Balkinization  

Wednesday, January 29, 2020

The problematics of impeachment (II): Constitutional interpretation v. constitutional design

Sandy Levinson

Because the Impeachment Clause was badly drafted and is the only mechanism, together with the useless 25th Amendment, for displacing an unfit president, it is, of course, the focus of efforts in "constitutional interpretation," a subject that lawyers profess to have some expertise in.  So we are being treated to the back-and-forth especially as to how to interpret the truly unfortunate phrase "high crimes and misdemeanor." This is a source of almost endless mischief, as seen most clearly in Alan Dershowitz's lifeline to Trumpistas.  I share the almost unanimous view that he is incorrect in his belief that impeachment requires either a crime or something close to one, as against, say, unequivocal "abuse" of presidential power.  But let's assume for the moment that Dershowitz is correct.  After al, his textual argument, drawing on the maxims ejusdem generis or noscitur a sociis, is the kind of thing we teach to impressionable first-year students as ways of making sense of not altogether precise texts. Were his analysis offered by a first-year student in a final exam, I think we'd give it a quite high grade with regard to demonstrating a mastery of a certain form of legal rhetoric and advocacy.  The problem is that it is an almost literally insane way to construe a constitution that, in Marshall's words, is "designed to endure" and/or maintain a republican form of government instead of descending into the worst form of elective monarchy.  It means that under his argument, which is now being parroted by Trumpistas, we are stuck with a patently unfit president, whose abuses may constitute clear and present dangers to our national survival even literally, let alone metaphorically, because the abuses do not meet some refined notion of criminality similar to, even if not identical with in terms of seriousness, to "bribery" or "treason."  I repeat:  No sane person would design such a Constitution if the designers were wisely following the Framers' own important instructions, i.e., learn the "lessons of experience" and thus to design a Constitution that we can quite literally live with in the 21st century.  And, by the way, no sane person would believe that the best way to honor the Framers is by endless repetition of whatever they happened to say in the waning days of the summer of 1787, when they wanted to get the hell out of Philadelphia, instead of, indeed, thinking for ourselves, as they themselves did (and which we are unwilling to do).

I have made it crystal clear that I wish we had a "vote of no confidence" provision that would serve, mercifully, to make lawyers nearly irrelevant to the discussion.  We don't.  Why that isn't viewed as a central defect of the Constitution is beyond me, save that lawyers are simply not educated to ask questions about the wisdom of our Constitution.

A second point: My Balkinization colleague Gerard joins the estimable Charles Black in believing that we ought to have a high burden of proof to surmount before firing an unfit president.  Neither adopts "beyond a reasonable doubt" (which is an insane standard for impeachment), but both seem to believe it should be higher even than "clear and convincing evidence."  Why?  Nothing is offered by way of genuine argument.  The answer would seem to require a paralyzing fear of false positives--i.e., misidentifying a worthy president as someone deserving displacement--and therefore accepting a host of false negatives--i.e., keeping in office people who, by stipulation, a majority of the House and even a majority (though not 2/3) of the Senate may agree, on the basis of preponderance or even "clear and convincing" evidence, should be bounced.  What explains such a truly questionable--I'm tempted to say irrational--devotion to presidential incumbents?  Is it the heightened belief that the "people's choice"--at least as mediated through the also idiotic electoral college system--is entitled to extreme deference, even if, by stipulation, polls plus the elected representatives of "the people" have come to agree that the president is in fact unfit (whether or not indictable as a "criminal")?  Perhaps "preponderance' is too lax, though I'm not sure why, especially in a world of political parties where we would continue to need two-thirds of the Senate to convict.

But why in the world isn't the "clear and convincing evidence" that administrative agencies use all the time sufficient?  Is the desire to be even stricter simply another sign of the pathological way we treat our presidents as father figures and our strange incorporation of Josh Chafetz's insight that since impeachment=tyrannicide, and therefore paracide, it should become almost literally unthinkable?  My colleague Jeff Tulis suggests that we'd be far better off as a political system if impeachment had become a fairly normal part of our politics, beginning, perhaps, with the impeachment, in fact proposed by some, including John Quincy Adams, of His Accidency John Tyler, the unfit part of the Tippacanoe and Tyler too Whig ticket that won the presidency in 1840.  I think Jeff is right. We would, at the least, have a more truly adult political system instead of one mired in grand mythology about the importance of presidents and preserving them in office.

 Contrary to what some of my critics have suggested, this doesn't mean moving all the way to a parliamentary system, as much as I might prefer that.  It would mean, though, that Congress could rid us of unfit chief executives who can do (and in fact do inflict) much mischief, as Tyler did, including the unconstitutional annexation of Texas by ordinary statute instead of the treaty that would never get through the  Senate.  Instead, both Cass Sunstein and Larry Tribe offer their tut-tuts at the very prospect of impeaching Tyler and generally adopt what has become the party line that impeachment is a true last resort to be used only in exceptional situations.  Given the power of the modern president--who, incidentally, is prone to declare "exceptional situations" in all sorts of circumstances in order to enhance his own power--we ought to be more willing to try to make sure that we can sleep at night with a given incumbent in office.  Perhaps a well-designed constitution, unlike our own, would spell out not only the criteria for firing a president, but also indicate the level of persuasion that a conscientious legislator--if we can imagine such a thing--would have to achieve.  Instead, we are stuck with a Clause whose practical effect, as demonstrated literally every day right now, is only to increase the justified cynicism of ordinary laypeople people and the despair among lawyers who see travesties of legal argument, at least if the arguments are assessed from anything other than the most truly academic of perspectives,  accepted as the last word by hyperpartisans looking for any port in a storm.



Comments:

The Due Process Clause does not spell out the different burdens of proof warranted depending on the importance of the interest at stake. It doesn't say one is necessary to terminate parental rights as compared to denial of property rights. So, it seems acceptable that the burden in the case of impeachment is a matter of interpretative judgment. As seen in that thread, many of us thought GM was wrong on the merits.

Likewise, high crimes and misdemeanors leaves open removal for abuse of power akin to what Tyler did if that is so understood as invalid. There simply wasn't enough people in Congress that so understood that to be invalid. The bare text doesn't block it any more than it denied rights for gays and lesbians until fairly recently. There has to be a will to do that. Your desire for a smaller majority would help some.

As to the 25A, multiple framers have said it was for a limited purpose and not really for the Trump situation of a temperamentally unhinged type. It was more for someone like Woodrow Wilson who was clearly physically unfit.
 

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Many complicated issues here. The author is right of course, unfit to serve is the right parameter ( for what is beyond clear criminality). But, concerning what the author writes about the " people's choice" and deference to it , it would be worth, to cite the Supreme court, in the case of Nixon ( not the president, but the district judge at the time, concerning impeachment and the power of Congress ) Here I quote:

" The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, James Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179,186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to try all Impeachments." Art. I, §3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its Members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature-the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442. "

One can reach the ruling, here:

https://supreme.justia.com/cases/federal/us/506/224/case.pdf

Thanks


 

I think Sandy's point resonates in this: as Dilan has pointed out other language in the impeachment clauses means, as a matter of legal realism, that this is really a political thing ultimately as the Senate and House can decide what these terms mean for them and that's all that matters in terms of the process and result; however the Framers also put some language in there suggesting this is a legal thing (presiding judge, try, high crimes and misdemeanors [perhaps, I've read this had a well recognized *political* meaning at the time of the Founding]). So it creates some confusion. Perhaps it's best read to suggest that while this is a political thing the legal language is supposed to be a guide or criteria the House and Senate will be now forced to address for political reasons (as their is a strong political pressure to do things 'in line with' how the Founders would have).
 

The 25th amendment is scarcely useless. You wanted it misused to remove a mentality competent President you merely dislike. That's not it's purpose, it is not designed to enable that, but to prevent that.

"I share the almost unanimous view that he is incorrect in his belief that impeachment requires either a crime or something close to one,"

I'm looking forward to seeing your polling data. What was the sample size?
 

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"Perhaps "preponderance' is too lax, though I'm not sure why, especially in a world of political parties where we would continue to need two-thirds of the Senate to convict."

I see "preponderance" as the correct standard, with the 2/3 vote requirement assuring that something more than "mere politics" was at issue. But as Joe pointed out, and as we see in the cases of Tyler and Trump, the standard doesn't matter. As long as a president retains the support of 1/3 + 1 Senators, he's a dictator. In both your examples, the president had the actual support of a majority of the Senate and in Tyler's case the majority of the (outgoing) House too (the Texas resolution did pass Congress). Tyler may well have had the majority support of the country, though Trump does not and never has.

So while the burden of proof is open to dispute, and while I agree with you that too many people impose the "wrong" burden, even a general agreement on "preponderance" as the standard is not likely to make impeachment a useful remedy.

As for the 25th A, I agree with Joe that it's not designed to deal with situations such as Trump's criminal scheme with Ukraine. The fact that Trump clearly suffers from mental defects which should bring the 25th A into play merely demonstrates that partisan supporters won't act in the national interest, just as they won't for impeachment. The Constitution has no remedy for this problem and it's not clear that democracy does.
 

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Sandy: I share the almost unanimous view that he is incorrect in his belief that impeachment requires either a crime or something close to one, as against, say, unequivocal "abuse" of presidential power

Please define what you mean by abuse of a lawful presidential power.

There is no workable definition, which means this is a completely unworkable standard.

This is even more the case when the nation is sharply divided, with each side viewing the acts of the other as an "abuse of power." It is no accident that the two most specious and partisan attempts at impeachment and removal occurred after a shooting civil war and during our current cold civil war. Indeed, many academics who now claim impeachment and removal of a GOP POTUS is proper for anything the Congress views as an a "abuse of power," advocated a far, far higher standard for a previous Dem POTUS who committed four felony crimes.

More than ever, it is in times like these that Congress needs to enforce the actual constitutional standard for impeachment and removal (violations of law on the level of treason and bribery). I suspect a bipartisan majority of the Senate will do so on Friday.
 

Mark, you really need to avoid declaring your political enemies insane, that leads to a really dark place. Today's psychiatry refuses to declare guys with Y chromosomes and a penis who think they're girls mentally ill. Declaring mental incapacity over political disagreements or braggadocio is just absurd.

The 25th amendment gambit was just like trying to suborn the electors: A naked attempt to undo the results of an election that didn't go your way.

"As long as a president retains the support of 1/3 + 1 Senators, he's a dictator."

But, he retains the support of well over 1/3 +1 Senators, precisely because he ISN'T a dictator. He complies with court orders. He doesn't legislate with executive orders. He hasn't had any of his foes disappeared. He. Is. Not. A. Dictator.

Should he start acting like a dictator, he'll lose that support. That he pursues policies you don't like doesn't make him one, any more than it makes him mentally incompetent.
 

When asked what the difference, if any, between the standard of "maladministration" rejected by the Constitutional Convention and the current Democrat standard of "abuse of power" for GOP presidents, Alan Dershowitz took the opportunity to call out the rank partisan hypocrisy of his peers.


 

"suffers from mental defects" is not the same as "insane" and it is targeted to Trump not "political enemies." I gather Mark is not a big fan of a range of Republicans, but he is not saying they all have mental defects that might arise 25A questions. The amendment is set up for clear cases there as seen by the role of the Vice President and Cabinet, so even if Trump is somehow mentally unstable, he isn't so clearly so that it is likely to kick in.

But, he retains the support of well over 1/3 +1 Senators, precisely because he ISN'T a dictator.

Mark was talking as a general rule. Brett is clearly a conservative of a certain type so the range of things Trump is doing is acceptable to him. This leads people like Mr. W. and our long absent now commenter Shag to sarcastically talk about libertarians or anarchists but he at one point honestly said he was a conservative.

Trump does "legislate with executive orders" to the extent executives do that in various ways that Brett types find problematic (selectively). His travel ban (forced to be updated repeatedly in part for this reason) and other things he did was problematic because he stretched what the law said & continuously this was challenged in court. As to court orders, yes, eventually, after breaking a range of rules, the courts restrain him somewhat. But, the courts can only do so much to limit "constitutional dictator" types and the same applies to Trump types.

(The word "dictator" has baggage that I find problematic in part that we have this image of some Pinochet type so a range of bad things seems not dictator-like in that sense.)
 

"Mark, you really need to avoid declaring your political enemies insane"

Trump suffers from obvious mental deficiencies. He's also a clinical narcissist. Whether any of that makes him "insane" is impossible to say because the term is so vague (and not used in the 25th A anyway). But simply because someone else might abuse a vague term doesn't mean I can't point out the obvious.
 

Also, what Joe said.
 

Note the court order thing is a tad circular.

If let's say interning Japanese citizens is accepted by the courts, the act doesn't suddenly become totally legitimate. We then have the ability to confirm a range of judges that do things that might be problematic are deemed legitimate. Dictators repeatedly are able to work within the law. Other acts are not likely to be restrained by the courts much for a variety of reasons. This includes the range of power executives have that are basically political. It is left to Congress to check them, but they often don't really have the will.

The second article of impeachment shows the limits of the courts as well. A blanket obstruction can be limited by the courts only so much. In fact, Trump's own Justice Department says the courts should stay out of it and political means such as impeachment used to protect legislative prerogatives. We are seeing how that is going.
 

"Dictators repeatedly are able to work within the law."

And serial killers buy groceries. But they're not defined by their buying groceries, now, are they? The term, "dictator" gains all its opprobrium from the aspects of dictatorial rule that Trump conspicuously ISN'T engaging in.

The left really, REALLY wants rid of Trump. But not enough people share that conviction that he must go just because he is an obstacle to the left. So you have to pretend that he's things he isn't, to recruit more support.

This leads to absurdities like claiming he's a dictator, or mentally compromised, or that just having a business empire is a violation of the emoluments clause. They're all just excuses to try to recruit more support for the cause of removing him, which is dictated by his successfully opposing you.
 

Mark was talking about a general rule. This is not just about Trump.

Also, people have spelled out the various things Trump and his team is doing. You, a strong Trump supporter, don't agree with the facts. You have repeatedly been shown to be wrong. So be it. Normal stuff really.

Again, though, it isn't just about Trump. We are talking in general here. Yes, people can be unhinged here. See, e.g., the felon talk regarding Hillary Clinton that Mr. W. spent a whole lot of time to refute. Some, some, members of "the right" are a bit unhinged about such things.

"The Left" here yet again is an amorphous mass that once upon a time even included Lindsey Graham.
 

Brett:

A dictator / absolute monarch is an executive exercising absolute power - legislative, executive and judicial.

Although power corrupts and absolute power corrupts absolutely, a dictator's exercise of power need not be predatory.

Trump is not remotely a dictator because he does not exercise absolute power, not because he declines to throw Democrats into concentration camps.

Obama on the other hand...
 



The Founders had an answer for this:

"The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." Hamilton, Federalist 65

"The offences, to which the power of impeachment has been, and is ordinarily applied, as a remedy, are of a political character. Not but that crimes of a strictly legal character fall within the scope of the power, (for, as we shall presently see, treason, bribery, and other high crimes and misdemeanours are expressly within it;) but that it has a more enlarged operation, and reaches, what are aptly termed, political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests, in the discharge of the duties of political office. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law. They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits, and rules, and principles of diplomacy, of departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations, of foreign, as well as of domestic political movements; and in short, by a great variety of circumstances, as well those, which aggravate, as those, which extenuate, or justify the offensive acts, which do not properly belong to the judicial character in the ordinary administration of justice, and are far removed from the reach of municipal jurisprudence." Story, Commentaries on the Constitution
 

"Alan Dershowitz took the opportunity to call out the rank partisan hypocrisy of his peers."

Lol.

He'd know something about that!

https://www.cnn.com/videos/politics/2020/01/20/alan-dershowitz-1998-doesnt-have-to-be-crime-to-impeach.cnn

 

"Should he start acting like a dictator, he'll lose that support."

"I Could Stand In the Middle Of Fifth Avenue And Shoot Somebody And I Wouldn't Lose Any Voters" Trump
 

"The left really, REALLY wants rid of Trump. But not enough people share that conviction that he must go just because he is an obstacle to the left. So you have to pretend that he's things he isn't, to recruit more support.

This leads to absurdities like claiming he's a dictator, or mentally compromised, or that just having a business empire is a violation of the emoluments clause."

Maybe they should go with that he's a secret muslim, or not a citizen, etc?
 

""I Could Stand In the Middle Of Fifth Avenue And Shoot Somebody And I Wouldn't Lose Any Voters" Trump"

You recognize that he lies all the time, but this you think he was absolutely right about?

No, he was wrong about that. We'd give him a chance to prove it was self defense, but if it was murder?

I'd pull the switch on him myself.
 

Look, I think most regular commenters here realize that Bircher Brett and Bart are not serious. They are not to be engaged as serious, honest persons, they are to be at best corrected.

Bircher Brett has argued at the same time that it's completely fine (in fact politically efficient) for government officials to use the powers of their office to target for investigation/prosecution their political enemies. He's also *in the same week* decried that. The only difference were the parties involved.

Let's go deeper. Bircher Brett is on record arguing that while he doesn't think Biden can be said to be guilty of anything that the lack of a move to censure him by Democratic congresscritters shows a lack of good faith. At the same time, he decries the Trump investigation which *structurally* has all the same elements (Biden: son gets job, he pushes for prosecutor ouster; Trump: holds up aid, pushes for investigation into political rival).

This is a man who this very week argued, and decried, an 'abuse of power' by the prosecutor of Michael Cohen and Lev Parnas claiming charge stacking to extract politically damaging information about Trump. Ludicrous as the prosecutor in question is 1. a Trump appointee 2. worked on his transition team and 3. donated thousands to Trump's campaign. Have you seen a mea culpa for this egregious jump to conclusions? No. this is Bircher Brett in a nutshell. There's nothing honest and/or coherent going on with him. This is the mainstream of Trump defense.

This isn't a discussion with an honest person with a political difference, it's listening to a conspiracy theorist partisan incoherent fling propaganda at the wall hoping some of it sticks.
 

"You recognize that he lies all the time, but this you think he was absolutely right about?"

Notice Bircher Brett seems to concede Trump is a serially liar, yet thinks the impeachment effort is baseless, while arguing that what makes it so is that we can't discredit Trump's claimed honest intent.

Wow, or lol? You be the judge.


 

BD: "Alan Dershowitz took the opportunity to call out the rank partisan hypocrisy of his peers."

Mr. W: He'd know something about that!


If the CNN video clip is not taken out of context, touche.

However, I do not trust the Democrats' self-appointed impeachment network as far as I can spit.


 

No, he was wrong about that. We'd give him a chance to prove it was self defense, but if it was murder?

I'd pull the switch on him myself.


Yet we have lawyers for Trump arguing that he has absolute immunity from prosecution, even by state authorities, while in office. So who is this "we" you refer to?

And I must say I rather suspect that you and the other worshipers would accept Trump's claims of self-defense no matter how strong the contrary evidence.
 

Trump is not remotely a dictator because he does not exercise absolute power, not because he declines to throw Democrats into concentration camps.

Only immigrants, so far.
 

Brett: "Should he start acting like a dictator, he'll lose that support."

Mr. W: "I Could Stand In the Middle Of Fifth Avenue And Shoot Somebody And I Wouldn't Lose Any Voters" Trump


You are proving Brett's point.

Voters would rather elect a hypothetical murderer than his opponents openly campaigning on platforms of dictatorship.
 

"Yet we have lawyers for Trump arguing that he has absolute immunity from prosecution, even by state authorities, while in office. So who is this "we" you refer to?"

Yes, we do. And if he loses in court, he'll concede, rather than disobey the court.
 

I doubt you'll ever have to back up that claim, given the current Court.
 

"However, I do not trust the Democrats' self-appointed impeachment network as far as I can spit."

Bircher's don't trust lots of things. And then again they foolishly trust lots of other things. That's what Birchers do.
 

notice both Bircher Brett and Bart 'shrug' at the assertion by the executive of the idea that the executive can commit murder and get away with it.

Bircher Bart says: its better than the other side winning!

Bircher Brett says: if a court tells him this is wrong I'm sure he will abide by it (he just argued we should rely on Trump's lying btw).

These are not serious men.


 

Oh, I wouldn't argue that Presidents can't get away with murder. They absolutely can, as long as they delegate it to the military, and it happens outside the US. Obama shot up a wedding party, and it's not like he sorted the guilty from the innocent before having that missile launched. Clinton had a pharmaceutical plant in Sudan destroyed, which lead to a lot of people dying for lack of vital anti-parasitic drugs. (I don't think it's ever been established that plant also manufactured Aspirin.)

But doing it personally, in America? Still beyond the pale, thankfully.
 

"Yet we have lawyers for Trump arguing that he has absolute immunity from prosecution, even by state authorities, while in office. So who is this "we" you refer to?"

Yes, we do. And if he loses in court, he'll concede, rather than disobey the court.


So do you agree with the argument, or not?
 

The executive branch regularly makes stupid arguments in favor of executive power. I don't like it, but it's not new to the Trump administration.

Did I expect the Trump administration to stop doing it? Only normatively.

The question is, what would Trump do when he gets shot down by the courts? History says, he'd accept it and move on. Not covertly violate the court order, as some past administrations have done.
 

Notice Bircher Brett takes Trump's brazen boast about how his followers will stick after a bold murder and turns it into a Krazy Konservative Konspiracy theory rant about 'Democrats.' He can't even just condemn it. This is not a serious man.
 

I see "preponderance" as the correct standard, with the 2/3 vote requirement assuring that something more than "mere politics" was at issue. But as Joe pointed out, and as we see in the cases of Tyler and Trump, the standard doesn't matter. As long as a president retains the support of 1/3 + 1 Senators, he's a dictator.

Dictators have absolute power or close to it. President Trump is checked by the House Democrats, who can stop his legislation and investigate him, by the courts who can (and do) strike down things he wants to do like the census question, and by the American public, as he faces election in November.

This is one of the reasons I don't think much of you, Mark. You just say ridiculous things. I wouldn't be riding your ass if you said something like "the Republicans are underestimating the harm done by keeping a President in office who thinks it is OK to hold up a foreign aid program to attain a political benefit". There's nothing wrong with that argument, even though it is basically something I think can be settled in the next election.

But instead you say something that must be a lie. I say that because it can't really be the case that someone with your intellect doesn't actually know that there are checks on Trump's power. You say it because it sounds good, because it is a fun talking point. Call him a dictator. Call him a fascist. Whatever.

It's just sad that you can't debate honestly.
 

He's also a clinical narcissist.

Same comment on this. Are you a psychiatrist, Mark? Have you followed the proper professional guidelines for diagnosing clinical narcissism.

Note that it really is the word "clinical" that does it here. Saying people are "narcissists" is harmless political hyperbole. But you turn it into a diagnosis, which you clearly must know you are not qualified to be making.
 

The executive branch regularly makes stupid arguments in favor of executive power. I don't like it, but it's not new to the Trump administration.

Yes or no, Brett. Do you agree with the argument, or is it one of those you deem stupid?

Can you answer please?
 

The blanket obstruction was not "regularly" made to this degree as was pointed out by the impeachment managers & others. Richard Nixon, e.g., was impeached for obstruction for a lot less. Anyway, doing a lot of bad things but eventually -- after years -- stopping if a court order blocks you is again a limited restraint even for your garden variety litigant. Much more so for those in the Oval Office.
 

With the Democrat impeachment circus grinding to a halt into the Senate, Trump will again use the circus as a foil to hold a mega-rally in Des Moines with a crowd dwarfing the draws of his Dem opponents in order to embarrass them before the Iowa caucuses.

I wonder if the FEC will order the DNC to declare the impeachment circus a donation to the Trump campaign.
 

Going to bed now.

Maybe Brett will find time to answer some time soon.
 

Yeah, the claim that Presidents have absolute immunity from prosecution while in office is stupid. I've said so before: The Constitution gives members of Congress very limited immunity, and does so explicitly. It's not reasonable to claim Presidents get greater immunity by mere implication.
 

Brett: Yeah, the claim that Presidents have absolute immunity from prosecution while in office is stupid.

Removing this protection would transform one baseless impeachment circus into a dozen baseless state criminal prosecutions meant to cripple an opposition party POTUS.

During our cold civil war, we should not be expanding the opportunities to wage partisan lawfare.
 

I wasn't discussing whether it would be a good idea for the Constitution to give Presidents some form of immunity. Only whether or not it actually did give them that immunity.

And I see no textual basis whatsoever for the claim.

I don't share our host's growing loathing of the Constitution, but I'm no living constitutionalist, and "it would be a good idea" doesn't mean the Constitution actually means something.
 

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Brett:

Unless a Democrat POTUS is being impeached, most readers agree that the Impeachment Clause standard of treason, bribery and other high crimes and misdemeanors covers, at minimum, criminal acts. Thus, the Constitution offers impeachment and removal as the only remedies for POTUS criminal acts.
 

Again, the Constitution explicitly grants members of Congress quite limited immunity, and nowhere says anything about Presidents having immunity. I refuse to attribute a stronger immunity to Presidents from mere inference, when the founders clearly knew how to grant it explicitly if they meant to.
 

By limiting the remedies for POTUS criminal acts to impeachment and removal, the Impeachment Clause effectively recognizes or extends sovereign immunity to the POTUS while he is in office.

If you believe as I do that sovereign immunity is inherent in the executive power granted the POTUS under our Anglo American legal system, the Impeachment Clause merely recognizes this reality.

If you believe as you apparently do that the Constitution must affirmatively create immunity then the Impeachment Clause can be read to do that as well.
 

Well, I don't believe that sovereign immunity is inherent in the executive power, and I don't read the impeachment clause to affirmatively create it.

I don't view immunity from prosecution as the sort of thing that should be inferred. We do not have a monarch.

Political realities suggest that some degree of protection is needed, but I don't see that as enough reason to read such protection into the existing Constitution.
 

Brett:

When a law provides a remedy for a problem, all other remedies are assumed to be excluded. Expressio unius est exclusio alterius.

What else would you call an exclusion of prosecution for POTUS criminal acts if not sovereign immunity?
 

Yeah, I would call that sovereign immunity, and deny that the President has it.

The impeachment clauses explicitly contemplate Presidents being criminally prosecuted, establishing that impeachment does not invoke the double jeopardy clause. I don't see them anywhere stating that said prosecution must come after impeachment.

If Trump shoots somebody on 5th avenue, he is as subject to being prosecuted for murder in state court as any random Joe. And if the founders had intended otherwise, they would have said so.

Yes, this will produce some problems in an era when state prosecutors are willing to bring pretextual prosecutions for political purposes. Maybe an amendment would be in order.
 

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