Monday, August 28, 2017
Why impeachment and the 25th Amendment are not sufficient safeguards against a truly terrible president
This morning I posted a lament, at the Democracy Journal, that our Constitution does not include a procedure for firing a dangerous president via a vote of no confidence by Congress. (Although I don't discuss it there, I'm also open to the project of a national recall election, but that is obviously more problematic than a congressional solution.) Given that I have been a critic of the Constitution now for over a decade, I am often ask what my number one criticism is (given that I have so many). Inevitably the answer shifts, depending on the great issues of the moment. But right now, at least, I have little hesitation saying that the main defect is that we are confined to talking about impeachment and invocation of the 25th Amendment, each of which presents specific difficulties, and that we have no way of putting pressure on our ostensible representatives to vote no-confidence in a scoundrel. Perhaps the biggest advantage of such a procedure would be that lawyers would be only minimally involved, unlike impeachment, where we are guaranteed to have shouting arguments about lots of basically irrelevant issues, including original intent and the original meaning, public or otherwise, of "high crimes and misdemeanors."
whether we would really be worse off if we could fire, by a 2/3 vote of Congress, a president who did lose such public support as to make the firing politically viable
Not really but don't think 2/3 of this Congress would fire Trump now.
There is a discussion now over at Take Care Blog, including at least one who references Sandy Levinson, regarding Josh Chafetz's new book.
There are ways for Congress to restrain Trump more than they are that doesn't include removal. This includes things like not confirming a Supreme Court justice in the middle of an investigation of Russia's involvement with key members of administration. 1/3 of the Republicans don't seem to have much of a will to do them.
(The post is basically based on the hypo that such a removal power is necessary, so we would here assume the investigation has a strong basis of validity behind it.)
There is nothing dangerous about a vote of no confidence requiring a 2/3 vote of both the House and Senate because it would be impossible to achieve such a vote.
The Senate did not come close to reaching the 2/3 threshhold to remove Clinton for multiple felonies. How will the Senate and House reach 2/3 to remove a President for being "unpopular?"
The state of New South Wales established an independent commission against corruption in 1988. The state has had 8 premiers (not counting the incumbent) since ICAC was established. 2 have resigned after adverse ICAC findings. All Australian states have since established ICAC/integrity commissions.
In South Africa the public protector has successfully forced President Zuma, a rather Trumpian figure, to pay back the costs of massive home improvements which were justified on security grounds.
There is very little point in empowering a partisan congress to remove the president in new ways, There may be a point in establishing by constitutional amendment, a public protector or integrity commissioner who would be outside the reach of the president's removal powers.
Suppose we were to write the impeachment clause more clearly, such that "maladministration" or "evident unfitness for office" were made part of the clause. Would that really differ from the proposal here?
I agree with Joe though: regardless of the nature of the clause, the Rs will continue to protect "their asshole". If the votes aren't there, formalism will never be more than a paper barrier.
I think "evident unfitness" would probably be more of an expansion of the 25A (which was drawn clearly to address medical type reasons, but is phrased in an open-ended way as Laurence Tribe argued) while "maladministration" would be an expansion of the impeachment clause. The latter is more narrowly drawn though one can suppose maladministration so bad that basic presidential duties ("take care" etc.) are not handled adequately. There is some overlap there.
I think as structured that impeachment provides for a naturally expansive process, requiring two steps including a trial, which especially these days suggests an extended period of time. A simple no confidence vote would be quicker.
I think it's hard to imagine this making a difference except in bad ways. I just don't see more than a handful of congressmen voting to kick out a President of their own party for a non-impeachable offense or some sort of incompetence that isn't bad enough to invoke the 25th Amendment. So this only works with massive opposite-party majorities. But then it just looks like a party taking advantage of its success in midterm elections for partisan reasons, with little support from the other side of the aisle.
I really don't see the point in adding another supermajority process for removing a President, when we already have one that is widely understood to be applicable to anything that supermajority thinks disqualifying.
I think the real substance here is in your suggestion that using the process should oust the VP as well, to be replaced by somebody selected by Congress. The meat of your proposal is to switch us to a parliamentary system where the executive is chosen by the legislature. Only you'd sort of conceal it, by allowing the voters to select the executive so long as they selected somebody the legislature didn't object to.
Don't you kind of need to address the dysfunction of the legislative branch, (Year after year of continuing resolutions instead of budgets, for instance.) before proposing to make it even more powerful?
What about the possibility that Pence would be worse because the Republicans would get their agenda enacted into law?
By the way, kudos to you for recognizing that the failure of the Clinton impeachment demonstrates that the impeachment process is broken, in as much as Clinton was known to have committed multiple felonies in office using executive branch resources.
The optimistic interpretation of that failure is that at least one party has decided that impeachment is a purely political act, not quasi-legal, and that nobody of their own party shall be impeached so long as they have enough seats in the Senate to block it.
The pessimistic interpretation of that failure is that it really was the "Ellen Rometsch strategy"; That is to say, Clinton was saved by blackmailing members of Congress, using information uncovered by intelligence services. There is, unfortunately, considerable evidence to support this, and it's particularly scary because there's no reason only Clinton could do this, or that a departing President would lose that weapon.
The problem, of course, is that in either scenario, it isn't actually the impeachment process that's broken, it's the body that carries out impeachments, Congress.
The very same body that would carry out your proposed removal process.
Why wouldn't that process be doomed from the start, for the same reasons that saved Clinton? You really need to explain that.
"What about the possibility that Pence would be worse because the Republicans would get their agenda enacted into law?"
Henry, that's not a bug, it's a feature; A party that has a majority in both chambers of Congress, and a President of their own party, is supposed to be able to enact their agenda into law!
I think it's called "democracy", or something like that.
Of course, I was speaking strategically, from the point of view of one who opposes the Republican agenda. But another point here is that the majority of the people would not likely have elected Pence, and do not favor the Republican agenda on health care, tax cuts, immigration, and pollution. The minority who voted for Trump did so because they liked his not behaving as other politicians do.
46.1% to 48.2%; While it's true that Trump won with a "minority", Hillary also got a "minority", it was merely a slightly larger one. They both came pretty close to getting half the vote. This was not a blowout like Nixon vs McGovern, neither of the two did badly.
I point that out only to underscore that neither of them had a particularly small base of support. Both got nearly half the vote.
Indeed, they were both competing to win the electoral college, and Trump succeeded at that. If they'd both been competing to win the popular vote, they would have both run different campaigns, the electorate would have responded differently, and it's entirely possible Trump would have still won.
IOW, don't hold a football game, and then try to score it as a soccer game.
I really don't know who would have won in a Clinton/Pence matchup. On the one hand, Pence doesn't show signs of having exactly the same appeal as Trump. On the other, the RNC would have actually been behind him.
Perhaps we'll find out in 2020.
First, I gathered the overall idea here is some sort of "no confidence" vote and that sort of thing is out there in the world. And, it occurs when the leader's own party has decided the person needs to go. It is not just a way, though that's possible, for a different party to remove the leader. Anyway, impeachment of presidents rarely happened in this country & two were kinda special cases too.
Still, yes, it sort of goes down the road to a parliamentary system. If the choice is available, this would be readily known. The people will know that when they vote for members of Congress, in place to represent states and at the moment districts, there will be somewhat more of a chance that the president would be removed.
As to the "impeachment system is broken." The impeachment process is not a criminal process. It's a political process. This was stated upfront and it's true today. The people didn't really think Clinton warranted removal. This was clear by the election that took place in the middle of things. A minority thought he did something horrible enough for removal.
But, overall, there was in no way a supermajority that thought it was warranted to remove him from office. So, in that sense, it worked as it was supposed to, except perhaps the impeachment itself was something of a step too far. OTOH, things were simpler in the 1990s, so time spent doing that was probably okay as far as it went.
Then there is who would become President. If Congress had more of a power of "no contest," I would think (I think already) the third and fourth in line should change. Second, the v.p. coming into power does affect removal. It is not a horrible thing. If the President has to go, you have someone the people voted for too as part of a ticket. It also restrains Congress since removal doesn't change political winds too much, but the specific problematic individual.
A new election might be warranted though. BTW, the blackmail suggestion given Russia's involvement in the Trump Administration is a tad ironic. Anyway, Clinton won a plurality of the popular vote. As to the whole different strategy deal, not clear, though I'm unsure where Trump would really get the excess of votes. Clinton would have tried harder to obtain votes too. I'm somewhat optimistic she'd hold her ground -- e.g., she did better in Texas, a populous state, obtaining a losing margin than Trump did in NY and CA. It just might be Trump was so unpopular that even with not the best candidate and in a year Republicans looking at long time trends was likely to win that the only way he could win was how he did. I don't think he's a good example of the "well if he ran a different campaign" argument. But, shrugs.
Henry's comment is well taken but removal does screw up the intended dynamic as it sometimes does a starter goes down early in a ball game. It factors into the decision-making but some think Trump is so bad, they would be okay with Pence. Some say Pence is complicit and should go eventually too. Others think maybe it's worth keeping Trump, since long term it would work out better. The options are all not great.
In that scenario, Trump gets the extra votes in states where the Democratic party is particularly strong, to the point where voting Republican is normally an exercise in futility.
California, say, where you know in advance that the electoral votes are going to a Democrat, and with the top two primary, odds are good you don't even have any other Republican available to vote for in the general election. Hillary got all of her popular vote lead, and then some, in California alone. (She'd have lost the popular vote if California had voted in the same percentages as the nation as a whole.) If California Republicans weren't so utterly demoralized, because they actually could cast a vote that mattered, they probably would have turned out more.
The point is simply this: Don't assume that the guy who won the contest under the rule in place, wouldn't have won if the rules had been different. It would have been a completely different campaign then.
Brett: 46.1% to 48.2%; While it's true that Trump won with a "minority", Hillary also got a "minority", it was merely a slightly larger one. They both came pretty close to getting half the vote. This was not a blowout like Nixon vs McGovern
This is why the math of a 2/3 congressional recall vote does not work.
Absent a high crime (and in the Democrats case, not even multiple high crimes), you can reasonably assume a Congress critter will not vote to remove a President of her own party.
Next, it is inconceivable that an electorate which would elect one party to 2/3 of the seats of the House and the Senate, would elect a president of another party to allow a 2/3 congressional recall vote to work.
Secretary of State Tillerson recently noted, in plain English, what many commenters here learned in a law school Torts course: Res ipsa loquitur. In the land of the blind, the one-eyed man is king. [I've been one-eyed for about 4 years and do not claim the role of king.] Trump is king in the land of significant political deafness. But to those who can hear, actually listen and understand, President Trump speaks for himself on American values. If the proof of the pudding is in the eating, Trump is serving garbage.
As to what Sandy is interested in reading, I don't believe the factional issues created by Trump can be solved by the suggested fraction. America has responded and recovered in the past, including fairly frequently in my 87 years of observation from the Boston area, and America will do it again in due course.
"In that scenario, Trump gets the extra votes in states where the Democratic party is particularly strong, to the point where voting Republican is normally an exercise in futility."
Texas Democrats knew Hillary Clinton wasn't going to win but still the margin of victory of Trump was under 10%. If their votes mattered more, they would have maybe went in greater numbers too.
I'm not assuming. But, overall, I don't think Trump specifically is an ideal candidate for this "different approach if different rules in place." He benefited from the rules in place, including regarding his own party. But, especially given the point of this post, I'm not going to push this to the limit. As I said "shrugs."
In Texas, you can vote for Democrats down the ticket. Was going to add, "with some chance of their winning", but the point is, in California, they've arranged for there to not BE Republicans down the ticket to vote for. That's pretty demoralizing.
" In the land of the blind, the one-eyed man is king."
Read an interesting short story once, where a guy landed in the land of the blind, and figured that. In the end they excised that nasty ocular tumor that was causing him to hallucinate that he had magical powers.
I'm in favor of removal through no-confidence vote, but I must say lately I'm wondering whether one of the most significant undemocratic flaws in our Constitution is the presidential pardon power.
Jack Balkin's new post predicting the end of the Reagan coalition is amusing in the face of that coalition's reduction of the Democrats over the past three election cycles to an urban rump party with the least number of elected representatives since the 1920s. Jack is confusing establishment RINO refusal to enact the will of the Reagan coalition with a disintegration of the coalition itself.
Brett's 10:39 AM anecdote is a reminder of Trump's campaign claim that "Only I can fix it." Hallucination indeed.
And I welcome the Sandy, Jack one-two punch.
Given I am no one's idea of a RINO, maybe you picture me as a unicorn?
That's not a "given," SPAM. Surely SPAM who has on occasions self-described as an anarcho libertarian has never been in his now middle-aged life a member of the Republican Party of Lincoln. I would suggest that SPAM read David Brooks' NYTimes column today and pick one of Brooks' classifications of the make-up of the Republican Party of today. Definitely not a unicorn, possibly a leprechaun with a nasty disposition accompanying his blarney. And that's no bull.
Shag: Surely SPAM who has on occasions self-described as an anarcho libertarian has never been in his now middle-aged life a member of the Republican Party of Lincoln.
I assume the irony of that statement completely escapes you.
The Party of Lincoln was the architect of and presided over the booming laissez faire free market economy you disparage as the Gilded Age.
The Party of Lincoln enacted the Civil War Amendments which forbade the Democrat government racial discrimination I repeatedly assail.
Once again, David Brooks is the RINO archetype and a member in good standing of our mandarin caste. Today's op-ed to which you cite is indistinguishable from the slanders issued by Pelosi and Schumer. Mr. Brooks needs to follow the lead of MSNBC's token RINO Joe Scarborough and come out of the closet as a progressive Democrat.
SPAM attempts to ride the coattails of Lincoln in his adulation of the Robber Barons of The Gilded Age, which may not have come about if Lincoln had not been assassinated. The irony is that many members of the current Republican Party honor those defeated by Lincoln's armies perhaps suggesting when they think America was great, attempting to demonstrate this in Charlottesville recently.
And of course SPAM does not repeatedly assail racial discrimination that was adopted by the Republican Party beginning with Nixon's Southern Strategy in the 1968 campaign that had its genesis in Barry Goldwater's losing campaign in 1964. And that Southern Strategy continued with the Republican Party culminating in the election of Republican Donald J. Trump and demonstrated recently in Charlottesville. That's SPAM's Republican Party, not Lincoln's. Our own beard SPAM cannot use Lincoln as his beard.
I'm working on a country song parody to honor Trump's "Coal Mine RINOs." Perhaps SPAM and Brett can be on the jacket.
And perhaps newbies to this Blog are not aware that SPAM in shilling for the losing Cruz Canadacy in the 2015 campaign over and over and over accused Trump of being a fascist, in a pejorative manner. Now SPAM has swallowed his fascist.
"Just a coal mine RINO, ...." Sing along if you wish. And watch the mountain top being blown off.
Nixon and Trump's strategies were to paint most of the nation red.
As Democrat George Wallace learned in 1968, you cannot win election with a "Southern Strategy."
"in as much as Clinton was known to have committed multiple felonies in office using executive branch resources."
Yeah, it was well known how he had Vince Foster killed by shooting down Ron Brown's plane on top of his house in Benghazi.
SPAM ignores the subsequent "confessions" of both John Ehrlichman and Kevin Phillips on the 1968 Nixon Southern Strategy. Of course Wallace focused on "segregation now, segregation tomorrow, segregation forever" whereas Nixon used subtlety.
SPAM seems to be acknowledging that his new BFFF [sic] President (and fascist) Trump painted red by brushing white.
I did not link to SPAM's dates as they might reveal a unicorn and a leprechaun - or perhaps porn.
"Just a coal mine RINO, ...."
Daddy spoke against Trump, so I'm a RINO's daughter ...
Well, I was borned a coal RINO's daughter
In a suburb, on a hill in Western Georgia
We were poor (barely made 100K) but we had love,
That's the one thing that daddy made sure of
He lobbied for coal to steal a poor man's dollar.
Well a lot of things have changed since a way back then
(became a senator, surely did)
And it's so good to be back home again
Not much left of my pride here on the Senate floor, nothing lives there anymore
Except the memory of a RINO coal mine daughter
Nixon subtly lost the deep South to Wallace in 1968. So much for the "Southern Strategy" you keep fixating on.
Nixon did not win the South until the Democrats ran a surrender monkey for President. Of course, Nixon won nearly every state in that wipeout.
SPAM continues to ignore the confessions of John Ehrlichman and Kevin Philips. And post-Goldwater it came out that Barry's campaign was running against civil rights reform. All Republican presidential candidates since have leaned on the Southern Strategy.
By the Bybee [expletives deleted], one of the "F"s in BFFF represents Fascist. I want to make sure that all know I meant the 7 letter "F" word, as this is a family Blog.
Joe's country song reminded me of the story about jazz drumming great Buddy Rich when being wheeled into the operating room was asked if he was allergic to anything, to which he responded "Country Music." But the great jazz tenor Charlie Parker loved country music. I used to listen to "Hillbilly at Harvard" on WHRB, the Harvard radio station on Saturday mornings. George W. Bush when a student at Harvard Business School enjoyed the music as it reminded him of home. Speaking of his home, the news of Harvey's impact is so sad. There are times I want to cry but then Ted Cruz's response to Sandy (the hurricane) surfaces. Then I see and learn of people helping people in their communities. That's America's greatness and makes me proud when it happens. That's progress. We don't need super tax cuts for the Republicans' donor class [see Jack's post's several references to this class] who would be expected to politically tithe from their tax savings to show their "faith" - for even more tax cuts.
Of course Bart can't recognize the Southern Strategy because he doesn't seem to even get the concept of 'political relalignment' period. You can tell this by how he often seems to ascribe to today's Democratic Party positions that they haven't held in a long time. If you use Bart's logic the Republican Party of today is the party of big spending, huge increases in welfare spending and anti-trade because it was so in the 1860s.
Liberal radio host Stephanie Miller is the daughter of Goldwater's running mate & had his granddaughter on her show. Miller has argued her dad would be no fan of the party these days, including in respect to negative campaigning. But, her mom is a Trumpie, going the Bob Dole (they are both about the same age)loyal to the party route, perhaps.
OOPS! Correction: The great jazz alto Charlie Parker. By the way, Arthur Brooks has a NYTimes column referencing Charlie Parker that I plan to read a little later.
I just read:
Charlie Parker and the Meaning of Freedom
By ARTHUR C. BROOKS
Charlie Parker in Los Angeles in the 1940s.
True liberation requires discipline, as he demonstrated in his music.
in the NYTimes. Well worth a read on Bird's birthday This Brooks, a conservative, heads AEI. As I read the portion on jazz improvization and its boundaries I thought of the interpretation/construction of the Constitution and its sounds for the living. Yes, there are boundaries to living constitutionalism (and Jack's Living Originalism). I'm still thinking of Mike Dorf's recent riff on originalism and Larry Solum's responses in the style of Lawrence Welk. Also, Brooks' column has some good things to say on morality. Reading between the lines, I noted no direct reference to Trump but ....
Shag: Yes, there are boundaries to living constitutionalism...
What would those be?
Name a single progressive policy which you support and you admit the Constitution prohibits.
Progressives only believe in constitutional limits on government power (and will invent them if necessary) to protect progressive policy. See abortion and SSM.
It was only a few years ago when conservatives like Bart bragged about how many SCOTUS cases the Obama administration lost 9-0.
If the liberal, 'living constitutionalist' justices didn't believe in any constraints, how did that happen?
Shag: SPAM continues to ignore the confessions of John Ehrlichman and Kevin Philips. And post-Goldwater it came out that Barry's campaign was running against civil rights reform.
Why should anyone care about what third parties claim? What did Goldwater and Nixon do?
Goldwater was quite open at the time about his opposition to the parts of the CRA and VRA which violated the Constitution.
What "civil rights reforms" did Nixon oppose as a candidate, VP or POTUS?
VP Nixon helped move the Civil Rights Act of 1957 through Congress and advised Eisenhower to sign it.
POTUS Nixon signed the reauthorization of the VRA despite questioning one of the unconstitutional provisions.
BD: Name a single progressive policy which you support and you admit the Constitution prohibits.
Mr. W: t was only a few years ago when conservatives like Bart bragged about how many SCOTUS cases the Obama administration lost 9-0. If the liberal, 'living constitutionalist' justices didn't believe in any constraints, how did that happen?
Sorry, I did not keep a win/loss score for Obama before the Supreme Court.
Maybe you can give us examples of any of the four progressive justices holding that a progressive Obama policy violated a provision of the Constitution. I can't recall any examples. I have a vivid memory of alleged members of the "conservative" majority voting to preserve Obamacare.
Before you proceed, read my request again carefully. Limit yourself to cases where the progressive justice found a violation of the Constitution. I am not referring to anything else.
"Yeah, it was well known how he had Vince Foster killed by shooting down Ron Brown's plane on top of his house in Benghazi."
Good God, Mista Wiskas, are you STILL in denial about that?
Subornation of perjury.
Destruction of evidence.
They're all crimes, and there's no question at all that Clinton committed them, and used government resources in the process. He personally lied under oath, he had his personal secretary Betty Currie obtaining perjurious affidavits and obtaining and destroying evidence in a legal proceeding.
This doesn't even get into the things that were obvious, but not proven in a legal proceeding.
Don't be this reflexive partisan with your head in the sand. Bill Clinton committed multiple criminal acts in office, and he had his staff assist in them. He doesn't matter anymore, you don't have to embarrass yourself pretending otherwise.
Of course Brett was the one who brought up the matter of Clinton's "crimes" in the first place in his reflexive partisan manner as a troll at this Blog. If, as now Brett claims in responding to Mr. W, Clinton "doesn't matter anymore" why does Brett keep "bare-assing" himself as a reflexive partisan. Perhaps Brett should spend more time emulating his hero Donald Trump by developing ear hairs into combovers that might be reflected in a new comment photo op.
Actually, Sandy brought it up, in his piece he linked to. I just thought Sandy deserved some credit for not taking part in the historical revisionism on that score. Yes, the fact that Clinton wasn't successfully impeached does demonstrate that something is wrong with the impeachment process, because it was known at the time that he had abused his office in a criminal manner.
But it's necessary to realize the "something wrong" is Congress, not the process. No process for holding Presidents accountable is going to work so long as enough members of Congress regard accountability as a political, not quasi-legal, matter.
The process will either fail to remove for political reasons, or remove for political reasons, and not really have anything to do with actual guilt.
As to SPAM, he is under the spell of Trump. Note that SPAM avoids the fascist label he tagged on Trump as SPAM trolled for the Cruz Canadacy. Recall SPAM's many past comments at this Blog about tyranny, in an attempt to tag liberals and progressives. For a while back then I aka-ed SPAM as Tyrannysoreass. You could look it up in the Archives of this Blog.
SPAM wants to ignore third parties who exposed the Nixon Southern Strategy. In this case, the two persons I named were major players on Nixon's team. And SPAM furnishes weak tea with what SPAM claims was a contribution by VP Nixon in 1957 to civil rights. Recall when Ike needed a couple of weeks to think of something positive Nixon had done.
But the lockstepping of SPAM with Trump seems a tad obscene unless SPAM had a change of heart about his fascist now BFFF [sic].
Brett of course brought it up in this thread with enhancements of a reflexive partisan nature. In fact, in Brett's 5:36 AM comment responding to a humorous comment by Mr. W, Brett further enhanced with this:
"This doesn't even get into the things that were obvious, but not proven in a legal proceeding."
This could apply to Brett's hero Trump in spades, including the Trump U. $25 million settlement. And we're only into the 8th month of Trump's presidency.
Sure, Congress deserves blame. Recall Trump's campaign claim "Only I can fix it." Instead, we're all in a fix. The political dysfunction was put on full display by Mitch McConnell at the beginning of Obama's first term that was joined in by Republicans in both the Senate and the House. McConnell's efforts did not limit Obama to a single term, but McConnell and other congressional Republicans continued their theme. ERGO, Trump.
History has not changed.
Trump did run a fascist-style campaign. Trump's presidency is a hot mess. I support the Donald when he governs as a libertarian conservative (appointing judges and reversing a handful of Obama regulatory decrees) and oppose him when he governs as a progressive (supporting the establishment Obamacare-lite legislation).
FDR progressives did misappropriate the tag "liberal" because progressive was a dirty word in the 1920s after the Wilson Administration created a hyper inflation followed by the 1920 Depression. Because none of the government schools teach this history, progressives now feel free to readopt their original "tag." I applaud this move because progressives have turned the venerable term "liberal" into a dirty word and they need to be separated from the term so it can recover.
Finally, I evaluate people by what they do, not what they say. You offered no acts by Nixon which support your slanders that he "opposed Civil Rights reforms" or campaigned on a "Southern Strategy." What a surprise.
I read Judge Posner's book covering the Clinton impeachment and he argued that Clinton committed crimes but this in itself doesn't mean impeachment and/or removal was warranted.
I take, though he can speak for himself, Mr. W. was amused by the apparent alleged breadth of the crimes. At least, such was the sentiment of various Clinton opponents, shown by the satiric comment he provided.
At the time, I thought Clinton did something wrong though legal experts will dispute the "perjury" claim, since that requires certain aspects that are not necessarily there. This includes those who were not sympathetic about his actions as a whole. Likewise, in comparison, the number of people who actually did lie under oath or in some fashion destroyed evidence that are not even arrested is vast. This includes taking into consideration why it was done as well as how blatant (in fact, the questioning did open up hair-splitting, for instance) it was done.
There are a range of ways to deal with such things, assuming they occurred, and removal of someone elected twice, after the public at large sent a message by how they voted in the mid-term elections as well, was seen by the people at large (and senators) as not appropriate. The people didn't punish such people in 2000 though it their general distaste probably affected the presidential election to some extent. The system worked in applying this political process. Merely finding out someone committed perjury and destroyed evidence involving an affair in part to deal with an ongoing civil suit very well even if it happened be deemed not a reason to remove a twice elected president. It might not be a "high" enough crime or misdemeanor.
The fact some disagreed with the verdict, including people who have shown an inability to evenhandedly apply standards to the current occupant, is part of the deal. There are after all many 7-5 innocent votes in criminal juries too. To the degree the person here thinks some sort of "jury nullification" went on, he supports that in theory anyway. It's again part of the weighing process of the political impeachment process.
The wrongs of the current occupant, which should be our concern though the past is a guide, is put forth to a candid world.
"He personally lied under oath, he had his personal secretary Betty Currie obtaining perjurious affidavits and obtaining and destroying evidence in a legal proceeding."
Oh, you were talking about him lying to cover up a consensual affair? I thought you were talking about something serious, like tearing the tag of off a mattress.
"Limit yourself to cases where the progressive justice found a violation of the Constitution."
That was easy.
SPAM continues to distort history. As to whether "history hasn't changed" history is not static, based upon information that becomes available.
SPAM begins his closing paragraph with:
"Finally, I evaluate people by what they do, not what they say."
Let's apply that to SPAM. Do we know what he has cone, accomplished, other than engage in a DUI criminal defense practice that surely involves many plea deals. Those, including myself, who know SPAM from his comments at this Blog rely upon what he says to evaluate him, as is the case with all commenters at this Blog. I, and others, challenge what SPAM says at this Blog. We don't know what he has actually done, accomplished of significance. And this applies to me and other commenters. I have said that SPAM's neighbors in his rural mountaintop community in his Mile High State (of mind) consider SPAM to be just another pisshole in the snow. SPAM does not know what I have done, accomplished of significance. What can SPAM evaluate me by other than what I say? As with the interpretation/construction of the Constitution, words have meanings. We read what the Founders and Framers said. We evaluate them, not necessarily in lockstep, based upon what they said and how history reports to us what they did and accomplished of significance.
Now, back to "history." Pre-Watergate there was a history of Nixon who started his political career shortly after WW II. Nixon won an overwhelming reelection bid in 1972. Then, as it is said in the Middle East, "The Fit Hit the Sham." Nixon in "history" was adjusted by the revelations of Watergate. Post Nixon's resignation, more and more information was revealed about Nixon in the White House. Some of his people went to jail. It was much later that the felon Ehrlichman "confessed" about the Southern Strategy. There were the Nixon tapes and so much more, revealing what Nixon had done. The information is out there. It's no surprise that SPAM ignores it.
By the Bybee [expletives deleted], SPAM has stated several times at this Blog over the years that armed revolution against the federal and state governments is supported by the 2nd A. Do we evaluate SPAM by what he says or what he did when he took the oath in becoming an attorney to uphold the Constitution?
Gosh, I didn't know that perjury suddenly became legal if it was in the context of a sexual harassment lawsuit.
See, the problem here is that there was a long list of cases where it appeared Clinton had done something wrong, and the investigations petered out in a swamp of missing evidence, people who changed their stories or fled the country to avoid testifying, and so forth. What obstruction of justice looks like when it works.
Then we get this one case where somebody hostile to Clinton gets ahold of a key piece of evidence that Clinton was attempting to dispose of, and the obstruction falls apart and is proven.
And, naturally, you assume that this is the single solitary time Clinton ever obstructed justice. Rather than the only time he failed at it.
Well, fine, you're entitled to make an ass of yourself by such selective credulity. But that doesn't make perjury and subornation of perjury magically legal. Clinton did commit crimes in office, and used government resources to do it. Surely you can bring yourself to admit that much?
And, naturally, you assume that this is the single solitary time Clinton ever obstructed justice. Rather than the only time he failed at it.
More like you are assuming he is assuming that. OTOH, being very sure there are lots of other cases and actually prosecuting it is two different things.
There is a good reason not to take this overheated stuff too seriously but "lie" is not the charge here. You are allowed to "lie." Heck, the Supreme Court said to some extent there is basically a constitutional right to lie. It's the whole perjury thing.
I think the argument it wasn't "perjury" close enough to be a concern when using it as grounds for impeachment, but something not "legal" does not magically make people arrested in the first place in lots of cases. Perjury is rarely prosecuted though sure it was at times & Republicans found some cases.
The level needed to remove someone elected twice is a whole lot higher.
The problem with impeachment as currently "practiced" is that "illegal" seems to be a necessary but not sufficient condition. That's wrong at both ends. "Illegality" should not be necessary, and some crimes don't justify impeachment.
The way I see it is that the clause refers to high crimes and "misdemeanors". The word "high" I think we should read as "involving government", which captures the distinction between "high treason" and "petty treason". A "misdemeanor", then, is not a minor crime, but means "misconduct", and in context "misconduct related to the office or government".
Again, though, I doubt that any change or clarification in wording would solve the political problem when party politics are involved.
"Involving government" is pretty vague.
The actor involved is a government official. How does it need to be "related to the office or government." That is potentially rather open-ended.
The acts in the Clinton case directly involved government employees and interns. I guess "high" to me has a double meaning -- governmental and major. Thus, what might be a generally private act (smoking pot at home) might not meet the test. But, some other act that is non-governmental as such (serial killer) generally would.
The test also might be higher for an individual judge or other official given the specific nature of their office. The whole Caesar's wife thing when your job is applying the law comes to mind (judges have special "appearance of impropriety" standards).
How about "involving the operation of government"? Yeah, it's still a bit vague (though I'm skeptical about precision anyway), but I think something along these lines does capture what the Republicans objected to about Andrew Johnson and what the public sensed about Clinton: the latter was a private affair, not a public concern.
The serial killer example is useful for testing the underlying logic, though I'm not sure it would ever arise in practice (I've stopped saying stuff like that, mostly, under the Trump Regime). But perhaps that's a case for simple prosecution and we don't need to worry about the impeachment clause.
Mr. W: Hosanna-Tabor
This case involved a finding of fact as to whether an employer was a minister. There was no constitutional issue.
Does the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, apply to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship?
That steaming pile of rotting red herring is not evidence for your slanders that Nixon opposed "civil right reforms" to advance a "southern strategy."
Man up and admit that you were wrong.
"But perhaps that's a case for simple prosecution and we don't need to worry about the impeachment clause."
The serial killer example was as you say a useful hypo, but replace it with some other very serious felony, such as let's say a rape or murder arising from some personal matter. Apparently, a duel wasn't enough in the case of Aaron Burr.
Anyway, your past position was that said prosecution could not occur until after POTUS left office, and impeachment provides a route there. No need to wait four years.
Your overall idea seems workable. Certain crimes are so bad that they taint the office holder's legitimacy. A murder as compared to smoking pot (and lying in court about it after destroying the evidence) might work there.
You're right about my view on prosecution. However, I'm not sure (a) that I'm right; or (b) that the courts share my view. But certainly I'd have to change my position if prosecution were needed to fill a gap in the impeachment system.
The basic problem -- one that Prof. Levinson's open-ended suggestion makes clear -- is that impeachment is a Jacobellis problem: we don't know what it is, but we know it when we see it.
Lol, Bart, what do you think the 'ministerial exception' involves?
From the first page of the Hosanna-Tabor opinion:
"The question presented is whether the Establishment and Free
Exercise Clauses of the First Amendment bar such an
action when the employer is a religious group and the
employee is one of the group’s ministers."
"This case involved a finding of fact"
I've often doubted you really a lawyer given some of the stuff you write here, this hardly helps. This is the highest Appellate Court in the land Bart, the question was not a finding of fact.
"I didn't know that perjury suddenly became legal if it was in the context of a sexual harassment lawsuit."
It doesn't so much as become legal as it is beneath the level of what most prosecutors would pursue and therefore doesn't become illegal.
I'm also not much moved by this logic of yours that if a political figure is the subject of many investigations, none of which lead to successful prosecution, it somehow shows he must have been up to no good. It's just as likely that his political opponents are hounding him, throwing anything on the wall to see if anything sticks.
When SPAM on other threads at this Blog referred to Nixon as a ---- drum roll ----- progressive, was SPAM providing a " steaming pile of rotting red herring" in his attempts to negate the Watergate Nixon as a different kind of Republican? Listen to the tapes. Listen to Kevin Philips. Listen to Joh Ehrlichman.
By the Bybee [expletives deleted], SPAM's concept of "man up" is with a Glock in his jock. Also, note that SPAM did not respond to this in my 10:47 AM comment:
"By the Bybee [expletives deleted], SPAM has stated several times at this Blog over the years that armed revolution against the federal and state governments is supported by the 2nd A. Do we evaluate SPAM by what he says or what he did when he took the oath in becoming an attorney to uphold the Constitution?"
Is SPAM, by his silence, "manning up"?
"There is nothing dangerous about a vote of no confidence requiring a 2/3 vote of both the House and Senate because it would be impossible to achieve such a vote.
"The Senate did not come close to reaching the 2/3 threshhold to remove Clinton for multiple felonies. How will the Senate and House reach 2/3 to remove a President for being "unpopular?"
If Bart is making the point I think he is making, I agree with it.
A vote of no confidence with those sorts of thresholds would, in practice, be reserved for an absolutely extreme situation where the bounds of partisanship are overcome with a consensus that the person has to go.
But if you did have that situation, a straight vote of no confidence is better than the impeachment standard of "high crimes and misdemeanors". Obviously, in practice Gerald Ford was right-- a high crime and misdemeanor is whatever a House majority says it is. But "high crimes and misdemeanors" does not, in fact, cover all the reasons why the public might want to see a President removed. A straight vote of no confidence, with high enough thresholds that you'd need bipartisan cooperation to do it, seems to me to be a better system.
"Maybe you can give us examples of any of the four progressive justices holding that a progressive Obama policy violated a provision of the Constitution. I can't recall any examples."
"At the time, I thought Clinton did something wrong though legal experts will dispute the "perjury" claim, since that requires certain aspects that are not necessarily there. This includes those who were not sympathetic about his actions as a whole."
To be completely honest, nobody who I would consider an expert in perjury law disputes that Clinton perjured himself. His arguments to the contrary were very flimsy and, among other things, depend not only on his strained definition of "is" but on us believing his claims about his sexual conduct with Monica and disbelieving Monica. (For instance, if he inserted the cigar into Monica, he perjured himself. Do you believe his denial of that, which wasn't even specific?) And Judge Webber Wright sanctioned him for lying under oath, and the ruling was on very solid ground.
There were definitely people who don't ever practice that area of law who turned themselves into experts in it and claimed that there was no perjury. But you should be careful to believe these sorts of hacks-- they are sort of like all the public intellectuals who had never tried an election law case or written about it who suddenly called themselves experts on it during the 2000 recount.
"The way I see it is that the clause refers to high crimes and "misdemeanors". The word "high" I think we should read as "involving government", which captures the distinction between "high treason" and "petty treason". A "misdemeanor", then, is not a minor crime, but means "misconduct", and in context "misconduct related to the office or government".
Rare event, but I agree with Mark. The key word in the impeachment clause is "high". The forest is that they wanted to separate serious reasons for removal from frivolous or partisna ones. The trees is exactly what constitutes a crime or misdemeanor. And many miss the forest for the trees.
Regarding perjury, early in my career when I handled divorce cases, I learned quite a bit about perjury being committed, particularly in uncontested cases, where Probate judges well recognized this. But there was no remedy readily available. No Fault divorce came along only somewhat reducing such perjury. As joe has pointed out, committing perjury and proving it is not a simple matter.
By the Bybee [expletives deleted], lies that are not under oath do not constitute perjury (although lying to government officials may constitute a crime). But lies by a President to the public can be much more harmful than perjury. Consider the tally at the WaPo on Brett's hero President Trump since January 20th of this year. And perhaps Brett in divorce court has heard some perjury that went unpunished qua perjury.
Totally apart from the political issues in the Clinton case, I really, really wish we as a society and the legal system would take perjury more seriously. One reason there's so much of it is because Clinton's case aside, it is extremely rarely punished (and usually when it is, it is an Al Capone situation where the defendant did something else). And the result is people lie routinely and repeatedly in civil cases. (As you note, before no fault, there were a ton of lies in divorce cases. There still are, of course.)
Even if we aren't going to prosecute it, things like what Judge Webber Wright did (imposing a judicial sanction on Clinton for lying at his deposition) should actually be a lot more common, I think. I'd like us to get to a point where lawyers have to advise their clients that if they lie at a deposition on an important point, and it gets found out, you may be on the hook for loads of money.
The ministerial exception was already universally recognized. The Issue was whether the employer was a minister.
Mr. W: It doesn't so much as become legal as it is beneath the level of what most prosecutors would pursue and therefore doesn't become illegal.
Is this the retroactive application of the Hillary Defense to Bill?
Clinton was disbarred for the twp perjury and two obstruction of justice felonies he committed. Are the standards for POTUS less than for an attorney?
The ministerial exception is part of First Amendment jurisprudence, and the Court was applying it, defining it's scope and limits. Saying that was a case about a 'finding of fact' and not about the Constitution is like saying that, to take an example, pretty much every Fourth Amendment case is a finding of fact and not about the Constitution (after all, the prohibition against unreasonable searches/seizures and the exclusionary rule are universally recognized, 'all' the court is doing is deciding if it applies to locked containers, the inside of cars, trash put out on the curb, etc.).
Face it Bart. 'Progressives' like the Obama administration want there to be anti-discrimination laws and they wanted them to apply to religious day school teachers, and the Supreme Court, including the four 'progressives' slapped them down. Case closed.
"Are the standards for POTUS less than for an attorney?"
I wouldn't say less, I'd say different. As an analogy, academics get might worked up about plagiarism and can censor fellow academics for it, and that makes since given the world they inhabit, but it'd be silly to impeach a President for it.
"what most prosecutors would pursue and therefore doesn't become illegal"
That's open to confusion, even if it's true in a de facto way.
I don't know what meets Dilan's expert test, but there were people who have reasonable expertise in the field who argued it was not met. It wasn't a sine qua non; it just was one factor in my weighing. As to "high," that does prune the forest some, but it still leaves open a lot of trees.
Just to toss it out there, one "high misdemeanor" in the early 19th Century involved certain illegal actions involving international slave trade. The term overall has a certain "art" to it like "cruel and unusual" that has an open-ended flavor.
For instance, looking at Wikipedia, receiving stolen goods was cited as a "high misdemeanor" under Blackstone. Looking further:
"Any person who receives or buys any goods or chattels * * * stolen from any other person * * * whether the property was received or bought from the thief * * * or from another person * * * is guilty of a high misdemeanor."
I don't know what meets Dilan's expert test, but there were people who have reasonable expertise in the field who argued it was not met.
Basically anyone who hasn't either litigated a perjury case or written scholarship specifically about perjury.
What I am really attacking here is what the New Republic used to call the "rolodex of experts", the law professors and lawyers who comment on every legal issue on television and in the press. I'm sorry, constitutional law professors know nothing more about perjury than a third year law student.
The people who are actually expert on this basically all said he perjured himself.
As I said, the key point isn't the "is" stuff that everyone talks about, although that was bad enough. It's that even under Clinton's definition at the deposition, if he put anything inside of her for sexual gratification--a finger, a cigar, etc.-- he perjured himself, because he denied that.
So you have to disbelieve extensive credible testimony from Monica in favor of a general denial (he refused to answer any specific questions) by a known liar in order to find he didn't commit perjury.
Inspired by Joe's comment, I checked the Wikipedia article on "high crimes and misdemeanors". Interestingly, it cites a piece by Jon Roland for the Constitution Society: ""High" in the legal and common parlance of the seventeenth and eighteenth centuries of "high crimes" signifies activity by or against those who have special duties acquired by taking an oath of office that are not shared with common persons. A high crime is one that can only be done by someone in a unique position of authority, which is political in character, who does things to circumvent justice." GMTA and all that.
I'm pretty sure, without going to Blackstone to check because I don't have time right now, that receiving stolen property was a "high" crime because it was considered an offense against the King.
Over at the Legal Theory Blog today is a post of the abstract of Sanford Levinson & Mark Graber's article "The Constitutional Powers of Anti-Publian Presidents: Constitutional Interpretation in a Broken Constitutional Order" with a link to SSRN. Larry Solum makes no recommendation or editorial comment, perhaps because it is too political as it focuses on Donald J. Trump or challenges Solum's kind of Originalism.
The people who are actually expert on this basically all said he perjured himself.
People Dilan think are expert enough agree with him.
I have read people on various sides on this matter since it happened, including people with specific relevant legal knowledge, and there is reasoned disagreement. I respect his opinion, but others who I respect have different ones. fwiw
If "receiving stolen property" was "considered an offense against the King," "high" very well might at that time had a range that is not generally understood today to meet test being put forth. It's not worth too much time, but I cited usage in a state case in the 1960s, long after we had a king.
"Involving government" meaning that is not to me much of a limitation.
Now that I have some time...
The chapter in Blackstone which covers receiving stolen property is Book 4, Ch. 10 and is entitled "Of Offenses Against Public Justice". It begins
"THE order of our distribution will next lead us to take into consideration such crimes and misdemeanors as more especially affect the commonwealth, or public polity of the kingdom: which however, as well as those which are peculiarly pointed against the lives and security of private subjects, are also offenses against the king, as the pater-familias [family father] of the nation; to whom it appertains by his regal office to protect the community, and each individual therein, from every degree of injurious violence, by executing those laws, which the people themselves in conjunction with him have enacted; or at least have consented to, by an agreement either expressly made in the persons of their representatives, or by a tacit and implied consent presumed and proved by immemorial usage.
THE species of crimes, which we have now before us, is subdivided into such a number of inferior and subordinate classes, that it would much exceed the bounds of an elementary treatise, and be insupportably tedious to the reader, were I to examine them all minutely, or with any degree of critical accuracy. I shall therefore confine myself principally to general definitions or descriptions of this great variety of offenses, and to the punishments inflicted by law for each particular offense; with now and then a few incidental observations: referring the student for more particulars to other voluminous authors; who have treated of these subjects with greater precision and more in detail, than is consistent with the plan of these commentaries.
THE crimes and misdemeanors, that more especially affect the common-wealth, may be divided into five species; viz. offenses against public justice, against the public peace, against public trade, against the public health, and against the public police or economy: of each of which we will take a cursory view in their order.
FIRST then, of offenses against public justice: some of which are felonious, whose punishment may extend to death; others only misdemeanors. I shall begin with those that are most penal, and descend gradually to such as are of less malignity.
9. RECEIVING of stolen goods, knowing them to be stolen, is also a high misdemeanor and affront to public justice...."
I have read people on various sides on this matter since it happened, including people with specific relevant legal knowledge, and there is reasoned disagreement. I respect his opinion, but others who I respect have different ones. fwiw
I never saw a single person with relevant experience who argued it wasn't perjury.
All the "it wasn't perjury" stuff came from Democratic Party affiliated CONSTITUTIONAL law commentators, who have no knowledge of perjury law.
And Joe, you haven't answered my question. Nobody doubts that if Bill lied about not penetrating her, it's perjury. So do you actually believe that Bill, a proven liar, told the truth and that Monica, a proven truthteller, lied about the cigar?
Why would "Democratic Party affiliated CONSTITUTIONAL law commentators" lack any knowledge of perjury law? Such hyperbole is tedious; caps don't help. Anyway, that is not the only type of people I saw that believed there was wiggle room.Post a Comment
I upfront said that I think he did something wrong. My specific belief as to something specifically he said doesn't get us that far. My understanding is that some people with relevant legal knowledge do doubt it merely turn on that specific fact.
The "proven liar" (not sure how I'm supposed to know about a specific alleged lie) and "proven truthteller" (Monica Lewinsky never lied?) is of limited value commentary.