The crime-fraud exception seems likely to eliminate any privilege claims.

The immunity issue is more interesting. My understanding is that a promise of immunity from prosecutors is binding because they have the power of future prosecution (or not). But the Senate expressly lacks that power. I'm not sure it can bind anyone to a promise of future non-prosecution, though of course the DOJ might honor the promise (and would find it politically difficult to refuse to honor it).

That said, didn't the immunity issue come up in the Iran-Contra hearings? I'm going off memory, but I think that some witnesses were given use immunity and later prosecutors were unable to meet the burden imposed by that.
 

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Gerard: The President's lawyer will be a star witness in the impeachment trial.

What exactly do you believe the House Democrats can ask Giuliani? Giuliani is acting as Trump's attorney and his communications with Trump are privileged unless they are discussing perpetration of a criminal act.

The administration has essentially admitted pressing Ukraine to cooperate with the current Justice Department criminal investigation of the government's spying and dirty tricks operation against Trump. The AG has been visiting his counterparts in the EU doing the same thing, Far from being a crime, this is instead a normal duty of the nation's chief law enforcement officer.

The disputed allegation Trump "pressured" Ukraine to reopen its criminal investigation of the Ukrainian energy company Burisma and their apparent bribery clients, the Bidens, is also not a crime. The Democrats are instead pitching this as an "abuse of power." There is no "abuse of power" exception to the attorney client privilege.

This is likely why the House Dems have not subpoenaed Giuliani to testify in one of their secret star chamber depositions. In response to their subpoena for documents, Giuliani has already told the House Dems to pound sand.

Tactically, as the prosecutors in a Senate trial, the House Democrats would not want to call Giuliani as a witness during a Senate trial until they have not deposed him to nail down his testimony. This experienced and talented criminal prosecutor would hand Schiff and Nadler their asses on national television.

You also need to keep in mind what will be occurring in the background of any House impeachment vote and Senate trial.

This month, the intelligence IG should issue a report on the government spy operation against Trump which Trump with which Trump pressed Ukraine to cooperate. Reportedly, the report is as thick as a phone book and will likely make criminal referrals to the ongoing Justice Department criminal investigation of this operation.

The Justice Department criminal investigation appears to be wrapping up, requesting interviews with top Obama appointees Clapper and Brennan, who both lawyered up in anticipation of this. IF Justice starts unsealing indictments from this investigation, the Democrat media will no longer be able to ignore these issues as a "partisan conspiracy theory."

Team Trump will certainly point at both of these investigations to justify their pressure of Ukraine and Giuliani can present a very compelling case on national television if called as a witness. Be careful what you wish for.

I wonder if this entire "impeachment inquiry" was meant less to depose Trump and more to preempt the Justice Department investigation and give the Democrats a fig leaf to claim an indictments are meant to protect Trump.
 

A recent reference by Susan Hennessey of Lawfare leads me to correct something in a past thread. It was noted that only two people convicted by impeachment was also given a lifetime disqualification from federal office. But, the most recent judge convicted was also given that penalty. So, the right answer there is that THREE people had that penalty. SH offered the idea that Republicans should think about the option of voting for removal but not applying the penalty, thus the voters could still have a say.

===

Walter Nixon v. U.S. suggests that normal trial rules would not apply here but there are rules in place and I would think generally speaking they do overlap with normal criminal rules. It would be interest me if the current rules (open to change if the senators vote to change them) are different here than normal criminal trial rules in any major respect.

The immunity issue did complicate further prosecutions in the Iran-Contra area and this was flagged to have applications in the current controversy, if not impeachment specifically.

https://www.theglobeandmail.com/news/world/us-politics/the-immunity-dilemma-michael-flynn-congress-and-the-lessons-of-iran-contra/article34552744/
 

The OP notes "Unlike ordinary jurors, senators get to decide what evidence they hear" ... so there are certain rules found in a criminal proceeding that is not in place here.

How far the differences go is of course a major question of the post.
 

The crime fraud exception is very narrow, and there are going to be plenty of communications that are still privileged.

I suspect if Roberts rules something is privileged, it's privileged. The privilege is not merely testimonial- it's a ground for keeping secrets.
 

"he President's lawyer will be a star witness in the impeachment trial."

If there is one, Gerard. If.
 

"IF Justice starts unsealing indictments from this investigation, the Democrat media will no longer be able to ignore these issues as a "partisan conspiracy theory.""

I think you're seriously underestimating what the Democrat media are up for. They wouldn't ignore them, precisely, but they'd be reported exclusively as a baseless conspiracy theory, only combined with abuse of power in the form of fraudulent prosecution in order to make the conspiracy theory look plausible.

That is to say, rather than accepting the prosecutions as legitimate, they'd be spun as a new crime, and proof that the DOJ has been corrupted, and nothing coming out of it should be taken seriously anymore.
 

"The administration has essentially admitted pressing Ukraine to cooperate with the current Justice Department criminal investigation of the government's spying and dirty tricks operation against Trump."

There was no government spying and dirty tricks operation against Trump. There were investigations, many preceding the Trump campaign, initiated by career law enforcement officials via the usual system, into the many literal foreign agents and Kremlin stooges that campaign employed (many of whom tried to cover up their activities and got caught lying). There certainly wasn't a 'dirty tricks operation' as the investigation was kept hushed up until after Trump's electoral victory (all the while information was being leaked and offered into his opponent [who btw got yet another exoneration recently for the nothingburger that dominated media coverage of her [so much for the 'Democrat media]).

Guliani and Trump were not involved in a criminal investigation into corruption in Ukraine, they singled out their political opponents in a transparent political hit, subverting funds approved by Congress to support a threatened democracy from violent take over by Kremlin backed forces to try to turn an advantage to Trump politically (all the while likely violating, at the least, our campaign finance laws themselves).
 

"rather than accepting the prosecutions as legitimate, they'd be spun as a new crime, and proof that the DOJ has been corrupted, and nothing coming out of it should be taken seriously anymore."

Given Trump and his operatives (including the former NYC mayor) focused singly on his political opponents given the broad potential range of corruption in Ukraine what reasonable person could conclude otherwise? I realize our Birchers here are the kind of lemmings Trump extolled when he said he could shoot someone on a busy street and not lost support, but any non-conspiracy minded partisan extremists looks at someone who singles out his political opponents supposed involvement out of a sea of corruption as acting in a politically motivated way. If a town had lots of brothels and there was an ubsubstantiated rumor that the mayor's opponent's son was involved in one and the mayor told the city attorney he'd withhold funds for his struggling office unless he investigated the rumor then the only natural conclusion is that the mayor was using his powers to go after his political opponents. At the very least that's how it is first and foremost going to appear to any observer who isn't tightly wedged in the mayor's hip pocket (or further around, as it may be).
 

"There was no government spying and dirty tricks operation against Trump."

Oh, come on. You can argue that the spying was justified, and even deny that entrapment efforts are "dirty tricks", but to deny that wiretaps and introduction of moles into a campaign are spying is a bit much.
 

The Senate could clearly grant immunity to the witness under 18 USC 6005. Whether the House could do so, or whether the Senate could circumvent the procedural requirements of 6005 by granting immunity in some other fashion, are interesting questions.
 

Brett:

I am absolutely sure the Democrat media will place their spin of any Justice indictments of members of the Obama administration on the liquify setting. Indeed, as I noted above, my cynical side suspects Pelosi gave the green light to this "impeachment inquiry" to assist the Democrat media in attacking any indictments concerning the Obama administration spy and dirty tricks operation as "political." However, as with the Clinton felonies, the Democrat media will no longer be able to spike the story. Much of the evidence and all of the indictments will be in the public domain.
 

Item: Vice President Mike Pence’s Big Brother Is Sitting In On Congress’ Closed-Door Impeachment Depositions

https://www.buzzfeednews.com/article/kadiagoba/greg-pence-impeachment-inquiry-congress-brother

Given Pence's role, this seems to be a bit iffy, but putting that aside, it is interesting that it seems to be getting zero attention basically.

===

Mr. W. argues that there was an investigation per usual rules and that it wasn't a "spying or dirty trick operation against" Trump. A normal police investigation can involve surveillance and the like. But, that is not the same thing as some sort of dirty trick or spying operation against the person. The whole thing, not some selective part, of what Mr. W. is saying should be taken into consideration here.
 

Mr. W: There was no government spying and dirty tricks operation against Trump.

The AG publicly acknowledged the existence of the spy operation months ago when he began the criminal investigation and assigned it to Justice's premier public corruption prosecutor, John Durham, US Attorney for CN. What the criminal investigation is looking into is whether the operation is legally justified.
 

Joe: A normal police investigation can involve surveillance and the like. But, that is not the same thing as some sort of dirty trick or spying operation against the person.

A criminal investigation without any evidence of a crime is indeed spying against the targets. ACLU regularly sues and enjoins law enforcements agencies for these sort of operations.
 

"the Democrat media "

There is no Democrat media. There are hundreds of outlets with thousands of reporters. All may have biases, but of course none are the equivalent of the Right Wing Media such as Fox, the WSJ, talk radio, etc., which is an actual wing of the conservative movement/GOP. Again, no more proof that there is no 'Democrat media' can be found than that the outlets often decried as such actually gave prominent coverage to nothingburger 'scandals' to which Clinton was exonerated (multiple times, including once again recently). With friends like these...

" spy and dirty tricks operation "

There was no spy and dirty tricks operation. There were investigations, many preceding the Trump campaign, initiated by career law enforcement officials via the usual system and involving normal investigatory measures, into the many literal foreign agents and Kremlin stooges that campaign employed (many of whom tried to cover up their activities and got caught lying). There certainly wasn't a 'dirty tricks operation' as the investigation was kept hushed up until after Trump's electoral victory (all the while information was being leaked and offered into his opponent [who btw got yet another exoneration recently for the nothingburger that dominated media coverage of her [so much for the 'Democrat media]).

"as with the Clinton felonies"

Not only are there no Clinton felonies, she's been exonerated several times (even by investigations led by career GOP officials), never even charged, heck never even recommended for being charged.

"Much of the evidence and all of the indictments will be in the public domain."

Instead of in Bart's extremist conspiracy-paranoid brain where it's all at now (it's probably behind the WMDs or beside the guaranteed Romney Presidency)?


 

"The AG publicly acknowledged the existence of the spy operation"
The long time GOP fixer, hack and co-conspirator with Trump and his cronies?

One reason Birchers like Bart fall for the dupes they do is the sources they trust.

 

"A criminal investigation without any evidence of a crime "

See the multiple convictions of Manafort, Gates, Papadoc, Flynn, etc., etc., etc.,


 

"The President's lawyer will be a star witness in the impeachment trial."

I think these posts are hypos for discussion but do wonder if he actually would be a witness in the trial. Both sides might have concerns even w/o the issues raised.

Witness issues arose in the Johnson impeachment. The House managers (hey, Lindsey!) decided to go with only three in the Clinton impeachment trial.
 

"There is no Democrat media"

So, that's what you're going with? Flat denial?

I'm sure you're familiar with statistics like this, but you're going with flat denial?

Likely you watched the networks election night 2016, and saw the same unbelieving horror on the part of supposedly objective news reporters and analysts, but, still, you're going with flat denial?

Well, I suppose it costs you nothing to go for the gold.
 

"The House managers (hey, Lindsey!) decided to go with only three in the Clinton impeachment trial."

At that point they were really just going through the motions. Livington had his blackmail file published, and was replaced by the, as we now know, eminently compromised Dennis Hastert. Then they canceled the investigation the House had just voted to conduct, dropped almost all of the charges Starr had referred to them, and proceeded directly to the predetermined acquittal in the Senate.

In retrospect Filegate was the smartest move of Clinton's Presidency, it really saved his behind. Which is a pretty nasty thing to say about the Republican leadership of the House, if you think about it.
 

Brett, they were going through the motions for another reason, which I think is relevant to just about any impeachment "trial".

The facts were already established. We knew Clinton perjured himself in both the Jones deposition and the grand jury testimony. We knew that he had lied to the country for several months. We knew that the obstruction of justice theory had turned out to be nothing more than a hunch- it was probably not true, though we couldn't be certain.

And, of course, we knew what the vote was going to be.

This gets back to the central point about impeachment proceedings-- these things are political. Again, we shouldn't obsess about supposed court procedures in the Senate. The "trial" isn't a real trial. By the time any such case gets to the Senate, the facts will be known, and the Senators will vote based on political considerations.
 

Statistics about how journalists affiliate in their personal life are not dispositive about how they act in their professional life (especially given their professional standards of 'fairness.). What's more important is how they act professionally, and when you look there what you see them doing things like giving GOP nothing burger scandals more coverage than anything else in the last Presidential election. Conservatives play the victimization and 'unfair card' so much then given journalists professional standards of fairness the refs get properly worked.
 

"In retrospect Filegate was "

Bircher Brett really has a conspiracy theory for everything. It's fundamentally how he understands the world. He and Bart simply cannot think about politics in any other way.
 

To me a connective theme of Gerard's posts recently (maybe not intentionally) is how insufficient the Constitution is on the potentially incredibly important topic of impeachment. Textually there's just so little direction.
 

I think that's great, actually.

The last thing you want is a criminal code of impeachment, with a ton of rules to follow, and all sorts of opportunities for court challenges (guaranteed to be decided in a partisan manner by judges who shouldn't be involved) and perhaps not at all fitting the actual allegations or the practicality of trying them.

I criticize the Constitution a lot. But the impeachment clause is genius. Just a generic direction about high crimes and misdemeanors, which Congress isn't even required to follow, as well as the provision that the Chief Justice sits in the chair for a Presidential impeachment. Everything else is up to Congress.

There's zero chance you could ever impartially apply law to a presidential impeachment proceeding, and zero chance that you could get any group of people to decide the case on its facts. So the Constitution doesn't even try, and instead kicks it in the other direction.

What should be a political process, is a political process. It's perfect.
 

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Mr. W:

Mueller's merry band of Democrats admitted in their report the Obama administration and then then Special Prosecutor's office were investigating two items: (1) Russian interference with the 2016 election and (2) the Trump campaign engaged in a criminal conspiracy with Russia to interfere with the 2016 election. Specifically, these Democrats were trying to prove Team Trump conspired with Russia to hack the Democrat computers. Even these Democrats were forced to admit there was never any evidence of (2). Your noted indictments of Friends of Donald for unrelated acts were not the subject of that "investigation." A government investigation minus evidence is a spy operation.

The Democrats were fine with the choice of Bill Barr as AG because he was a former AG and a member in good standing of the DC establishment until Barr publicly noted to Congress the Obama administration was spying on Trump and started an actual criminal investigation of this plainly partisan weaponization of law enforcement and intelligence gathering against a political opponent.

The"Clinton felonies" refer to the two counts of perjury and of obstruction of justice for which formed the articles of impeachment against William Jefferson Clinton, which the Democrat media could no longer ignore.

Finally, your claim there is a GOP, but not a Democrat media is so utterly absurd that it requires no comment.
 

1. Mueller, who *led* the investigation is of course a life long registered GOP operative. If the shoes were on the other foot and Obama or Clinton had been investigated by a life long registered Democratic operative the conspiracy paranoid theories from our Birchers would be myriad.

2. If someone steals a vase and you hire a bunch of known fences who deal in vases don't be surprised if the police engage in surveillance of those workers even when they are working for you. If they ultimately find that the workers were guilty of many other offences but can't prove they were in on stealing the vase that certainly doesn't mean the police were 'spying' on them in a 'dirty trick operation' against the employer. In fact, the subsequent convictions demonstrate they were correct to look into the matter.

3. "The Democrats were fine with the choice of Bill Barr as AG"

Let's add this to the pile (behind the Romney presidency, the WMDs but in front of the protean definition of persons in the 14th)! All but three Democratic Senators voted against Barr's nomination.

Fun fact: because of his machinations around Iran Contra noted conservative columnist William Safire used to refer to Barr as the Cover Up AG.

3. "The"Clinton felonies" refer to the two counts of perjury and of obstruction of justice for which formed the articles of impeachment against William Jefferson Clinton"

Clinton was of course acquitted of these.

4. "there is a GOP, but not a Democrat media is so utterly absurd that it requires no comment."

It's demonstrable. Ye shall know them by their fruits.
 

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What will be really interesting is to see where the thread with Rudy's two arrested GOP funding associates will lead. We already have reports he was engaging them for the political hit he was working on for Trump.

Also, let's remember where Trump's former personal lawyer ended up...
 

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Mr. W:

Mueller is a predatory asshole with a history of wrongful prosecutions and failing to disclose evidence to defendants. Given his substantial lack of knowledge of his own report and evident bouts of mental incapacity during testimony to Congress, the man was obviously a figurehead and his Democrat deputy almost certainly wrote the "Mueller report."

Clinton was never tried for his crimes, but he was disbarred. The charade before the Senate was not a trial.
 

On the narrow issue of whether Clinton committed crimes, technically he did. He perjured himself in a deposition and in grand jury testimony.

Not sure what that has to do with the current situation, though.
 

1. "Mueller is a..." What follows are suppositions and assessments, and from someone with a long record of being bad and biased in them. What is a demonstrable fact is that Mueller is a long registered Republican and was head of the investigation.

2. "The charade before the Senate was not a trial."

Per the Constitution it was most certainly a trial (but of course Bart tends to ignore the law as written) and he was acquitted.
 

Dilan, I see your point but the Constitution seems to contain too much ambiguity here for my taste. For example, the Chief Justice is to 'preside' but the Senate has the 'sole power' to try...It would seem odd or even absurd to say that, for example, the Senate could say that in presiding all the Chief Justice would do is come out at the start, blow a trumpet and do the hokie pokie while the Senate voted. But a reading that the Constitution gives the sole power to try to the Senate as a purely political matter would possibly allow this.
 

The thing about political processes is that they allow a lot of things to happen in theory, but they don't happen in practice.

For instance, each House has the power to set its own rules. Which means the Senate could require each session to start with Mitch McConnell coming out at the start, blowing a kazoo, and dancing the Charleston.

But you don't actually have to worry about this, because politicians won't do things like this as it will affect their popularity.

"Political" isn't a bad word. It just means "accountable to the people through periodic elections". You want a procedure that removes the nation's highest elected official to be political. And the chances are, the Senate will exercise its power in a sense that is at least roughly consonant with public opinion.
 

But you don't actually have to worry about this, because politicians won't do things like this as it will affect their popularity.

But, over the years, Congress has does lots of bad things that did not "affect their popularity" enough to matter. Over history, this was helped by such things as denying a basic segment of the population the vote directly or indirectly.

Part of what does that is that public gets riles up about something and they take notice. This is part of politics too. Over two hundred years, congressional politics are complicated and a range of things factor into it. There are also a bunch of rules of proceedings. Over the years, they have mattered, including as a basic means for a legislature to work. Hearings, including investigatory, have them too. There is a bunch of rules for impeachments. We had numerous of them by now though the presidential type are a special animal. So, the rules do matter some.

As to what "we" all knew about Clinton, there has been debate on that. I'm not going re-litigate it here. But, it wasn't all bloody obvious, especially specifics. Plus, many people were suspicious about Ken Starr and his investigation. To move into the political nature of the whole thing. That pops up here too.

It was evident at that time though that the public didn't want Clinton to be removed and that many thought impeachment itself went too far. For something else, a trial -- shown on t.v. with people elected doing the questioning etc. -- might have been more intricate as to witnesses etc. This shows up in criminal trials too. Sometimes, one or the other side thinks it better to show more stuff to the judge and jury even if "we" know the basics.

This will factor in if we have a trial of Trump (or someone else) too. There is an alleged concern for due process. The trial could be a way for Democrats to symbolically answer that to some extent. Trump's lawyers might want to make a show of it in ways Clinton did not. Merely "winning" might not be enough for Trump. The control of the Senate would be involved too. All of these factors would be weighed in deciding whether or not to call Rudy etc.


 

Over history, this was helped by such things as denying a basic segment of the population the vote directly or indirectly.

That's a structural issue that has nothing to do with whether something is correctly a political question.

In other words, yes, we have a racist Constitution that was written by people who were more interested in preserving their privilege to rape black people than they were with creating a good government. And we still pay the cost of that today.

But that doesn't mean that there shouldn't be questions left to the political branches. I will remind you that the liberal arguments against a strict interpretation of the commerce clause and economic substantive due process very much include the point that some things should be left for the political process. Is Williamson v. Lee Optical Co. wrongly decided because many state legislatures whom Justice Douglas stated the courts should defer to were controlled by virulent racists who wouldn't let black people vote?

There's two separate questions here: (1) a political theory question, about whether some things should be left to the political branches and subject to public opinion, without interference by the legal system; and (2) whether or not the political branches are properly democratic or are still infected by racist vote suppression. They are two separate questions.

As to what "we" all knew about Clinton, there has been debate on that. I'm not going re-litigate it here. But, it wasn't all bloody obvious, especially specifics

Actually it was.

Here's the reality. BECAUSE a lot of liberals didn't want to concede anything to a prosecution that they felt had gone off the rails, some of them decided to be very dishonest.

This happens in politics. This week, we were treated to a bunch of liberals claiming a government report said that Hillary Clinton "did nothing wrong" on the e-mails. Only it didn't say that. It DID say that she didn't do anything very seriously wrong. But it also said, clearly, that the decision to have a private server and to allow classified information to get onto it WAS wrong.

Why do liberals say dishonest stuff? The same reason conservatives do. Because folks want their side to win. Because the ends justify the means. Because it pains people to admit that the other side is right about anything.

But the claim that Bill Clinton did not commit perjury, twice, is, in fact, a lie. It was perfectly clear that he inserted a cigar and his fingers into Monica's genitalia, it was also perfectly clear that this constituted "sexual relations" under the definition, and it was further perfectly clear that Clinton lied about this fact both at his deposition and at the Grand Jury testimony.

Before the Grand Jury, there is no materiality defense whatsoever. It was material. It was the central issue in the investigation.

In the Paula Jones case, well, caselaw says things can be material even if a summary judgment is later granted, and the judge ruled it material in sanctioning him. And, as noted above, he was disbarred.

So he perjured himself. Twice.

As I said, liberals lie to protect their political positions, just like conservatives do. The principled argument was to say "yes, he is a perjurer, but that wasn't a sufficient grounds to impeach him under the circumstances". (The better argument, I would think, would be to say it was a mistake to defend Clinton and we should have let the Republicans impeach him and run with Gore as an incumbent in 2000. But I digress. :) )
 

By the way, it's worth noting that before the blue dress came out, a TON of liberals-- commentators and politicians-- were ostentatiously testifying on television as to the fact that they believed Bill Clinton's denials. Some of them even parroted the line-- which originated from Hillary, among others-- that Monica was a mentally ill stalker.

Monica should be very, very thankful she saved that dress. Because "Monica was a stalker" would have continued to be the party line had Bill not been forced by the dress to admit a relationship.

And, of course, my point is that these people who said they believed Bill said this despite there was TONS of evidence that a relationship took place and despite the fact that Monica had zero reason to lie about it. They were, not to put a fine point on it, lying. Because, again, they didn't like Ken Starr and the Republicans, didn't want to concede that their political opponents were right about something, etc.
 

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Mr. W. is concerned about the lack of more rules, but practice suggests to me that more rules are not really needed. This is partially since the text does provide some general limits that the relevant parties mostly respected. If they were abused, more material might be needed.

So, e.g., Clinton was not impeached for having consensual sex with a young woman. Or, lying to the American public. There were specific charges connected to the abuse of the judicial process and a special counsel investigation. They were related to his office as well. But, simply put, it was borderline at best to consider this "high" enough to warrant impeachment. Thus, the two step process, including the supermajority required for conviction. Only something really serious would meet such a test in practice.

And, this sort of thing wasn't something that happened repeatedly over the years, or more bite might have had to be inserted. As to "trial," the use of the word "try" and the fact members of a separate branch of government (usually judges) are impeached over the years has been recognized as not merely some political act akin to a simple act of legislation that might be passed w/o much notice.

Some due care is seen as required and norms/procedures have developed. This in time has some "constitutional" meaning in a weaker form of the term. If the trial process was abused, more specifics might be warranted. But, history has shown some care & legal experts studying the issue and commenting helps the process.

If a series of abuses were seen over the years -- see how states abused the wide discretion they had in criminal trials before modern era -- I think the Supreme Court might have felt more concerned about more judicial review. Justice White's opinion in Walter Nixon v. U.S. suggests "sole" doesn't close that off. But, history did not deem that warranted.
 

Dilan said...On the narrow issue of whether Clinton committed crimes, technically he did. He perjured himself in a deposition and in grand jury testimony. Not sure what that has to do with the current situation, though.

The discussion concerned the inability of the Democrat media to spike stories unfavorable to Democrats when actual criminal charges are prosecuted. The comparison was between the articles of impeachment against Clinton and potential indictments against the targets of the Justice Department "spy gate" probe.
 

"Some due care is seen as required and norms/procedures have developed. This in time has some "constitutional" meaning in a weaker form of the term. If the trial process was abused, more specifics might be warranted. But, history has shown some care & legal experts studying the issue and commenting helps the process."

And note that the 5th A is universal in its application. Congress can't exercise its granted powers by violating due process.

Trump's due process rights haven't been violated as of this point in time. Nor are they likely to be violated in a Senate trial under the existing rules because the evidence is both mostly public and incontrovertible. I doubt the issue will come up, but it wouldn't surprise me at all if Trump's legal team were to raise it as a (meritless) defense.
 

We are in part debating what this due process entails.

But, for a few hundred years now, it looks like Congress is acting like it entails some overall procedural regularity in this context. To the extent voters have the power to check them, they seem to agree as far as it goes.

I don't see any procedural abuses. I realize people will think I'm biased but my stance is historical. I don't know of any impeachment process that lacked basic fairness. Anyway, today's protest aside, Republicans are in the room, including Pence's own brother.

Just part of the lack of unfairness.
 

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Mark: Trump's due process rights haven't been violated as of this point in time. Nor are they likely to be violated in a Senate trial under the existing rules because the evidence is both mostly public and incontrovertible.

To the extent Trump enjoys constitutional due process rights during the impeachment process, the House Democrat star chamber has violated every conceivable one.

The House Dems are taking testimony in their top secret SCIF; selectively leaking hearsay, opinion and speculation to the Democrat media in violation of House rules and the classification laws; then the Democrats in the media add a second layer of opinion and speculation for maximum propaganda effect.

The POTUS or his lawyers are forbidden access to hear the testimony, the ability to question the witnesses, or even transcripts of the proceedings.

The only Republicans permitted to question the witnesses are members of the Intelligence Committee, but even they are forbidden by both House rules and the classification laws from disclosing the questions or the answers (legal limitations the Democrats violate freely). Only Fox News will cover the Republican members statements concerning what is not in the testimony, which is actual personal knowledge of an actual crime which includes a quid pro quo.

Thereby, the House Democrat star chamber keeps the public completely ignorant of the actual testimony and exhibits apart from the propaganda released through the Democrat media.

The Democrats are arguably painting themselves into a political corner, though. The propaganda campaign has the Dem base all fired up, so I am unsure how Pelosi avoids an impeachment vote and how nearly all Dem members from Trump districts avoid voting to impeach. When this happens, the star chamber ends and the House prosecutors have to put up or shut up on national television during an election year.

I am confident the GOP Senate will grant the GOP POTUS nearly the full panoply of due process rights - basic rules of evidence compelling substantive testimony and exhibits; lawyers representing the POTUS and possibly the Senate GOP; cross examination by not only POTUS's lawyers, but also a supporting cast of GOP ex-prosecutors and amateurs serving in the Senate; and the ability to offer rebuttal witnesses and exhibits.

For two years, I posted here and elsewhere that the Special Prosecutor's office had no actual evidence Trump or his campaign enters into a criminal conspiracy with Russia or any other related crime because the office Democrats would have leaked it to the Democrat media. After delaying its release for months, the Special Prosecutor's report finally confessed the witchunters had nothing.

Because the Democrat media is publishing nothing but hearsay, opinion and speculation without even the allegation of an actual high crime or misdemeanor (the spin term is instead "abuse of power"), when the time comes to put up an actual case before the Senate, the House Dem prosecutors will have no substantive evidence to offer the public.
 

"because the evidence is both mostly public and incontrovertible."

Well, yes and no. I've used this analogy before: You're accusing him of being a getaway driver for a bank robbery, based on public and incontrovertible evidence that he was seen driving past the bank. But without any evidence that there was a bank robbery.

Nobody is disputing that he made that call, and few are arguing about what he said during it. The problem is that nobody who didn't already want rid of Trump reads that transcript and sees a crime. Because a key element of seeing a crime is attributing a particular motive to Trump for otherwise legal actions.

It's rather like his firing of Comey in that regard: Republicans saw him firing an insubordinate employee who a bipartisan majority thought needed to go right up until the moment he actually was sent packing. Democrats see obstruction of justice, because they assume the motive for the firing was corrupt.

You assume Trump's motive for wanting Ukraine to resume their investigations is corrupt. That assumption which we don't share is the basis for seeing a crime in the public evidence.

Your mind reading is neither public nor incontrovertible.
 

"The problem is that nobody who didn't already want rid of Trump reads that transcript and sees a crime"

Apart from the eliding of the fact that there's much more than the call transcript, it's exactly the opposite. When an official looks out on a sea of corruption (Trump has actually sought to slash anti corruption efforts in general abroad and in Ukraine) and singled out his political opponents to push for investigation only the most partisan lemmings can see anything but a political hit abuse of power. Of course it's doubly hard for Trump supporters here because if they had a sense of propriety they wouldn't be Trump supporters in the first place.
 

If you had a real case for a crime, it would be persuasive to people who actually liked Trump, or at least his policies. That's my bottom line. So long as the case you've got only persuades his political enemies, it's fatally dependent on interpretation. You're just so committed to that interpretation that you don't see that it isn't mandated.

Now, moving his political enemies from "I don't like him." to "He's a criminal, and must go at any cost." might be enough to lose him the 2020 election; A lot of his reelection prospects depends on people on the margin deciding that the Democratic candidate is just too awful to vote for, like happened in 2016, and making them think the alternative is a literal criminal rather than just some dude whose policies they don't like might be enough to accomplish that.

But conviction in the Senate requires Republican Senators to vote to convict him, and that requires a case that persuades Republicans, not Democrats and Democrats who don't like to call themselves that.

Moreover, a Senate trial will, as Bart suggests, allow Trump to actually defend himself, to question witnesses under conditions where answers that don't help the Democrats will be accessible to the public. (This is why all the secrecy in the House: So that if a witness says something that helps Trump, the public won't learn of it.)

So, paradoxically, I expect that actually impeaching Trump will backfire, by giving him the opportunity to fight back, which the informal process in the House is being specifically managed to deny him.
 

If you had a real case for a crime, it would be persuasive to people who actually liked Trump, or at least his policies

"I could stand in the middle of 5th Avenue and shoot somebody and I wouldn't lose voters,"
 

Our colorful dynamic duo Bert and Brat seem to be employing the "lynching" defense of they feckless leader in desperation. Bert, also know as Comrade Brett must take comfort in Russia's current augmented role in Syria with their feckless leader's abandonment of the Kurds, allies in American's fight against ISIS. More clearly than ever, all roads lead to Putin. And Brat, also known as our Gulf War hero, I assume is pleased with out feckless leader's getting America out of Syria and endless wars. But alas, our feckless leader is putting American troops in Saudi Arabia. Our feckless leader takes credit for solving the problem in Syria. But maybe he will start a new endless war. Yes, all roads, from day one one our feckless leader's presidency, all roads lead to Putin. Yet Comrade Brett and our Gulf War hero conintue hand in hand like Bob Hope and Bing Crosby in a "Road to Russia" movie.
 

A lot of the comment seems to be missing the fundamental fact: "due process" came into being because, historically, government, which at the time consisted of an executive who appointed the judges without input from the people, victimized the less powerful -- and those it saw as opponents.

This reason vanishes, obviously, in the case of deciding whether a chief executive with demonstrable dictatorial tendencies, who clearly used his office for his own electoral benefit, and who himself (and with the complicity of his friends in the Senate, who represent a minority) appoints judges.

The POTUS needs no protection of his Miranda rights, no legal access to an attorney, and certainly does not need the right to confront his accusers in person in a court -- he's up in front of microphones and cameras every day, saying whatever he wants, and it gets to every TV station everywhere.

 

Brett: If you had a real case for a crime, it would be persuasive to people who actually liked Trump, or at least his policies

Or even swing state voters who will choose the next POTUS and House.

In sharp contrast to the Democrat media propaganda polling of census-adjusted adults filled with non-citizens and non-voting citizens, the NY TImes Upshot/Siena polled the impeachment question with the only people who count for POTUS and House election purposes - swing state voters. While not likely voters, the poll population is made up of registered voters whose demographics were weighted by all registered voters in these states (not the census).

Unsurprisingly, swing state RVs oppose impeachment and removal by a 53% to 43% margin.

More importantly, actual 2016 Trump voters nearly universally oppose impeachment and removal (which explains why Trump is holding mega-rallies across swing states attacking impeachment to fire up that base and Pelosi refuses to call a vote on any aspect of impeachment placing her majority margin from Trump districts on the record).
 

C2H5OH:

Everyone should enjoy due process of the law, not just those Democrats find worthy. like their own POTUS.
 

Bart, yes, and when Trump has been turned into an ordinary citizen and his many crimes are charged against him, he'll get all the due process the law allows.

 

Of note, the bipartisan Battleground Poll civility survey found the United States is in the midst of a cold civil war, which has deepened since the Democrats started their impeachment drive.

84% said that they are “tired of leaders compromising my values and ideals.”

67% believe we are nearing cvil war.

The GOP pollster, Ed Goeas, "pointed to the poor favorable ratings of presidential candidates and said that 2020 may be a rare race between candidates that less than half the country likes. “There is going to be a large body of voters who dislike both of them, and that’s going to be the swing vote in the election, which means it dictates the kind of campaign that’s run,” he said."

Democrats who hope this impeachment effort will cause voters to increasingly disapprove of Trump need to recall the voters who claimed to disapprove of both candidates were one of Trump's largest constituencies in 2016 and made him POTUS.

Trump is not the cause of our cold civil war, he is the product.






 

"Due Process" is a general rule of fairness that applies to all.

The "law of the land" concept is found in the Magna Charta. Poor people didn't force King John at the key moment to submit. Rather well off people did.

Trump has due process rights. They have not been violated.
 

"But, history has shown some care & legal experts studying the issue and commenting helps the process."

Actually, the lawyers acted like parasites in the Lewinsky thing. Since the decision was going to be political anyway, we would have been better off if no lawyers had been involved making irrelevant legal arguments.
 

"And note that the 5th A is universal in its application. Congress can't exercise its granted powers by violating due process."

This is false. Under Nixon, there is no remedy for purported Due Process violations in an impeachment proceedings.
 

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"If you had a real case for a crime, it would be persuasive to people who actually liked Trump, or at least his policies."

Note that this test can't be met. Once someone acknowledges that Trump has committed crimes, that person no longer "likes" Trump.
 

Deleted a couple comments; not to belabor some things.

This is false. Under Nixon, there is no remedy for purported Due Process violations in an impeachment proceedings.

(1) The Supreme Court could have been wrong.

(2) The opinion says the issue involved is nonjusticiable. This doesn't mean due process doesn't apply. It can be enforced in some other way. And, it has been.

(3) The opinion deals with the word "try" but still leaves open "textual limits" referencing another case. Some can be cited.

For example, a supermajority is required for removal. The Chief Justice presides in the case of a presidential impeachment. Disqualification requires a majority. And, there are various things that might be done in a trial that violate a textual limit. Requiring a witness to swear to tell the truth "so help me Jesus" etc.

If Congress violates such due process -- procedural or substantive -- limits, it is not a legitimate use of its power.
 

I agree with Mark that Bart's framework doesn't work as a test for a crime. Again, go back to Clinton. The fact that some dishonest liberals run around even now claiming that Clinton never really lied and/or never really perjured himself doesn't mean he didn't.

Whether any politician committed a crime depends on the meaning of statutes and caselaw, not what his or her supporters might think.

But having said that, Bart's framework DOES work as a test for IMPEACHMENT, which makes it very weird that he insists on imposing such a legalistic framework on things. As long as people who like Trump don't turn on him, conviction in the Senate is impossible. So he's actually right that you have to convince Trump supporters of a case for his removal, or he stays in office. Bart just won't let go of all the legal BS and grasp the fundamentally political nature of this.
 

(1) The Supreme Court could have been wrong.

The Supreme Court gets to decide that, not random guy named Joe on the Internet.

Seriously, precedent fricking matters. It isn't something you just dismiss as "wrong" anytime you don't like it. I think plenty of SCOTUS cases were wrongly decided, but they are the law and they get to say what the law is and I don't.

Nixon is the law. Your opinion about what the Constitution means is just as worthless as mine, or Bart's, or Brett's. We aren't the deciders.

The Constitution is a Catholic document, not a protestant one. It is interpreted by means of text and tradition by a group of leaders, and we have to follow their interpretations, just like Catholics and the Bible. It is not a document where each of us gets to read it and operate according to our own personal view of what it requires, like the protestant Bible.

(2) The opinion says the issue involved is nonjusticiable. This doesn't mean due process doesn't apply. It can be enforced in some other way. And, it has been.

What you are calling "enforcement" is BS. It's the Senate's grace. If the Senate wants to have a different procedure, with less or more due process, it can, and no court will stop them.

Your argument is like saying that if a cop decides not to pull me over going 85 on the freeway, that this establishes my right to go 85. It doesn't. The third cop can pull me over.

(3) The opinion deals with the word "try" but still leaves open "textual limits" referencing another case. Some can be cited.

Judge Nixon also made due process arguments. The entire case was nonjusticiable. And if you think any court is going to come in and reverse a conviction in a Senate impeachment trial after the Nixon opinion, you are nuts.

And, there are various things that might be done in a trial that violate a textual limit. Requiring a witness to swear to tell the truth "so help me Jesus" etc.

That's very different. If a witness refuses to testify before the Senate, you aren't talking about the justiciability of an impeachment proceeding. The Senate would have to hold the witness in contempt, and whatever process is available to any witness held in contempt by the Senate would be applicable there.

What you are talking about is having the courts have the power to reverse a conviction of impeachment (or maybe an acquittal as well- I don't know how far your position goes). The courts DO NOT have that power under Nixon, and that decision isn't going anywhere because it is basically obvious that impeachment trials are political questions. Nixon is CLEARLY rightly decided.
 

Here's the relevant language of Nixon. It's way broader than the narrow issue of the definition of the word "try":

There are two additional reasons why the Judiciary, and the Supreme Court in particular, were not chosen to have any role in impeachments. First, the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses-the impeachment trial and a separate criminal trial. In fact, the Constitution explicitly provides for two separate proceedings. See Art. I, § 3, cl. 7. The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments:

"Would it be proper that the persons, who had disposed of his fame and his most valuable rights as a citizen in one trial, should in another trial, for the same offence, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error in the first sentence would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights, which might be brought to vary the complexion of another decision?" The Federalist No. 65, p. 442 (J. Cooke ed. 1961).

Certainly judicial review of the Senate's "trial" would introduce the same risk of bias as would participation in the trial itself.

Second, judicial review would be inconsistent with the Framers' insistence that our system be one of checks and balances. In our constitutional system, impeachment was designed to be the only check on the Judicial Branch by the Legislature. On the topic of judicial accountability, Hamilton wrote:

"The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for mal-conduct by the house of representatives, and tried by the senate, and if convicted, may be dismissed from office and disqualified for holding any other. This is the only provision on the point, which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own constitution in respect to our own judges." Id., No. 79, at 532-533 (emphasis added).
 

Judicial involvement in impeachment proceedings, even if only for purposes of judicial review, is counterintuitive because it would eviscerate the "important constitutional check" placed on the Judiciary by the Framers. See id., No. 81, at 545. Nixon's argument would place final reviewing authority with respect to impeachments in the hands of the same body that the impeachment process is meant to regulate.2

Nevertheless, Nixon argues that judicial review is necessary in order to place a check on the Legislature. Nixon fears that if the Senate is given unreviewable authority to interpret the Impeachment Trial Clause, there is a grave risk that the Senate will usurp judicial power. The Framers anticipated this objection and created two constitutional safeguards to keep the Senate in check. The first safeguard is that the whole of the impeachment power is divided between the two legislative bodies, with the House given the right to accuse and the Senate given the right to judge. Id., No. 66, at 446. This split of authority "avoids the inconvenience of making the same persons both accusers and judges; and guards against the danger of persecution from the prevalency of a factious spirit in either of those branches." The second safeguard is the two-thirds supermajority vote requirement. Hamilton explained that "[a]s the concurrence of two-thirds of the senate will be requisite to a condemnation, the security to innocence, from this additional circumstance, will be as complete as itself can desire." Ibid.

In addition to the textual commitment argument, we are persuaded that the lack of finality and the difficulty of fashioning relief counsel against justiciability. See Baker v. Carr, 369 U. S., at 210. We agree with the Court of Appeals that opening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos." 290 U. S. App. D. C., at 427, 938 F. 2d, at 246. This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated. Equally uncertain is the question of what relief a court may give other than simply setting aside the judgment of conviction. Could it order the reinstatement of a convicted federal judge, or order Congress to create an additional judgeship if the seat had been filled in the interim?

To construe this as a narrow holding over the meaning of the word "try" is law office history of the worst order.
 

Dilan:

I noted the POTUS and the voters who elected him should enjoy basic due process rights during an impeachment, but I share your doubts that the courts will compel the Congress to apply them.
 

The Supreme Court gets to decide that, not random guy named Joe on the Internet.

Yes.

Anyway, the Supreme Court can be wrong about something, and it is standard process for people (including judges, law professors and even me) to talk about it. Over time, including appointment of judges by or advised by those who think past cases are wrong and need change, the law develops.

What you are calling "enforcement" is BS.

His cop reference here might be telling. We don't just have three police officers. We have had over two hundred years of precedent of procedural regularity. In practice, procedural norms have been followed. The wider issue is that the lack of judicial review in some context does not necessarily mean some constitutional duty is not in place or enforced. The Supreme Court and individual justices in opinions have said this at times too, if you want to appeal to authority.

Judge Nixon also made due process arguments. The entire case was nonjusticiable.

The case was about a specific matter -- "Petitioner Walter L. Nixon, Jr., asks this court to decide whether Senate Rule XI" (involving use of a committee to hear facts) is unconstitutional. Every "due process" matter under the sun was not involved.

The opinion at one point noted: "We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits." I cited an example -- if the Senate passes a new rule that district court judges, being relatively minor, could be removed by sixty votes, it would transgress an identifiable textual limit. After conviction is not the only time such a rule can be challenged. Anyway, below shows even more possibilities.

What you are talking about is having the courts have the power to reverse a conviction of impeachment

No. I said that there is a range of matters that might arise in the impeachment process -- not just some power to reverse conviction -- and one example was the rights of a witness not to be forced to say "so help me Jesus."
 

Justice Stevens in his separate concurrence basically said that only unlikely hypothetical would require the courts to get involved and there was no need to do so. But, over time, courts from experience find unexpected things do arise.

Anyway, his concurrence was partially based on evidence of congressional restraint:

"The disposition of the impeachment of Samuel Chase in 1805 demonstrated that the Senate is fully conscious of the profound importance of that assignment, and nothing in the subsequent history of the Senate's exercise of this extraordinary power suggests otherwise."

Such consciousness includes hundreds of years of procedural regularity that avoids the necessity of court review though some scenario might pop up. They tend to at some point & the rights of witnesses etc. would be a possibility.
 

His cop reference here might be telling. We don't just have three police officers. We have had over two hundred years of precedent of procedural regularity.

The cop analogy still applies. If the posted speed limit on a road has been 55 mph for 60 years, and the cops have NEVER pulled people over for going 65 on it, and they decide to pull Joe over and write you a ticket, you will lose if you fight it.

Governmental grace is simply not the same thing as a constitutional right. The Senate can change its rules at any time on impeachment, and any such changes are not reviewable.

"We agree with Nixon that courts possess power to review either legislative or executive action that transgresses identifiable textual limits." I cited an example -- if the Senate passes a new rule that district court judges, being relatively minor, could be removed by sixty votes, it would transgress an identifiable textual limit.

Due process isn't an "identifiable textual limit", because it involves an after-conviction review, and Nixon forecloses ALL after-conviction review. (Again, read the passages I quoted- they say the courts have NO role in reviewing impeachments. Not that they have some role so long as you can hang your hook on some constitutional text.)

What you have identified is a situation where, for instance, there would be a proceeding, OUTSIDE THE IMPEACHMENT, to punish a witness for refusing to swear an oath to Jesus Christ. And yes, that would be reviewable. Similarly, where there was no 2/3 majority vote to convict, the courts could review that, because there would literally be no conviction.

But this idea that the only issue in Nixon was the word "try" is just you trying to minimize a Supreme Court case you don't like. I quoted you PARAGRAPHS of language where the Court basically says it will NEVER be proper to intervene to change the result of an impeachment proceeding. Which means no Due Process arguments.

If Nixon were a technical holding about the meaning of "try", it wouldn't have been dismissed as a political question (they would have done something like Justice White did in his concurrence, which was specifically REJECTED by the Court) and they wouldn't have waxed poetically about how the courts have no role at all in impeachment. You have literally deliberately ignore whole paragraphs to save your argument.
 

Justice Stevens in his separate concurrence

Which, along with $3.50, will get you a latte at the Starbucks on DuPont Circle.

There's a majority opinion. It clearly rejects Justice Stevens' position. Just because you like Stevens more than you like Rehnquist doesn't mean anything Stevens said was actually law. It wasn't. He got outvoted.
 

Can I make a broader comment. Why, exactly, does the Due Process Clause have to apply to everything? Why is there such resistance among some people to the idea that there might be some procedure, somewhere, where lawyers don't get to set a bunch of rules about what goes on?

As I note above, the Senate and House are accountable to voters. It isn't like they are going to set a bunch of terrible procedures. Indeed, previous impeachments have all been reasonably fair.

I like Nixon, because I think the intersection of law and politics poisons both sides. We have, on the one hand, politicians who should be trying to effectuate the will of their constituents instead making a bunch of cynical legal arguments they don't believe in the slightest, and would argue against if the shoe were on the other foot.

On the other hand, you have lawyers being dishonest and pretending that a procedure that is purely political and will and should be decided based on political considerations is instead governed by a bunch of neutral legal principles, which inevitably makes the legal system even more politicized than it already is and makes our profession look like a bunch of hacks governed by no principles other than politics?

A strong political question doctrine is an extremely wise thing. Because it separates law and politics in a realm where it really does need to be separated. And it doesn't really do any harm to real concepts of due process. You see, Presidents, and other federal officials, are powerful people. They are always going to get plenty of process. And voters are going to demand some level of fundamental fairness.

We lawyers can't in any way make this process better. We can only make it worse, and soil ourselves in the process. Why would we want to do that?
 

Dilan: Why, exactly, does the Due Process Clause have to apply to everything?

Just the situations where the government is attempting to take something from you.

As I note above, the Senate and House are accountable to voters. It isn't like they are going to set a bunch of terrible procedures.

The Dems have studiously avoided placing their majority in danger by holding an actual vote to start impeachment proceedings. Instead, two chairs and a speaker from safe blue districts have conducted a star chamber with the worst impeachment rules imaginable.

The fact that impeachment is political and is being used as a political weapon means basic due process is arguably more necessary.
 

"The fact that impeachment is political and is being used as a political weapon"

To Bircher Bart it's not the President's obvious use of the powers of his office as a political weapon it's the entirely Constitutional House's looking into it that is the problem! Partisans go by principals, not principles.
 

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BD: "The fact that impeachment is political and is being used as a political weapon"

Mr. W: To Bircher Bart it's not the President's obvious use of the powers of his office as a political weapon

Normally sane people consider law enforcement based on evidence to be part of the job description for the nation's chief law enforcement officer. The fact that the perps are Democrats does not change this duty.

If / when the Justice Department decides to charge members of the Obama administration for crimes arising from their spy and dirty tricks operation against Trump, the indictment will be issued by a neutral grand jury under the supervision of a neutral judge, then all criminal proceedings will occur in public with the accused enjoying the full panoply of due process rights.
 

Normally sane people do not consider a President personally involved in the promotion of foreign powers conducting investigations, with public announcements, singly against their political opponents. Normally sane people would see the impropriety of that instantly.
 

"the indictment will be issued by a neutral grand jury under the supervision of a neutral judge"

But the charges will be rightly tainted by the now known fact that the President uses his office in a selective political hit, and every sane person should see any charges coming from the department run by his AG/personal fixer (note Trump conflates the two) as political hits.
 

My overall position as to "due process" is that it can be protected as well as enforced in various ways.

All this talk about lawyers is a bit exaggerated, putting aside that they are a basic part of the current process that Dilan honors. Congress has lots of lawyers, lawyers help craft the rules, lawyers defend the impeached individuals and so forth. They will be part of the process. Here, one will preside.

Stevens was not outvoted. He joined the majority opinion. He said history backed up doing that. That is all I said. I said history backs up the rule since the Senate has shown respect for procedure. Three other justices were "outvoted" in part.

I disagree with Dilan etc. but would avoid this idea that I "like" one side and that is the basic reason for this disagreement. I back up my position with argument. In relevant part, the excerpts cited does not refute this.

What you have identified is a situation where, for instance, there would be a proceeding, OUTSIDE THE IMPEACHMENT, to punish a witness for refusing to swear an oath to Jesus Christ. And yes, that would be reviewable. Similarly, where there was no 2/3 majority vote to convict, the courts could review that, because there would literally be no conviction.

This hits to a basic point and I think we are talking past each other to some degree here. I put aside the possibility of pre-conviction review, which I noted.

Mark Field said this: "And note that the 5th A is universal in its application. Congress can't exercise its granted powers by violating due process."

And, such remains the case. So, e.g., the 2/3 majority requirement is an impeachment process textual due process limitation. Congress is bound by it. The witness exampel too. Various other examples can be imagined.
 

Mr. W:

Are you saying, when a POTUS's political opponent is running a pay to play operation in a foreign country, where a foreign oligarch is paying the opponent's son over a million dollars a year for no known work, and the opponent subsequently forces the foreign country to cease an investigation of the oligarch, the POTUS could ignore the prima facie evidence of bribery?

I have a question: Do you plan to vote for Cash n Carry Joe Biden if he is the Democrat nominee for POTUS?
 

"And note that the 5th A is universal in its application. Congress can't exercise its granted powers by violating due process."

Simply put, "due process" here is much more limited than a normal criminal trial or whatever. But, there are limits in place.
 

I was only part kidding about propriety. One defining characteristic of Trump is that he has very little decorum or propriety as a general matter. Now, for the angry partisan they likely don't care. People who think Limbaugh and Hannity are enjoyable have thrown out concerns about propriety as a general matter a long time ago. But it goes further than social decorum, it also seems to dull one's senses about political propriety. And so we have Trump supporters like our Birchers pretending they can't even see why most non-partisan observers would find an executive using the powers of their office to single out for investigation, in a sea of corruption (and ask for a public announcement concerning btw, a very political, not investigatory, thing to do) *singly* their political opponents to be fishy on it's face. They can't see that because they've traded principals for principles long ago and this *includes principles of propriety.* They can't see it because all they see is the principal-Biden, the DNC, they're *bad guys,* and going after bad guys must be good regardless of the context. This is why they try to discuss this on the level of generality of 'well of course the nation's chief law enforcement officer can get involved in an investigation of an alleged crime' but insist on ignoring the particular context of 'well, he's only going after his political opponents, he can't seem to name any other corruption he's after there, and given there's lots of it there the implication is rather obvious.' They can't even conceive because, well, Biden and the DNC are the bad guys here. They've got the conspiracy theories (many, many, and all the time) to prove it. So the sheriff must be doing right to go after them (the fact they're the only ones he's going after and they're running against him for office next election can just be safely ignored!).
 

Stevens was not outvoted.

Sure he was. Just because a Justice signs a majority opinion doesn't make anything written in a concurrence relevant. Indeed, it's the opposite. The majority opinion is law- the concurrence is an op-ed piece that we are entitled to ignore.

Just try going into court sometime and citing a concurrence that contradicts a majority opinion on a key point.

Mark Field said this: "And note that the 5th A is universal in its application. Congress can't exercise its granted powers by violating due process."

You can put this one of two ways.

EITHER:

No process at all is due in an impeachment proceeding, other than the Chief Justice presiding and the majority and 2/3rds votes.

OR:

The Due Process clause imposes no limit on Congress' plenary power to prosecute and try impeachments.

And no, this isn't the only government power that the due process clause doesn't apply to. For one thing, the Due Process clause has zero application to the use of military force against an enemy of the United States in a congressionally authorized war. Indeed, the military can deprive someone of their life, their liberty, OR their property without any process at all. In practice, that suit, like Nixon, gets dismissed under the political question doctrine, but the statement remains true.

So no, Mark's statement is completely false. There are certainly things Congress can authorize that are unbound by the Due Process clause.
 

"Cash n Carry Joe Biden"

This is how they work, propagandists. For years it was Clinton conspiracy theories (note the latest exoneration got a mention in the back of the NYT after they insanely covered it more than any other story in the last election), now it's going to be Biden ones. They'll be assumed as true, come in as many forms as necessary, attached to slogans and thrown up against the wall to see what sticks. Bircher Bart has proven time and time again that being wrong doesn't bother him, he redoubles his efforts. That's what conspiracy theorists and propagandists do.
 

Mr. W:

So, you propose to impeach and remove a POTUS for committing the "impropriety" of demanding a criminal investigation of prima facie evidence an opponent took a bribe?

 

Mr. W: For years it was Clinton conspiracy theories (note the latest exoneration got a mention in the back of the NYT after they insanely covered it more than any other story in the last election), now it's going to be Biden ones.

Have you ever wondered how lifetime politicians of both parties become multi-millionaires on a government salary?

The Clintons are the American record holders, making a nine figure fortune in a decade.

Cash n Carry Joe is a piker in comparison.

Instead of defending your party's cash whores, you can take aim at the GOP counterparts. Mitchell McConnell and his wife Elaine Chow are the first red swamp creatures who come to my mind.


 

You see how he continues once again to ignore the key context? They really can't even see it. Like a color blind man trying to see green their sense of propriety has been so dulled by partisan extremism and paranoid conspiracy they literally can't see it.
 

This is how they work, propagandists. For years it was Clinton conspiracy theories (note the latest exoneration got a mention in the back of the NYT after they insanely covered it more than any other story in the last election), now it's going to be Biden ones.

I'm used to this.

The Russian interference was something different, and I really dislike that we haven't put safeguards in place to ensure that it doesn't happen again.

But the general tendency of parties to portray any opposing Presidential candidate as the worst thing in the world? That's standard politics, a clear Both Sides Do It. 1/2 the stuff Democrats said about Mitt Romney wasn't true either.
 

Sure he was. Just because a Justice signs a majority opinion doesn't make anything written in a concurrence relevant. Indeed, it's the opposite. The majority opinion is law- the concurrence is an op-ed piece that we are entitled to ignore.

Just try going into court sometime and citing a concurrence that contradicts a majority opinion on a key point.

Stevens did not "contradict" the majority opinion. OTOH, citing a concurrence that furthers a point made by the majority is regularly done up to and including by the Supreme Court itself. He was not outvoted. You are really just being argumentative to no real effect. Must be that lawyer in you.

No process at all is due in an impeachment proceeding, other than the Chief Justice presiding and the majority and 2/3rds votes.

If this is true, the Senate might optionally have certain processes all the same and like I said there might be something that they do that violates due process rules. Mark remains correct -- Congress is limited by the 5A in relevant part. It is not "completely false" even beyond a wider debate that I will skip over here.

For one thing, the Due Process clause has zero application to the use of military force against an enemy of the United States in a congressionally authorized war.

The 5A opens up by treating "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger" differently.

Anyway, your example has multiple parts that still provides restraint on the government. It has to be an "authorized" war etc. And, if the war resolution only was targeted against Catholics in promotion of the establishment of a Catholic state, yes, it might have some application. An "enemy" also might be a U.S. citizen and certain scenarios might arise there too.

To the degree there is no due process rights in place, yes, the government wouldn't violate due process. Mark is not incorrect.
 

Stevens did not "contradict" the majority opinion.

Yes he did. The majority said REPEATEDLY that there could be no court participation in an impeachment proceeding. I quoted the language in this thread.

Anything Stevens said that contradicts that is not law. Period.

And, if the war resolution only was targeted against Catholics in promotion of the establishment of a Catholic state

No way.

Indeed, this is a VERY dangerous idea. If Congress sees fit to declare war on Ireland, or even Vatican City, I do not want the courts to think for one second that they can enjoin a declared war.

I really am scared that there are actually people in America who believe that lawyers should adjudicate everything in life and that anything that they think to be bad should be stoppable with a court action.

This is like Justice Douglas, who thought he could declare the Vietnam War unconstitutional. Sorry Joe, some things need to be outside the realm of lawyers.
 

He didn't contradict it. He said history showed that the majority's rule was appropriate. I myself suggested maybe something would come up. The courts do sometimes find that in practice they need to tweak precedent.

You also skipped over the "in promotion of" part of my comment. Merely declaring war on a Catholic country doesn't violate the First Amendment. OTOH, the First Amendment has a limit on passing laws respecting the establishment of religion. I don't see "except war resolutions" exception myself.

You are continuously citing some strawman regarding "adjudicating everything" and now toss in one of your favorite judicial targets. Anyway, even here, a due process protection in place need not only entail judicial review. Congress, e.g., protected fundamental fairness of draftees by optional legislation.

Mark is correct. All the process needed might be legitimate authorization in some case. In another, a provision bounds but its reach is limited in certain contexts.

I'll end there and let your scares be more holiday specific.
 

You also skipped over the "in promotion of" part of my comment. Merely declaring war on a Catholic country doesn't violate the First Amendment. OTOH, the First Amendment has a limit on passing laws respecting the establishment of religion. I don't see "except war resolutions" exception myself.

And therein lies the problem with textualism.

Seriously, there are lots of things the First Amendment doesn't apply to. Do you see an exception for obscenity or child pornography in the text? How about for incitements or threats?

The basic point is, if Congress decides to go to war with Ireland because it doesn't like Catholics, that decision is not judicially reviewable, for the very simple reason that COURTS HAVE NO BUSINESS INTERVENING IN THE PROSECUTION OF A WAR.

Those of us who care about the structure of the Constitution have an advantage over textualists here, I would think. The Constitution delegates war to the other two branches, through the War Power (and a few other powers) and the Commander in Chief clause, There's no role for the judiciary. Ergo, the First Amendment simply does not apply to that decision.

Anyway, even here, a due process protection in place need not only entail judicial review. Congress, e.g., protected fundamental fairness of draftees by optional legislation.

And I continue to be flabbergasted that you think that stuff Congress does out if its own grace establishes a constitutional right. "Due process" not mean everything in life that might be fair. It means procedures that the courts can enforce as fair. There are things legislatures pass because they have a broader conception of fairness than the due process clause. This is as it should be. These things do not, however, become part of the Constitution. They remain optional.

What you guys are doing is arguing "you see, the Senate has been fair, that's due process". When in fact the reality is "you see, the Senate has been fair, that's why we don't have to worry about silly hypotheticals about what might happen if we exclude courts and lawyers from any role in impeachment".
 

And just to be clear, the reasons courts have no business intervening in the prosecution in a war bear directly as to why Justice Douglas was a complete idiot.

And maybe that gets at the problem here. How was Justice Douglas going to enforce his order stopping bombing in Cambodia? President Nixon ignored it.

So how are you going to stop Congress from authorizing war against Ireland out of anti-Catholic bigotry? Is Chief Justice Roberts going to send the Court's marshalls over to Ireland to stop the war? Is the Sergeant at Arms going to go to every air force base and arrest the pilots who are taking off.

You see, the reason why the First Amendment doesn't limit the war power is because it can't. It literally can't. Any court that did try to impose such a limitation on a congressionally authorized war would be kindly instructed to go have sex with themselves by the popularly elected branches of government. Because, you know, they control the military, not only constitutionally but in point of fact too.

This is the starting point for enlightenment, Joe. It can't. The First Amendment literally can't impose a limitation on every power of the government. Neither can the Due Process Clause.

Once you understand that (as the dumbest Supreme Court justice in history didn't), you need to start asking yourself what else it doesn't apply to. What, besides the war power, is outside the Court's power. And then, maybe, you will get to the Baker v. Carr factors and powers textually conferred exclusively on the other branches of government. And when you get there, you will have gotten somewhere.

I guess there's a certain romance to believing the Constitution fixes everything and restrains everything and the political branches are always obeying it, etc. But, you know, it doesn't. And it can't. And the way law and lawyers keep our legitimacy to protect basic rights in things like criminal and civil proceedings is by staying out of stuff that isn't our business and can only serve to tarnish our system.

Come over to the dark side, Joe. The key to actually protecting important civil liberties is to accept that provisions of the Constitution don't apply to everything. That's how we ensure that they continue to apply to many things.
 

A final slam dunk point.

If you are going to count Congress respecting people's rights as part of the due process clause, how come does Congress' disrespecting rights not count as evidence that such rights do not exist?

For instance, you indicate that the war power is circumscribed by constitutional limitations. But we have several examples of the US going to war based on explicit racism, e.g., the Phillipines, Vietnam, etc.

If congressional practice establishes the scope of the Constitution, then those wars would clearly establish that explicit racial animus is not unconstitutional under the Fourteenth Amendment, right?

This basically is a Q.E.D. refuting your argument. We can't be construing Congress' actions as establishing due process rights, because Congress doesn't always act in an enlightened fashion and when it doesn't, we would never use Congress' actions to construe rights in these situations where judicial review doesn't exist as being constrained.