Chief Justice Roberts is probably using his free time to brush up on impeachment trials. One issue that could become relevant in a few months is the Constitution's statement that the Senate can (upon conviction) impose a penalty beyond removal from office to include "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." Does this mean that the Senate can bar President Trump from being reelected?
The answer is "probably," but there is no precedent on point. The disqualification power has been used by the Senate only twice (in both cases for federal judges) who did not serve in any federal office thereafter. When President Clinton was impeached, the articles of impeachment did call for the Senate to impose a disqualification penalty. But he was in his second term, so he was already barred from running for the White House again.
Does the Disqualification Clause apply to elective positions in the national government? Does the principle that the people can generally elect whomever they wish mean that the Senate cannot bar someone from being chosen by the people in an election? Is there a relevant distinction between the Presidency and Congress on this subject? Or does an impeachment trial give elected officials some sort of veto over the voters themselves? Complicating matters further, Senate precedent indicates that only a majority is required to impose disqualification after two-thirds have voted for conviction. But would that be true for a convicted President?
I watched some of the Clinton impeachment debate in the House Gallery in 1998. Hard to believe we are back here again.
Hm. I've always read the clause to mean that removal from office carries with it, automatically, disqualification from holding future office.
ReplyDeleteThis comment has been removed by the author.
ReplyDeleteBut he was in his second term, so he was already barred from running for the White House again.
ReplyDeleteSince we are all hypothetical here, what about Vice President? Or appointment for a short period as v.p. if the office was vacant?
But would that be true for a convicted President?
Seems like it would be; but if the Senate wants to insert a supermajority rule in place ala the filibuster, figure they can per their power to set rules of procedure.
At least we know that Article I, section 3 applies, because, even though the presidency is no longer an office of honor or trust, it is one of profit.
ReplyDeleteDoes the principle that the people can generally elect whomever they wish mean that the Senate cannot bar someone from being chosen by the people in an election? Is there a relevant distinction between the Presidency and Congress on this subject?
ReplyDeleteIf removal can override the people's choice (we already don't have simple direct elections), it seems reasonable that a special determination of disqualification applies too. Parsing "office" seems dubious -- removal for treason would deprive someone the right to fill some minor office but not the top one. Anyway, the people in a way don't just elect the POTUS; they elect a POTUS with the knowledge they will bring in a team. The people's right is diminished either way in the long run here.
If Trump is removed from "office," he must be an "officer" per the impeachment provision. Members of the executive branch and courts are also "officers." But, members of Congress are not apparently. There is also a separate process to remove them once elected. So, there does seem to be a difference. A federal judge removed by impeachment is a sitting member of Congress, but that doesn't close the debate since there has to be a special disqualification vote anyhow & there wasn't there.
I don't see how you can reasonably assert that the Presidency isn't a position of "trust, honor, or profit", that's pretty inclusive. So, sure, the Senate could apply that disqualification.
ReplyDeleteIf not for the example of Alcee Hastings, (What IS it with Democrats electing people already known to be criminals, anyway?) I'd have thought it automatic.
And I say this despite thinking that the proposal to impeach Trump is embarrassingly poorly justified. They're setting the threshold so low what President shouldn't have been impeached?
Strategically and petulantly Trump might resign before he is impeached, file for Chapter 11 to protect Trump Enterprises and then run for a second term in 2020 How might "president" Pence react to that? Or the GOP National Committee? Or Republicans in general? How might Roy Cohn advise Trump?
ReplyDeleteBy the Bybee [expletives excluded], for some reason the Teapot Dome scandal of the Harding Administration during the "Roaring Twenties" comes mind regarding the antics of AG Billy Barr and Secretary of State Mike Pompeosity. Might Trump throw them under the bus to save himself?
Probably not, since at this point there's nothing he needs to save himself from.
ReplyDeleteMoreover, since the Democrats have announced they're going after him in state court after he leaves the White House, leaving office would just kick off the attacks, not save him from anything. His best bet is to try to stay in office and decimate the Democrats to the point where they've got bigger concerns than punishing him for daring to beat Hillary.
Impeachment has applied to executive and judicial officials, not members of Congress.
ReplyDeletehttps://law.justia.com/constitution/us/article-2/48-persons-subject-to-impeachment.html
https://en.wikipedia.org/wiki/Officer_of_the_United_States#Origin_and_definition
If someone wants to make a case that a member of Congress should be covered, I'll be open to it, but historically it doesn't seem to be the case. Impeachment clearly covers executive offices (Art. II) and by implication it has covered judges though the Good Behavior Clause in theory could be an independent mechanism.
Brett makes a little dig but the public has voted for people charged (Hastings was not convicted in court) and convicted of crimes of different parties over the years. I can make a dig about Florida here but examples occur nation-wide over our history.
Gerard: One issue that could become relevant in a few months is the Constitution's statement that the Senate can (upon conviction) impose a penalty beyond removal from office to include "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." Does this mean that the Senate can bar President Trump from being reelected?
ReplyDeleteYou are getting ahead of yourself. Pelosi has studiously avoided even the traditional house floor vote to start impeachment proceedings in order to protect her Dem frosh from Trump districts from having to go on the record.
Or is this a Freudian slip revealing the true purpose of this exercise - an attack on small "d" democracy by reversing the 2016 election and ensuring the voters do not reelect Trump in 2020?
Well, yes, obviously this is getting pretty far out there, but as an intellectual question with no likely application to Trump it's legitimate.
ReplyDeleteI tend to think the impeachment push is about multiple things:
1) Long shot removal. The horse may, after all, learn to sing.
2) Satisfying their base; Hard to explain to them why you didn't try to impeach Literally Hitler.
3) Impugning Trump for multiple purposes
a) To reduce his chances of reelection.
b) Battle space prep in case RBG croaks while Trump is in office.
c) "Tainting" all the judges and Justices he has nominated, so as to justify Court
packing down the road.
The Democrats rarely have just one reason for what they're doing.
4. Multiple grounds of impeachment existing.
ReplyDeleteThe Democrats rarely have just one reason for what they're doing.
People rarely have just one reason for what they're doing, at least when we are dealing with major things. On my top ten lessons is trying to avoid "the" point since there tends to be more than one, when talking about things that matter. And, many that don't.
Brett:
ReplyDeleteThe Democrats are not of one mind about impeachment.
The Democratic socialist true believers live in urban cocoons, don't believe they can lose the upcoming election and advocate a scorched Earth strategy against Trump.
Pelosi and the rest of the Dem establishment know better from bitter experience, want no part of impeachment and are dragging their feet. The speaker's announcement without a floor vote of an "impeachment investigation" does not advance the ball from where it already was, but is sop to the Democratic socialist base.
This exercise has a fascinating sub plot - the Biden pay for play operation in Ukraine which Trump wanted investigated. The Democrat bureaucrats who launched this attack must have known the GOP would place the Bidens on trial in self defense. Did these trolls consider the Bidens to be acceptable collateral damage or were they also a target of this attack?
In an alternate universe where every President had emulated Washington in avoiding even the slightest appearance of impropriety, and then out of the blue appears Trump, that call might have been grounds for impeachment.
ReplyDeleteIn the universe we actually inhabit, it sets the bar for impeachment so low that no President in living memory, (Except maybe Carter, he was more feckless than corrupt.) should have escaped being impeached.
Everything in that call was subject to an innocent interpretation, in that Presidents actually ARE entitled to request foreign assistance in legal investigations. The only thing that bars that interpretation is that Trump is subject to a presumption of bad intent by his foes.
Brett: Everything in that call was subject to an innocent interpretation, in that Presidents actually ARE entitled to request foreign assistance in legal investigations. The only thing that bars that interpretation is that Trump is subject to a presumption of bad intent by his foes.
ReplyDeleteAs the nation's chief executive and law enforcement officer, the POTUS certainly has the power to request the assistance of foreign law enforcement to investigate possible crimes by a US citizen in a foreign country WHEN there is evidence raising reasonable suspicion of a crime. In this case, that evidence is Joe Biden's drug addicted drop out son with zero business experience securing a million dollar a year gig on the board of directors of a Ukrainian natural gas company just months after Obama made Ukraine part of Joe's VP portfolio.
Whether Trump had self serving political motives in exercising this power is irrelevant. Every exercise of government power is political.
Evidence distinguishes the Trump request to Ukraine to investigate the Bidens' apparent pay to play operation from the Obama investigation of Trump for conspiracy with Russia to hack the Democrat computers with zero evidence this occurred. The former is a criminal investigation, the latter is an espionage operation against a political opponent.
"The only thing that bars that interpretation is that Trump is subject to a presumption of bad intent by his foes."
ReplyDeleteTo be perfectly clear, partially to avoid bad faith, I am not ranking those things and putting that as #4, but simply including one of the factors.
It is fine to disagree (though the case to do so is rather weak) on the merits here, but it is quite true that many people (polls suggest a significant number non-Democrat) in the Congress & elsewhere support impeachment [or at least an inquiry] because of multiple things Trump did. [And others at this point.]
Impeachment being a political act, politics also plays a part. But, then again, simple merit based on the facts isn't all that goes into any prosecution related decision.
The "presumption of bad faith" part is something that has grown from decades of actions. People who support Trump LIKE many of these actions, some of which they say are okay. But, it isn't even necessary here as many people not mere political partisans have spelled out. When doing so, yes, they take all the evidence into consideration. Not that it is really necessary here, since the documents and even Trump's statements speak for themselves.
Anyway, it is but one grounds of impeachment. It is useful since people see it as so very blatant, but it is just one grounds of impeachment. Trump supporters, who in another context support him being special, however, yet again say "nothing to see here ... he's just like everyone else." People, not just "Democrats," see this is not true. Some like it. Some realize the problems with it.
Bart DePalma: "Or is this a Freudian slip revealing the true purpose of this exercise - an attack on small "d" democracy by reversing the 2016 election and ensuring the voters do not reelect Trump in 2020?"
ReplyDeleteDo you really think that the Democrats would be trying to impeach a Republican president who abided by the law? They didn't even try to impeach law-breakers, such as Reagan and W.
Furthermore, if the Democrats impeach and the Senate convicts, it wouldn't reverse the 2016 election, unless Pence were impeached and convicted too.
Finally, if the Democrats were trying to reverse the 2016 election, it wouldn't be an attack on small "d" democracy. Even if one supports the abomination we call the Electoral College, one can hardly claim that it is democratic.
I'll be interested to see the bill of impeachment they draw up, and how it differs materially from not being a Democrat. I expect it to be mostly policy disputes reimagined as criminality.
ReplyDelete"Do you really think that the Democrats would be trying to impeach a Republican president who abided by the law? They didn't even try to impeach law-breakers, such as Reagan and W."
ReplyDeleteIf Reagan were in office today, they'd impeach him in a heartbeat. They've been getting progressively worse as time goes by, gradually, (Not so gradually, lately.) losing their capacity to accept that anybody else can legitimately be in power.
This is interesting, because in the context of the debate on Trump and the Emoluments Clause, some have argued that the Presidency is not an office of trust of profit under the United States. https://reason.com/2017/09/25/the-emoluments-clauses-litigat-5/
ReplyDeleteIf this is true, and assuming the Presidency is not an office of honor, no person convicted by the Senate can be disqualified from being elected President.
That's a lot to hang on the lack of an "or other".
ReplyDeleteIt's largely academic unless they find some charges that don't require a bad case of TDS to take seriously.
And I say this despite thinking that the proposal to impeach Trump is embarrassingly poorly justified
ReplyDeleteThe President can use their Executive powers of directing foreign policy to pressure foreign governments to supply dirt on a soon to be political rival? No problem says Brett, who, tables turned sees massive Birch level conspiracies aplenty!
In their years posting here Brett and Barr have shown themselves to be possessed of the laughably sloppy partisan reasoning of Bircher conspiracy theorists. They shouldn't be taken in the least bit serious in a 'discussion.' Unfortunately, that's basically the GOP now...
ReplyDelete"Brett and Barr"
ReplyDeleteHa ha. One letter over on the keyboard ...
"The President can use their Executive powers of directing foreign policy to pressure foreign governments to supply dirt on a soon to be political rival?"
ReplyDeleteSoon to be political rivals are rendered immune to the law? That's sure a strong incentive for corrupt politicians to run against the incumbent administration!
The "pressure" here is inferred, in order to make what would otherwise be an innocent exchange look guilty. Demonstrate that the Ukraine was pressured to turn up dirt regardless of whether dirt actually existed, and you've got something. Absent that, I'm not impressed.
The President telling an ally that it's safe to resume a line of investigation that was halted by the prior administration's threat is not the stuff of impeachment. If the investigation turns something up it would actually advance the cause of justice.
Again, you're assuming the bad motive here, the "pressure" is not in the evidence, it's assumed.
I'm picturing Brett and Spam wearing Freudian slips while getting their arsenals at the ready for Trump's Civil War. Perhaps Spam and Brett expect that a Putin expeditionary force will join their unregulated Militia in such a Civil War. Keep in mind that if the rebellion fails, then the laws of treason apply to the unregulated Militia. What maroons!
ReplyDeleteHenry: Do you really think that the Democrats would be trying to impeach a Republican president who abided by the law?
ReplyDeleteIn a New York minute.
Upon taking power, the House Dems immediately started an "impeachment investigation" of "Russia Collusion" with zero evidence of the alleged crime of conspiring with Russia to hack into the DNC servers or some other illegal interference with the election.
Now, the House Dems are not even bothering to allege an actual crime and instead are claiming generic "corruption" and are literally making up the evidence. See "whistleblower" and then Schiff lies concerning the Trump call.
They didn't even try to impeach law-breakers, such as Reagan and W.
What laws would those be?
Mr. W: The President can use their Executive powers of directing foreign policy to pressure foreign governments to supply dirt on a soon to be political rival?
ReplyDeleteWhat pressure? If you read the transcript of the call (which the Dems, including the "whistleblower," were clearly not expecting Trump to make public), the Ukrainian president raised the issue of the Bidens' apparent pay for play operation and noted he was already speaking with Giuliani. Oops.
Now. let's discuss "dirt." The "dirt" Trump requested the Ukrainians investigate was whether Joe Biden provided a quid pro quo to Bursima Holdings for paying his son a million dollars a year for performing no known work, which would have been prima facie evidence of taking a bribe and entering into a conspiracy with his son to take a bribe. In short, the Democrats are claiming a Republican POTUS uncovering evidence of a Democrat opponent's crimes is somehow an Impeachable offense.
Our resident Birchers can spin conspiracy gold out of ordinary straw when it suits their partisan goals. But the flip side of that is in defense of their partisan goals they can look at a situation where the Executuve suspends aid to a needy country while sending his operatives over to ask for dirt on a political rival and then in a call mention the need for 'reciprocity', ask for a 'favor' to look into said dirt and say, a la Naked Gun, 'nothing to see here!' The flip side of Bircherism is to not see what's in plain sight when it's ideolically inconvenient. Remember Birchers supported Nixon to the end!
ReplyDeleteNote too that simultaneously the Birchers that are the current GOP are trying to attack the fact that law enforcement looked into a campaign that employed several well known foreign agents as a witch hunt ! It's like hanging out with well known drug dealers and then complaining when you're watched as part of a drug dealing investigation!
ReplyDeleteThere's no doubt that were the shoe on the other foot our resident Birchers would be screaming about the absolute worst theoretical conspiracy theories. But, again, the flip side of the tendency of Burchers to spin conspiracy gold out of poop is to ignore what's plainly gold when it's ideologically inconvenient. These people have proven their unreasonable dishonesty time and again, talking with them is more than useless, the only interesting thing is to conjecture about how so many have fallen into such a pitiable state.
I've always read the clause to mean that removal from office carries with it, automatically, disqualification from holding future office.
ReplyDeleteI've not read it to be automatic, but certainly if the Senate imposes the penalty, the plain language of the constitutional text would seem to indicate it would include any position of trust in the government, including elective office.
(Add obligatory joke that elective office isn't a position of trust because the public knows better than to trust politicians. :) )
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ReplyDeleteMr. W:
ReplyDeleteSorry, the Democrat "whistleblower" and the Democrat media are lying and misleading you, not that you give a damn about the actual facts. In reality, Ukraine was cooperating with the United States in this investigation PRIOR to the call. The SUBSEQUENT temporary suspension of military aid had nothing to do with this investigation and the Ukrainians did not learn of it until days after the call.
Being one of thousands of Americans doing business with Russia is zero evidence you conspired with Russia to hack into DNC servers, at least according to the Democrats Ukrainian IT contractor - Crowd Strike. Nor is this situation at all analogous with hanging out with drug dealers. Once again, analogies are not your talent.
Bart:
ReplyDeleteYou say you care a lot about the text of the Constitution, so I will ask you straight out:
What do you think the answer is to the question in the OP? Does disqualification after impeachment extend to elective office, including the Presidency?
Dilan:
ReplyDeleteFWIW, if the Senate can remove the POTUS, I see no textual reason they cannot also disqualify the POTUS.
It looks like, amazingly enough, all the regulars here seem to agree on the interpretation on the disqualification provision then.
ReplyDeleteFor further academic interest, Joseph Story in his Commentaries noted that the Senate "has a discretion, as to inflicting the punishment of disqualification." The text is arguably ambiguous, but that is the judgment of history.
ReplyDeletehttps://www.law.cornell.edu/constitution-conan/article-2/section-4/impeachment#fn855art2
Waggoner v Hastings concerns Judge Hastings' ability to be in Congress, addressing the claim that disqualification is automatic. The district judge held disqualification is discretionary, leaving open such a disqualification if the Senate so chooses.
Again, the provision:
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
It would seem logical to think being a member of Congress would apply but see Art. II on limits on being an elector: "no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."
Note that "or." The matter seems to be in dispute. (A large volume on precedents here entitled "Hinds" can be perused to get a flavor, but I'll leave it there. Me, I would prefer to think if the Senate so chooses, disqualification applies to congressional offices.)
More:
ReplyDelete"Early state constitutions also used terminology like “offices of honor, trust or profit” to refer generally to positions in the executive and judicial branches."
https://www.pointoforder.com/2014/09/02/is-the-presidency-an-office-under-the-united-states/
This is the sort of thing my early comment had in mind.
Doing business in Russia < being literal foriegn agents with histories of serving Kremlin interests.
ReplyDeleteThis is of course the kind of dishonesty one must expect from Birchers.
But hey, maybe the seemingly obvious push by Trump and his operatives to get foriegn governments to provide dirt on Trump's political opponents was really an effort to find Saddam's WMDs which were being smuggled into the U.S. via the 'invasion' of non-Person migrants guided by Hillary's emails to cover up her murder of Seth Rich after stealing Romney's guaranteed Presidential election. Sure, that's the ticket!
Mr. W:
ReplyDeleteDo you realize Birchers are the kind of folks who make arguments like people doing business in Russia are “literal foreign agents with histories of serving Kremlin interests.”
Just saying.
Yes, I'm sure this call was just a giant nothingburger. That's why the White House tried to illegally hide the transcript on a super duper top secret server.
ReplyDeleteBB:
ReplyDeleteThe Democrats have known about the Trump call since at least August 12, weeks before they launched this attack on Trump and made the call public.
The administration allowed the Democrat “whistleblower” to send a letter dated August 12, which was obviously written by his Democrat attorneys, offering his double and triple hearsay lies and misrepresentations about the Trump call to the House and Senate intel committees.
Rep. Adam Schiff and the Democrat media never requested the actual transcript to verify these claims until AFTER they launched their attack on Trump.
Bad mistake.
Trump quickly released the transcript and letter, the former putting the lie to the latter.
Caught in the lie, Democrats and their media have been spinning furiously ever since.
Blankshot, it's not hearsay when the transcript released by the White House confirms what the whistleblower reported. In any case, looking forward to hearing why the White House attempted to illegally hide the transcript on a super duper secret server. You know, because it's all a big nothingburger.
ReplyDeleteBut the transcript only confirms the complaint if you make multiple negative assumptions.
ReplyDeleteIf you don't assume Trump is guilty as one of your premises, all it confirms is that Trump had a conversation. That's why Trump almost instantly released the transcript.
And why were they LEGALLY putting it on a higher security server? That much is obvious: The lower security server wasn't stopping some group at the White House from illegally leaking what Trump said in private conversations with foreign leaders.
BB, its obvious why they tried to hide the conversation, because of the obvious impropriety of the President prodding a foreign leader to work with his personal attorney (who has no government position) and the AG in their efforts to dig up five year old dirt on a current political opponent. Even if we believe that Trump styles himself as some kind of President-Batman out to personally right specific crimes, the fact he himself, enlisting his personal lawyer and a cabinet appointee, rather than the usual law enforcement operations and channels, has singled out this supposed years old 'case' that just *happens* to involve the guy running against and currently beating him in the polls would take the most contorted, partisan thinking to defend as anything other than reeking of impropriety. Luckily for him a good chunk of his support has demonstrated time and time again that they have such Bircher levels of thinking (conspiracy theorists, don't just spin conspiracy gold out of ordinary straw when it suits them, the same sloppy reasoning [WMDs must be there!], jumping to conclusions (why Mexico must be purposely invading us via migration, what other possible conclusion is there?) and wishful thinking (I guarantee a Romney victory!) can also be used to deny actually egregious plain and demonstrated facts (like that Manafort, Gates, Pappadoc, etc., were well known, demonstrated Kremlin stooges when Trump put them to work for him, only someone who doesn't care about our nation wouldn't see that and call for looking further into it).
ReplyDelete"BB, its obvious why they tried to hide the conversation, because of the obvious impropriety of the President prodding a foreign leader to work with his personal attorney (who has no government position) and the AG in their efforts to dig up five year old dirt on a current political opponent."
ReplyDeleteIf the dirt is real, what's the problem? I mean, the problem with the Steele dossier was that it was chock full of fabrications. If it had been true, you'd WANT people to know it.
It really keeps coming back to an assertion that, once a Democrat is potentially running against the President, he or she becomes immune to any investigation. Specifically a Democrat, of course, because investigating Trump on the basis of a paid for campaign slander was just peachy.
Since Putin doesn't care if Trump releases conversations between them, shouldn't Trump release transcripts of their calls and meetings? Maybe Moscow Mitch would be interested. The American public would be interested. Maybe even the unregulated Militia ready for Trump's Civil War would be interested. Is there treason in the air?
ReplyDeleteBrett has a memory problem. Candidate Trump late in the 2016 campaign stated that if Clinton won, the would be under constant investigations and would thus be limited in her ability to govern. My oh my. That's what's happened to Trump. Brett mischaracterizes the Steele dossier; it was not chock full of fabrications. Keep in mind that Trump eventually admitted that he was pushing for a Moscow Trump Tower while he was a 2016 candidate. Yes, Comrade Brett has a memory problem, or he's fabricating.
ReplyDeleteYes, he stated that, and he was right, because she's been under continual investigation most of her life, and deservedly so; She's routinely gotten away with things that would put most of us behind bars. Why would you expect it to stop if she were elected?
ReplyDeleteTrump, on the other hand, was only subjected to this starting from the time he declared as a Republican Presidential candidate. He didn't have the track record to suggest that he'd be hounded his whole time in office.
It should be expected that all future Republican nominees will get this treatment, just as all Republican nominations to the Supreme court will be accused of some sort of sex crime. It's just SOP now.
Brett's 1st paragraph at 8:27 AM is a gross misstatement. Brett knows this. The investigations while she was First Lady basically were politically motivated by Gingrich, who eventually resigned because of "you know what." As US Senator elected in 2000 and reelected in 2006, what were the investigations of Clinton? Clinton was a candidate for the presidency in 2008, losing to Barack Obama, but then became Obama's Sec'r. of State for 4 years. She was a candidate in 2016, which did result in investigations about her Emails as Sec'y. of State, purely political by Trump, who of course had challenged Obama's legitimacy as president on the basis that Obama was born in Kenya.
ReplyDeleteAnd is Brett ignorant of Trump's pre presidency issues with the truth, whether as a Democrat or a Republican?
This is all fabrication by Comrade Brett as he has swallowed Trump as his leader. First we had Gingrich resign in disgrace as House Leader in the late 1990s. Then we had Bush/Cheney in 2001/2009 with their two tax cuts for the wealthy and the disgraced issue of WMD as an excuse to invade Iraq and further muddle problems in the Greater Middle East and thence up with the Great Recession of 2007-8, eating up the Bill Clinton surplus from 2000 and nearly bankrupting America. Obama did his best to get America on the right track despite Sen. Leader Mitch McConnell, now known as Moscow Mitch. This wasn't SOP. This was standard GOP with its faux patriotism. Comrade Brett knows this. Just check out his commentary at this Blog over the years.
" The investigations while she was First Lady basically were politically motivated by Gingrich,"
ReplyDeleteAre you seriously ignorant of the fact that she was under investigation back in Arkansas, long before she ever got anywhere near the White House? The woman has been subject to serious criminal investigations essentially her entire adult life, and for all I know has a sealed juvenile record. It didn't start when she moved to the White House.
Indeed, half the investigations while she was in the White House were just investigations from Arkansas that didn't stop when she moved.
Joe, I think you are overreading that "or". Service in Congress may simply be a specific example of a position of trust.
ReplyDeleteJust like it would be silly to argue that treason was not a high crime or misdemeanor because it is set out separately before an "or".
And why were they LEGALLY putting it on a higher security server? That much is obvious: The lower security server wasn't stopping some group at the White House from illegally leaking what Trump said in private conversations with foreign leaders.
ReplyDelete# posted by Blogger Brett : 5:08 AM
Sorry, but that isn’t a valid reason. That server was for code word level secrecy. A “perfect” conversation with a foreign leader that you’re trying to extort for personal political gain is NOT code word level secrecy. It was illegal. It’s going to be fun seeing what sort of other bullshit that they were hiding.
I hope you really enjoy carrying water for this moron, because it’s about to become a full-time job.
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ReplyDelete"The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
ReplyDeleteIt would be silly, since it says "or other" high crime. Treason is obviously a type of high crime. OTOH, as cited in the last link, the term here has historically been used to apply to executive and judicial officers. Impeachment itself was early on determined not to be a means to remove members of Congress. And, the reference regarding electors is sort of something hidden in plain sight that shows that members of Congress are not included.
The alternative reading is conceivable as seen by reference to a specific judicial opinion touching upon the question. But, there is a lot of discussion the other way. The electoral college example was actually found in a discussion on the very point in the Hinds Precedents volume that is a major source in discussions on impeachment, including a few CRS reports. Anyway, the matter was never pressed unless someone could find that one of the two people actually disqualified wanted to run for Congress & was stopped from doing so.
There are numerous statutes where "or" means "and". Enough to draw an entry in Black's Law Dictionary on that specific subject.
ReplyDelete" A “perfect” conversation with a foreign leader that you’re trying to extort for personal political gain is NOT code word level secrecy.
ReplyDeleteYes, it's true that hypothetical conversation would not be properly classified, being illegal.
Unlike the conversation Trump actually had.
Brett, tall us about the Hillary Clinton scandals accusing here of being involved with the deaths of certain individuals and other conspiracy theories, going back to her days as First Lady in Arkansasas. And tell us, what did Trump contribute to the text of the best selling "The Art of the Deal." And tell us of the many Trump Bankruptcies and business failures. Comrade Brett and his minions were apparently pleased with "The Apprentice" reality show and its scripting empowering Trump in his ability to fire people. Maybe Comrade Brett could explain why Trump is continuing to hide his tax returns. Alas, what we can expect from Comrade Brett is more and more conspiracy theories.
ReplyDeleteAs pointed out by one of the Late Nite comics last night, the transcript released by Trump of his telephone conversation with Zelensky at it's beginning stated it was not a verbatim transcript. Perhaps there is available a recording of that conversation in the archives of the CIA or other national security agencies that American's should be entitled to hear. Maybe Zelensky has a recording or even Vlad Putin.
ReplyDeleteYes, it's true that hypothetical conversation would not be properly classified, being illegal.
ReplyDeleteUnlike the conversation Trump actually had.
# posted by Blogger Brett : 10:28 AM
Dumbfuck, the conversation Trump actually had did not belong on a code word level system. Putting it on that system is illegal. Trying to hide it from leakers does not justify putting it on that system. That system is specifically for the highest level of secrecy. It’s not for “perfect” conversations that you’re trying to hide for whatever reason.
A reference is made that every POTUS since Nixon could have been impeached.
ReplyDeleteWell, it's quite true that more of them could have been. There is text about impeachment and it suggests it is not just a no confidence vote. And, looking into the purpose and original understanding also shows this. But, the text is wide open and can basically be used for that if the will was there. Sort of that bit about everyone committing three felonies. OTOH, the text was not so used and it suggests it has some restraint after all.
We have seen that general conflicts over executive power alone hasn't been used to impeach such as debates over abuse of delegation or post-WWII executive power in foreign affairs in a broad sense and so on. Special extreme situations might arise here as seen by the Andrew Johnson impeachment that explicitly was tied to minor issue (and unhinged statements) but was part of a much bigger historical moment.
Clinton was as an abuse here, a to me serious matter that shouldn't have been used to impeach (in the post-9/11 world, it all seems ridiculous on some level & the abuse of impeachment leads some to go to the other extreme and deny Clinton did anything wrong in the whole matter). But, impeachment leaves open such things.
But, Iran Contra very well could have warranted impeachment as did some things Bush43 did involving torture etc. Impeachment being a political choice with a supermajority requirement in the end factored in here. Still, we are talking serious arguments. I don't think the same applied for Bush41 or Clinton/Obama. I also don't recall anything that warranted impeachment regarding Ford. This is not therefore merely a partisan matter.
Shades of Iran Contra, Ukraine and the matters addressed by the Mueller Report, we have basic matters that impeachment is there to address. Other grounds have been cited; a major matter here is interference with congressional oversight role. This was flagged during the Nixon impeachment too. The lengths Trump has taken here is unprecedented and it is not just that people don't like him and are using a double standard. The Mueller Report also lists various obstruction of justice matters. It gets to the point that you can even say something like emoluments is too premature given its novelty. I would include that but the Lawfare proposed impeachment counts not do so is reasonable enough.
The bipartisan discussion of this (at least outside of Congress) by a range of former prosecutors, intelligence officials and others shows the red flags involved. Lest we forget, this would include a Bush43 appointed former head of the FBI. This all warrants impeachment and removal with disqualification. Events have shown strong cases for others such as William Barr, who has made people pine for Jeff Sessions.
This yet again shows this is not just some partisan thing. These people strongly disagree with Sessions' ideological priors. But, they think he didn't breach his oath.
There are numerous statutes where "or" means "and". Enough to draw an entry in Black's Law Dictionary on that specific subject.
ReplyDeleteThe case was made as a united whole, not a singular textual argument.
But, I'm moving on. Who keeps on topic in a GM thread anyways?
"just as all Republican nominations to the Supreme court will be accused of some sort of sex crime."
ReplyDeleteI suspect that even the Federalist Society can find a nominee who hasn't committed a sex crime, if they work at it. Like, say, Neal Gorsuch.
Maybe next time the Rs can even find a presidential nominee who hasn't.
"Dumbfuck, the conversation Trump actually had did not belong on a code word level system."
ReplyDeleteHow do you know, not having seen the redacted parts?
I suppose at some point they'll have to let the intelligence committee look at the unredacted transcript. At which point Schiff is enough of an asshole to just read it from the House floor even if it does have properly classified parts.
"I suspect that even the Federalist Society can find a nominee who hasn't committed a sex crime, if they work at it. Like, say, Neal Gorsuch."
ReplyDeleteI said they'd be accused of it, not that they'd be guilty. But you knew that...
Regarding my 8:32 AM comment much earlier in this thread on the possibility of Trump resigning, filing under Chap. 11 to save Trump Enterprises,, and then running for reelection in 2020, take a peek at"
ReplyDeletehttps://www.huffpost.com/entry/trump-nixon-gop_n_5d952e08e4b0f5bf796efc8d
at Huffington Post on comparisons between Trump and Nixon regarding "saving" the Republican Party. It's quite long but is a good read.
"I don't think the same applied for Bush41 or Clinton/Obama. I also don't recall anything that warranted impeachment regarding Ford. This is not therefore merely a partisan matter."
ReplyDeleteYou could have properly impeached Ford over his pardon of Nixon, and I would have cheered. Terrible precedent to set. Not a crime, obviously, but "misdemeanor" in the sense of bad behavior in office.
Reagan could have been, probably should have been, impeached over Iran Contra, and I say that liking the guy. It was still a crime.
I didn't like Bush the Elder, but I don't off hand recall anything impeachable he did. Carter was more feckless than criminal.
Clinton was properly impeached over his commission of crimes in office, and using White House staff to commit them. Perjury and obstruction of justice would have been sufficient, they don't magically become legal if there is sex involved in the matter.
Kucinich and Wexler brought impeachment charges against Bush the Younger, and they went nowhere, but while most of them were jokes, some of them were quite serious, such as the NSA spying, or the use of "signing statements" to justify violating the Take Care clause.
Obama would properly have been impeached over the billions in cash he sent to Iran. That was a crime, he structured the payment in order to evade reporting requirements, so that there wouldn't be time to stop him.
Operation Choke Point would also have been a proper basis for impeachment, being a deliberate use of threats of abusive regulatory action to force regulated industries to act against people on the basis of their engaging in legal activities, in some cases constitutionally protected activities.
"I said they'd be accused of it, not that they'd be guilty."
ReplyDeleteLike Gorsuch was.
A reference is made that every POTUS since Nixon could have been impeached.
ReplyDeleteWell, it's quite true that more of them could have been.
All of them could have been.
The thing about constitutional discussions of impeachment is that way too much discussion concerns legalistic issues, and way too little discussion concerns the most important part of the clause, which is who gets to impeach and who gets to convict.
The framers were not idiots. (OK, a couple of them were. But most of them weren't.) They knew exactly what having politicians charge and try impeachments would mean. They didn't expect the Senate to get up there like the Supreme Court would and argue what constitutes a high crime or misdemeanor. They expected the Senate to take a political vote. Indeed, they WANTED the Senate to take a political vote.
And the Constitution literally permits the House to impeach, and the Senate to convict, on any ground they wish. Because they have the power to define what is a high crime or misdemeanor. It's whatever the House and Senate say it is. It's completely unreviewable.
The best reading of "high crimes and misdemeanors" is as precatory language. It's the framers saying to the Senate, "you figure this out, but impeachment is supposed to be a mechanism to remove officeholders for serious wrongdoing. It's strong medicine."
And by the way, people need to just forget about the Federalist Papers. They are not the Constitution. They are not even a committee report on the Constitution. They are newspaper editorials written by propagandists trying to get the Constitution enacted. Would we ever interpret, say, Obamacare or the Clean Air Act based on what propagandist supporters said it meant in an editorial in the Daily Oklahoman. Because that's what we are doing every time we use the Federalist Papers as an interpretative device.
I wouldn't forget the Federalist papers, but they ought always be read in conjunction with the Anti-Federalist papers. Just as a convenient guide to what the debate was about.
ReplyDeleteBrett seems to be back in his anarcho-libertarian days with his 11:14 AM rant on possible impeachments of presidents past. Perhaps that serves Comrade Brett's revolutionary 2nd A absolutist views.
ReplyDeleteThe Federalists prevailed over the Anti-Federalists, n'est pas?
ReplyDeleteI wouldn't forget the Federalist papers, but they ought always be read in conjunction with the Anti-Federalist papers. Just as a convenient guide to what the debate was about.
ReplyDeleteThe problem with the anti-Federalists is they lost. Again, I also wouldn't use statements made in ANTI-Obamacare op-eds as a guide to what Obamacare meant.
I share some of Scalia's criticisms with respect to formal legislative history. But at least a congressional committee report is a product of a staff that actually studies the legislation and its potential impacts and is tasked, on behalf of a committee with bipartisan membership, with drafting a document explaining the statute's meaning. It's not great, because Scalia's right, Congress can insert all sorts of stuff in there that they couldn't have actually gotten passed in the statute.
But op-eds by partisan propagandists? Those are worse than useless.
"How do you know, not having seen the redacted parts?"
ReplyDeleteTrump has now claimed, twice, that the released MemCon is a complete transcript. If he's telling the truth (hint: he's not) the MemCon was improperly placed in the NICE server.
For those who have not yet read the relevant documents for content (which appears to be most of the folks here), you can find them at the following links: call transcript and "whistleblower" letter.
ReplyDelete(1) So far as the transcript goes, after a mutual exchange of compliments, Trump asked Zelenskyy to "do us a favor" by "getting to the bottom of" whether the Democrats' IT contractor Crowd Strike possessed "the server" (this could either be the Clinton or the DNC server) and any information Ukraine possessed concerning the origins of the Obama/Mueller "investigation" (a request the DoJ is making of several allies in their criminal investigation of the "investigation), then to coordinate through AG Barr.
Then, Zelenskyy notes his past and future cooperation with Rudy Giuliani concerning "that investigation" (which is presumably of the Biden pay to play operation) and assured Trump he was replacing the current prosecutor (who Biden bragged about forcing Ukraine to appoint under threat of withholding a billion dollars in aid, allegedly in order to end the investigation of his son's employer Bursima).
Trump then requests Zelenskyy again contact AG Barr concerning "that investigation."
Trump is very clearly making a criminal justice request of a fellow president concerning actions which occurred in his foreign nation.
(2) The lawyered "whistleblower" letter only resembles the actual transcript in that Trump and Zelenskyy spoke on the telephone.
The letter opens with specious claims the call involved "national security" (placing it within the whistleblower statute) and the call itself should be unclassified (which permitted it to be discussed with these Congress critters).
Concerning the second claim, the "whistleblower" misrepresented the common practice of designating a presidential conversation with a foreign leader as secret as "locking it down" to deny its general dissemination into the bureaucracy. (My experience as an Army communications sergeant and later an intelligence officer was that all conversations with other nations are automatically classified).
In order to justify his position concerning the second claim, the "whistleblower" destroyed his first claim by arguing the transcript should not be classified because it had nothing to do with national security.
The "whistleblower" then spun the call as: "[A]fter an initial exchange of pleasantries, the President used the remainder of the call to advance his personal interests. Namely, he sought to pressure the Ukrainian leader to take actions to help the President's 2020 reelection bid." The is a Democrat talking point filtered through double and triple hearsay. As the transcript made plain, these investigations were already underway and asking for a favor with no suggestion of a threat is not "exerting pressure."
No court of law would admit this opinion, speculation and hearsay as evidence. Ignoring this underlying unreliability, the statements themselves have nothing to do with national security nor constitute a violation of law.
This is why Trump readily released the call transcript and letter and is now running commercials in swing states accusing the Democrats of abusing impeachment to cover for the Bidens pay to play.
Dilan:
ReplyDeleteThe term "high crimes and misdemeanors" is a term of art the Founders borrowed from English law which has been compared to a breach of fiduciary duty. While the original meaning is not limited to crimes, it is also not broad enough to include the political equivalent of a no confidence vote.
This set of facts begs the question of when a criminal investigation can become an impeachable breach of public duty?
The argument that any criminal investigation of a political opponent is a per se impeachable breach of public duty is facially ridiculous. Under this standard, a murderer could escape justice by simply running for the investigating executive's office.
The better argument is a criminal investigation is a breach of public duty when there is no evidence the target broke the law and the investigation is brought instead to harass the target.
The evidence against Trump does not come close to meeting this standard. There is more than sufficient evidence to generate a reasonable suspicion Bursima Holdings was paying Hunter Biden as a bribe to Joe Biden to begin a criminal bribery investigation to determine if Joe provided Bursima with a quid pro quo.
Bart:
ReplyDeleteWhy do you think the Constitution calls for the political branches to charge and try impeachments, rather than, say, having them tried in the Supreme Court or before a jury?
Do you think the framers expected that the Senate would carefully apply a legal standard, or that they would make a political judgment? (If you think they thought the Senate would do the former, you are basically saying the framers were stupid.)
"The problem with the anti-Federalists is they lost."
ReplyDeleteNot entirely, or there wouldn't be a Bill of Rights, now, would there?
I take that point. Although usually people calling for us to pay attention to the anti-federalists are making federal power arguments where the anti-federalists very much did lose.
ReplyDelete"All of them could have been."
ReplyDeleteLots of things "could" happen. The better thing to do is to look at what is in the realistic probability. The overall system in place is appropriate here. So, what the Killer Bs here (any of them) think is not enough. What Dennis K. thinks is not enough.
But, there is a text there. Certain things are cited. The text has some meaning. If the First Amendment was phrased differently, it would have resulted in somewhat different results, even though a lot of the same thing could have happened. And, "treason" and "bribery" and "high crimes" and "high misdemeanors" [one example of the latter was more minor breaches of illegal slave trading laws] all provide some context here.
The text does not merely say that the House has power to impeach and the Senate to try. So, e.g., the Good Behavior Clause has had some effect on judges being put to a higher test, in fact, nearly every impeachment involved them. Presidents were not impeached merely for maladministration or no confidence akin to Great Britain's mechanism. The whole system factors in here, including elections and concerns for separation of powers.
The House gets to impeach and they could do so by means of a roulette wheel if they wanted. But, they don't. They take a range of factors into consideration and people can judge them while doing so. If the House decides that (to be silly) wearing white after Labor Day is a high crime, it is not a reasonable thing. The Constitution relies on them following their oath, public pressure and eventually elections. All of that is part of the system in place.
I share the idea that a bunch of op-ed essays, many of them by an outlier in the NY delegation deemed by many framers as an extremist,* the Federalist Papers have been given too much attention. They did receive respectful attention but they are treated as if they are authoritative commentary. If we cite them, it should be as part of a wider whole.
* The letter of transmittal of the Constitution to Congress alone was telling -- "The States of New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia." Hamilton's vote really didn't count. The other NY delegates left and he didn't have the power to represent NY in the final vote all by his lonesome.
So, e.g., the Good Behavior Clause has had some effect on judges being put to a higher test,
ReplyDeleteThis is a bad argument too. The impeachment clause does not say good behavior. So impeaching a judge over "bad behavior" that was not treason, bribery, or a high crime or misdemeanor would be unconstitutional if we were to take the impeachment clause seriously as a constitutional standard.
The House and Senate are not arbitrary, which is why we don't get impeachments by roulette wheel. But they are-- cough-- political! This is why we don't get impeachments of Brett Kavanaugh or Clarence Thomas just because they lied in their confirmation hearings. And it's why a hypothetical future Democratic House and Senate could, in theory, impeach Gorsuch even though he didn't do anything wrong at all!
"Political" isn't the same as "arbitrary". But it is the same as "not bound to any rigorous interpretation of high crimes and misdemeanors". They have full discretion to consider anything they want to be a high crime or misdemeanor, including things a court would never accept as one.
(And that's a great anecdote on Hamilton, BTW!)
The Federalist Papers is something of a convenient reference to show what constitutional terms mean but one can get a bit lazy there. I cited Joseph Story's commentaries too in that respect. Other commentaries were written. His slanted in a certain fashion.
ReplyDeleteOne thing here is that the Federalist Papers basically have been accepted as authoritative. The courts, e.g., accept them as particularly noteworthy. For good or ill.
So, like people who aren't originalists but have to work within their arguments, they are going to be cited a lot. But, we can look beyond all that.
As to the BOR, that was a limited win for anti-Federalists, many of whom were disappointed about them. They were for bigger game. Chunks of the BOR are procedural rights that were likely to be protected anyway. But, the Bill of Rights had bite, beyond their literal text. This was especially seen in antebellum 10th Amendment debates.
Dilan: Do you think the framers expected that the Senate would carefully apply a legal standard, or that they would make a political judgment?
ReplyDeleteI think they assumed individual elected representatives and appointed Senators would act in the public interest of their districts and states. I know they did not begin to foresee the rise of political parties, the current cold civil war between them and the abuse of impeachment as a political weapon to reverse elections.
I think Story is pretty good. I will say that because I'm pretty much not a fan of originalism, I'm not sure I would weight Story as a greater authority than a modern treatise like Tribe, but I certainly think an expert Justice and scholar commenting on the meaning of the Constitution in a comprehensive treatise is generally better as a source of legal authority than op-eds.
ReplyDeleteAnd you are right the courts over-cite the Federalist Papers, though I am not really sure they are ever outcome-determinative as opposed to being used as a form of law office history.
Caselaw, to me, is highly underrated. It isn't always right (we sometimes have to overturn cases!), but it is like decent scientific research (though not nearly as precise, of course) in that it is generated out of real world situations where things had to be interpreted to reach a just result, and it is an iterative process where results in the future are based on the wisdom of those who came before. It's the best way to interpret the Constitution and statutes. Far better than treatises, far far better than legislative history, far far far better than the Federalist Papers or other op-eds.
The problem with political questions, such as impeachment, is there is no caselaw. But you just have to let politicians be politicians. The voters are the check on politicians- an impeachment that truly overturned a popular mandate would almost certainly be met with a swift rebuke by the voters. Indeed, we got a flavor of that in the 1998 Congressional elections. There's no need to worry about the precise meaning of a high crime or misdemeanor.
I think they assumed individual elected representatives and appointed Senators would act in the public interest of their districts and states. I know they did not begin to foresee the rise of political parties, the current cold civil war between them and the abuse of impeachment as a political weapon to reverse elections.
ReplyDeleteOh but I think they did. Hence the 2/3rds vote.
The impeachment clause does not say good behavior. So impeaching a judge over "bad behavior" that was not treason, bribery, or a high crime or misdemeanor would be unconstitutional if we were to take the impeachment clause seriously as a constitutional standard.
ReplyDeleteJudges serve for "good behavior" and impeachment is the only mechanism explicitly set up (Hamilton vaguely spoke about insanity being an immediate disqualification fwiw) to remove them. So, the House is going to use that a factor in their judgment. This can be, as was the case, to basically apply "bribery" more strictly as well as determining the application of the open-ended term "high crime and misdemeanor."
The House and Senate repeatedly are arbitrary and anyway the term is complex so they can be both arbitrary and political. I used a silly example for effect to show that anything shouldn't go. A more nuanced example could be provided.
But anything won't go, because political judgment isn't the same as no judgment. It's more like "judgment not tethered to the constitutional text and more tethered to public opinion".
ReplyDeleteFor instance, even in the current context, or in 1998, there was probably something that either Clinton or Trump might do that is so outrageous that it would cause enough members of their own party to flip so as to facilitate a conviction in the Senate. That's what forced Nixon's resignation in 1974.
Or, to take a judicial example, I suspect that even though Republicans would have no interest in impeaching Kavanaugh or Thomas for lying in their confirmation hearings, if it came out that someone on the Supreme Court took an explicit bribe to decide a case, I bet that person would be off the Court pretty quickly, Republican or Democrat. Because the public would demand it.
This is NOT arbitrary. Not at all. It's just based on political considerations rather than tethered to legal ones. And as such, it is checked by public opinion. A truly arbitrary impeachment would outrage the public.
But, let's say there was a situation where we had a President that was completely incompetent, and it got to the point where large majorities of both parties aid he or she just has to go. In that situation, the Senate might make a political judgment to remove the President, and would not be punished for it. And it would do no violence to the Constitution, because what "high crimes and misdemeanors" is really about is "reserved for the most serious situations", not a specific legal standard that the Senate must follow.
One other thing.
ReplyDeleteThe case by case development of the law in the courts was referenced both by me and Dilan in the Brexit thread. There is some flexibility there in practice with development over time, including simple overturning of precedent. This is especially the case with major change of personnel and we have seen some in recent terms. Multimember courts factor in here.
But, precedent is not only a thing in the courts though they work differently there. There is precedent in both the executive and legislative departments, which is especially important when they decide things that the courts only determine if at all in a limited degree. For instance, I cited a volume (Hinds) on impeachment precedent in House.
The House and Senate have the raw power as do subsets (such a committee) to change the rules and practices, but over the years, precedents and norms have developed. Kim Wehle in her new book on understanding the Constitution notes how norms and values are a big determination in how the Constitution as a whole is applied.
Just because something is not going to be decided by the courts, it is not the end of the question and simply a political question, full stop.
The difference is there is a much weaker norm of stare decisis in Congress.
ReplyDeleteAnd that is as it should be. Congress could decide, say, not to impeach FDR in WW2 for conduct that they might then impeach another President for in peacetime, because the political considerations are different. Or not to impeach a President doing basically a good job managing the office and then impeach someone for the same offense who is mismanaging it.
Courts are supposed to be much more limited in doing such things.
There's one other problem with the over-legalistic approach to impeachment.
ReplyDeleteIf the impeachment trial is a legal proceeding, governed by a legal standard of high crimes and misdemeanors, then the House's role must merely be to charge.
Which would suggest that the House should impeach whenever there is probable cause to suspect a high crime or misdemeanor, as that is the legal standard for bringing an indictment or remanding a suspect for trial.
And that's clearly not right. You impeach because you think the President should be removed. If you don't think that, you don't impeach.
This comment has been removed by the author.
ReplyDeleteIf Obama had sent his personal lawyer to another country that he was withholding desperately needed aid to ask for and ten also personally called the incoming head of state there and himself asking for them to do him a 'favor' and start investigations into relatives of, say, Romney we'd never hear the end of it from our Birchers. It's a clear abuse of the position and powers of the Presidency to gain a political advantage.
ReplyDeleteDilan: A truly arbitrary impeachment would outrage the public.
ReplyDeleteWe may find out if the Democrats attempt to impeach Trump based on this farce. I suspect Trump's base would be outraged (they already are), the Dem base would cheer and most folks in between would just dismiss it as political theater, causing them to become even more disenchanted with our political class and system of government.
I think this discussion of "crimes and misdemeanors" is missing some focus on the modifier "high". In British English at the time (and still today) it means something like "relating to the King (or government)". Think "high treason" -- that is, treason against the King -- versus "petty treason" -- a common law offence of, say, a wife against her husband.
ReplyDeleteIt's this distinction, I think, which gets at the political nature of impeachment.
Mr. W: If Obama had sent his personal lawyer to another country that he was withholding desperately needed aid to ask for and ten also personally called the incoming head of state there and himself asking for them to do him a 'favor' and start investigations into relatives of, say, Romney we'd never hear the end of it from our Birchers.
ReplyDeleteIf?
The Obama bureaucracy spent the past two and a half years executing a spy and slander campaign against Trump and his people with zero evidence of a crime, enlisting the active assistance of allied intelligence agencies. DoJ's criminal investigation of this operation has extended to those nations. One of the questions is to what extent Obama was involved in this operation?
Once again, the difference between the Obama operation against Trump and the Trump request to Ukraine concerning the Bidens is there was zero evidence Trump committed a crime and apparent evidence of a Biden pay to play operation.
The better hypocrisy question is how loud you and the other donkeys would be screaming to impeach Trump for bribery if Trump was doling out money to Ukraine and Birisma was paying Don Jr. son over a million dollars a year for doing no apparent work?
Going back to CJ Roberts, Walter Dellinger talks about his role in the impeachment process in a recent Slate article.
ReplyDeleteOur law and intelligence agencies investigating the known foriegn agents in Trumps campaign in light of the demonstrated foriegn influence in our elections is light years from what Trump did, which was to personally use his position as President to prod a foriegn government to open investigations into a political rival. It's no different than if a president withheld funds to a DAs office that it desparerly needed and then sent his lawyer to try to get the DA to investigate a political rival and then personally called the DA and asked him to investigate the rival as a favor.
ReplyDeleteWhat we saw with Rehnquist was it is basically meaningless. Yes, the CJ can make an evidentiary ruling (such as Rehnquist did when he granted the Democrats' motion to strike references to the Senate as a jury, but the Senate can do whatever it wants to, including consideration of inadmissible evidence, anyway.
ReplyDeleteThe Chief's participation is largely ceremonial.
Remember, the flip side of the demonstrated tendency of Birthers to see what is not there is to willfully not see what is, when that supports their partisan goals.
ReplyDeleteCeremony has meaning and effect.
ReplyDelete"Largely" is a somewhat sneaky qualifier.
One official set of procedures has this:
"The Presiding Officer shall have power to make and issue, by himself or by the Secretary of the Senate, all orders, mandates, writs, and precepts authorized by these rules or by the Senate, and to make and enforce such other regulations and orders in the premises as the Senate may authorize or provide."
Roberts as presiding officer has some influence. How this will work in action is hypothetical and the Clinton impeachment is different enough from a possible one here to be of limited value as comparison.
The bill or rights was a sop to the Anti-Federalists. How about a list of what the Anti-Federalists DID NOT GET. They wanted a weak central government most of all. That's how many conservatives feel today, including the misnamed Federalist Society's conservative-libertarian membership.
ReplyDeleteMight CJ Roberts out-Rehnquist on the design of the Chief's robes?
ReplyDelete"The bill or rights was a sop to the Anti-Federalists."
ReplyDeleteYes and no. After the Anti's spent the ratification period loudly demanding a BoR, many of them opposed the actual BoR on the ground that it failed to do what they wanted (as you say, a weakened federal government). It was Federalist votes which passed the BoR in Congress and then ratified them in the states. The Anti's don't deserve much credit.
Writs don't matter because the impeachment is, in practice, always heard first by a congressional committee with subpoena power. We saw this with Clinton and Nixon too.
ReplyDeleteIn theory, Roberts could bring a witness to the well of the Senate. In practice, it doesn't matter, because nobody votes on the evidence in these things- it's a political decision.
Rehnquist wore those robes in the Supreme Court as well. They weren't specially made for the impeachment trial.
ReplyDeleteMr. W: Our law and intelligence agencies investigating the known foriegn agents in Trumps campaign in light of the demonstrated foriegn influence in our elections...
ReplyDeleteYour "foreign agents" (Manafort and Gates) were indicted for failing to register as foreign lobbyists, not espionage as you falsely suggest.
None of them were the original targets of the Obama spy operation against Trump, but were rather associates of the Donald which the Witch Hunter General and his merry band of Democrats indicted months or years later to unsuccessfully coerce them testify against the POTUS.
As the Democrats who wrote the report for Mueller were forced to admit, after two and a half years of spying, they had zero evidence Trump or his campaigns entered into any criminal conspiracy with Russia.
Thus, you are correct that the Obama spy operation, which is currently under criminal investigation, is "light years" from Trump's request Ukraine "get to the bottom" of the Biden apparent pay for play operation.
Roberts doesn't want to copy his old boss regarding sartorial flourishes but he recently said his his favorite classic rock band is the Byrds. So, he will use that as his walk-up music.
ReplyDeleteI think they should turn out the Senate lights and hire Ray Clay to scream "anddddddd now, the Chief Justice of the United States Supreme Court, at 5-10 out of Harvard, Johhhhhhn Robbbbberts!" as the Alan Parsons Project blasts over the speakers.
ReplyDeleteLike most conspiracy theorists Bircher Bart can't be bothered with knowledge of details before jumping to sloppy partisan conclusions (propaganda points).
ReplyDeleteGates was originally indicted with conspiracy against the United States, making false statements, money laundering, and failing to register as foreign agents for Ukraine as required by the Foreign Agents Registration Act. Later more indictments for false individual income tax returns, seven counts of failure to file reports of foreign bank and financial accounts, five counts of bank fraud conspiracy, and four counts of bank fraud followed. He pleaded guilty to to one count of false statements and one count of conspiracy against the United States as part of a cooperation agreement.
Today's Birther conspiracy theory brought to you by the supporter of such past classics as 'there really are WMDs in Iraq!,' 'I guarantee Romney will win!,' and 'the meaning of the word persons is totally different in Sec 2 of the 14th than it is in Sec1!'
ReplyDeleteConspiracy theorists never learn.
Mr. W:
ReplyDeleteWe have again reached the red herring stage of our conversation.
When I noted the Obama bureaucracy never possessed any evidence of a Trump campaign criminal conspiracy with Russia to justify its spying on and slanders of Trump and his campaign, you falsely claim the bureaucracy was actually targeting "known foreign agents in Trumps campaign."
When I noted the Obama bureaucracy were not targeting the two folks the Witch Hunter General later indicted for failing to register as foreign lobbyists, you try to change the subject again by noting the additional charges the witch hunt piled on Gates, none of which have anything to do with Trump or the spy operation pretext of investigating a Russian conspiracy.
Next, you will move to pure name calling.
Just like clockwork.
Spam has demonstrated at this bBlog his ability to "pure name calling." Just check the Archives. Spam's effort at 6:52 PM demonstrates also his MASTER DEBATER tricks that never work, except perhaps with his minions in his rural mountaintop community.
ReplyDelete