges after the debacle of the Cruz Canadacy. Now what was it Al Franken recently said about Ted Cruz?
The v.p. is the presiding officer of the Senate though other than breaking ties doesn't really do much except in ceremonial occasions. For instance, be there when the president comes in to give a speech. The v.p. also presides over the counting of electoral votes, which is interesting in that repeatedly person was self-interested. The Constitution specifically has the Chief Justice preside over impeachment of the president. What happens if the vice president is impeached?
As to what would happen if Pence shifts up one slot in the pecking order (I'm rooting for President Hatch -- he liked Garland; maybe, he will get on the Supreme Court yet!), there has been a lot of talk, some suggesting problems: http://www.politico.com/magazine/story/2017/05/21/president-mike-pence-would-be-in-for-a-world-of-pain-215165 But, suffering is redemptive. So, he should be okay with that as a Christian. [Shag references a story Al Franken told recently about his fellow senator -- being from Minnesota, she is super nice and all -- checking with Ted Cruz if a joke she planned to tell about him was okay.]
"For instance, be there when the president comes in to give a speech."
Really? I would have thought that, given his primary responsibility, he'd have an obligation to NOT be there when the President comes to give a speech. Aren't they supposed to actively avoid being in the same location?
No, they make sure at least one person in the line of succession isn't around (thus that t.v. show, Designated Survivor), but if you looked while Trump gave his speech to Congress, Pence was there with Ryan presiding over the affair.
Here's the URL for Franken on Cruz and cruise:
http://www.huffingtonpost.com/entry/al-franken-i-hate-ted-cruz_us_59247859e4b034684b107a41 that extends Joe's compressed version. Let's give a cheer: "USA Today! USA Today! USA Today!"
Folks,
I think there are some major misconceptions here concerning how criminal investigations occur. Generally, law enforcement begins an investigation when an officer observes or a witness offers evidence of a crime. Evidence precedes the investigation. If I told an FBI agent Mr. W was committing treason with Russia, the agent asked me for evidence and I provided none; the FBI would not only decline to begin an investigation, they would consider charging me with a false report. In this case, there is no evidence whatsoever of a crime. Rather, the Obama administration apparently ordered FBI, CIA and NSA to investigate a political opponent on nothing more than unfounded suspicion or malicious intent to damage Trump.
Mr. W:
There is zero evidence of obstruction of justice. It is not a crime for someone to ask law enforcement or the prosecutor to drop an investigation or not file a charge for themselves or someone else. It happens thousands of times each day, from someone trying to talk their way out of a ticket to my convincing the DA today to dismiss one of my cases.
Perhaps SPAM's efforts at a tutorial on criminal law might apply at the police/municipal court level that he expertizes. But SPAM is off his trolley on how things work in the big leagues. Note his closing in his 2:11 PM comment:
"In this case, there is no evidence whatsoever of a crime. Rather, the Obama administration apparently ordered FBI, CIA and NSA to investigate a political opponent on nothing more than unfounded suspicion or malicious intent to damage Trump." Does SPAM provide any evidence to back up the apparent order he describes being given by the Obama Administration? NO! SPAM in his 2:12 PM comment provides examples that do not constitute evidence of obstruction of justice. SPAM ignores the role and pressure when a superior whose campaign is under investigation says such to an inferior charged with the investigation. And as to talking your way out of a ticket, it depends upon what you say, how you say it, and actions taken - like showing a $100 bill to the ticketer without formally offering it. As to an attorney's efforts to get a DA to dismiss a criminal case against a client, I assume SPAM does so with his skills of logic and demonstrating the evidentiary weakness of the case, and not about assisting the DA about his/her reelection campaign. Even SPAM understands context - or does he?
Shag:
Only political appointees can order multi-agency investigations. Higher law enforcement officers regularly tell lower law enforcement officers what they will and will not investigate and prosecute.
It's not clear what specifically SPAM is responding to in his 3:44 PM comment. SPAM's first sentence is not evidence that the Obama Administration "apparently ordered" certain agencies to take certain steps he claimed. SPAM's second sentence is non=responsive to " ... the role and pressure when a superior whose campaign is under investigation says such to an inferior charged with the investigation."
Bart's analogy is riculously inapt. We're talking about the President asking an investigator to drop an investigation and then *firing the guy* when he didn't.
"the Obama administration apparently ordered FBI, CIA and NSA to investigate a political opponent on nothing more than unfounded suspicion or malicious intent to damage Trump."
Lol. The ties of close Trump people like Manafort, Flynn, Sessions are public record.
https://mobile.nytimes.com/2017/05/24/us/politics/russia-trump-manafort-flynn.html?action=Click&contentCollection=BreakingNews&contentID=65348037&pgtype=Homepage&mtrref=undefined&_r=0&referer=http://thehill.com/policy/national-security/335035-nyt-russians-discussed-using-manafort-flynn-to-influence-trump
Mr. W:
Review the federal obstruction of justice statutes: https://fas.org/sgp/crs/misc/RL34303.pdf None apply to Trump.
Mr. W: The ties of close Trump people like Manafort, Flynn, Sessions are public record.
Indeed. The only violations of law involving the intercepted communications between US persons and the Russians were the violations of the Fourth Amendment obtaining the identities of the US persons and the felony criminal disclosures of these communications to the Democrat media. The communications themselves were not illegal nor did they provide evidence of crimes which would form the basis for a year long investigation. mobile.nytimes.com Governments constantly attempt to influence the governments of foreign nations. This is known as diplomacy. wikipedia.org Are you really offering Wikipedia as a rebuttal to the US Code on the issue of what constitutes obstruction of justice in violation of the US Code?
The intelligence community (different agencies independent) has concluded Russia tried to interfere in our election and that it favored Trump. And close advisors and/or Cabinet members of Trump's have known associations with Russia. Several of these have been caught lying about their contacts and associations. These are demonstrable facts and amount to a mackerel by moonlight fishy situation that only a fool or partisan (or both) casually dismisses.
More specifically on the obstruction charge, the law says:
"Whoever corruptly...obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States." The FBI is an agency of the United States, it's investigation into Trump's cabinet members/campaign advisers ties to Russia, several of whom have lied (including under oath) about said ties, is a proceeding. Asking the person in charge of the investigating agency to drop the proceeding and then firing him when he doesn't comply obviously can be an example of an act that 'obstructs...impedes' or is an 'endeavor to influence the proceeding'. All that's left is the mens rea, 'corruptly.' Here one thing we know is that Trump and Trump's administration gave competing rationales for the firing within a day or two, that right there makes his given rationales suspect. If there's evidence he fired Comey to get the 'nutjob' to ease up on the 'great pressure' the investigation was putting on him, then it's an open and shut case.
Mr. W:
Exactly what evidence is there that Russia interfered with the election? Publishing DNC and Clinton campaign emails and transcripts disclosing the conspiracy against Bernie Sanders, the dirty tricks against the Trump campaign, their strategy for minimizing Clinton's criminal violations of the Espionage Act, the pay to play scam known as the Clinton Foudation, and the Clinton policy of lying to the public she bragged about to Goldman Sachs in exchange for a six figure speaking fee? When the Democrat media does this to a Republican, its called investigative journalism. In any case, there is no admissible evidence of this alleged Russian hacking because the DNC destroyed their computers.
Mr. W:
Which part of Comey's admission under oath that no one interfered with the Russia investigation did you miss? The Democrat interim director made the same admission a couple weeks ago. I can keep this up without really trying until Sandy closes the thread. You have no evidence of any violations of law. Nothing, nada, zero, zip, zilch, squat.
"Exactly what evidence is there that Russia interfered with the election?"
https://www.dni.gov/files/documents/ICA_2017_01.pdf The conclusion of the CIA, FBI and NSA on this subject: "We assess with high confidence that Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election, the consistent goals of which were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency." The report highlights the numerous ways Russia interfered. Given the interference was aimed at undercutting Trump's opponent and given the ties Trump's close Cabinet members/campaign advisers have to Russia and their lies about same, there is monumentally more here than would be necessary for you to be hollering about if this were about a Democrat.
Firing the head of the investigating agency after they did not comply with a request to drop a proceeding would be a par excellence example of interference with that proceeding.
"An influence campaign"; Is that really all you've got? You mean like Obama sending a team to try to prevent N Netanyahu from being reelected? Did that to an ally...
"Firing the head of the investigating agency after they did not comply with a request to drop a proceeding would be a par excellence example of interference with that proceeding." Perhaps it would be, but the law says "corruptly". Trump is the head of the executive branch, was Comey's boss, he's actually legally entitled to set the FBI's priorities. You need to prove, not that he attempted to do that, and fired a director of the FBI who didn't comply, but that he did so corruptly. It's the corruptly you need to produce evidence of.
Brett includes this in his closing paragraph:
"Trump is the head of the executive branch, was Comey's boss, he's [Trump's] actually legally entitled to set the FBI's priorities." Yes, Trump heads the executive branch and as such was the "boss" of Comey, but what authority can Brett cite for the rest of that sentence? As to corruptly, that's difficult to define, but like porn, you know it when you see it. Trump's statements and those of his staff, combined, suggest corruptly, with intention.
" but what authority can Brett cite for the rest of that sentence?"
Article II, Section 1, clause 1: "The executive Power shall be vested in a President of the United States of America."; Surely you're familiar with unitary executive doctrine. "I know it when I see it" is not, typically, a good legal argument. Trump *can*, I will concede, corruptly interfere with investigations. He can also non-corruptly do it. "Corruptly" is not an element of the crime that you can just assume, it actually has to be proven.
Every element of a crime has to be proven. That's what trials are for. First, the investigations, and if warranted by evidence, then the trials. Consider the many steps over many months in Watergate.
Yes, Brett, I'm familiar with the Article II provision you cite. But that in isolation is not authority for your " he's [Trump's] actually legally entitled to set the FBI's priorities." There is the matter off the "take care" clause in Article II. And there are laws, customs regarding the FBI and the role of its Director.\\Now, Brett, what if Comey had a list of priorities, one of which low on his list was to play golf with President Trump. Could President Trump set that as a top priority, to take place at Trump's golf courses?
""An influence campaign"; Is that really all you've got? "
One that involved, among other things, hacking and cyber theft. As to corruptly, I think the fact that Trump couldn't offer a consistent non-corrupt rationale for the firing combined with his 'nut job...,great pressure' and asking to drop it provide plenty of powerful evidence for that.
Take an example. Burglary as the breaking and entering of a dwelling with the intent to commit a felony. We find a guy who broke and entered a dwelling. Why you break and enter we ask? He gives inconsistent answers to the question, all of which don't pass the laugh test given who the fellow is and what he's said in the past. An inference he was up to no good is certainly reasonable.
Mr. W:
Your DNI link (for security reasons) does not offer any evidence, it offers conclusions. The only conclusion which supports the Democrat claim that the Russians "hacked the election" is the one that the Russians hacked the Democrats and released their dirty laundry. As I discussed above, DNI has no actual physical evidence of this hack upon which to bestow "high confidence" because the Democrats refused to produce their computers to the FBI and instead destroyed them. This entire conclusion is based on the claims of the Democrat IT contractor, claims which would likely not be admissible in court because the evidence upon which they are allegedly based was destroyed. The conclusion that the Russia media interfered with the election through its programming is ridiculous and can be made against all media.
"Burglary as the breaking and entering of a dwelling with the intent to commit a felony."
So, we find a guy who broke and entered a dwelling. Only, he happens to be the owner. It could be that he broke in to leave evidence that the house had been robbed, as part of insurance fraud. In which case it could be "Burglary" as you define it. OTOH, it could be he broke in because he misplaced his key. Being the owner of the house, you can't assume he was up to no good, you have to prove it. It would be possible for Trump to wrongfully fire somebody, but as he's President, he's legally entitled to fire people, so that can't be the presumption. It would be possible for Trump to wrongfully order an investigation terminated. But as he's President, he's legally entitled to do that, too, so it can't be the presumption that he has. (In this case, no investigation even got terminated.) The problem here is that you're just assuming Trump is up to no good, with no evidence of it.
You're assuming that since Trump has authority to fire Comey that his reason wasn't corrupt, but that's begging the very question. I don't presume Trump's motive is corrupt for nothing, but mainly because he gave inconsistent rationales for the firing. When a suspect can't 'get their story straight' inference of no good is perfectly reasonable.
Also, when the investigation could do obviously be harmful to him, an executive who fires the lead investigator should get no presumption of non-corruption even if had legal authority to do so. The motive for corruption is so palpable in such a case.
That wouldn't be enough by itself I think (though certainly enough to warrant further investigation), but add to that the suspect giving inconsistent rationales (and hard to buy ones given previous comments of the suspect) and it becomes reasonable to infer a bad motive.
"no evidence of it"
First, the correct hypo has to include bank robbery. Come on. Second, there is evidence for the alleged wrongdoing. The amount of it is open to dispute, and Brett who uses a higher standard selectively might not think there is enough, but for someone who is strictly careful when using absolutes when Obama's birthplace is at stake [mind you, not saying this is racist; I think it is more a partisan bias], uses absolute language loosely in other contexts. Mr. W. does more yeoman work here but we saw trying to convince the Killer Bs went with when another alleged "felon" was involved. But, it's appreciated.
[Houston Astros reference -- they are the AL team to beat so far.
https://en.wikipedia.org/wiki/Killer_B%27s_(Houston_Astros) or Killer Bs
Brett & Mr. W:
The President has absolute authority to fire politcial appointees and, thus, cannot commit a crime by doing so, regardless of his intent.
"You're assuming that since Trump has authority to fire Comey that his reason wasn't corrupt, but that's begging the very question."
I'm not assuming anything here, I'm pointing out where the burden of proof lies. Perhaps at some point that burden will be satisfied. It has not even approached being satisfied yet.
The firing itself, in isolation, could not be illegal. It could, however, be an act in furtherance of some kind of criminal conspiracy, much as other perfectly legal acts can be.
"cannot commit a crime by doing so, regardless of his intent."
That's on its face ridiculous. The President is not above the law, if his firing worked a corrupt interference with an agency procedure he's guilty of the crime.
Brett
He's got motive aplenty for a corrupt act. His given rationales are both borderline laughable and inconsistent. An inference the mens rea has been met is warranted.
Yeah, the basic logic here, is that you start by assuming he's guilty, interpret everything that happens in light of that assumption, and thus everything that happens ends up confirming your initial assumption.
Start by assuming he conspired with Russia, and that he's being investigated for it. That leads to assuming that when he says "that Russia thing", he means the investigation into his own guilt, rather than, say, the FBI wasting time humoring Democratic fantasies about Putin stealing the election. So, the firing in this light becomes an act to obstruct justice. Not his decision to get rid of a widely despised FBI director who's wasting bureau resources. But it's all dependent on the initial assumption of his guilt. While I agree he *could* be guilty of something, it's not my fixed starting point. It's just a possibility I'm willing to entertain, but have seen no evidence of yet.
I don't start by assuming guilty. I start with the idea that a person who fired someone who is investigating that person (or his close aides) is in an obvious situation to gain from the firing by obstructing the investigation. That's not a presumption, it's general common sense.
Now, that's further compounded by the fact that when given the chance to offer a non-corrupt rationale for the firing, he gives different, and laughable, ones in response. The suspect can't 'get his story straight' and so a natural conclusion is he was up to no good.
evidence: "the available body of facts or information indicating whether a belief or proposition is true or valid"
There being "no" evidence isn't the same thing as the available "facts or information" etc. available not being enough to reach a conclusion. This is repeatedly the case in a trial. "Evidence" is put on. There rarely is "no" evidence for many a theory by the defense or prosecution. Mr. W. shows how there is evidence. The bottom line really is that people here are making judgments based on various facts and overall principles. There might be "assumptions" involved, but glasshouses and stones might be brought to mind there.
So, all you're really saying is that you're rejecting the non-corrupt explanation he gives for the firing, which he was perfectly entitled to carry out if he had a non-corrupt purpose, and which people on both sides of the political spectrum were advocating. Not that he hasn't provided one. It's only to be expected that you would, because you ARE starting from the assumption he's guilty of something.
Well, I don't find his explanation laughable. Just, in his usual incoherent manner, not well expressed. I think Comey's firing was justifiable on multiple basis, it was over-determined.
Mista Whiskas: "The obsession with ousting Trump in some way other than electoral defeat is, imo, unhealthy for those who oppose him."
Trump plans to cause injury and death on a massive scale within the United States via AHCA and his budget proposal, and round the world by his declared intention to sabotage the Paris Agreement on climate change. His behaviour on North Korea and the ISIS spy indicates a dangerous, Code Red level of incompetence. On utilitarian grounds, the sooner he's gone the better. Impeachment and the 25th Amendment are extreme measures, and you probably need a specifically constitutional threat as well to justify them. Don't you have this from Sessions? In any case, Democrats do not control the use of these nuclear weapons. Either will need Congressional Republicans to determine that their political survival depends on having him gone, and that depends on his unpopularity in the country. Democrats can advance Trump's exit best by convincing the voters that Trump's policies are terrible, fraudulent or both. This is what they will do anyway in pursuit of normal electoral victories in 2018 and 2020. My take is that if it comes to it, the GOP establishment will find the 25th Amendment a faster and less damaging way to coerce Trump's resignation. Mark Kleiman disagrees. In any case, it will be a Republican call. The Democrats can merely exact an independent post-mortem as the price of their support.
" all you're really saying is that you're rejecting the non-corrupt explanation he gives for the firing"
Which one? https://mobile.nytimes.com/2017/05/11/us/politics/trump-comey-showboat-fbi.html And yes, the original rationale-for being unfair to Clinton-was laughable given Trump's earlier comments on that subject.
Mr. W. didn't actually start from the "assumption he's guilty of something."
He said that there was a good reason to believe the person in question is self-interested. "Guilty" doesn't mean that. Then, he provides further reason to think the firing did not merely benefit him, but that it was illegitimate. If simple words are going to throw us, we are really in a morass. The fact both sides were advocating something only takes us so far too. It is something of a smokescreen too given the fact actually, at this point, those otherwise upset at Comey on the anti-Trump side were generally in fact wary about firing at this time. Particularly in the specific way it was done. Finally, it is not just that somehow he did things in an "incoherent manner." He actually for those on his side probably was a bit too coherent about letting the cat out of the bag. This might not be deemed "well expressed," true. Anyway, as to using all the means open, important ruling on the travel order handed down by the 4th Circuit.
James Wimberley notes something Mr. W. said. Good remarks in reply.
I'm not sure of this "obsession" but think it is appropriate to point to various things that make this different than mere strong partisan political differences. Surely by some law professor. There are impeachment worthy issues in the mix though it's fine to continue to investigate them. And, as Al Franken noted before the 2006 elections, control of the House will be very helpful there in various respects. Flagging the possible 25A possibilities also is reasonable, since I think it beyond the realm of hypothetical that it might kick in at some point. Again, it's fine not to be "obsessed" with them. But, some people arguing they have bite is not that. The Democrats and other anti-Trump voices are usefully resisting him in various ways.
James, that reasoning proves too much. If you think the other party's policies are bad enough, you can justify overturning any election outcome that puts him in power.
Well, of course you're going to think your policies better. And the other side is going to think THEIR policies better. And nobody likes the other party being in power, so you've got motive to think them bad enough. That's the sort of reasoning that leads to abandoning democracy, and then establishing a one party state so as to eliminate the risk of somebody disagreeing with you taking power.
James W. spoke of a "specifically constitutional threat." Just saying "Sessions" won't do it, but don't mean to agree with everything he said either.
And, that to me is required, not just "policies bad enough," though realistically, those in power aren't just going to act (especially with supermajorities necessary) simply on principle here. So, his citations of actual threats are realistic. Plus, James W. doesn't merely speak of "policies better" etc. on that level. Thus, the level of opposition and concern here hasn't been the same as in the past. Yes, you have to be careful there. The Republicans during the Obama years come to mind. Concern for democracy is fine especially when we in effect have "one party state" with Republicans controlling both houses and the White House.
Mr. W: The President is not above the law, if his firing worked a corrupt interference with an agency procedure he's guilty of the crime."
Occupying a political appointment is not an agency procedure and terminating that appointment cannot be interference with a procedure.
Brett:
A criminal conspiracy is an agreement to commit a crime. If the firing is not a crime, what is the conspiracy?
Just a general point, Bart. I don't really think there IS a crime here, I was responding to your absolute, "and, thus, cannot commit a crime by doing so, regardless of his intent."
Sure he could. He could take a bribe to fire somebody.
James, that reasoning proves too much. If you think the other party's policies are bad enough, you can justify overturning any election outcome that puts him in power.
Well, of course you're going to think your policies better. And the other side is going to think THEIR policies better. And nobody likes the other party being in power, so you've got motive to think them bad enough. That's the sort of reasoning that leads to abandoning democracy, and then establishing a one party state so as to eliminate the risk of somebody disagreeing with you taking power. I assume you're referring to the Republican recall of Gray Davis based upon disagreement over a vehicle tax.
Imagine that a dogged US attorney is looking into mob ties with government officials. The case leads him to investigate evidence that mob bosses regularly gave things to Attorney General Bobby Kennedy and he, in turn, gave favors via his office for the favors. President JFK calls the U.S. attorney into his office and asks him to 'drop' the investigation into his AG. The U.S. attorney does not, and the President then fires him, knowing the successor is less competent, a 'party' man who will do as the President asks or will just be scared of losing his job if he pushes the matter. Of course the President has engaged in obstruction of justice per the statute in his firing of a political appointee.
This analogy involves famous Democrats, so maybe Bart will be able to see the obvious in it.
Mr. W:
Partisan affiliation does not change the law and your Kennedy hypo is not criminal obstruction of justice. Here is some homework. Cite the USC obstruction provision you think applies, list the elements and the evidence you think proves those elements.
Brett: Sure he could. He could take a bribe to fire somebody.
The bribe would be the crime and not the firing.
"DNI has no actual physical evidence of this hack upon which to bestow "high confidence""
I missed this bit of nonsense. First, you don't know what they have, since as you say, much is classified. What we have to go on is the independently arrived at conclusion of our major intelligence agencies. These folks are not perfect (ironically you bought their faulty conclusions re Iraq hook, line and sinker with no appreciable hesitation) but, unlike yourself, they are experts in this field and seem capable of not being total partisan stooges, so I know which I'd put stock in. Secondly, you don't need 'physical evidence of the hacking,' as the report describes you can use other Intel obtained from those releasing the pilfered information, their contacts, their statements, etc. Third, even the top Republicans privy to classified evidence have acknowledged Russian interference along these lines (what they deny is collusion with the Trump camp).
Appropriate to Sandy's invaluable work on the general subject, consider how flawed is our Constitution in that if our Chief Executive is ever impeached, his hand picked VP, chosen almost always for being a 'company man,' loyal to the nominee-then-President, becomes President.
This would be tricky. It makes sense to have the vice president or lieutenant governor, elected by the people with the possibility of needing to step in, replace the removed officeholder. The "ticket" here is likely to be tied together. The "company man" aspect is probably mixed looking at recent vice presidents. They aren't just all "yes men" types. But, again, likely to be someone tied to the head person. Having a second in command who is not is somewhat problematic. The solution there might be that once removed, you need to have an election in a fairly quick period of time. Say within the year. Note too that you need a new v.p. & said v.p. has to be confirmed by Congress. If there is a possibility the new President is tainted, this would be a key position & the President doesn't act alone.
Senator Mike Rounds
https://m.youtube.com/watch?v=mVgHnkCBR-I McCain http://www.nbcnews.com/politics/congress/mccain-bizarre-behavior-house-intel-committee-leaders-n737436 Graham http://time.com/4771426/lindsey-graham-election-interference-400-pound-hacker/ There's more, of course.
Of course, we're talking to a guy who even after George W Bush himself admitted none of his anticipated WMDs were found continued to claim they were. Partisanship can reach a level bordering lunacy.
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