Didn't Huey Long avoid conviction by procuring, pre-impeachment, a "round robin" signed by 15 Senators saying they wouldn't vote for conviction?
 

It occasionally leads me to conclusions I don't like, but I'm fairly hostile to the notion that the Constitution prohibits actions which don't actually violate any specific clause, but merely look bad.

The constitutional obligation to try all impeachments does not actually, as a strict legal matter, imply that the Senate can't adopt a non-binding resolution condemning the House's actions concerning an impeachment. Particularly when the impeachment proceeding in question isn't even a formal action yet, having involved no actual vote of the body.

The Constitution doesn't prohibit what the House is doing, and it doesn't prohibit the Senate from passing a resolution disapproving of it. The Constitution doesn't mandate that either body behave in a high minded manner.
 

I agree there is no "merely look bad" rule in place, noting GM is not applying it.

The Expunging Resolution was a result of a major partisan political dispute and a modern Senate might wish to reverse it. Things change. So, we rest on the merits.

"As an institution, the Senate is only permitted to express its views on potential impeachable conduct during an impeachment trial."

This seems like an extreme position; "express its views" is broad language and it looks like the Senate has done that in some fashion.

https://fas.org/sgp/crs/misc/R45087.pdf

Anyway, Sen. Graham is also concerned with more than impeachable conduct but the investigation itself. The text of the resolution could matter here. As a matter of good policy that respects the process, I'm inclined to agree that the Senate should not pre-judge the case. Something like "Secretary X did not commit an impeachable offense."

But, "unconstitutional" is a reach.
 

This is a complicated question. If a federal judge does an ethically equivalent thing -- for example, fails to recuse herself in a trial of her friend or paramour and acquits the defendant in a bench trial -- that is an impeachable offense. But if a majority of Senators pass a resolution condemning a possible indictment on which they themselves would sit in judgment, is that an impeachable offense? If so, who would be the jurors in the impeachment trial? If not, what would be the alternative legal/constitutional remedy?

Put another way, if such a resolution is unconstitutional, who has standing to challenge it in court? If the answer is "no one" -- if there is no recourse in the judicial system -- then what sense does it make to talk about it's constitutionality?

If the Senate parliamentarian does rule Graham's motion out of order, I'm sure a mechanism exists for voting to overrule him or her -- although the 50 votes (plus Pence) to do so might not exist. But that's a political constraint, not a constitutional one.
 

I'm also skeptical of the assertion of unconstitutionality. It might be, I guess, under a theory of inclusio unius, but even that would depend on the exact wording.

As a policy statement, it's partisan nonsense because the House is proceeding according to its existing rules and in proper fashion. Nor would it be binding in any case. But maybe it'll play well on Fox, and that's all that seems to count for Rs nowadays.
 

Sen Graham (Cracker, S. Car.) seeks to pre-empt the Constitution's provision on impeachment the prerogative of the House with his proposed Resolution.. Imagine is such a Senate resolution had come up before Clinton was impeached. One wonders what is Trum'p's hold over the Cracker.

As a non-legally trained troll, Comrade Brett shows his ignorance.

Would Sen. Leader Moscow Mitch permit such a Resolution? Might that protect the job of Moscow Mitch's spouse as Sec'y. of Transportation?

Query: What if the Internet had been available when Nixon was about to be impeached? Might he have been able to hold off resigning with the aid of arm-chair legal concepts such as those set forth in this and Gerard's earlier threads? Would there have been an earlier unraveling of the Constitution? Would we no longer have a Republic?
 

This comment has been removed by the author.
 

"The fact that the House of Representatives also has the sole power of impeachment also implies that the Senate cannot comment on a pending inquiry."

The power to do something would not to me as a general rule block another party the power merely to comment on it. The text including "sole" doesn't seem to change that in this context. It might matter if the result was somehow binding.
 

Joe, the Senate is not just "another party". It's the trial court in the event a case comes to trial. How often do (and should) courts make public statements such as this one about matters that might come before them? As a matter of legal ethics, the answer should be "almost never". But there are a lot of actions that are unethical without therefore being unconstitutional.

 

I'm taking everything into consideration here.

For instance, the executive per Art. II has various powers that are by nature exclusive. Congress doesn't have the power to pardon. But, Congress can still merely comment on the use of pardon power. The word "sole" to me doesn't change that basic principle. And, the Senate is not an actual court. It's a political body and individual senators already (in ways that do not seem illegitimate) comment about individual impeachments in ways an actual judge or juror would not.

As a matter of ethical policy, the resolution very well might be wrong. But, even then, "comment on a pending inquiry" is rather broad.
 

I'm guessing it's constitutional for Lindsey to offer his resolution. And I'm guessing it's equally constitutional for Nancy Pelosi to offer a resolution telling Lindsey to pound sand.
 

The Senate cannot carry out its constitutional obligation to "try all impeachments" if it is on record as pre-judging the case before any articles of impeachment have been drafted. Courts do not declare the guilt or innocence of someone before charges have even been filed. Talk about a kangaroo court.

This is entirely incorrect. The Senate is not a court in this sense. Why do I know this? Because in a real court, the judge cannot hold any interest in the outcome, the jurors cannot hold any interest in the outcome, and the jurors cannot hold any outside knowledge that would affect their decision or read or view any publicity that might allow them to bring their outside knowledge into the case.

The Senate is still the Senate. Everyone gets to vote, no matter their biases. Which makes them... not jurors.

I can assure you that in 1998-99, probably 90 or more of the 100 Senators prejudged the case. Who cares? It's not an evidentiary proceeding, and the Senate isn't a jury or a panel of judges; it's a political body expected to make a political decision.
 

As a matter of legal ethics, the answer should be "almost never".

And there's your mistake. Lawyers and their ethical rules have literally nothing to do with a Senate impeachment "trial".

The Bar can certainly prohibit its own members from behaving unethically in this proceeding, just like medical boards can prohibit doctors from participating in executions. But the Senate has zero obligation to obey notions of legal ethics, which frankly have no place in political proceedings.

(Political ethics rules, on the other hand, could arguably be a different issue- the Senate might be permitted to censure a member who took a bribe in exchange for an impeachment vote, for instance.)
 

One other point. What, exactly, is this unconstitutionality argument supposed to accomplish? Does anyone doubt that, at the very least, many Republicans will automatically vote to acquit the President and many Democrats will automatically vote to convict them? How does accusing Sen. Graham of violating the Constitution change this fact?

Impeachment trials work the way they work because the notion of removal of a President is a political issue, governed by the norms and rules and traditions of politics. And in a polarized country, that means that you are often going to see a party-line or near party-line vote.

Graham is simply exposing a reality that already exists. Telling him this is unconstitutional is just saying to him "it may be reality, but you can't admit it".

And at any rate, this thing is non-binding. As are all statements on impeachment by all members. Republicans who right now would acquit can later be convinced to vote guilty, and Democrats who right now would convict can later be convinced to vote not guilty. Sen. Graham's resolution in no way prevents that from happening-- it just expresses some Senators' purported opinion right now.
 

"One other point. What, exactly, is this unconstitutionality argument supposed to accomplish?"

What it isn't, is an actual legal argument. It's not expected to influence any court proceeding or prosecutorial decision, or have any legal effect whatsoever, either now or in the future.

It's a PR effort to hobble Republicans in the Senate who might want to oppose the impeachment, by creating the impression among the gullible that they're doing something illegitimate when they complain about how the Democratic leadership of the House are proceeding here.

Note that I said the Democratic leadership of the House, not "the House"; Without votes, this isn't a House action. It's just a few Congress critters acting on their own.

The Senate voted on this resolution. The House Democratic leadership are carefully avoiding holding any votes.


 

Dilan,
I get your general point, but can you not see that norms and Constitutional language ('try', having a judge 'preside,' etc.,) naturally invites people to think of impeachment in terms of our courts?
 

"The Senate voted on this resolution."

The Senate voted on Graham's resolution? I thought he just introduced it.

"Without votes, this isn't a House action. It's just a few Congress critters acting on their own."

I'm curious as to what work this argument is supposed to be doing. The House as a whole adopts rules and structure, within that various committees operate, within those operations they conduct oversight which involves the power to subpoena evidence and witnesses. If there's an allegation that the House rules or Constitution is being violated then which specific rules or section is? Otherwise this looks like a sad, desperate point, semantic at best, deflective political ploy at worst.
 

Perhaps, but aren't the Democrats pushing the limits by holding closed hearings in what appears to be a predetermined vote in favor of impeachment? What I am suggesting is, there is a sort of downward momentum here, in which one side's semi-legitimate move (e.g., not holding hearings on Supreme Court nominee) leads to another side's even more dubious proposal (let's pack the Supreme Court if we win the election) and so forth. At each stage, what seemed over the line no longer seems so, or at least not to everyone. As long as each side believes it holds a monopoly on virtue, it will only get worse.
 

"by holding closed hearings in what appears to be a predetermined vote in favor of impeachment"

The administration's alleged misdeeds involves the area of foreign affairs which has a high likelihood of classified information involved. Add to that the President's threats on witnesses and that this is the preliminary stage (akin to the part where the cops interview witnesses and such) I fail to see what all the 'hub bub' about 'closed hearings' is about.

 

In addition to MW's point, the hearings are not "closed" to Republicans. There are R Members on all of the relevant committees, and they get to participate.
 

"The fact that the House of Representatives also has the sole power of impeachment also implies that the Senate cannot comment on a pending inquiry."

Seriously, I'm not sure what response to this update is necessary, beyond, "No, it doesn't."
 

Mista:

I don't think most people who make legalistic arguments about impeachment are reading the Constitution carefully, and they certainly aren't reading Nixon v. United States, which states the courts shall have "no role" in impeachment, and puts "trial" in scare quotes, seriously.

Rather, I think advocates have been so conditioned by my profession to think that every proceeding is governed by detailed legal rules that they feel uncomfortable making naked appeals to politics. Somehow making legal arguments, even hackish ones, feels more "principled" than saying "Donald Trump is popular with my Republican constituents, so I will not vote to convict him as long as that remains true".
 

Perhaps the thought is that for the body to whom the impeachment product is ultimately referred to pre-judge the product is to influence it and therefore infringe on that 'sole power.'

Let's say a grand jury is considering an indictment which, if a true bill be found, will be sent to the circuit court for trial by petite jury. If the circuit court judge declares, during the grand jury proceedings, 'the grand jury proceedings are a sham' that could be said to be an attempt to influence/undercut, and therefore infringe, the role and power of the grand jury in the process.
 

Dilan,

Again, I get the general points, but maybe people think Nixon was wrongly decided (perhaps egregiously so) and/or should be overturned (or 'narrowed/distinguished')?
My point is, if you use the language 'try' and having a judge 'preside' you invite people to think of the norms of the courts. Ultimately this view might should be rejected, but I can see how it's invited...
 

" Somehow making legal arguments, even hackish ones, feels more "principled" than saying "Donald Trump is popular with my Republican constituents, so I will not vote to convict him as long as that remains true"."

I've been saying all along that, if Democrats want Trump actually convicted, they need a charge that will be taken seriously by people who don't already want rid of Trump.

That's not a suggestion that popularity should 'trump' factual guilt.

Rather, the point is that, if your case for a defendant being factually guilty only persuades people who already hated the defendant, you should realize that your case for factual guilt is terribly weak. It is only persuading to the extent people were already eager to be persuaded.

Should a prosecutor go ahead with a trial knowing that their case for conviction will succeed only if they have a jury consisting only of people who personally hate the defendant, and will fail if they get jurors who lack any preexisting motive to convict? Probably not.

But, of course, they're not perusing impeachment in the expectation of getting a conviction. It's a show trial meant to influence the 2020 election outcome.
 

"if Democrats want Trump actually convicted, they need a charge that will be taken seriously by people who don't already want rid of Trump."

"I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?" Donald Trump
 

Mista:

I don't think there's a serious argument that Nixon was wrongly decided. Does anyone seriously think impeachment will work better if the courts can come in and reverse a 2/3rds majority of the Senate? Does anyone think that won't result in politicized court decisions?

You are assigning deep levels of thought to people who are saying whatever they think will play best. Legalistic arguments seem to play best because people assume that there's something "wrong" with just appealing to politics.
 

Dilan,

With respect, I'm not sure you addressed my argument. To restate, if you use language like 'try' and include a judge as 'presid[ing]' you *invite* people to think court room norms should be in place. That might be unworkable, as Nixon argues, and incompatible with other language, but it's natural and reasonable for people to accept the invitation is my point.
 

Dilan: The legal system has adopted at least some of its rules in the interest of justice, and the perception of fairness. It should hardly be shocking if people would question gross violations of such rules in what is at least a quasi-judicial proceeding, even if those rules are not binding in that context.

Congress, too, could aspire to do justice, and be fair, in an impeachment.

"Could", not claiming they are.

I don't think the courts could overturn an impeachment, or demand a directed verdict of the Senate. They could, OTOH, refuse to enforce subpoenas, for instance, on judicial grounds. The power to impeach isn't the power to do anything the House and Senate feel like doing so long as it's in the context of an impeachment.
 

The general authoritarianism of this is interesting. A key aspect of the concept of authoritarianism is a worship of the powerful and a disdain of the weak. Note that conservatives and Republicans have, in general, worked hard to thwart the rights of the accused, but when it comes to their titular leader, a man who is the friggin' President and a putative (we don't know, he won't share his tax records) billionaire, they suddenly find Jesus on this issue...Unfortunately, and typically, they do so in an irrelevant context...
 

I'm hard put to identify where I ever worked to thwart the rights of the accused.
 

I think everyone is selective about the "rights of the accused" in impeachment cases. Because, again, these things are political.

Not to put too fine a point on it, but plenty of Democrats defending Clinton made arguments about his supposed rights in the impeachment proceeding, including arguing proof standards of "beyond a reasonable doubt", arguing that impeachment required an actual crime and not a mere abuse of trust or abuse of his office, and arguing that any impeachment was illegitimate because it sought to overturn the results of a popular election.

The classic test of civil liberties is what you are committed to when someone you DON'T like is in the dock. The measure of your commitment to free speech, for instance, is the amount of free speech you are willing to afford and defend on behalf of your political opponents.

And- not to beat this drum again- this gets back to the fundamentally political nature of impeachments. Because double standards are entirely permissible in politics, limited only by whether your voters will not tolerate them. Whereas a fundamental principle of the law is equal treatment of all. Since equal treatment in impeachment proceedings is impossible (and not really desirable, because public opinion as to whether the person is a successful President is a relevant factor in impeachment), it shouldn't be treated as a legal proceeding.
 

"Note that conservatives and Republicans have, in general, worked hard to thwart the rights of the accused"

Demonstrable.
 

I don't think the courts could overturn an impeachment, or demand a directed verdict of the Senate. They could, OTOH, refuse to enforce subpoenas, for instance, on judicial grounds. The power to impeach isn't the power to do anything the House and Senate feel like doing so long as it's in the context of an impeachment.

The same rules apply to impeachment subpoenas that apply to any other form of congressional subpoena-- i.e., the rules regarding subpoenas by a political body.

I am not saying there are no rules at all concerning impeachments. Indeed, both houses of Congress have rules. And there are legal rules governing congressional investigations and proceedings.

The point is, the proceeding is fundamentally political, and is governed by the rules that govern political proceedings.
 

Mr. W. is correct that the language suggests some sort of overlap.

The Constitution uses certain language. The word "try" is used. The Chief Justice presides. Legal metaphors are however inexactly used (by people who are well aware they are not the same thing; I speak here not only of participants per the years but those who are experts on these subjects -- both are worthy of as much respect as "some guy on the Internet") to show there is some general overlap.

The appropriate rules in place here are different given the nature of the animal. So, what this matters is unclear. We need not be extreme in one direction or the other here. But, an impeachment trial (sic) has always been run using certain rules that do not apply to an average congressional proceeding. It has a quasi-legal nature at the very least. So, some ethical rules will overlap.

===

Democrats pushing the limits by holding closed hearings in what appears to be a predetermined vote in favor of impeachment?

The Democrats are applying rules in place last set in place by John Boehner's House of Representatives. The closed hearings have Republicans of three committees, including Mike Pence's brother (a House member of one of them) involved. This is normal practice and to use a metaphor, a comparable thing is done in a criminal investigation (and accused criminals have more rights) when the police investigate before formal charges.

There is an implication that norms are falling here but this is normal practice. As to "predetermined vote," what does that mean? For months, people have been upset that Nancy Pelosi on down have not been strong on impeachment. That she and others repeatedly made noises about how there were other approaches. Then, the Ukraine thing is seen by many as a Rubicon crossing. Yes, there is so much evidence there that impeachment seems likely.

But, if someone commits a crime in front of a lot of witnesses, is it somehow unfair that an indictment is "predetermined"?
 

The Constitution uses certain language. The word "try" is used. The Chief Justice presides. Legal metaphors are however inexactly used (by people who are well aware they are not the same thing; I speak here not only of participants per the years but those who are experts on these subjects -- both are worthy of as much respect as "some guy on the Internet") to show there is some general overlap.

First of all, it's important to note that impeachment, because it is political, is not really something that calls for "legal expertise" AT ALL, any more than any other internal procedure of Congress calls for it.

If Congress wants to decide, for instance, that going forward, it will be a lot more aggressive about impeachments generally and will impeach lots of federal officials from all administrations, it can do so, and nothing that any self-styled "impeachment expert" who is not a member of Congress will have any import to that decision.

So there's really no such thing as a lawyer who is an "impeachment expert". EVERYONE other than Senators and Congressmen have the status of "some person on the Internet", because it is an entirely political process.

Second, however, even if we were to listen to these non-experts, the distinction between legal metaphors and legal reasoning is very important here.

Again, the Nixon opinion puts "trial" in scare quotes. Why is that? Because, SCOTUS is saying, of course it isn't a real trial. Why does the Constitution use legal language? Here's the genius- it does it to keep impeachment OUT of the legal system. You see, if the Constitution didn't use the word "try", some "impeachment expert" would come along and argue that the Constitution didn't prohibit some court from mucking around in impeachments. After all, the Constitution didn't use the word "trial".

The Constitution uses "try" in order to say "this is the sole place where any impeachment proceeding is going to take place. No funny business from courts and lawyers and self-styled 'impeachment experts'".
 

And again, the policy arguments against lawyers' involvement are very important here. There's literally nothing my profession can do to improve impeachment, and plenty we can do to screw it up. As well as to screw my profession up. Maintaining a separation between law and politics is increasingly hard to do, but this is a place where the line really has to be held.
 

Well, this take was utterly predictable:

Justice Dept. Is Said to Open Criminal Inquiry Into Its Own Russia Investigation


"The opening of a criminal investigation is likely to raise alarms that Mr. Trump is using the Justice Department to go after his perceived enemies."

Which we're somehow supposed to believe Pelosi and Schiff aren't doing with the impeachment inquiry...

But, of course, the targets of the DOJ investigation WILL have due process rights.
 

In addition to the points being made by Joe and MW, I'd add that there's a fundamentally political aspect to the concept of "rights" anyway. This is a point that Bruce Ackermann and Jack Balkin have made repeatedly, and I see it as having similar force outside of the judiciary (as they do too). Declarations of rights are *aspirational*. That is, we ask in each case what a "correct" approach should be. So I don't have any problem with someone saying that a given case "violates due process" (or free speech or whatever), because we should always be asking ourselves that.

But that's not the end of the inquiry. It's not enough to shout the buzzwords, there has to be a substantive argument about the specific features which are lacking, and that argument has to be persuasively grounded in both theory and historical practice. The Rs haven't even tried to make that argument with respect to the House proceedings. The problem is not that they're trying to apply due process to a situation in which it's inapplicable, the problem is that their substantive case is utterly without merit.
 

Just to follow up on my 11:29 comment, I think the OP does highlight the hypocrisy of the Senate Rs in the case of their resolution. If Senate Rs think the full panoply of criminal due process rights ought to apply in impeachment proceedings -- dubious in theory and a meritless complaint in practice -- then by their own logic it's grossly improper for the Senate to pre-judge issues.
 

In addition to the points being made by Joe and MW, I'd add that there's a fundamentally political aspect to the concept of "rights" anyway. This is a point that Bruce Ackermann and Jack Balkin have made repeatedly, and I see it as having similar force outside of the judiciary (as they do too). Declarations of rights are *aspirational*. That is, we ask in each case what a "correct" approach should be. So I don't have any problem with someone saying that a given case "violates due process" (or free speech or whatever), because we should always be asking ourselves that.

That's not the same thing as saying the principles apply to political proceedings against politicians that determine wholly political outcomes.

The problem here is that what you are defending here is not "rights"- there are no enforceable rights in an impeachment proceeding against the will of the House or Senate- but "rights talk", i.e., the use of the discourse of "rights" to describe human interactions where rights don't actually legally apply. And since you fancy yourself an expert on legal theory, you surely know that "rights talk" has been savaged by scholars on both the right (Mary Ann Glendon) and the left (Duncan Kennedy and the crits).

Now, I don't take a complete hard-ass position against rights talk. Rights talk can be helpful in cases where, for instance, private organizations that hold equivalent power to the government use that power to thwart free speech, for instance. If you want to use rights talk in the context of Liberty University preventing students from debating abortion, or students at Middlebury using violence to prevent a conservative speaker from expressing unpopular views, that's fine.

But rights talk really has no application to situations where the structure of government precludes rights from being asserted because of the political question doctrine. In fact, it is worse than having no application. It actually seeks to interfere with the political process, by imposing nonexistent legal constraints on bodies that are supposed to be able to make whatever decision is politically popular.
 

Just to follow up on my 11:29 comment, I think the OP does highlight the hypocrisy of the Senate Rs in the case of their resolution. If Senate Rs think the full panoply of criminal due process rights ought to apply in impeachment proceedings -- dubious in theory and a meritless complaint in practice -- then by their own logic it's grossly improper for the Senate to pre-judge issues.

FWIW, I agree with this. But you need to think about why this happens. It happens because when you introduce legalistic concepts into a political process, you don't actually end up with anything that looks like law. You just end up with each side selectively deploying hackish legal arguments to support whatever political position they decided to take.
 

Impeachment trials work the way they work because the notion of removal of a President is a political issue, governed by the norms and rules and traditions of politics. And in a polarized country, that means that you are often going to see a party-line or near party-line vote.

Graham is simply exposing a reality that already exists is by using animation i offered to you to make it animation if you want to see sample then please come here deltanet extranet login guide - verified dlnet.delta.com.hope you impressed and this is unconstitutional is just saying to him "it may be reality, but you can't show it only by text.
 

"The Senate voted on Graham's resolution? I thought he just introduced it."

Fair enough, I was premature,but it IS going to be voted on.
 

Rights talk can be helpful in cases where, for instance, private organizations that hold equivalent power to the government use that power to thwart free speech, for instance. If you want to use rights talk in the context of Liberty University preventing students from debating abortion, or students at Middlebury using violence to prevent a conservative speaker from expressing unpopular views, that's fine.

Private organizations do not hold equivalent power to the government; they hold some overlapping power. Also, Liberty University is quite different from the government as a private religious institution. LU has a special right to promote a certain ideological point of view. In fact, the Supreme Court has held that free exercise of religion provides a right to have separate rules even in the face of something like discrimination law.

But, "rights talk" here is held to be appropriate to some extent. So it is. There is some overlap, including regarding what should be the general ends of an educational institution. And, there is some overlap when dealing with executive and congressional actions that the courts don't get involved in but still warrant some degree of basic fairness etc.

People, including those involved in the institutions, who use the language some guy on the Internet finds misplaced, realize the differences here. But, there is some overlap. There are, for example, rules of proceedings in legislative bodies. The courts don't tell them how to do that. But, it is appropriate to push for them to be basically fair. And, this is how they set things up for hundreds of years.

An artificial usage of language for purity sake or whatever is not warranted and on a bottom line level doesn't change the basics.
 

Private organizations do not hold equivalent power to the government; they hold some overlapping power. Also, Liberty University is quite different from the government as a private religious institution. LU has a special right to promote a certain ideological point of view. In fact, the Supreme Court has held that free exercise of religion provides a right to have separate rules even in the face of something like discrimination law.

Private organizations do, in many cases, hold equivalent power to the government. Which is why a lot of legal scholars (not just me) criticize the state action doctrine. See, e.g., https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1709&context=faculty_scholarship

People, including those involved in the institutions, who use the language some guy on the Internet finds misplaced, realize the differences here. But, there is some overlap. There are, for example, rules of proceedings in legislative bodies. The courts don't tell them how to do that. But, it is appropriate to push for them to be basically fair. And, this is how they set things up for hundreds of years.

My objection is not to the Congress trying to be fair. Of course it should try to be fair, in some grand sense. After all, in many situations, Congress tries to be fair. (Having said that, congressional notions of "fairness" are in many ways quite alien to legal concepts of fairness. For instance, compare the way a typical televised hearing works, where witnesses are subpoenaed to listen to members blather on and on and not ask questions, to the way questioning in a deposition or a courtroom works.)

It's to you applying legal constructs to describe what is fundamentally a political proceeding. Congress deciding, as a matter of grace, to be fair in a particular way is not the same thing as the due process clause applying to an impeachment proceeding. It just isn't. Congress has an almost plenary power over this process.

And to be clear, the two things I am trying to protect are these:

1. The power of Congress to protect a politically popular President even if massive treason, bribery, and high crimes and misdemeanors are shown; and

2. The power of Congress to remove a President that the public demands immediate removal of, even if no wrongful conduct whatsoever is shown, but all that is shown is, for instance, complete incompetence.

And with respect to both 1 and 2, Congress can do either in a summary fashion. There's no need to have the sort of proof that is required in a criminal proceeding or even a motion for summary judgment. An impeachment trial can take 5 minutes, if that's all Congress needs.

Talk of due process gets in the way of this. There's no reason to have long drawn out proceedings with foregone conclusions. Court doesn't work this way- we can have long drawn out proceedings because the jurors and judges are forbidden to prejudge the case.
 

Please.

The Senate can comment on the House Democrat star chamber procedures without ruling on the substantive charges, whatever the hell those might be. Judges ruling over bench trials do this regularly.
 

if your case for a defendant being factually guilty only persuades people who already hated the defendant, you should realize that your case for factual guilt is terribly weak. It is only persuading to the extent people were already eager to be persuaded.

To which the obvious response is:

if your case for a defendant being factually innocent only persuades people who already worshipped the defendant, you should realize that your case for factual innocence is terribly weak. It is only persuading to the extent people were already eager to be persuaded.

Of course Bret sees Republicans as rocks of integrity, who would surely vote to convict if the evidence were there. He needs new glasses.





 

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Bym is correct though the case against Trump is not only agreed to by those who "hate" him.

Also, to the degree "hate" is earned, not convincing the remainder is not really that bad.

"You only convinced those who hate that vicious murderer, what good are you?"

Anyway, not for the first time, GM serves as a bit of uniter, people crossing ideological lines agreeing on a position.
 

Dilan:

As the Constitution is written (forget the Nixon opinion for a moment)...

(1) The Impeachment Clause does not create a completely political process by saying something along the lines of: "By a majority vote of the House and a two-thirds vote of the Senate, Congress may remove the POTUS for any damned reason they please." Instead, the drafters put a great deal of time arriving at the minimum permissible grounds for impeaching and removing a POTUS and ordered the Senate to conduct a trial. These suggest a judicial proceeding conducted by an elected legislature, which is only effectively political because the Congress answers to the voters.

(2) Because the Impeachment Clause grants plenary powers to the House to impeach and to the Senate to remove, courts should not second guess those votes. However, because this is a quasi judicial proceeding and the Constitution expressly grants the accused in judicial proceedings due process rights, I see no textual reason why the courts should not have the power to order Congress to implement basic due process during the fact finding and trial.

(3) And, yes, basic due process would make the process dramatically fairer to the POTUS and the people than the star chamber the House Democrats are currently using.
 

"Of course Bret sees Republicans as rocks of integrity, who would surely vote to convict if the evidence were there. He needs new glasses."

Hardly. The GOP is run by crooks. That the Democratic party is run by worse than crooks, socialists, doesn't change that.

But I do believe in the presumption of innocence. That means Trump doesn't need a good argument for his being innocent, Democrats need a good argument for him being guilty.

And if the only people you can persuade that he's guilty are people who already didn't like him, that's a really weak argument.
 

I have an even lower opinion of the GOP than Brett. Capitol corruption is a fully bipartisan venture. The Elephants are no better than the Donkeys in this regard.

This is yet another reason we the people should demand as much sunshine, in this case due process, as possible be shone on everything our elected officials do to the people and each other.
 

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And if the only people you can persuade that he's guilty are people who already didn't like him, that's a really weak argument.

Only if those who reject the argument are Trump worshippers, like you and Bart, or other people with a vested interest in not accepting the evidence, like the vast majority of R's in Congress. You are still presuming that those R's are impartial observers. They're not. They are quaking in their boots at the thought of a primary challenge.

I mean what would it take, short of a confession - which we practically have from Mulvaney - to persuade you that Trump abused, or tries to abuse, the power of his office for electoral advantage?

 

Joe: The rest of what he said, the part you didn't quote, holds too.

I may have a worse opinion than Brett concerning the American hybrid of socialism and fascism called progressivism. These flavors of totalitarianism are organized crime - government as mafia.

Yes, I do see Trump as the lesser of two evils with the other choice being completely unacceptable. Trump could literally shoot someone dead on Fifth Avenue and still be a better option exercising the powers of the POTUS than Elizabeth Warren. I would vote for Trump to keep Warren out of the White House and then call for the Donald to be tried and hung on a reality show after he left office.

 

Looking it up, Gov. Long did do something like that.


 

"Fair enough, I was premature"

Typical.

If a person is going to live their lives confidently convinced about paranoid wacky conspiracy theories with many links in the chain, like Bircher Brett, they shouldn't be so thoroughly and consistently sloppy about the links.

But, Birchers gonna Birch.
 

"Well, this take was utterly predictable:"

Well, yes, if you single out your political opponents for investigation in a sea of corruption, employing your personal lawyer interchangeably with the AG and insisting on an announcement, any sane person is going to see it as part of your political hit piece.
 

"If Senate Rs think the full panoply of criminal due process rights ought to apply in impeachment proceedings -- dubious in theory and a meritless complaint in practice -- then by their own logic it's grossly improper for the Senate to pre-judge issues."

Well said.
 

"House Democrat star chamber"

Bircher Bart is the perfect authoritarian. The Star Chamber used literal torture on their vulnerable targets, here he invokes it for a billionaire (is he? no taxes released) and President). Authoritarians are only upset when the powerful are called to account, and boy howdy.
 

"These suggest"

Lol, Bircher Bart ignoring the law as written, as usual, when his principals are threatened!
 

As the Constitution is written (forget the Nixon opinion for a moment)...

(1) The Impeachment Clause does not create a completely political process by saying something along the lines of: "By a majority vote of the House and a two-thirds vote of the Senate, Congress may remove the POTUS for any damned reason they please." Instead, the drafters put a great deal of time arriving at the minimum permissible grounds for impeaching and removing a POTUS and ordered the Senate to conduct a trial. These suggest a judicial proceeding conducted by an elected legislature, which is only effectively political because the Congress answers to the voters.

(2) Because the Impeachment Clause grants plenary powers to the House to impeach and to the Senate to remove, courts should not second guess those votes. However, because this is a quasi judicial proceeding and the Constitution expressly grants the accused in judicial proceedings due process rights, I see no textual reason why the courts should not have the power to order Congress to implement basic due process during the fact finding and trial.

(3) And, yes, basic due process would make the process dramatically fairer to the POTUS and the people than the star chamber the House Democrats are currently using.

Forgetting the Nixon opinion, as you say:

There could very well be a situation where a future President is simply nuts, or incompetent, but who can do the bare minimum to prevent the 25th Amendment from operating. A quick impeachment, with no "procedural fairness", might be the best way to get rid of the President before damage is done to the country.

That's why you can't think about this in terms of "due process". We are talking about the protection of the public from a hypothetical Chief Executive who could damage the country. And punishment is limited to losing his job.

I would compare it to discovering an employee is doing something grossly harmful to your company. You can fire him immediately. If he gets prosecuted later, he gets due process in the prosecution. But you don't need due process to get him out of there and protect the company.
 

Only if those who reject the argument are Trump worshippers, like you and Bart, or other people with a vested interest in not accepting the evidence

It's not about evidence. It's a political issue.

If Democrats can persuade enough Republicans that the President has to go, the process will go in that direction. If they can't, this is going to end with a favorable result for President Trump.
 

"Hardly. The GOP is run by crooks."

Translation: I am an extremist, a Bircher essentially. Take me seriously, please!
 

"Trump could literally shoot someone dead on Fifth Avenue and still be a better option exercising the powers of the POTUS than Elizabeth Warren."

There you have it, folks. Not surprised.
 

Remember what I said about the total loss of a sense of principles due to extreme partisanship. Bircher Bart would literally prefer a murderer to someone for whom their policies he disagrees with. Never take this 'man' seriously again.
 

Quite an interesting ruling today by Judge Howell. Some points salient to this discussion:

1. A Senate impeachment trial is a "judicial proceeding".

2. The House performs a function "akin to a grand jury".
 

He's wrong on both counts, and he needs a refresher course on Nixon, which is binding SC precedent.

But I'm not surprised. It's really an aspect of my profession that is quite nefarious- lawyers and judges are too egotistical to accept that there's any area of life where we shouldn't set the rules.
 

The political choice made by senators in an impeachment trial factors in various things including the evidence available. The same applies regarding the House's choice to impeach, be it a judge or someone else. A tipping point was passed in the House in this case because of the compelling amount of evidence, evidence that non-Democrats in various ways found so.

Politics factors in a range of things. A prosecutor in a criminal case does too. Evidence alone isn't what leads a prosecutor to seek an indictment. One need not be reductive here.
 

The opinion Mark references is embedded at Lawfare and is here too:

https://assets.documentcloud.org/documents/6523555/Mueller-Report-Material-20191025.pdf

The opinion is seventy-five pages by Chief Judge Howell.

A few guys on the Internet are now talking about it. There is one reference to how the House "performs a function somewhat akin to a grand jury." There are multiple citations, including to Hinds, a collection of precedents of the House of Representatives. Not sure where Walter Nixon v. U.S. is contrary.

The ultimate opinion concerns a battle between the House and the White House regarding grand jury information. The DOJ claims existing law bars disclosure. The court said the existing law does not. The court did what courts do. It interpreted the law.

Mark's reference to a "judicial proceeding" led me to many hits of that term. For instance, page twenty 20 or thereabouts goes into the current law of when disclosure of the material is allowed, citing Supreme Court precedent. Disclosure is allowed when such a proceeding is involved and that is why the judge deals with it. (See opinion for exact guidelines)

The Senate trial "is an exercise of judicial power the Constitution assigned to the Senate." This follows w/i the category for which precedent holds this material can be released to the House. The opinion provides multiple examples of how the Senate is treated as a type of "court" or "judiciary" body in this context. He uses that standard things the Supreme Court on down uses. (Federalist Papers, constitutional text, legal dictionaries, legal precedents etc.) This includes multiple Supreme Court cases as well as Chief Justice Rehnquist's statement while presiding over the Clinton impeachment ("the Senate is not simply a jury; it is a court in this case").

Again, not sure where Walter Nixon v. U.S. says otherwise. No impeachment conviction (a thing Dilan was very concerned about in the past thread) is being reversed here. Questions of grand jury material is a matter that has arisen over the years and the judge here honored the House's broad constitutional authority in deciding the legal question at issue.
 

Dilan: There could very well be a situation where a future President is simply nuts, or incompetent, but who can do the bare minimum to prevent the 25th Amendment from operating. A quick impeachment, with no "procedural fairness", might be the best way to get rid of the President before damage is done to the country.

Due process is even more necessary under the 25A.

Given the 25A authorizes the VP and a majority of the cabinet to literally carry out a temporary coup d'tat merely by certifying the POTUS is "unable to discharge the powers and duties of his office" and could then detain the POTUS in a medical facility away from the public, Congress damned well better require the POTUS be produced or be able to visit the POTUS for questioning before voting to make the removal permanent.
 

Mr. W:

Yes, I would literally prefer a murderer as POTUS who governs like Trump over the past three years to a totalitarian like Elizabeth Warren and a future like Greece if we were lucky and Khmer Rouge Cambodia if the insanity spun as the Green New Deal was actually inflicted on our nation.
 

The impeachment process prescribed by the constitution is not just judicial, but it is also not just political. It is both. One feature of the current landscape that causes me to emphasize the judicial aspects more than some others (e.g. Dilan) is the current Justice Department policy that hold that a sitting President cannot be indicted in the regular courts while s/he is still in office. The Senate is, among other things, a court because, among other reasons, no other court-like venue is available. Treating impeachment "trials" as only political and not also judicial results in the president being outside the reach of the law. JMHO.

 

Brett: "Without votes, this isn't a House action. It's just a few Congress critters acting on their own."

Mr. W: The House as a whole adopts rules and structure, within that various committees operate, within those operations they conduct oversight which involves the power to subpoena evidence and witnesses.

The handful of involved Democrat Congress critters do not claim to be performing oversight here, but rather clearly stated they are performing an "impeachment inquiry."

Art. I, sec. 2, cl. 5 states: "The House of Representatives...shall have the sole Power of Impeachment." The House of Representatives is the body of members, not individual Congress critters.

Mr. W: If there's an allegation that the House rules or Constitution is being violated then which specific rules or section is? Otherwise this looks like a sad, desperate point, semantic at best, deflective political ploy at worst.

Obama appointee Judge Beryl A. Howell had is ass backwards in her opinion handing over grand jury records to the handful of Democrats conducting this "impeachment inquiry." Individual Democrat chairs may not do anything they please so long as the House rules do not expressly prohibit the act. Until the House of Representatives enacts a rule delegating its collective "Power of Impeachment" to individual members, individual members have no such power.

Moreover, as Rep. Dan Crenshaw recently read to the Schiff hiding in his SCIF, by restricting access to the records of this "impeachment inquiry," the Democrat star chamber is indeed violating the Rules of the House p. 568 stating:

(2)(A) Except as provided in subdivision (B [which does not apply here], §796. Committee files. all committee records (including hearings, data, charts, and files) shall be kept separate and distinct from the con- gressional office records of the member serving as its chair. Such records shall be the property of the House, and each Member, Delegate, and the Resident Commissioner shall have access thereto.
 

Dilan said...He's wrong on both counts, and he needs a refresher course on Nixon, which is binding SC precedent.

Judge Beryl A. Howell (female Obama appointee) was rewriting the law in order to allow the disclosure of secret grand jury records to the Democrat star chamber. Citing Nixon would have derailed her efforts.
 

I think Bob Richard hits to a basic understanding of things but think the overall problem includes a simplistic view of "political," if one that happily is not well accepted on a basic level. From the beginning, look at the discussion at the creation of the clauses, to now, impeachment is talked about by all parties with some judicial language. It was and is accepted that there is a 'judicial' function occurring. This has affected how is applied. Impeachment is "political" but unlike tax policy or something, is a bit more.

Senators take this oath/affirmation of office:

I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.

Not everything they do will be checked by judicial review. This doesn't mean their oath or affirmation can not be violated. They retain an obligation to follow it regardless. Think of a marriage oath. You pledge to honor your spouse. There will be times when you violate that oath w/o your spouse being able to go to court to punish you. Your obligations were still violated. And, various things are set up to avoid that sort of thing.

If one thinks the political nature of impeachment is a good idea, like separation of church and state or whatever, one should not apply it in too simplistic manner.

 

Looking at the background of the judge that some people on the Internet are now talking about, I see she started her federal service (after being a law clerk) as Assistant U.S. attorney, Eastern District of New York, 1987-1993. So, during the Reagan Administration.

She later was Commissioner, U.S. Sentencing Commission, 2004-2013. That would be during the Bush and Obama Administrations. She was first appointed by George W. Bush.

Above the Law cited her as one of the top influential district court judges.

Just some trivia.