Seems reasonable.
 

Can I ask a more drastic question?

What constitutional basis is there for anything like this being decided by the Senators? I'm sure the Senate rules, as determined by the Senators themselves, say so, but what about art. I of the Constitution?

As far as I can tell, the constitution says that impeachment is a trial. ("The Senate shall have the sole Power to try all Impeachments." etc.) So you'd think that the default is that the procedure works by analogy to a criminal trial, except when the Constitution explicitly or implicitly says otherwise. (E.g. no unanimous "jury" required, and no one is "put in jeopardy of life or limb", so no double jeopardy right.)

So why doesn't the Chief Justice (or, in other impeachment trials, the presiding officer) decide all of these things? Why not recognise a prosecution (the House managers, presumably) and a defence (whoever the President sends down there) and have them submit whatever evidence they like, subject to rulings from the "bench" about the laws of evidence and - presumably - relevance?
 

Important issue. One way to look at it, is to claim ( weak one ) that only members presents can vote according to the constitution. As well for motions.

Another one, is to argue the following:

Since the principal of "separation of powers" is so fundamental in the US jurisprudence and governance, what we have here, is in fact, an act of legislation, made by the Senate. As such, the chief justice, represents or acts, not as a senate member ( legislator ) but, as presiding judge. As such, he can't be involved in such vote or case. For, he is an official, in active official duty, from another branch, intervening and prevailing in duty or power, specifically designated by the constitution to the Senate, and in direct manner ( voting actually, legislating actually ).

Thanks
 

"What constitutional basis is there for anything like this being decided by the Senators?"

It's a point of order. It's not the Senators deciding anything, they're just asking the Chief Justice how he intends to rule if the question comes up, so that it's clear in advance.
 

@Brett: I didn't mean this point of order, I meant the questions that may or may not be decided with a 50%+1 vote (with or without the chief justice), such as the question of whether to hear a certain witness.

@el roam: Why would you say that impeachment is "an act of legislation"?
 

Thanks for clarifying.

The Constitutional basis for this being decided by the Senators is that the Senate has the sole power to try, and the Senate makes its own rules, with a few (Largely ignored!) constitutional rules such as the quorum requirement.

Impeachment is NOT an act of legislation, or else it would be subject to the presentiment clause, and Trump could have vetoed being impeached.
 

It seems to me that the only risk of losing on a tie vote is the Rs. When the issue comes up, expect McConnell to modify the rules and preclude the CJ from breaking a tie. To coin a phrase, tie goes to the Republicans.

Which brings us to martinned's question. The short answer is that the Senate, like the House, has plenary power to set its own rules (Art. I, Sec. 5). The Senate has always done so for impeachments. Without such rules, it's not clear what would give the CJ the power to make rulings as you suggest. I suppose one could answer "common law", but the US courts have long held that the Constitution does not incorporate the common law. And even that answer would be problematic, since "common law" changes over time; I can easily see everything getting bogged down in silly arguments about "originalism", for example.
 

martineed,

I didn't say or write nothing of such.

First, I wrote about the Senate. Senate doesn't deal with impeachment, but, with the trial. The House impeaches, and the Senate tries.

Second, a motion, can and should be based on rules or new rules ( of the Senate). Making rules, is actually legislating. That's it.

Thanks
 

No, making rules isn't legislating, though it is an activity of legislatures, and any other organization. Legislating is actually creating laws. The Senate's internal rules aren't laws, aren't legislation, which is why the House doesn't have to vote on them, and the President doesn't have to sign them.
 

This comment has been removed by the author.
 

Sounds like an academic question, which you know, it is, ha.

The current rules cites history that shows that the Chief Justice broke a tie. As Mark notes, McConnell can decide to change the rules. Both points were addressed in a recent article: https://www.nbcnews.com/politics/trump-impeachment-inquiry/history-shows-chief-justice-john-roberts-could-cast-tie-breaking-n1117506

The request for a sort of "advisory opinion" seems sensible on some level though not sure if it would be prudent. I guess arguments can be made either way of the benefit of Democrats sort of flagging the idea they might aim for something that gets three votes. I think that the Dems would just wait for the fact to come up, though I doubt it will. The vote will be unlikely a surprise and negotiation will address it.

BTW, GM wondered if the Chief Justice would be an active presiding officer. Except for a late in the day call for both sides to be nice, not so much.

===

Mark's discussion on question posed in good. Note that the Chief Justice here is a "presiding officer." There are a set of rules for impeachments and they don't change when the Chief Justice is there. It might best be remembered that other impeachments would be presided over by the Vice President or (as someone noted he recalled happened in the 1980s though I didn't find it yet) the person appointed to fill the role as spelled out in the Constitution.

The Chief Justice presiding makes one think that it provides a special opening for a judge (though he never served as a trial judge, so his abilities there is at best a mixed bag) to make legal type rulings. But, usually, there is another presiding officer. And, a presiding officer usually doesn't have much power. It is unclear why they would have special powers here. Precedent, as noted, frowned upon it.

That can change, of course, but there is a logic to holding firm, even though some wish Roberts will suddenly play a more active role. Plus, as someone likes to keep on repeating, senators might be "trying" but this is not a normal civil/criminal trial. The senators mainly being in control is logical for what is occurring too.
 

The first point of order should ask the CJ whether the VP can vote to break a tie during the impeachment trial. While this creates a conflict of interest, the Constitution grants the VP alone the power to cast tie breaking votes in the Senate.

If the answer is no, then the next point of order should ask the CJ if he is filling the VP's role as the tie breaking vote as the officer presiding over the trial.

Depends on whether the CJ sees his role as a trial judge or a substitute VP. Senate votes during a removal trial would not normally be considered the role of a trial judge. During a removal trial, the Senate votes on rules, motions, witnesses and whether to remove the POTUS. Rules and witnesses are traditionally legislative functions. Removal is a jury function.

As things stand now, the issue would likely only arise under one circumstance - a tie vote on witnesses. A majority enacted the rules this morning. I expect GOP majorities will similarly vote down Dem motions later today. The 2/3 vote necessary for removal does not require a tie breaking vote.

I doubt the CJ would agree to answer these points of order unless a tie actually occurs.

I strongly suspect McConnell has already resolved the current witness issues in negotiations within his caucus. If the Kavenaugh hearings are any guide, the GOP will refuse to call the Democrats inevitable surprise witnesses.

So this is all theoretical.
 

So far the votes have been straight party line, no defections on either side. Democratic party vote discipline is legendary, but it doesn't look like any of the Republican Senators are inclined to defect, either.

If this continues, Trump is likely to be outright acquitted by a majority vote, not just not convicted.

I would like to see witnesses, but don't expect them. I'd like to see them because of the chance of setting off a tit for tat exposure of corruption that ends in mutually assured destruction.

Exactly why I don't expect to see them.
 

Brett, what is it that you right here ? You state things, not only fundamentally wrong, but, without any basis whatsoever.

The chief justice one may argue, should not be involved in any activity has to do with making rules or legislation. Simply due to the principle of separation of powers.

The point is, that there are several instances of legislation. Higher is made by Congress , and, more inferior made by the executive branch typically.

But, once it is framed or drafted as laws or codes, and it has legal binding effect, let alone made by legislator itself, it is simply legislation.

I shall illustrate later .....

Thanks
 

"Democratic party vote discipline is legendary"

ROFL. I remember Will Rogers made that same point.

"I guess arguments can be made either way of the benefit of Democrats sort of flagging the idea they might aim for something that gets three votes. I think that the Dems would just wait for the fact to come up, though I doubt it will."

About as likely as the 1919 World Series going to game 7. Sure, we can speculate what might have happened, but then as now, the fix is in.

"The Chief Justice presiding makes one think that it provides a special opening for a judge (though he never served as a trial judge, so his abilities there is at best a mixed bag)"

Best I can tell, he never tried a case either. I doubt he's very familiar with trial procedure or even the rules of evidence. (Not dissing him, since his jobs never required that knowledge, just pointing it out.) If the presiding officer were to function like a real judge -- not sure how -- then s/he should have actual experience at that.
 

One of the amendments offered asked for more time to answer motions or some such and Susan Collins voted with the Democrats on that one.
 

Brett,



Let's illustrate it:

The following case, in the district court of Columbia ( Merck v. US department of Health) I quote from the Introduction, what is all about, here:


In May of 2019, the U.S. Department of Health and Human Services (“HHS”) published a final rule that regulates the marketing of prescription drugs. The rule requires drug manufacturers to disclose in any television advertisement the list price—also known as the wholesale acquisition cost—of a 30-day supply of the drug (“WAC Disclosure Rule”).

End of quotation:

So, by making rules, that regulates the marketing of prescription drugs, the health department, compelled, by legislation ( in terms of force, and actually in form of law) the drugs manufacturers to disclose prices of drugs.

Such rule, is rejected by the court. Why, because it does potentially, contradicts the constitution ( first amendment) and because the department exceeded its authority in making such powerful legislation.

Yet, such rule, has binding effect as a law ( means legislation, but, simply inferior one ) I quote the judge:

" Federal agencies typically enjoy expansive authority from Congress to formulate rules that have the force of law in areas germane to the statutes that they implement. But such authority is not unbounded. For a regulation to have the force of law, Congress must communicate through legislation, either expressly or impliedly, its intent for the agency to make rules in that specific area. When Congress has not communicated such intent, the agency has no power to act."

That's it.

Here to the ruling:

https://www.wlf.org/wp-content/uploads/2019/07/hhs-price.pdf

Thanks

 

Democrats offered Trump to be involved in the House investigation and Republicans was (including in the classified meetings; one member being Vice President Pence's brother), down to Republicans calling witnesses to "tit for tat" answer the Democrats.

The Democrats asked for witnesses upfront, including offering Roberts the power to decide the relevancy of witnesses (there was talk of a horse trade proposal where the Dems would offer a witness and then the Republican could w/o taking into consideration relevancy as would be a basic rule here). That would have meant that both sides had witnesses, if relevant ones. Republicans refused.

One side doesn't want witnesses thus far because Trump does not (McConnell said he is following Trump's lead) and they would just make it more obvious. McConnell wanted to the Dems to combine their amendments yesterday to avoid them having so much time to spell out all the evidence and what the Republicans are blocking thus far.
 

Joe:

After Clinton was impeached, the GOP asked for witnesses and these same Senate Dems opposed. Videos of Schumer opposing GOP witnesses before the Clinton trial are making their rounds on Youtube and other social media

Predictably, after Trump was impeached, the roles reversed 180 degrees.

The House Dems knew this going in and are only demanding witnesses they never called in order to have the GOP Senate issue subpoenas to a GOP administration.

Legally meaningless political theater.
 

One may reach, finalized rules of the Senate, here:

https://www.jurist.org/news/2020/01/senate-sets-impeachment-trial-rules-opening-argument-to-begin/
 

I know it was just a typo, but I love the idea of a Presentiment Clause.
 

What constitutional basis is there for anything like this being decided by the Senators?

The Senate not only has the sole power to try impeachments, but also the sole power to set its own rules.

That's sufficient constitutional basis to cover the whole shebang.
 

US courts have long held that the Constitution does not incorporate the common law

This is not true at all.

The Constitution incorporates plenty of common law rules, such as what constitutes "property" for the Due Process Clause. It also incorporates federal common law in areas of common law federal jurisdiction, such as admiralty cases. The Seventh Amendment explicitly, and Article III implicitly, also incorporate the common law system.

There would be no reason why the Constitution as a whole would "incorporate the common law"- the common law, for instance, would have little to say about whether a particular expenditure constituted an expenditure for post roads, or whether the period of time has lapsed for a bill to become law without the President's signature. But the Constitution does, indeed, incorporate both the common law system and any number of common law rules.
 

Joe:

Here's an article that quotes Sen. Byrd presiding over the Walter Nixon impeachment:

https://www.latimes.com/archives/la-xpm-1989-11-04-mn-198-story.html

"“It is, therefore, ordered and adjudged that the said Walter L. Nixon Jr. be removed from office,” Sen. Robert C. Byrd (D-W. Va.) declared"
 

By the way, it's nice to see Joe acting like a petulant 2 year old and refusing to mention my name. :)
 

About as likely as the 1919 World Series going to game 7.

Looks like Mark knows as little about baseball as he does about the law.

The 1919 World Series not only went to game 7, but to game 8 as well.
 

Re: witnesses, everyone is being disingenuous here.

Of course the Republicans don't want witnesses because they can get a quick acquittal, so why would you want to delay that and possibly spoil it by calling witnesses.

But the reason we don't have witnesses is because just like the Republicans wanted a quick acquittal, the Democrats wanted a quick impeachment. They could have moved for court enforcement of their subpoenas, and if they had won, they might have gotten witnesses. But it would have taken time, and their priority was to impeach President Trump before the 2020 election. They didn't care enough about witnesses to prioritize that over impeachment.
 

Dilan, so you think the Democrats should have allowed Trump to continue to try and cook up a means of gaining re-election, get re-elected and *then* impeach him? Because if we've learned anything, it's that Trump and his legal team will draw out by any means possible any requirement to deliver documents or allow testimony until Trump is out of office in 2025.

Sure, the Democrats made a decision to go with what they had rather than attempt to pry more out through litigation. Perhaps they figured that it wouldn't matter, in the end -- because the Republicans in the Senate are not going to vote to remove Trump no matter what evidence is presented that Trump did, in fact, do what they allege he did.

(Which, by the way, apparently they aren't even attempting to refute.) So the only reason the Democrats have for calling witnesses is to make a case to the American people. (Which, by the way, was the same as in the Clinton impeachment: there really wasn't any unresolved question there either; the question was merely whether it merited removal from office.)

By the way, I'm going to agree with Bart here: McConnell isn't going to have any tie votes. He is far too canny for that. There will be a defection on a few amendments and motions, such as we've already seen -- that will not affect the outcome, but are merely to allow some political "cover" for a few senators. Expect these defections to be spread around among the various Republican senators who are in some danger.

And also, Bart, thanks for the comedy. "Surprise witnesses" -- snort! The only "surprise" will be if any are actually allowed in open testimony.

 

Yes, you are like Voldemort.
 

"Which, by the way, was the same as in the Clinton impeachment: there really wasn't any unresolved question there either; the question was merely whether it merited removal from office."

I don't know about no unresolved questions at all but basically that sounds right as to Clinton. It is somewhat true regarding Trump, but there is more information that can come out. There are witnesses and so forth that could clarify stuff. The same was true regarding to the Mueller Report which is material here per the part of the counts that said that Trump was a repeat offender. That in fact is a core reason Schiff says the impeachment and removal is so important.

Clinton, unlike Trump, didn't deny wrongdoing. One can be all cynical about him apologizing and so forth, or how much he apologized over, but unlike Trump he wasn't like "did absolutely nothing wrong." Much of the core the point there was that what Clinton did not warrant impeachment or at least removal. (I gather his lawyers also debated if he technically committed "perjury" and so forth too, but granting error but saying it didn't warrant impeachment/removal was a core message.) In the end, he even agreed to loss of his law license and so forth.

It would be a lot more credible if the Republicans used that approach here like a handful of them did in the House -- that yeah he did something he shouldn't have, but it didn't merit impeachment and/or removal. But, Trump forces them to go over the top and it really looks ridiculous. https://www.justsecurity.org/68181/four-fundamental-flaws-in-president-trumps-impeachment-trial-memo/

(So it is that nothing he did would categorically warrant impeachment even if it was proved he did it. Thus, the Republicans' own witness -- Jonathan Turley -- is forced to say they are embarrassing themselves. Or, it isn't just that as a matter of judgment he shouldn't be removed. It is that he did nothing wrong. OTOH, this appeals to Trump and their base.)
 

Dilan, so you think the Democrats should have allowed Trump to continue to try and cook up a means of gaining re-election, get re-elected and *then* impeach him?

Excellent question.

I think the reality is that impeachment is basically useless except in those rare Watergate like situations where a significant chunk of the President's own party abandons him. (Note, it doesn't have to be all of the President's party. Something like half of the party was enough to do in Nixon.)

In all other situations, the only reason to do an impeachment is because it might confer a benefit on your party in the next election. If it won't, you might as well just not impeach and go ahead and try to knock the governing party off in the next election.

Now note, that analysis only applies to impeachment. You can still investigate the President- because investigating a President can turn up wrongdoing, including in some narrow circumstances even the sort of wrongdoing that could cause a Watergate like tanking of support within a President's party.

The thing is, people want a right and wrong in this situation. There's not much room for right or wrong. The impeachment process is designed to be very hard to effectuate a removal of the President, which means that there's going to be a lot of wrongdoers who skate. You aren't going to get much moral satisfaction from the results of impeachment trials. Only an election result can get you that moral satisfaction.
 

Yes, you are like Voldemort.

LOL. You realize that Harry Potter is a children's book, don't you? Is that the level we are operating at?
 

Clinton, unlike Trump, didn't deny wrongdoing.

Of course he did. Indeed, to this day he denies perjury.

The only thing he admitted to was having an "inappropriate" relationship with Monica Lewinsky. Nothing else. As far as Clinton is concerned, he never lied, he only "misled". He still denies ever having sexual relations with Miss Lewinsky. He denies putting his fingers or a cigar in her.

And to be clear, that was the wrongdoing at issue in the impeachment. He wasn't impeached for having an inappropriate, but non-sexual, relationship with Monica Lewinsky and for making "misleading" but true statements about it. He was impeached for perjury. He denies the relevant allegations.
 

C2H5OH said... And also, Bart, thanks for the comedy. "Surprise witnesses" -- snort!

Democrat women who claimed Kavanaugh molested them multiplied exponentially as the Senate confirmation process proceeded. The Dems demanded they all testify, no matter how untruthful or deranged they appeared during their rounds of Democrat media programs.

Since their impeachment of Trump, the Democrats have demanded the indicted scam artist Lev Parnas testify before the Senate. There will probably be more.

The Dems have been using the same play book for decades.
 

C2H5OH said...Dilan, so you think the Democrats should have allowed Trump to continue to try and cook up a means of gaining re-election, get re-elected and *then* impeach him? Because if we've learned anything, it's that Trump and his legal team will draw out by any means possible any requirement to deliver documents or allow testimony until Trump is out of office in 2025.

Out in the swing states, the Democrats' impeachment circus is about as popular as STDs among Republicans and Indis. The Dems know this, which is why they rushed to get it over before the primaries started. Team Trump knows this, which is why they tried to drag it into the weeks before the general election.

Trump and wannabe GOP Congress critters don't have to "try and cook up a means of gaining re-election" or retaking the House. The Dems seem bound and determined to hand it to them on an impeachment platter.
 

To clarify my original point, the Constitution does not incorporate English common law. US v Hudson (1812) (Courts can't enforce common law crimes; all federal crimes must be statutory). US courts do use common law principles, but the Constitution does not provide for that and does not require it. Certainly nothing in the Constitution would grant some sort of common law power for the CJ to rule in impeachment proceedings outside of Senate rules.
 

To go back to the OP:

Second, the chances that there will be a tie vote at some point are not low. It's easy to imagine three and only three Republican Senators voting with all of the Democrats at some point. (Perhaps to call John Bolton to the stand.)

Does he really believe this?
 

I think so. It takes a while to wrap your head around just how corrupt and dishonest the R party is these days.
 

"US courts do use common law principles, but the Constitution does not provide for that and does not require it."

Yes it does. The Judicial Power of Article III is a common law system. This is confirmed by the mention of "inferior court s" (a common law concept) and the Seventh Amendment's specific invocation of the common law.

The repudiation of common law crimes is a very narrow thing.

But I agree Roberts has to follow Senate rules- constitutional text is clear.
 

The Republicans are no more corrupt and dishonest than all those Democrats who, before the blue dress, assured America they believed Bill Clinton's lies.

That's how impeachment works. It's partisan. Everyone in politics lies for their party
 

"to try and cook up a means of gaining re-election"

This is known as "campaigning". Yes, as a candidate for reelection, Trump should be allowed to campaign.

Sounds to me like you're already marinating in the Koolaid Schiff is dealing out: “The President's misconduct cannot be decided at the ballot box, for we cannot be assured that the vote will be fairly won,” the lunatic said yesterday.

It's darkly hilarious that Democrats continually raved about how Trump wouldn't accept the outcome of the election, (Thinly based on his refusing to commit in advance to not asking for recounts.) when you're publicly laying the groundwork for rejecting the illegitimacy of the 2020 election if you don't win it.
 

I agree that the argument that the language about sole power of the Senate to try impeachments and their rules means the Senate can do pretty much whatever it wants is the more compelling, but I don't think views like martineed's are not reasonable (because while that language is there it also says the CJ must 'preside' (Definition of preside

intransitive verb
1 : to exercise guidance, direction, or control
2a : to occupy the place of authority : act as president, chairman, or moderator), and I've seen arguments with less textual convincing support carry the day in constitutional history
 

The false equivalency about witness exchange re Bolton, Biden(s) is exactly that, a massive false equivalency. If the Senate (or for that matter Trump) is actually worried about the idea the Bidens did something illegal, instead of the obvious reality that its a pre-text to try to defame their chief political rival, then they should be investigated via the normal criminal justice system or the Senate could hold a separate hearing on these matters and forward findings to those authorities. What Biden knows or did is totally irrelevant to the charges, which are those of use of office for selective targeting of a political rival for political reasons. They can't speak to Trump's selective targeting. Bolton, and other officials surrounding Trump's decision making re that targeting and the contemporaneous hold up of aid and denial of meetings can.

This whole argument has been a massive tell of the weakness of the GOP in this situation. Well, more than the weakness. They just want to aid, abett and further the original crime of Trump, that is they'd like continue to defame Biden. But Biden is not an official to be impeached, if they thought the Burisma situation was impeachable they should have gone into that at the time, now he is a citizen and citizens should be investigated, if at all, by normal law enforcement routes. Impeachment asks a non-equivalent question: did the *official* subject to impeachment do something wrong? Biden could be corrupt as a mackerel in moonlight and it wouldn't justify his selective targeting for political reasons, it's irrelevant. The GOP wants to make this about two competing investigations when they're just not commensurate things.

https://slate.com/news-and-politics/2020/01/impeachment-trail-senate-no-conclusion-two-sides-different-investigations.html

 

"I'd like to see them because of the chance of setting off a tit for tat exposure of corruption that ends in mutually assured destruction."

Bircher Brett's dishonesty continues, he's shown he's more than fine decrying (ludicrously imagined though) political hits on the partisans he likes, he just wants to see them and defends them when they're targeted at the side he doesn't like.

Bircher Brett would like to pose as a nihilist (that's disturbing enough) but he's just partisan incoherent.
 

"The Republicans are no more corrupt and dishonest than all those Democrats who, before the blue dress, assured America they believed Bill Clinton's lies."

This is flatly wrong. The Democrats before the blue dress were making the mistake of believing the word of someone they trusted and liked over the allegations of those they felt were untrustworthy and didn't like.

The GOP is in a different situation: they think what Trump did was just fine and dandy. Our Birchers here and GOP congresscritters and pundits have been unabashadely out there arguing that it was fine for Trump to use his office to kneecap his chief political rival because, after all, something's fishy about that Biden thing, y'know? Heck, they've often even defended a quid pro quo to do that (because again, that Biden, he's fishy and squirmy and you have to break some eggs to get that kind of culprit, y'know)? They're not worried in the least about an official using their power for political retrenchment as long as he's breaking the ankles of people 'we know' are bad guys. Of course, were the shoe on the other foot they'd be howling to the moon like wolves in heat, but hey, that's what being partisan incoherent is all about.
 

Oh, and Dilan isn't an evil Voldemort. He's just an a$$hole ;)
 

"What Biden knows or did is totally irrelevant to the charges, which are those of use of office for selective targeting of a political rival for political reasons.

Is it really possible you don't understand the reasoning here?

Per my analogy, the sheriff pulls some guy over for, say, drunk driving. The guy happens to be the son of a likely opponent of the sheriff in the next election.

It looks shady. But if the sheriff can produce proof that the guy was, in fact, drunk as a skunk, the sheriff is in the clear.

Sure, as a theoretical matter he could have pulled him over to harass him, and his being drunk was just a coincidence. But try arguing that and people will laugh at you.

In a similar manner, while it can look sketchy to have the President demanding that somebody related to a likely opponent be investigated for corruption, if there's plenty of reason to suspect they're guilty, and they prove to in fact be guilty, that fact overrides the presumption that it was done for the wrong reason.

Nobody will care that you assume Trump did it for bad reasons, if Biden turns out to have been guilty. Just get used to that.
 

Mr. W: The false equivalency about witness exchange re Bolton, Biden(s) is exactly that, a massive false equivalency. If the Senate (or for that matter Trump) is actually worried about the idea the Bidens did something illegal, instead of the obvious reality that its a pre-text to try to defame their chief political rival, then they should be investigated via the normal criminal justice system or the Senate could hold a separate hearing on these matters and forward findings to those authorities.

False choices.

The only way Ukraine reopening its investigation of Bursima could harm Joe Biden is if they found the Bidens broke the law.

Our law enforcement and Congress have no jurisdiction to gather evidence in Ukraine.

Because you desire a Senate hearing, however, we can have both Bidens testify during the removal trial.
 

"Is it really possible you don't understand the reasoning here?"

Mirror question. In any case, your analogy is faulty for several reasons:

1. The sheriff wasn't specifically looking for his opponent and wouldn't have known it was him.
2. The sheriff caught him in the act.
3. The sheriff didn't ask someone else to stop a particular person.
4. The arrest is an arrest *by the sheriff*, which means everybody can judge his good faith.
5. Guilt or innocence is decided in an impartial court.

None of these factors are present with Trump. He was specifically looking to harm a particular person. That person committed no crime. The ordinary process of law was not followed. Trump kept his actions secret and tried to make it look as if someone else was responsible for the "investigation". There was no impartial court to find the truth.

"This is flatly wrong."

It's worse than wrong, it's insidiously evil (Voldemort-ish, one might say). The various forms this claim takes -- "whataboutism", false equivalency -- are all nihilist, designed to confuse people about a specific case of wrongdoing in order to let the guilty escape.

"This is known as "campaigning". Yes, as a candidate for reelection, Trump should be allowed to campaign."

This is a silly argument. Some forms of "campaigning" are illegal and/or an abuse of power. Trump's was in this case.

"It's darkly hilarious that Democrats continually raved about how Trump wouldn't accept the outcome of the election, (Thinly based on his refusing to commit in advance to not asking for recounts.) when you're publicly laying the groundwork for rejecting the illegitimacy of the 2020 election if you don't win it."

Yes, it's just hilarious when someone who IS guilty of a crime attempts to avoid responsibility by accusing someone else of a crime who is NOT guilty.
 

For sheer idiocy, the claim that reopening its (long dead, long dismissed) investigation of Burisma would "only harm Joe Biden" is if they found illegality takes the cake. Did he learn absolutely nothing about the decades of failed investigations about Hillary Clinton's emails, Benghazi, etc, etc, and their effect on the Clinton campaign?

This is willful stupidity of an order most people could not manage.

And as for Brett's "Trump was just running for re-election"...
 

Bircher Brett's analogy
1. Is not apt, for it to be we'd have to modify it: a neighboring sheriff called up another sheriff and told him to 'do him a favor' and look into the driving habits of the son of the guy running against him, at the same time this sheriff held up task force funds the neighboring sheriff needed; also, there's no evidence of him asking for anyone else's driving habits to be looked into though drunk driving is known to be rife in the neighboring sheriff's jurisdiction.

2. Is not honest or consistent, as we know what conclusions Bircher Brett would conclude were the sheriff in question of a party he didn't like and the son was of a sheriff's candidate he did like. In fact, just last week Bircher Brett created, endorsed and decried the equivalent of a district attorney prosecuting an associate of an official which he concluded should be read as the DA trying a political hit to defame the official. Of course, in reality the DA in question ended up working for the official in question! But Bircher Brett was on board decrying it.

3. Is not relevant, Bircher Brett, our ostensible libertarian, continues to be unable to see that and why target of selective enforcement's criminality is irrelevant to the problem of selective enforcement. If a sheriff only pulls over blacks or Republicans that speed it's no defense against his use of power that the blacks or Republicans in questions were speeding. If an officer is being sued for violating your Fourth Amendment rights the fact that he found something incriminating is not a defense.
 

This comment has been removed by the author.
 

C2H5OH said...For sheer idiocy, the claim that reopening its (long dead, long dismissed) investigation of Burisma would "only harm Joe Biden" is if they found illegality takes the cake. Did he learn absolutely nothing about the decades of failed investigations about Hillary Clinton's emails, Benghazi, etc, etc, and their effect on the Clinton campaign?

Failed? The Clinton investigations confirmed the already public evidence of her gross negligence in Benghazi and her criminal violations of the Espionage Act. The fact the Obama administration did not act on the evidence was a large part of the scandals and did indeed tar Clinton as a swamp creature who was above the law before the election.

In contrast, Ukraine kept its reopened investigation of Burisma largely secret, so we have no idea whether its findings confirmed the public evidence of the Bidens' pay to play operation there. American voters were largely ignorant of the whole affair until the Democrats aimed a spotlight on it to gain a pretext to finally impeach Trump. Gives new meaning to the old saw "cutting off your nose to spite your face."
 

"The only way Ukraine reopening its investigation of Bursima could harm Joe Biden is if they found the Bidens broke the law."

This is ridiculous. To take an obvious example, a suit for malicious prosecution doesn't fail because the prosecution wasn't taken to a conviction. Being investigated itself is of course a harm, this is especially so for a public figure, and here the harm and motive is especially disturbing as it is meant to kneecap a political opponent for reasons of political entrenchment. A tailor made case for the remedy of impeachment as it is meant to and can likely have the result of impacting the electoral remedy.

Of course, ridiculous is what Bircher Bart does. Remember the other day he literally argued that there was no evidence that *Trump asked Ukraine to investigate Biden(s)!* His paranoid conspiracy Bircher nonsense has always been nonsense, but he's strayed into up is down territory now. Remember too he's equally compromised morally in this case, he's on record saying he would support Trump even if he knew Trump had committed murder. This is not a serious person.
 

"The Clinton investigations confirmed the already public evidence of her gross negligence in Benghazi and her criminal violations of the Espionage Act."

Of course this false. An investigation led by GOP operative Comey concluded that she wouldn't even be charged by a reasonable prosecutor, much less convicted. Later reports only confirmed this: https://www.nytimes.com/2019/10/18/us/politics/state-dept-inquiry-clinton-emails.html

Bircher Bart deals in lies like most propagandists, when he's not dealing in partisan inocoherent conspiracy fantasies like most partisan conspiracy kooks.
 

We must remember that Bart does not seek (and probably would not recognize) the truth as it is. He's all about bias confirmation -- he formed an opinion (or perhaps had one formed while he was in his mother's womb) that all "Dems" are bad, and then simply goes sifting through the voluminous material he can find to bolster that belief.

I suppose this style of thinking is not a harmful one -- for a lawyer. But it does make it amusing (in a dark, and satirical sort of way) to read his comments.
 

"American voters were largely ignorant of the whole affair until the Democrats aimed a spotlight on it to gain a pretext to finally impeach Trump."

Bircher Bart is dishonest as an Alaskan summer day is long.

He's argued here on record that the mere facts that 1. Biden played a large role in Ukraine policy as VP 2. Bursima gave Hunter Biden a position and 3. Biden pushed for change in the prosecutor that dealt (among other things) with Burisma is a 'prima facie case' for bribery. Let's put aside that all these structural elements exist in the Trump allegation (1. Trump asks for Z to investigate Biden, 2. Trump inexplicably holds up aid to Z's nation, etc.,) yet he claims in this case there's 'zero evidence' of bribery. What's worse is that *all the things Bart cites as creating a prima facie case of the alleged bribery involving Biden were public knowledge years ago.*

If the GOP Senate was worried about this they have had years to hold hearings and investigate it. If Trump were worried about this he could have asked for investigations during the campaign and then declared, openly and transparently, for an investigation years ago.

Instead, Trump waited until Biden's poll numbers vs. him were consistently showing him spanking him. And the GOP Senate waited until Trump's actions against Biden were exposed.

These are obviously not people worried about corruption in general or even corruption re Biden *except in the context of Biden being a political threat to Trump.* That's the only motivation here, clearly.
 

BD: "The only way Ukraine reopening its investigation of Bursima could harm Joe Biden is if they found the Bidens broke the law."

Mr. W: This is ridiculous...Being investigated itself is of course a harm, this is especially so for a public figure.

Over the past three and a half years, the Democrats have tested your hypothesis by investigating Trump without any evidence of an actual crime.

Did the baseless investigations actually harm Trump or instead rally the GOP and his base around him?

We know what the principals think.

Trump is focusing his campaign on impeachment, holding mega rallies across the swing states and raising record money off the circus.

Schiff's removal argument yesterday boiled down to the voters will reelect Trump unless the Senate removes him and bars him from future office.

 

Bart conveniently ignores the elephant in the room, which is that the Trump supporters and the rest of the populace are different in fundamental ways. Trump voters do not trust "the media" and, like him, are excessively prone to bias confirmation. The fact that Trump's positives have not declined is not proof that he's innocent. Witness his negatives, which have climbed to the point where the positives and negatives are now almost completely dividing the population.

Those who do not support Trump tend to view a candidate more in light of what that candidate says or does, not whether he is a member of their tribe. (Not completely -- there are, of course, large categories of voters on the left who do exactly that -- but not enough to guarantee an election.) This is why instigating investigations is "asymmetric warfare". Tarnishing Joe Biden is far more effective than smearing Trump (who is already about as dirty as any character in American politics in the last century, not excluding Mayor Daley of Chicago and Huey Long...)
 

Mr. W:

Bribery is taking a public official providing a public act in exchange for a benefit with corrupt intent.

The public evidence against the Bidens meets these elements:

(1) Joe Biden was VP with control over Ukraine aid. (Public official)

(2) VP Biden withheld aid until Ukraine fired the prosecutors investigating Burisma. (Official act)

(3) Bursima paid Hunter Biden a million dollars a year for no known work. (Benefit)

(4) The facts are evidence of the corrupt intent.

The public evidence against Trump does not, which is why the Democrats declined to add a bribery article of impeachment.

(1) Trump is a public official with control over foreign aid. (Public official) Your case ends here.

(2) Trump never told Ukraine he was denying it aid unless they investigated the Bidens.

(3) Ukraine raised the Bursima investigation and had no knowledge of the suspension of aid. No quid pro quo.

(4) Even if the Dem allegation was true, public evidence provided a prima facie case the Bidens were taking bribes. No corrupt intent in investigating this.
 

"Bart conveniently ignores the elephant in the room, which is that the Trump supporters and the rest of the populace are different in fundamental ways."

I see what you did there.
 

"None of these factors are present with Trump. He was specifically looking to harm a particular person. That person committed no crime. The ordinary process of law was not followed. Trump kept his actions secret and tried to make it look as if someone else was responsible for the "investigation". There was no impartial court to find the truth.

Biden's Burisma link had been in the news multiple times prior to the call.

You're presuming what an investigation would have determined.

The normal process of diplomacy was followed.

Trump kept his actions so secret that the moment it was requested, he made the transcript public.

Bottom line, if Trump can prove Biden's corruption, can even prove that it was reasonable to suspect it, the request for an investigation becomes presumptively innocent. No matter how strongly you're committed to the idea that Trump had bad motives for asking for the investigation.
 

If there's anything we can be sure of in the entire mess it's that

"The normal process of diplomacy was followed."

may rank as the lie of the century.

 

"Over the past three and a half years, the Democrats have tested your hypothesis by investigating Trump without any evidence of an actual crime.

Did the baseless investigations actually harm Trump or instead rally the GOP and his base around him?"

Bircher Bart gets most things wrong, here 2018 seems to have gone down the memory hole.

Also, the idea the investigations were baseless is hilarious. Remember when Bircher Bart told us so many times the IG report was going to be a bombshell about the 'Obama dirty tricks and spy operation?' Notice he's not mentioned it much since? This is how he works; throw stuff on the wall, see if it sticks, if it doesn't *move on without reflection or apology* to the next stuff to throw. It found "the FBI had an “authorized purpose” when it initiated its investigation, known as Crossfire Hurricane, into the Trump campaign"

https://www.washingtonpost.com/national-security/inspector-general-report-trump-russia-investigation/2019/12/09/d5940d88-184c-11ea-a659-7d69641c6ff7_story.html

Also, let's remember a la Mueller that "The special counsel said the absence of a conclusion on obstruction should not be mistaken for exoneration."

https://apnews.com/94323cfc164c4759ba6bf84ad2a46203
 

"Bottom line, if Trump can prove Biden's corruption, can even prove that it was reasonable to suspect it, the request for an investigation becomes presumptively innocent."

Again, Bircher Brett is being either dishonest or partisan incoherent.

He condemned the prosecution of M. Cohen as an improper attempt to smear Cohen's associate Trump, but Cohen *pleaded guilty to over a half a dozen crimes.* So, he recognizes that improper intentioned investigation/prosecution is not absolved by the fact the target did, in fact, perhaps do something illegal.

To take an example close to our resident conspiracy kooks heart, if you take his proposed principle to heart then he could not complain about the alleged selective review of conservative groups by the IRS *as long as any of them had, in fact, broken a rule.*

But of course, that's not his view, it never has been and will. He's just shilling for Trump as a partisan incoherent.
 

"Trump kept his actions so secret that the moment it was requested, he made the transcript public."

The call record was moved to a top secret storage unit in an attempt to prevent it from becoming known. What he released was not a transcript, and we never have seen an actual transcript. He released it after he was caught, because that's what Trump does -- try to brazen it out.

"You're presuming what an investigation would have determined."

I'm not presuming. There have been multiple investigations into Joe Biden's conduct. They all concluded he did nothing wrong.

But that's the minor point. The real flaw in your argument is that Trump didn't care about the "results" of an investigation. He just wanted an *announcement* of an investigation. He thought that would work like the Benghazi witch hunt or "Hillary and her emails". It would give the R media a hook to destroy Biden for him.

"Biden's Burisma link had been in the news multiple times prior to the call."

All the more reason for Trump to stay out of it. If there was wrongdoing, his own AG was perfectly capable of running a phony investigation into it.

 

Bircher Bart's laid out comparison is easier to knock down than a literal house of cards, but that's to be expected from a man who has shown himself here so morally deranged that he would declare his support for Trump if Trump committed a murder and his intellectual derangement in stating that there's zero evidence Trump asked Ukraine to investigate the Bidens at all.

1. Bircher Bart states:
(1) Joe Biden was VP with control over Ukraine aid. (Public official)
(1) Trump is a public official with control over foreign aid. (Public official) Your case ends here.
The normal, non-deranged person will note the two are structurally the same, yet Bart finds a dispositive element in the second. This is, of course, deranged.

2. Bircher Bart states:
(2) Trump never told Ukraine he was denying it aid unless they investigated the Bidens.
No, but Biden never told Ukraine he was withholding aid *over Bursima,* much less because of Hunter, either. There were as many possible legitimate, non-Hunter appointment related reasons for Biden to oppose the prosecutor involved as there were legitimate reasons for Trump to look into Burisma (in fact more, and more on record).
3...had no knowledge of the suspension of aid

This is laughable. Of course Ukraine would know when the aid would normally be disbursed, and know that it was not. In fact, the record shows administration officials registered their concerns that the hold would run into the end of the fiscal year in violation of law.

4. ...public evidence provided a prima facie case the Bidens were taking bribes

Much public evidence also existed for legitimate reasons for opposing the Ukrainian prosecutor Biden opposed.

Bircher Bart has been caught in his pathetic propagandist lies and /or partisan incoherent claims.

 

"The call record was moved to a top secret storage unit in an attempt to prevent it from becoming known."

It wasn't just this record, though. The Trump administration has amped up the security of ALL its records in general, because "resistance" members embedded in the bureaucracy have been leaking confidential records like there's no tomorrow.
 

There are existing rules for the type of records which are supposed to go into that facility. Those rules were violated.

In any case, the purpose -- certainly in this case and probably in others -- was an attempt to conceal a crime.
 

"The Trump administration has amped up the security of ALL its records in general, because "resistance" members embedded in the bureaucracy have been leaking confidential records like there's no tomorrow."

An the ostensible libertarian defends this? Lol.

"As a libertarian I would like government to hide what it's doing better, it's terrible when it leaks out, because, er, I like mutual destruction and, er, that's the opposite, um,cultural heritage!'
 

"There are existing rules for the type of records which are supposed to go into that facility. Those rules were violated."

And who exactly do you think dictates those rules?


"In any case, the purpose -- certainly in this case and probably in others -- was an attempt to conceal a crime. "

Again demonstrating that you're treating Trump's guilt as given, and reasoning back from that.
 

"An the ostensible libertarian defends this? Lol."

Even in an ideal world, not all governmental communications would be publicly released, and this is far from an ideal world.
 

We need to focus here on what's important.

Our two resident conservatives, much like Birchers, display partisan incoherent tendencies here.

They both decried the prosecutions of M Cohen and L Parnas on the grounds that the prosecutors can safely be assumed to be engaging in the prosecutions to push these Trump affiliates to defame Trump.

Of course, their claim was ultimately laughable, as Birchers are, because of their ignorance (here in the fact that the prosecutor was a Trump appointee).


But what's worse is that they then feel, while their prior opinion is on record, that they are can casually contradict it without copping to it. This demonstrates their general dishonesty and/or partisan incoherent status.

They recognize it's terrible for an official to engage in an investigation/prosecution for political reasons, *even if the target has massive evidence they committed crimes,* in decrying the Cohen and Parnas prosecutions.

They recognize that one can reasonably infer bribery even when there's no direct evidence from the defendant they intended bribery in that they find the facts in the Biden case, with no evidence from the defendant they intended bribery, conclusory, but in the same situation with Trump they cry no conclusion can be warranted.

These are not serious people. They are hacks (at best).


 

""In any case, the purpose -- certainly in this case and probably in others -- was an attempt to conceal a crime. "

Again demonstrating that you're treating Trump's guilt as given, and reasoning back from that."

Me:"decried the prosecutions of M Cohen and L Parnas on the grounds that the prosecutors can safely be assumed to be engaging in the prosecutions to push these Trump affiliates to defame Trump."

These are not serious people. They are hacks (at best).

 

"Even in an ideal world, not all governmental communications would be publicly released, and this is far from an ideal world."

This Bircher Brett's tell: Snowball is out there, so we have to be extra careful in protecting Napoleon.

This is a phony.
 

Bircher Brett and Bart have one principle: Democrats/liberals are bad, their opponents are good.

This partisanship leads to them to be incoherent because, since party officials flip, they have to change the direction of their one principle.

This tendency is primarily a Republican one now. Their arguments in the impeachment hearings have been consistently embarrassing.

Due process!!!! During the House impeachment, arguing Trump needed rights to confront and such there, it was totally embarrassing. This is the analogy to a grand jury where regularly even less defense rights are offered.

But Biden!!! During the Senate impeachment, the argument is 'hey, the selective target of enforcement really did something wrong!' This is ridiculous for reasons I;ve mentioned.

The other GOP talking point is: this is all boring and cynical, note Bircher Bart and Brett have, dutifully, made both points.

Embarrassing.


 

"And who exactly do you think dictates those rules?"

Trump does, within some limits. But he's not the one who ordered it put in the secure storage. That was done by his minions, who recognized that he had committed a crime and were trying to protect him. Trump released the MemCon (a) because he's stupid; (b) he's a narcissist and can't recognize when he does something wrong; and (c) because he insists that everything he does is "perfect" (see a and b).
 

I think it's fair to say our two resident conservatives are examples of strange, disturbing Bircher types. But here's what's interesting: this has become mainstream for the GOP. Why? How does a party become this intellectually and morally deranged? Trump is symbolic and emblematic of such intellectual and moral derangement.

Where would the typical Democrat degrade themselves to think that a prosecutor *two years* into a Democratic administration was *obviously* stacking charges against a Democrat official associate to defame the Democrat official when, in fact, *the Democrat official was the boss of the prosecutor?*

What conditions cause such derangement?
 

The problem with arguing Biden is irrelevant is that this isn't how defense lawyering works. Defense lawyers rarely have witnesses that directly show their clients are innocent, because where such evidence exists, many prosecutors won't prosecute.

It is a time honored defense strategy to make the prosecution look bad, and it is considered an important part of due process that unless such evidence is inherently prejudicial and of no or almost no probative value, they get to put it on.

So if you buy the trial analogies (and you have to in order to justify demanding witnesses), then yes, the defense gets to call the Bidens. Sullying the prosecution is a completely legitimate trial tactic.
 

Let's not forget Bart's moral and intellectual derangement.

He's on record saying he would support Trump if he committed murder. He's on record saying there is no evidence Trump asked Ukraine to investigate Biden(s).

Add that to his gaffes about Iraq, Romney, etc.

This is a man morally and/or intellectually deranged.
 

"This is flatly wrong. The Democrats before the blue dress were making the mistake of believing the word of someone they trusted and liked"


NOBODY with an IQ of 10 or higher trusted Bill Clinton about sex. But Democrats smeared Monica anyway. They were partisans.
 

Dilan, if there is a lawsuit for a 4th amendment search constitutional violation, is the fact that the searcher found contraband on the searched a defense?
 

"Oh, and Dilan isn't an evil Voldemort. He's just an a$$hole ;)"

No. I just call out racism, including on my own side.
 

"NOBODY with an IQ of 10 or higher trusted Bill Clinton about sex."

Silly, hyperbolic dodge.
 

"It's worse than wrong, it's insidiously evil (Voldemort-ish, one might say). The various forms this claim takes -- "whataboutism", false equivalency -- are all nihilist, designed to confuse people about a specific case of wrongdoing in order to let the guilty escape.

And this is the view of the justice system that ends up locking up the innocent.

Defense lawyering is, in many cases, precisely about doing what you condemn here. And defense lawyers protect the innocent as well as the guilty.
 

"Silly, hyperbolic dodge"

You are the one who argued the Democrats believed Bill Clinton told the truth about sex.
 

"We must remember that Bart does not seek (and probably would not recognize) the truth as it is"

Neither does any politician, or most liberals or conservatives on the Internet.

Everyone wants to win the election. Did liberals want the truth about Bill Clinton's sexual predation? No, they wanted to win.

Nobody cares about the truth, and impeachment trials are not about finding the truth.
 

BD: "The only way Ukraine reopening its investigation of Bursima could harm Joe Biden is if they found the Bidens broke the law."

Mr. W: This is ridiculous...Being investigated itself is of course a harm, this is especially so for a public figure.

BD: Over the past three and a half years, the Democrats have tested your hypothesis by investigating Trump without any evidence of an actual crime. Did the baseless investigations actually harm Trump or instead rally the GOP and his base around him?

C2H5OH said...Bart conveniently ignores the elephant in the room, which is that the Trump supporters and the rest of the populace are different in fundamental ways. Trump voters do not trust "the media" and, like him, are excessively prone to bias confirmation. The fact that Trump's positives have not declined is not proof that he's innocent. Witness his negatives, which have climbed to the point where the positives and negatives are now almost completely dividing the population.

My point was a baseless investigation does not harm a public figure (see Trump), not that voter support for a corrupt public figure proves he innocence (see Clinton).

 

"My point was a baseless investigation does not harm a public figure (see Trump)"

Then Bircher Bart should not complained a bit about impeachment (from his deranged point of view)!

Yet...
 

Mr. W is back to his misrepresentations of my posts. Unless responding to one of his posts enables me to make a useful point, I am through with this liar.

For lurkers who are interested in what I have to say, read my posts. If W is commenting on what I say, assume it is a lie and move along.
 

"Nobody cares about the truth, and impeachment trials are not about finding the truth."

"No, Donny, these men are nihilists, there's nothing to be afraid of."
 

No, Bircher Bart said he Trump did not ask ukraine to investigage Biden.

Facts.

I'm willing to link, if Bircher Bart is willing to leave this cite when I do.
 

" there is zero evidence to support the second analogy that the Trump sheriff suggested the Ukrainian sheriff investigate the Biden former deputy sheriff's crimes in Ukraine. I assume this evidence-free allegation to show the allegation itself amounts to nothing."
 

""No, Donny, these men are nihilists, there's nothing to be afraid of.""

Public policy isn't nihilism.

But electoral competition basically is. Amd impeachments are part of the political process, not policy.
 

Say what you will about the tenets of National Socialism, Dude, at least it's an ethos.
 

Congratulations for violating Godwin's Law, Mark.

And again, this shows your complete disregard for any sort of actual concern for the victims of hate. We aren't throwing millions of people into extermination camps. We aren't invading our neighbors. We aren't enshrining an ideology of Aryan supremacy into our laws.

Millions of real people died from these things. And to you, they are nothing more than something to invoke when you are losing a political argument. The debates between the Democrats and the Republicans are simply not the stakes of World War II, or the Civil War.

And it creates a real danger of crying wolf.

You aren't the only one who does this. Right wingers do it all the time too. Bart, indeed, does it a lot. But that's the thing. You think you are better than Bart. But a liberal hawk who trivializes racism and hate is no better than a conservative ones.