Balkinization  

Saturday, February 15, 2020

Accountability at Cooper Hewitt, in contrast with the White House

Sandy Levinson

The New York Times has a fascinating story today about the insistence by the Smithsonian Institution that the director of the Cooper Hewitt Museum in New York be dismissed because of highly debatable allegations of conflicts of interest relative to the purchase of her wedding dress and then the venue of her wedding.  For obvious reasons, I'm not competent to assess the validity of the complaints other than to say that the Times article certainly provides grounds for doubt and curiosity about why the Institution is so adamant, given that the Cooper Hewitt Board is happy with the now ex-director's leadership.  But the real point of this posting is that we now seem to live in a world where it is only the President of the United States who is held unaccountable for behavior that increasingly draws scrutiny and discipline with regard to even high executives of other organizations.  The lout in the White House famously proclaimed, upon taking office, that the laws of conflict of interest don't even apply to him, so that it is irrelevant that he is clearly flouting, at the very least, the spirit of the Emoluments Clause and conflict of interest statutes.  (Of course, Josh Blackman and Seth Tillman have provided legal analyses that the Emoluments Clause simply doesn't apply to the President at all, an argument I'm certainly not persuaded by, though I don't regard it as "frivolous" in a way, say, that is true of Alan Dershowitz's argument about Trump's ability to do anything and everything he thinks benefits his election prospects.)  And, equally "of course," it would be easy to go through the Wall Street Journal and find multiple stories about business executives who have been fired or turn to the sports pages and find stories of coaches who have been suspended, with or without pay, while further investigation of allegations takes place.  There is, I continue to believe, something profoundly wrong with this picture.
The only real defense of the special treatment accorded the President appears to be an almost literally insane reliance on "the voice of the people as the voice of God," so that elections become the exclusive mechanism for holding presidents of the United States accountable.  (No one seems to suggest that Boeing should be have waited for the next shareholders meeting to fire their own chief executive.) Perhaps there should be a special dispensation during election years" that would make us especially reluctant to remove presidents in the last year of their term.  However,  I think that is ultimately indefensible if in fact one has good grounds, as we do, to fear the demented instability of an incumbent.  But I think it is truly idiotic as an argument for a president in say, the first or second year of his/her term, unless we simply want to give up, as I fear that is increasingly the case,  and accept the the notion, propagated by the DOJ, that the most important office holder in the land is unaccountable to any genuine legal or institutional constraints.

I also increasingly believe that the only real answer is to get rid of the presidential system entirely, via my constitutional convention.  It is not that parliamentary government is perfect; that, too, is an idiotic assertion.  But, all things considered, it presents fewer dangers than does presidentialism.  As Max Weber presciently suggested a century ago, Caesarism is built into the DNA of modern presidentialism. Donald Trump merely makes that clear to all but the terminally ignorant (and deplorable).  But one should acknowledge that Barack Obama's campaign in 2008, when I happily supported him over Hillary Clinton, also had a healthy supply of Caesarism, with its large Trump-like rallies and vacuous promises.  And I continue to be genuinely angry at Bernie Sanders, the ostensible "revolutionary," for his resolute (and therefore demagogic) unwillingenss to address the fact that the constitutional system itself makes his pie-in-the-sky promises almost truly irrelevant so far as their actual enactment is concerned.  Though perhaps a Sanders presidency would foment a genuine revolution when his gullible admirers come to realize that not even Bernie can turn the sow's ear that is our constitutional system into a silk purse.

Needless to say, I don't expect anything to come of such criticisms, not only because we inexplicably venerate a truly flawed Constitution, but also because Article V, coupled with our general distrust of popular democracy, makes the idea of a constitutional convention repugnant to most "thoughtful" Americans (including my wife, friends, and professional colleagues).  So, as with Corvid-19, we all have to hope for the best and ignore the fact that there may be relatively little we can do to avoid the pandemic.

ADDITION:  One new point:  We would not be having the conversations we are about the degree to which the Attorney General is merely a lackey and lickspittle of the President were we living in the system found in roughly 45 of our states, where the Attorney General is not an appointee of the governor.  (In Tennessee, the AG is appointed by the state Supreme Court.)  One doesn't have to go all the way to a parliamentary system in order to "unbundle" at least the control that presidents exercise over the Department of Justice.  As Steve Griffin suggests in his thoughtful post below, Barr's paean to DOJ "independence" puts paid to the most truly extravagant theories of the unitary executive, but I certainly don't trust the lickspittle Barr to be anything other than the faithful servant of his master, even if he would prefer fewer tweets.  90% of the American states offer a model--call it, if you wish, "a little laboratory of experimentation"--in how to achieve genuine independence.

UPDATE:  According to the New York Times, six trustees of Cooper Hewitt have resigned to protest the removal of Caroline Baughman.  The official rationale offered by the basically silent Smithsonian Institution is that she violated its conflict of interest rule, which says that "employees must not engage in private or personal activities that might conflict, or appear to conflict, with Smithsonian interests...."  (emphasis added).   I note that the "appearance" standard is notoriously subject to abuse.  Appears to whom?  It requires no evidence at all of actual conflict, so long as someone with power can say "well, it looked like a conflict to me."  Let that go, though, and assume that her acceptance of a wedding dress for $800 (though the designer said that it was far simpler than the one advertised on the Web for $3000) was a conflict.  Continue to ask yourself why the lout in the White House, not to mention the lout who is our Secretary of  Commerce, and the loutish children who  "advise" their loutish father are not treated with any similar sort of scrutiny.  One rarely sees such obvious evidence of the sheer arbitrariness of public standards.  It is no surprise that fewer and fewer people have any regard for what is sometimes called the "rule of law" as an operating ideal (instead of mystifying ideology) in our system.   

Comments:

This comment has been removed by the author.
 

The argument the emolument provisions (there are more than one) don't apply to Trump or presidents is pretty frivolous. I don't think we need to try to put it on the Alan D. scale. After all, Trump supporters even generally use lesser weak arguments than THAT.

The real point is that increasingly it is only the President of the United States who is held unaccountable for behavior that increasingly draws scrutiny and discipline on the part of executives of other organizations.

I don't know. Take Jared "why does he still have a security clearance" (h/t Ted Lieu) Kushner. Richard Hasen cited but a limited way another Trump family member was treated overly softly: https://slate.com/news-and-politics/2019/04/donald-trump-jr-mueller-report-campaign-finance.html Non-Trump examples that doesn't start with the letter "B" can be cited as well. And, limited accountability (e.g., impeachment) can be cited.

But, the concern is justified on a basic level. Even a limited impeachment effort that was not going to likely (dollar and a dream!) lead to removal but had some value imho was alleged to be horrible and attacked in usual bogus fashion by the relevant parties. And, even that took something really blatant.

Until then, shades of "off the table" in the Bush43 years, impeachment was diminished by the leader of the House. We have the same thing now with Barr. It is alleged he did horrible things that go against his basic reason for being there (not limited to lying to Congress) but impeachment? Surely not. That is crazy talk. Thus, even an inquiry that in theory might lead there is seen as not warranted. Again, by House Democrats.

The talk of a parliamentary system is reasonable enough but as with our current Constitution the mere presence of something would not be enough without the spirit and will. We have impeachment, after all, but other than the occasion judge (usually but not only those convicted of crime), it never was really seen as a thing. It being brought out a few times suggested how extreme the situation was.

Anyway, I'll end my remarks here by saying that I personally once the Mueller Report dropped supported a general impeachment inquiry. The various things warranting of inquiry could be submitted to relevant committees with subpoenas, lawsuits and so forth used when appropriate. And, if the need arose, things can be accelerated in the case of the Ukraine Exortion Racket. As to emoluments, the House should hold a hearing and pass legislation addressing the matter, the courts taking years to settle the issue, repeatedly finding some standing problem.

There are things that can be done. I reckon one would be to vote for a Democratic President since more will be expected of them in part since they will themselves accept that.
 

Sandy:

A bureaucratic power play attempting to depose an executive over a wedding dress conflict of interest sounds about as frivolous as the Democrats’ failed impeachment attempt and the now dismissed Emolument Clause suits against Trump.

The Emoluments Cause applies to the POTUS and pretty closely matches the second constitutional ground for impeachment - bribery. The drafters singular fear concerning the POTUS as head of state was a large European nation turning him into a vassal through bribery, a very common tool of state craft. Otherwise, the constitutional convention was content to allow the People to hold the POTUS accountable through elections.

Under the Constitution as written, the POTUS is not a powerful office. Progressive government creating a bureaucracy exercising absolute power outside of the express limits of Article I and the formation of a large standing military made the office more akin to a absolute monarch.

Reverse the progressive state and you reverse presidentialism. I agree with you that this will take a constitutional convention.
 

"The only real defense of the special treatment accorded the President appears to be an almost literally insane reliance on "the voice of the people as the voice of God," so that elections become the exclusive mechanism for holding presidents of the United States accountable."

This doesn't seem a very likely defense of Trump, given that he lost the popular vote. The vox populi spoke and it rejected him.

The argument, I think, gets made that it's the *next* election which should be treated as definitive. At least that's the argument I see from the nihilist caucus here. It's both a stalling technique and based on the hope that the Rs can corrupt it just enough to squeak by in the EC.
 

As for an independent AG, I'm not sure how that would work. Once it becomes a partisan office, voters will treat it as one and want one of "their own" there. Possibly not one as corrupt as Barr (or Meese or Mitchell*), but hardly impartial. As far as letting the courts pick, well we saw how that worked when the DC Circuit choose Ken Starr. I would expect even less from the current Supremes (though there might have been a 4-4 split in the circumstances; but that's mere chance).

*And as I think about it, the AG position has had a sad history of really awful occupants.
 

The Emoluments Cause applies to the POTUS and pretty closely matches the second constitutional ground for impeachment - bribery.

Bart,

Blackman and Tillman say otherwise. They write:

The Foreign Emoluments Clause provides that “no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”..... Plaintiffs cannot point to a single judicial decision holding that this language in the Foreign Emoluments Clause, or the similar and more expansive phrase, “Office … under the United States” used in other constitutional provisions, applies to the president. Rather, the text and history of the Constitution, and post-ratification practice during the early republic, strongly support the counterintuitive view: The president does not hold an “Office … under the United States.”

To come to this bizarre conclusion they produce an Escherian taxonomy of "offices" and "officers" and whatnot, all to prove that the Constitution exempts the President - the most powerful individual in government, the one capable of doing the most harm - from the clause. pace Sandy, as a layman I would say only a law professor could regard the argument as "non-frivolous."
 

The addendum shows the complexity of solutions since a parliamentary system can get you an AG that is part of the team. One possibility there is a bit of unity ticket where there is more likelihood of independence in each department. Guess one would have to look at how things work there in various parliamentary systems.

An elected Attorney General leads to various possible results. You might even have an AG (as is sometimes the case in the states) of a different party than the executive. This can cause some complications. A character like Barr can come in electorally if the people support a "ticket" for instance as well. So, it might be a reflection of the party system as well. Barr's tendencies were well known before he was confirmed too. But, the Republican Senate (with a few Dems) did so anyhow.

So, perhaps a mixed bag solution.
 


Interesting, important, and as usual, written with great talent. Yet, there is no need to exaggerate.Such presidentialism has clear limits. The voice of the people, is also vested in the constitution and its provisions. And first, he ( the president) must "take Care that the Laws be faithfully executed ( Section 3, Article II ) means, he is bound simply, by the rule of law.

And, the constitution provides, more than clear and decent standard of behavior, when dealing with conflict of interests. And it is indeed, the emolument clause. It dictates clearly, and absolutely so, that the president, should not even avoid a state of conflict of interest, but, must avoid future potential conflict of interest. That is why, he can't accept any gift, even without granting back nothing in return for it. But,at first place, the very acceptance of gift, is constitutionally forbidden.

The real solution or problem rather, lies, in the lack of " public petitioner " doctrine. One must bear concrete and personal injury in order to petition federal courts. If, as in other states, the public could petition the court, just in the name of public interest, or public trust, it could do much. The court should intervene simply, in the name of the public. Surly then, the author of the post, would become very busy man then it seems.

Thanks
 

Having written a good deal about Tillman’s theory regarding the Foreign Emoluments Clause (the Domestic Emoluments Clause applies explicitly and solely to the president), I will note that while it may not be “frivolous” in the Rule 11 sense, it has not been asserted by either Trump’s private or government lawyers.
 

Boris Johnson has appointed an Attorney-General, Suella Braverman, who is a member of a crackpot *Buddhist* sect (https://www.theguardian.com/politics/2020/feb/15/new-attorney-general-suella-braverman-in-controversial-buddhist-sect). She should fit right in.
 

I think the idea that Presidents aren't subject to the emoluments clause is about as crack-pot as the idea that ordinary business profits are "emoluments". They can be laundered bribes, certainly, (Though you'd have to establish that!) but "emoluments" are something else entirely, direct payments to office holders. If you want to see what "emoluments" really look like, take a gander at the Chinese funding scandals at our universities. There's some emolument action going on there.

I'm bothered by the degree to which the trappings of monarchy have grown up around Presidents. They're more like temporary kings than simple executives these days. Supposed immunity from prosecution, given massive privileges such as having traffic cleared for them.

But that's no excuse to warp constitutional rules in an effort to remove a President one dislikes for political reasons. Especially when it's obvious that, as soon as somebody acceptable to those doing to warping occupies the office, the rules will go back to normal.
 

As for an independent AG, I'm not sure how that would work. Once it becomes a partisan office, voters will treat it as one and want one of "their own" there. Possibly not one as corrupt as Barr (or Meese or Mitchell*), but hardly impartial. As far as letting the courts pick, well we saw how that worked when the DC Circuit choose Ken Starr. I would expect even less from the current Supremes (though there might have been a 4-4 split in the circumstances; but that's mere chance).

www.kubayar.id
 

"But that's no excuse to warp constitutional rules in an effort to remove a President one dislikes for political reasons."

Of course there was no real effort to remove this President because he's disliked for political reasons. It's safe to say the Democrats had strong political dislikes of the President over tax cuts, immigration policy, etc.,. It was only when the President was caught asking a foreign government to investigate his chief political rival while he was holding up funds to that government in what was concluded to be an illegal fashion that there was a call for impeachment.

And this play into what joe was talking about: whatever the Constitutional set up when you have lots of people like Bircher Brett and a lot of the GOP base you're going to have this kind of problem. These were people who have chucked their moral compass to support this President because they feel he will protect them from the continual existential crisis to all that is good and holy that conspiracy theorists live in as well as the perpetual persecution complex they have (the MSM picks on us and our President! academe picks on us and our President! the coastal elites pick on us and our President! etc.). As a result these people didn't do the decent thing and admit that Trump's actions *at the least* invite charges of impropriety, they doubled down and backed the President that his actions should not only be excused, but also *justified*. That, of course, has emboldened him further.

No constitutional change is going to fix that kind of moral partisan incoherence.
 

joe-states have AG's from different parties of their governors all the time, so I'm not sure I see the problem there.

el roam-I very much agree that the lack of citizen suits and our current standing doctrine in general undercuts much of the Constitution.
 

joe-states have AG's from different parties of their governors all the time, so I'm not sure I see the problem there.

Sure. All I said there is that it can cause complications & it has though perhaps this would be seen as beneficial.
 

So, it is granted that the emolument provisions apply to the executive. It's an Obama moment! We don't have Bircher America or a "the Left" America! Yay!

"emoluments" are something else entirely, direct payments to office holders

So, let's say Boss Hogg is running Hazard County with Roscoe P. Coltrane while always being pestered by those Duke boys. Hogg says he is a civic minded type & doesn't take a salary. But, he gets a lot of profit from "direct payments" as an "office holder" from various personal businesses (maybe he puts nominal control in relatives), in part because the people involved figure it will help get some influence.

Yes, this is part of the concern for corruption that the emolument provisions in place are meant to address. Direct money payments in the form of bribes wasn't the only traditional method of graft here. An emolument of "any kind" from a foreign state/royalty or "any other" emolument from the U.S. or any state is a broad protection against corruption here. Words matter there.

But, clarity is best obtained by legislative enabling acts & I think as with other things recent events suggest we need more clarity though of course it will only help so much. It is one of many constitutional matters where the specifics develop some over the years as well. https://fas.org/sgp/crs/misc/IF11086.pdf Still, if that won't happen, litigation can be an appropriate imperfect substitute. The length of time of litigation alone, however, shows it is rather imperfect.

I'm bothered by the degree to which the trappings of monarchy have grown up around Presidents.

Ah. More agreement. Oh wait ...

But that's no excuse to warp constitutional rules in an effort to remove a President one dislikes for political reasons. Especially when it's obvious that, as soon as somebody acceptable to those doing to warping occupies the office, the rules will go back to normal.

"Political" has many meanings. Alexander Hamilton:

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.

But, the implication is more "wrongly partisan." But, as seen in the Mueller Report [signed off by Robert Mueller, a lifetime Republican, FBI head appointed by George Bush Jr.], as but an example, that is a weak case to make.

From Nixon to Trump, multiple Republicans were in power. Two were targeted seriously for impeachment. Multiple Democrats. One. In both cases, business as usual was not the case though in the case of Clinton, his actions did not warrant impeachment. (In this #MeToo Era, it would have been somewhat of a closer call, I think, taking everything into consideration).

But, physician heal thyself. A consistent application of the rules would cause Trump to be deemed a problem, even if "so was such and such." Thus, former supporters of Jeb Bush or writers of the Weekly Standard or the Republican candidate for President or whatever agree Trump is specifically wrong.
 

"Of course there was no real effort to remove this President because he's disliked for political reasons."

As I've related before 58% of Democrats favored impeaching Trump in the earliest poll I could find, only a couple weeks after he took office. There was talk of impeaching him well before he took office.

Groping around for excuses doesn't change that he was impeached for not being Hillary.

A small minority of Republicans also wanted him impeached for political reasons: Not being the establishment's pick. Still political.
 

Because Brett considers himself an "originalist", I'm surprised that he failed to read John Mikhail's posts here conclusively demonstrating that Brett's narrow view of emoluments is contradicted by the original meaning. If Brett wants even more detail, he could read the briefs the Mikhail and other scholars have submitted to the courts hearing the emoluments cases.

"As I've related before 58% of Democrats favored impeaching Trump in the earliest poll I could find, only a couple weeks after he took office. There was talk of impeaching him well before he took office."

There was talk of impeaching Hilary before the election too. I don't know what "talk" is supposed to import here. As for those favoring impeaching Trump shortly after he took office, that's *because he's been committing impeachable offenses since before the election*. That said, as with the "talk", I fail to see how this is relevant. Even after the Dems took control of the House, they did nothing until Trump began trying (for at least the second time) to use foreign influence to corrupt an election. And that's ignoring all his other offenses against the Constitution, essential norms, good government, and sheer common decency.

 

Yes, Bircher Brett doesn't disappoint. He illustrates my point. The impeachment brought up some truly pathetic 'arguments' from those that opposed it, and one of the most so was this slogan-esque 'he's being impeached for not being Hillary' or for winning the 2016 election.

No one likes it when their party loses. And when the loss involves something like a popular vote win/EC loss or, as in 2000, the addition of a partisan SCOTUS decision, then there's going to be a pall of illegitimacy over the winner's head from the viewpoint of many on the losing side. But as Mark notes the idea of 'talk' of impeachment =/= any actual effort. I mean, Democrats were furious after W's win. He too lost the popular vote and SCOTUS turned in a silly, partisan-drenched opinion to deliver it. After the Iraq debacle many Democrats thought W was a bona fide war criminal. But he wasn't impeached. If the Democrats were looking to impeach someone for 'not being [insert Democratic candidate here]' or winning a close election then W would have been that person.

But he wasn't. The difference, of course, was what Trump *did*. And if Birchers like Brett weren't morally deranged they would admit that at the very least what Trump did was invite the charge that he was subverting the next election (which is the *epitome* of an impeachable offense because it undercuts the more normally accepted electoral option of getting rid of a bad President).

As I said, being morally deranged the GOP base wouldn't adopt the somewhat reasonable position that Trump's behavior could somehow be excused. Instead they went on to argue it was actually *justified.* This is a loss of moral compass. And it of course has emboldened this President to a dangerous degree.
 

Mark, note that Bircher Brett called for Biden to be censured during the impeachment debate, in fact he argued that the fact that Democrats weren't willing to join in on something like that showed they were conducting a partisan witch hunt event.

Now, Bircher Brett has had to admit that he can't fully conclude that Biden is guilty in a criminal sense, it's just that the situation of 1. Biden's son getting a benefit from Burisma and 2. Biden calling for the prosecutor of Burisma to be dismissed 'stinks.'

But note, the *exact same structural situation exists* not only for Trump re impeachment (we know he 1. held up a benefit to Ukraine and 2. asked for a benefit from Ukraine) but *also* re emoluments (where we know governments that 1. want to be in Trump's favor have 2. bought the services of Trump's businesses)! But in the Biden case Bircher Brett assumes the element of bad mens rea while in the Trump cases he loudly proclaims 'but there's no concrete evidence of bad mens rea!'

In fact, it gets worse: this is the same guy who took the situation of the prosecution of Lev Parnas and Michael Cohen and jumped to the conclusion that the prosecutor in that situation must have a bad mens rea of trying to extort dirt against Trump from those men! Bircher Brett was ignorant of the fact that the prosecutor was a Trump appointee who had donated thousands of dollars to the Trump campaign and even worked on Trump's transition team, so this was not just a partisan incoherent jump to conclusion, but an especially absurd one.

These are morally deranged, partisan incoherent people we're dealing with here. The have no standard other than to protect Trump, and given he's a lecherous, amoral, vulgar buffoon that leaves them with little more than that for standards at all.
 

In other words, if Birchers like Brett weren't so deranged morally and partisan incoherent they'd have to admit that what Trump seemed to have done looks 'stinky' in the exact same fashion* as what they howl about easily when it involves their Democratic foils. But they don't, won't and/or can't. And so instead of acknowledging that Trump was treated different because he seemed to have been caught in a different order of challengeable behavior they have to trade in ridiculous slogans like 'witch hunt' or 'he's being impeached because he's not Hillary!'

It's pathetic.

*to them that is, I'm assuming arguendo the factual situations they set out re Biden and such, which of course is questionable
 

I think history provides some value in interpreting the Constitution but find "originalists" too often enjoy Calvinball. Appeals to a specific historical analysis, skillful and accurate as it might be, won't do much to improve this. As seen in the voting/ballot discussion, what is seen as proper is asserted and history will not do much to challenge this.

I think Mark's statement on impeachment is correct as a whole. The talk of it being "political" in part is a matter of only one party dominating the opposition. As noted, more so than usual, they do have support from others. But, only so much. So, it is seem as "political" or partisan. It brought to mind Lincoln at Cooper Union:

You say we are sectional. We deny it. That makes an issue; and the burden of proof is upon you. You produce your proof; and what is it? Why, that our party has no existence in your section - gets no votes in your section. The fact is substantially true; but does it prove the issue? If it does, then in case we should, without change of principle, begin to get votes in your section, we should thereby cease to be sectional. You cannot escape this conclusion; and yet, are you willing to abide by it? If you are, you will probably soon find that we have ceased to be sectional, for we shall get votes in your section this very year. You will then begin to discover, as the truth plainly is, that your proof does not touch the issue. The fact that we get no votes in your section, is a fact of your making, and not of ours. And if there be fault in that fact, that fault is primarily yours, and remains until you show that we repel you by some wrong principle or practice.

Removal by impeachment is a 2/3 matter. So, you only need a fraction of the other party if something is seen as particularly egregious by one party in such a way that it unites them. Numbers-wise alone, the Constitution allows removal to be fairly partisan to that degree. But, regardless, the fact one side alone is willing to accept the truth and justice is granted here really.

That is a sad and tragic affair. But, the Democrats still come out better in the end all the same.
 

"Mark, note that Bircher Brett called for Biden to be censured during the impeachment debate, in fact he argued that the fact that Democrats weren't willing to join in on something like that showed they were conducting a partisan witch hunt event."

Right. And you've shown his hypocrisy on that score. Then there's the fact that Brett and his fellow conspiracy theorists have the facts exactly backward when it comes to Joe Biden: Joe (carrying out Obama's policy) pushed to have the prosecutor fired because he was NOT investigating Burisma, not because he *was*. Joe's conduct was the exact opposite of the corruption we see from Trump, Barr, Giuliani, et al. Because whatever his faults, Joe Biden is fundamentally and honest and decent person.
 

"I think history provides some value in interpreting the Constitution but find "originalists" too often enjoy Calvinball. Appeals to a specific historical analysis, skillful and accurate as it might be, won't do much to improve this. As seen in the voting/ballot discussion, what is seen as proper is asserted and history will not do much to challenge this."

Originalists are, in this respect, like libertarians or Marxists. If the facts contradict the theory, so much the worse for the facts.
 

Joe: Democrats still come out better in the end all the same.

You mean apart from the polls, voter turnout and campaign donations?

The Democrat crime-free impeachment circus was one of the great unforced political errors of modern times, an in kind donation to the Trump reelection and House GOP election campaigns.
 

“These poll numbers are GREAT news for John McCain!!” - Blankshot Bart

Bart, you’re a fucking moron.
 

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Mr. W:

(1) This operation to stop and then depose Trump began in July 2016.

(2) When three years of unofficial and official spying failed to turn up anything of consequence, the Democrats gave us the first impeachment without evidence or even allegation of a POTUS crime.

But you already know this.

What you post is, thus, either dishonest or delusional.
 

Even at TakeCare, (Which is hardly in support of Trump!) they think that at least the way it was done was a mistake.

You don't try to impeach a President without bothering to build a solid evidentiary record, unless you just don't care if he's going to be acquitted.

And if you don't care that he's going to be acquitted, you're impeaching for the wrong reasons. Using impeachment as a PR tactic in the campaign, not for its own purposes.
 

I assume Brett's advice applies to some alternate universe, rather than ours which laid out an incontrovertible case that Trump was guilty and the Senate Rs violated their oaths.
 

Even at TakeCare, (Which is hardly in support of Trump!) they think that at least the way it was done was a mistake.

Or one person there. The fact that there is debate there is duly noted in part since as I noted that the Democratic caucus at the House of Representatives (moving past some poll) was divided on impeachment and only decided to go that route after mid-summer. Suffice to say, various things argued by that person is to me somewhat off.

You don't try to impeach a President without bothering to build a solid evidentiary record, unless you just don't care if he's going to be acquitted.

There was a solid evidentiary record. Thus, multiple Republican -- who are loathe to ever seriously call Trump to account -- senators said what he did was "wrong and inappropriate." Lack of evidence isn't the reason the senators didn't vote to convict though they only did so after refusing -- for the very first time -- to have witnesses and documents. Thus, in the process, the whole thing was tainted.

And if you don't care that he's going to be acquitted, you're impeaching for the wrong reasons. Using impeachment as a PR tactic in the campaign, not for its own purposes.

Sometimes, you prosecute even though there is an uphill case to convict, and prosecuting a police officer or a rapist or whatever that over the years showed there was a long shot of conviction was deemed worth it. You do it anyway for various reasons, not just "PR," including to bring forth a limited form of justice.
 

Incontrovertible, except that it persuaded basically nobody who didn't already have it in for Trump. That's not what "incontrovertible" looks like, Mark. That's what a partisan case that persuades only partisans looks like.

They charged him with obstruction of justice for not complying with demands they didn't even bother going to court to enforce. And for making "demands" of Ukraine which Ukraine didn't seem to realize were demands, didn't comply with, and still got the money.

Look, I understand you don't like Trump, and assume he's guilty of basically anything somebody might accuse him of. Even the tiniest fig leaf and you're persuaded that the case is proven.

But prosecutors don't normally bring cases to trial where nobody but the defendant's enemies will see the case as proven, and blow off gathering evidence that could prove their case to people who don't start out convinced of the defendant's guilt.

That's not how you do things if you're bringing a case with the goal of convicting. That's how you do things if you just want to be able to say your opponent "was impeached" going into an election.

IOW, the real malfeasance here was the House initiating an impeachment, not for impeachment's legitimate ends, but for political ends.
 

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"Incontrovertible, except that it persuaded basically nobody who didn't already have it in for Trump. That's not what "incontrovertible" looks like, Mark."

You say this a lot and you obviously think it means something, but it's nonsense. First, standards of proof are always objective, so the proof exists whether or not you personally choose to believe it. Second, you constantly re-define the category "those who have it in for Trump" to be an ever-shrinking group and thus your test becomes conveniently impossible to meet.
 

incontrovertible ...

Republican senators, including those who already announced support of Trump's reelection, said what he did was "wrong and inappropriate." The fact they still didn't vote to convict after (even though a supermajority of the public, not just those "in it for Trump," wanted it) after refusing to have documents/witnesses, is noted. After, about a majority of the public (not just Democrats) supported removal.

By Brett's light, if a Democratic president blatantly commits impeachable offenses, in such a way that it harms our basic institutions, the evidence being clear, the wrongdoing not even granted by some non-Democrats but even partisans in Congress, it is a "partisan case" if Republicans in Congress only (maybe with a few spare Democrats) are willing to convict. As Lincoln said, so be it on some level. Reality is still reality even if one party refuses to do their duty.

They charged him with obstruction of justice for not complying with demands they didn't even bother going to court to enforce.

They charged him with obstruction of Congress for a blanket obstruction of the sort like no previous occupant, not even Nixon (who was impeached for less). Trump's people said they shouldn't go to court. In court, where yes the Dems did go in part, Trump's lawyers pointed to political solutions instead, including impeachment.

And for making "demands" of Ukraine which Ukraine didn't seem to realize were demands, didn't comply with, and still got the money.

Attempted murder isn't murder if the attempt eventually failed. The fact one side, for partisan reasons, makes absurd arguments is a partisan effort. Yes, it's wrong.

Look, I understand ....

you like Trump and want to use Trump Law in his favor and refuse to grant the obvious that the Democrats had a lot of things to use against it but only impeached after an extended period of time and repeated wrongdoing of a particularly blatant variety.

But prosecutors don't normally bring cases ...

There was plenty of evidence and especially when there are time sensitive reasons to prosecute, including concern that the person will for a third time threaten public safety, they might choose to prosecute sooner. Not only the "enemies" of Trump thought what he did was wrong and inappropriate. A majority of the public thought he did something wrong and going by polls even warranting removal. Not just those who "hate" him. OTOH, if someone earns ire, it is not wrong either.

That's not how you do things...

It's what you do to the greatest thing the Constitution has to show that someone did not just do something of a discretionary bad policy matter but broke basic constitutional right and wrong. Like in many cases, you might not win it all, but the effort might be worth it. Like when a police officer abused a suspect and just not prosecuting, though winning is a longshot, is seen as just not appropriate.

IOW, the real malfeasance ...

Impeachment overall is a political act as noted above but no the real malfeasance was the acquittal, at the very least by a sham trial without witnesses and documents provided, like (suddenly precedent is not important to partisans, "I understand") was always the case in the past.
 

"There was plenty of evidence and especially when there are time sensitive reasons to prosecute,"

It was so "time sensitive" that Pelosi sat on the impeachment for weeks after holding the vote.

I've said before that I'd have preferred witnesses. I simply predicted that there wouldn't be any due to it not being in the political interest of the Senators.

But, sham indictment, sham trial. Seems appropriate somehow, even if not ideal.
 

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It was so "time sensitive" that Pelosi sat on the impeachment for weeks after holding the vote.

As compared to waiting until after the election, yes "weeks" isn't really a convincing rejoinder here, especially since the trial wasn't going to occur around Christmas. It occurred around a week or two later than it otherwise would have. And, weighing everything, holding it a bit longer was net useful to advance the goals of a trial such as more things coming out. And, still doing so before the election cycle began.

I've said before that I'd have preferred witnesses. I simply predicted that there wouldn't be any due to it not being in the political interest of the Senators.

Yes, for partisan reasons Republicans had a sham trial. When one side allegedly does this, you are on high dudgeon. When your side does, it is "oh well, sorta unpleasant, but what can you do"?" Your Trump Law hackery is duly noted.

But, sham indictment, sham trial. Seems appropriate somehow, even if not ideal.

Not a sham indictment including having Republicans involved in the investigation down to the Vice President's brother. But, I appreciate you admit the trial was a sham, so the acquittal was as well. It is of some value for that to be on the record.
 

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