Again, a reminder: The House has yet to hold even one vote on impeachment. You seem awfully confident there's going to be a trial. "If", Gerald, not "when".

That said, while I don't know of any explicit provision permitting him to recuse, would you want to be the faction involved in this which forced him to preside against his will?

And he could always resign the Chief Justice position, if he was determined enough to avoid the job.
 

Query: Could Roberts resign as Chief Justice and remain a Justice? If so, then would Trump be able to nominate one of he other Justices 0say, Kavanaugh) as Chief and get a compliant GOP Senate to confirm, to provide better control for Trump IF the House brings impeachment charges?

Keep in mind that with impeachment, generally the VP presides, except in the case of the president. Isn't that an effort to deep thins more fair and less political IF there is a Senate trial?
 

Republican senators reportedly are rather sure that there is going to be a trial. McConnell is making noises suggesting there will be an impeachment vote.

The Constitution says that the Chief Justice presides but perhaps add more on why he cannot "recuse" himself. That suggests some reason to recuse. Rep. Pence is Mike Pence's brother. He's in the room during the process here along with various other Republicans. But, say Greg Pence was instead Chief Justice Greg Pence & after Trump was removed that President Pence was impeached. Would Greg Pence be compelled to preside even though he would be biased? What if Melania Trump was the Chief Justice?

Some absolute rule brings up the idea of self-pardons that people argue a literal interpretation of the text allows but others not is not allowed for various reasons. OTOH, I don't see any grounds now for the CJ Roberts to not preside. As to "forcing" him to do so, what other things should we let constitutional personnel not do because they prefer not to? Yes, he can always resign.

Anyway, the umpire metaphor was somewhat dubious (though umpires do in practice has significant discretion) in general though it wasn't his alone. If anything, he has less discretion as a presiding officer here. The "trial judge" comparison only takes us so far though he is the presiding officer of a Senate trial. But, he does in theory have discretion, so the general tenor of the post has some bite.

 

Chief Justice and remain a Justice

In theory, this might be possible but the system in place involves nomination of a Chief Justice and splitting the baby is not possible.

Temporary terms as "chief" are in place in various lower courts and I think it might be a good idea if the Supreme Court has such a system too. The Chief Justice has limited power (plus various statutory obligations) but power all the same. Some more rotation of office in this respect is a sensible approach.
 

"Republican senators reportedly are rather sure that there is going to be a trial. McConnell is making noises suggesting there will be an impeachment vote."

Well, yes, as a political matter I think it's nearly certain the House will vote to impeach; The House majority is Democratic, after all, and registered Democrats are at something approaching 90% in favor of impeachment in recent polling. Even if they can't find a charge that would plausibly result in a conviction, failing to impeach would be political suicide for too many of them. And voting to impeach could be political suicide for others of them... That's the corner they've worked themselves into.

But, still, he shouldn't write as though it were predestined or something. It IS possible the impeachment push could fall apart through the consequence of external events. For instance, charges have been recommended against McCabe for perjury, and other charges for criminal abuses during the spying scandal and Mueller investigation may be pending. Democrats have already begun spinning this as itself a form of impeachable corruption, but depending on what is released about the abuses in Horowitz' report, it could start to be difficult to impeach Trump.
 

It's not a real trial. It's a political process. I don't even necessarily see why you would have to have live witnesses, given that the House is doing a whole bunch of witness interviews.

Part of the reason why real trials work the way they do is because jurors are not supposed to expose themselves to pre-trial publicity. So if a witness is effectively cross-examined at a deposition or a pre-trial hearing, it doesn't matter. You have to do it again in front of the jury.

But that rule doesn't apply to Senators. They can judge the evidence any time they want to. Indeed, they can ignore the evidence and vote to convict or acquit on any motivation they wish to. There are no jury instructions in an impeachment trial either (just a "Senators, how say you?").

Roberts should basically do whatever the Senate wants him to do.
 

"I don't even necessarily see why you would have to have live witnesses, given that the House is doing a whole bunch of witness interviews.

....

But that rule doesn't apply to Senators. They can judge the evidence any time they want to.

Did you somehow miss the part where the witnesses are being interviewed in a "Sensitive Compartmented Information Facility" maintained by the intelligence committee? Nobody but intelligence committee members get to attend or view the transcripts, and they can't copy them.

Not only can't the Senators judge the evidence any time they want to, it would be a felony for the Republican committee members to share it with them. Though anything the Democratic majority on the committee wants leaked is fine.
 

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It hardly seems plausible that the transcripts won't be released. After all, Schiff couldn't hand the Republicans with a better reason for voting against removal, and a better club against the Democrats, than, "It is ridiculous and patently unjust to vote to convict without seeing the evidence."

And it would be.
 

It hardly seems plausible to ME that they'd go to such trouble to keep the transcripts secret, and then release them. Selectively, perhaps, but not in total.
 

One additional point: Republican complaints about secrecy are laughable.

The Administration is doing all it can to prevent witnesses from testifying, and to stop the committees from seeing the full report of the Mueller grand jury.

All about transparency, are they? What a joke.
 

Let's see what they do about the witnesses once there's been a vote. Since that was cited as a reason for refusing to cooperate.
 

Oh right, Brett. That's the only reason they are blocking them. Is there anything you won't believe?
 

Until addressing the complaint results in no change, you haven't established that the complaint was a pretext. Maybe given your disdain for Trump you don't need evidence to think badly of him, but I'm going to wait on that evidence.

Trump has a pattern of complying with court orders, even as he insults the judges issuing them. Let's see if his record of complying with lawful demands continues.
 

Soon the impeachment centipede will be cascading plenty of shoes. Just like with Nixon.
 

In Trump's mind, he doesn't think demands against him are lawful, rather they are awful from narcissistic point of view. Trump got Roy Cohn to challenge the government's claims agains Trump and his dad and Roy Cohn convinced the Trumps to sue for damages and the government prevailed all around. The Trumps lost but claimed some sort of a victory. Look at the stupidity of Trump's initial decision on withdrawing troops from Syria. I see a Chapter 11 soon for Trump Enterprises. And consider the background at game 5 of the World Series of fans who picked up on Trump rasallies' with "LOCK HIM UP." Here's a bumper sticker: "IMPEACH TO RESTORE AMERICA'S CREDIBILITY."
 

One is that, as I read Article I, the Chief Justice is required to preside. He cannot recuse, as one article that I read today suggested.

There is a provision of the U.S. code: "Whenever the Chief Justice is unable to perform the duties of his office or the office is vacant, his powers and duties shall devolve upon the associate justice next in precedence who is able to act, until such disability is removed or another Chief Justice is appointed and duly qualified."

So, if Chief Justice Roberts was too ill to preside would that apply with Thomas stepping in? I see an article suggesting some comment Roberts made makes him biased. The example seems silly. But, there are some extreme cases that might come up as I suggested. How far are we going to take that? Also, should Roberts recuse from a case if an impeachment related question (such as the grand jury testimony question) reaches the Court? What if a POTUS was impeached for bribery of the Chief Justice?

I think basic recusal rules might be in place here, just as the power to self-pardon is not in place given the basic "no judge in your own case" principle.
 

Brett,

There is nothing unlawful about the inquiry in process.

I have no doubt that if Trump's objections - which you faithfully echo - were met he would find others, which you would again echo.
 

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Gerard: Roberts could instead follow the precedent of Chief Justice Chase, who took a more muscular view of his authority in Andrew Johnson's impeachment trial. The upcoming trial will look more like the Johnson version than the Clinton version (for instance, there will be fact witnesses), which lends itself more to following Chase's example.

Amen.

If the Democrats bring their circus to the Senate, hopefully, Roberts will shoot down every attempt to introduce hearsay, speculation and opinion as evidence. Live witnesses under oath testifying to personal knowledge and subject to cross examination.

Better yet, demand the testimony be relevant to the actual charges, whatever the hell those might be. No nonsense about how some bureaucrat is upset about Trump bypassing or sidelining him or her.
 

Let's just list Brett's claims, for future reference:

1. The actual transcripts of witness testimony will never be released by the Democrats.

2. Once there is a vote on the inquiry the White House will cooperate fully with the investigation, and will cease trying to prevent witnesses from testifying, or the use of grand jury testimony.

Is that it, Brett?

 

More like,

1. The complete transcripts of all witness testimony will never be released by the Democrats. And they will try to make sure some of the witnesses are never confronted and cross examined.

2. Once there is a vote on the inquiry the White house will cooperate, grudgingly, and only to the extent it is actually legally obligated, just like any other defendant with competent counsel facing a prosecutor pursuing a vendetta.

Because that's what is going on here, of course. The Democrats have been looking for a semi-plausible charge to impeach him ever since Trump got the nomination, and they've scarcely even bothered pretending otherwise.
 

So you're moving the goalposts on #1, and saying that as far as #2 goes, they'll do only what they are forced to do, which is exactly what they are doing now.

Vendetta. What actual behavior by Trump would you regard as worthy of impeachment?

 

We'll see what the actual House Democrat resolution says today, but reportedly the Democrats continue to refuse to hold a vote on whether to authorize impeachment proceedings and this proposed resolution instead merely establishes procedures for their unauthorized proceedings.

Never admit you were wrong.
 

Well, Bart, if the procedures they establish say that committee chairmen or Speakers can initiate impeachment investigations on their own say-so, they've got it covered, even if they don't specifically mention Trump. So in that sense the vote could indirectly authorize the proceedings.

Mind, that would be an insane thing to do unless they think they're never going to lose the House, but it wouldn't be the first time they changed the rules for momentary advantage, and it came back to haunt them.
 

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byomtov said... What actual behavior by Trump would you regard as worthy of impeachment?

Contrasting the reported complaint against Trump with the Trump complaint against the Obama administration provides an answer.

"High crimes and misdemeanors" is an English term of art which not only includes common law crimes, but also acts in excess of lawful powers.

Trump's complaint against the Obama administration is they were spying on him even though he committed no crime and was not a foreign agent.

The similar Democrat complaint against Trump is he "pressured" Ukraine to criminally investigate the Bidens.

The difference between the two complaints is there was evidence of a crime to support an investigation of the Bidens, but never any against Trump.

Because of this impeachment attack, the evidence against the Bidens is now well known: (1) Obama made aid to Ukraine part of Biden's portfolio as VP; (2) A Russian oligarch paid Biden's son about a million dollars a year to sit on the board of his natural gas company for no known work; (3) When Ukraine started to investigate the Russian oligrach's company, Biden bragged in public he threatened to withhold US loan guarantees until Ukraine agreed to fire the investigator. Prima facie case of bribery.

In sharp contrast, the Mueller report admitted there was never any evidence Trump or any member of his campaign conspired with Russia to hack the Democrat emails or to commit any other crime to justify their years long "investigation."

A law enforcement officer performing an investigation based on evidence of a crime is doing his job. The same officer using the government's law enforcement and intelligence services to "investigate" an American with no evidence of a crime is spying in excess of his lawful powers. The latter is impeachable, the former is not.
 

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"Vendetta. What actual behavior by Trump would you regard as worthy of impeachment?"

As I've said before, every President in my lifetime has done something to merit impeachment, if we were to be serious about it. Except maybe Carter, who was more feckless than criminal.

Reagan, for instance, may have armed the Contras out of the very best of motives, but Iran-Contra was still a criminal conspiracy, and would have been a perfectly appropriate basis for impeachment. I liked the guy, but if he'd been impeached over that, could not have argued that it was unjust.

Trump has actually been more law abiding than the usual President, probably due to not coming from a political background, and so approaching the office more from a HS civics class view of it, than the jaded "anything I can get away with is legal" view of an experienced politician. So far I'm unaware of any actual criminal acts by him as President. Certainly nothing past Presidents wouldn't have gotten away with as a matter of routine.

But, of course, the House could always impeach him over something past Presidents have routinely done, like ordering that a Congressional subpoena be ignored. It just seems a bit absurd to be impeaching him over something phony.
 

The concerns of victimhood continues. Disdain is often supplied regarding how "the Left" are so concerned about alleged victims but conservatives are regularly complaining about being victims.

Conservatives control the Supreme Court, the Senate, the White House and until recently the HOR. And, even in the HOR, Republicans -- including Mike Pence's brother -- are involved. They are in the room. And, contra to a previous comment, not even one committee's Republicans. Three committees are involved and though classified information has to be carefully handled, they get to see materials too.

There is a concern now that "complete transcripts of all witness testimony" won't be released. Something will be hidden. The Republicans have no real leg to stand on here when the White House repeatedly are blocking witnesses from testifying and resisting subpoena of materials. This is standard. See the Kavanaugh hearings.

Republicans are in the room now while witnesses are being interviews, some of whom the White House still do not want there. More than one testified or even asked a judge to announce if he could testify against the will of the Administration. If there is an impeachment trial, the impeached person also has the right to confront witnesses. The trial is in the Senate. It is controlled by Republicans, presided over by a conservative Chief Justice. If the Democrats had their way, there would be a lot more witnesses, including in open testimony. Some already were.

There is no "legal obligation" for "a vote on the inquiry" -- the House has sole power over impeachments. There are rules in place, last used by the Republican controlled House. The Administration are not cooperating in a range of ways, not just involving the impeachment inquiry, without legal backing. So, why would they suddenly be satisfied with the vote? That would be stupid. They will find some other problem. Like any other person in their position though past executives did not go this far stonewalling.

The "Democrats" as a whole have not been for impeachment of Trump since the nomination. A segment of them after they gained control of the House was upset that Pelosi on down in fact was very wary of impeachment. There were grounds, surely, and a range of people including a former head of the FBI appointed by George W. Bush have talked about it. His acts of criminality goes back decades. Again, people have been writing about this, including his involvement with the mob in respect to his business.

This shouldn't surprise someone who in a previous thread said the party he leads is a bunch of crooks. But, Trump has the right enemies and socialism/stuff, so you know.
 

Brett:

The Democrat leadership is being too cute by half. Pelosi & Co. don't want to admit they were acting unconstitutionally by voting on a resolution to begin impeachment proceedings after the fact. On the other hand, the Dems need authority for their demands for testimony and documents to avoid lengthy court battles pushing off the eventual impeachment vote into the election year. Thus, the reported resolution setting procedures for their unauthorized impeachment proceedings.

These legal niceties are meaningless to voters. All they will see is their representative did or did not vote for impeachment. The GOP will certainly do all they can to reinforce that impression.
 

"There is no "legal obligation" for "a vote on the inquiry" -- the House has sole power over impeachments."

I keep having to point this out to you: Pelsoi and Schiff are not "the House". They're just members of it. Holding votes is HOW "the House" as an institution acts.
 

"Trump has actually been more law abiding than the usual President."

You can't even grant he is the same. He is actually MORE law abiding.

"so approaching the office more from a HS civics class view of it"

When people, including Republicans, see how Trump is operating, they think "this is guy that is approaching the office from a HS civics class view of it."

(They don't. At least, not if they are able to be a little bit objective.)
 

Trump was elected as an bull in the china shop sort of character even if some were wary about the mess he would make. But, some want to have their cake and eat it too. He turns out to be even more benign than the normal politician. That is a bit much.
 

"The "Democrats" as a whole have not been for impeachment of Trump since the nomination."

Impeach Trump? Most Democrats already say ‘yes.’ Feb. 24, 2017 at 10:25 a.m. EST

That's right, mere WEEKS after he was sworn in, a solid majority of Democrats, 58%, favored Trump being impeached.

By May, according to Politico/Morning Consult, 71% of Democrats favored impeaching him, and, "Of those who want Congress to move toward impeachment, a 54-percent majority of those believe Trump “has proven he is unfit to serve and should be removed from office, regardless of whether he committed an impeachable offense or not.” Only 43 percent of those seeking impeachment believe Trump has committed an offense that meets the high constitutional standards for removal."

So, you're simply wrong. As soon as pollsters started asking the question, a majority of Democrats were in favor of impeaching Trump, and regardless of whether an offense could be identified. Just for the sin of not being Hillary Clinton, really.
 

"He turns out to be even more benign than the normal politician. That is a bit much."

Name one adverse court ruling that Trump has failed to abide by, the way Obama violated that injunction against banning Gulf drilling. No, he insults the judges, and then complies with the injunction until he can get it overturned.

He's a bull in the china shop, but he's a law abiding bull.
 

Joe:

The House indeed has plenary power over impeachment. The only way the House can exercise that power is through a vote of its members. The Constitution grants individual members no power over impeachment.

There is no analogy between the Kavenaugh confirmation hearings and the House Democrat star chamber. Declining to take obviously groundless testimony and taking testimony in secret are hardly the same things. Anything the House Democrats plan to use as "evidence" to support articles of impeachment needs to be public. No evidence of actual high crimes and misdemeanors should be classified or otherwise withheld. Given the years long history of Democrats and their media lying about the existence and nature of "evidence" against Trump, the people should not accept Democrat accounts of hidden testimony and documents.
 

Holding votes is HOW "the House" as an institution acts.

The House of Representatives as an institution passed rules of proceedings including a committee system with investigatory powers. Two people aren't involved here alone. Thus, Republicans, per the rules in place, of three committees are involved as noted in one article. One of these Republicans being Mike Pence's brother.

Democrats for impeachment

The link cites a poll not from "nomination" but from February 2017. Brett is yet again moving goal posts. And, the title says "most" and then talks about "58%." There was some (how strong is unclear) feeling Trump was unfit given the evidence. Surely.

I'm not "simply wrong." Moving past polls to actual actions, which to me matters the most, when the Democrats actually gained control of the House of Representatives, members of the House Democratic Caucus took a long time to come around. Pelosi and Hoyer repeatedly handwaved the importance of impeachment, in fact rather patronizingly explaining it might even be counterproductive. Suggestive here was the wariness of two major Democrats running for President -- Biden and Sanders -- before Ukraine to support impeachment.
 

Brett clarifies some more.

"Law abiding" here means following court orders. The need of so many court orders underlines the he is not just following some civics version of the office. He continues to resist lawful subpoenas and witness requests. The court orders also underlines how he is being challenging using legal processes. He is not some victim being opposed by a lawless unfair socialist specter.

As does other things. For instance, his view of the proper role of the Attorney General etc. as shown in the Mueller Report is that they have some special personal loyalty to him above and beyond normal ethical/legal rules.

A "high school civics" approach this is not. And, there are the numerous impeachable offenses that are being investigated now. Obviously, Brett doesn't think they are there, but a range of people have flagged them, including a former head of the FBI appointed by George W. Bush. Not just "the Left."

Brett speaks of past presidents committing impeachable offenses but even here he says Trump is better. Not the same so in that sense being treated unfair. Sad victim. No. He's better.

That is a bit much.
 

Seriously, you're going to dispute that 58% is "most"?

Democrats were discussing impeaching Trump before he got the nomination, and as soon as polls started asking about it, mere weeks after he took office, a solid majority of Democrats wanted him impeached, and a majority of those Democrats didn't care if an impeachable offense could be identified.

It's not like I can cite polls from before they started asking the question, you know.

It's as simple as this: Democrats started out meaning to impeach Trump, and didn't care what the basis was. They've spent the last 3 years searching for a plausible excuse, and as the 2020 campaign season approaches, have given up on demanding that the excuse be plausible, they're just going to impeach him regardless.
 

Joe: The House of Representatives as an institution passed rules of proceedings including a committee system with investigatory powers.

For the purpose of government oversight to draft legislation.

The House never enacted rules delegating powers to individuals or committees to conduct impeachment proceedings. Instead, House historically always held a vote to begin each impeachment proceeding.
 

I think basic recusal rules might be in place here

I agree basic recusal PRINCIPLES are in place here. The CJ can recuse, and then Thomas steps in.

But they aren't going to be rules. First, Scalia ruled in the duck hunting case that SCOTUS justices are always the masters of their own recusals anyway. And second, the job of presiding over an impeachment "trial", where rulings can be overruled by the Senate and the proceeding is political, is just not the same as presiding over a normal case. There's no need to recuse even if Roberts had made seriously biased comments, because there's no prejudice.
 

By the way, there's no constitutional requirement that the impeachment trial be public and certainly no constitutional requirement that it be televised. If the Senate wants to hold a classified session to examine evidence, with attendance limited to people with security clearances, there's no constitutional objection to that even though the television networks would scream about it.
 

Brett,

I keep having to point this out to you: Pelsoi and Schiff are not "the House". They're just members of it. Holding votes is HOW "the House" as an institution acts.

Compare to the Merrick Garland non-proceedings. Mitch McConnell is not the Senate. He is just a member of it. Holding votes is how the Senate acts. Yet somehow it was perfectly legitimate for him to decide on his own that Garland would not be confirmed.

Bart,

Your 10:09 AM comment is simply full of lies and distortions.
 

Also, Joe's right about the House rules.

If the House impeachment inquiry actually violated House rules (which still wouldn't make it unconstitutional, just illegal under the House rules), the Republicans could appeal to the Parliamentarian, and they would. Even if it forced the Democrats to take a vote overruling the Parliamentarian's ruling, that would still look bad for the Democrats politically, because Republicans would have made their political point about the impeachment inquiry.

The fact that the Republicans are making this argument on television networks but not engaging in the formal process, permissible under House rules, for challenging the legality of a House proceeding, tells you all you need to know about this.
 

" there's no constitutional objection to that even though the television networks would scream about it."

I suppose for that matter there's nothing in the Constitution saying it has to be a roll call vote, so they could just do one of those quorum free voice votes late at night.

I'm kind of assuming the want to at least try to look like they're not railroading him, though.
 

Dilan: By the way, there's no constitutional requirement that the impeachment trial be public

Try the 5A due process clause.

As Justice Hugo Black noted in In re Oliver, 333 U.S. 257, 268–70 (1948):

“The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the letter de cachet. All of these institutions obviously symbolized a menace to liberty. . . . Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.”

In this one instance where the Congress is asked to act as a court, Trump, any other POTUS and the people who elected them should have a right to basic due process.


 

Brett:

Yes, they definitely want to avoid the appearance of railroading. Because it is a political process.

But the "railroading" option is there because one could imagine a different scenario. Let's say 90 percent of the American public wanted a President out because of whatever the grossest form of misconduct that all of us in this thread would agree on being a high crime or misdemeanor. There was massive bipartisan agreement in the House and Senate about it as well. But the President wouldn't leave and he had installed loyalists in the cabinet who wouldn't invoke the 25th Amendment.

In that situation, the Congress COULD get away with a very summary process. A committee vote, a quick vote to suspend House rules, an impeachment vote, and a vote to appoint managers, followed by a unanimous consent motion for an immediate vote in the Senate at the start of the trial, and a quick vote to convict. The public wouldn't object to Congress doing it this way, and you could get the guy out of office very quickly before he did any further damage.

The Constitution doesn't impose limitations on any of this, and the House and Senate rules are the way they are to serve political purposes.
 

Bart:

Nixon v. United States precludes any remedy for alleged due process violations.

At any rate, even if one were to make the mistake of applying the due process clause to an impeachment proceeding at all, a job removal hearing has never carried a public trial right unless statutorily granted. Cases involving people facing criminal prosecutions are not applicable. There are arbitrations, conducted in complete secrecy, that decide more weighty issues than whether someone keeps his job.
 

I want to build on that point for a moment. With respect to all this stuff about due process.

What process are you due when you are fired for employment misconduct? There are two answers:

1. None- you can be fired for any reason.

OR

2. Some minimal due process, such as a private hearing, where you have an opportunity to be heard and to establish that there is no cause to fire you.

That's it. All these grandiose claims about star chambers and hearsay rules and subpoenaing live witnesses and the like have nothing to do with this. If there is any due process at all involved in impeachment proceedings, it's something like (2)- that the President's representatives perhaps have some right to contest the charges and attempt to establish that there is no high crime or misdemeanor sufficient to justify impeachment. That's the due process.
 

First definition that comes up for "rules" -- "one of a set of explicit or understood regulations or principles governing conduct within a particular activity or sphere."

I'm not really going to try ("try") to slice what exactly is involved there.

Seriously, you're going to dispute that 58% is "most"?

I find the word misleading to explain the whole story since it is a little more than a simple majority when the overall implication is that vast number of the Democrats strongly was for impeachment from the summer of 2016 or something.

For instance, it is noted they were "discussing" impeachment. Likewise, the Speaker of the House, after the Democrats regained control of the House, and Steny Hoyer, another leader, repeatedly handwaved impeachment. For a variety of reasons.

Democrats have not been recklessly or something rushing toward impeachment. They have been deliberate about it with Ukraine seen by many as a sort of tipping point. Yes, Democrats long before then found Trump unfit and mixed up with various illegal acts to boot. The facts continue to come out there. But, the actions of the Democrats as a whole in Congress on impeachment has been deliberate.
 

"There's no need to recuse even if Roberts had made seriously biased comments, because there's no prejudice."

The fact an impeachment trial is political, presiding is largely symbolic and the senators can overrule his rulings does not erase all possibility of prejudice.

The presiding officer, especially the Chief Justice of the U.S., has a duty of neutrality not in place for individual senators. A Chief Justice who actively campaigned for the innocence or guilt of the impeached person would be prejudiced. The power of the Senate to check this would depend on its political make-up.

The Chief Justice has some individual duty here too.
 

The power of the Senate to check this would depend on its political make-up.

Which is fine, because it's a political process. If the Senate's fine with a biased presiding officer, that's a choice it gets to make.

I would add that the recusual thing is basically theoretical anyway. No Chief Justice is going to turn down the chance to preside over an impeachment, nor should they.
 

And more broadly, a whole lot of bias is totally fine in an impeachment process, from everyone. Because it's a political process.

Literally NOBODY expects the Senators to act like a jury- to shut themselves off from the news, ignore their constituents, and not form any prejudgments about the case. Everyone knows and accepts that the Senators are going to be biased.

So "bias" is basically just irrelevant to this situation. Put another way, in legal processes, a biased tribunal is grounds for a reversal. Heck, you can even get an arbitration award vacated on grounds of bias, and it's extremely hard to get any review of arbitration awards.

But because this is a political process, we expect bias. There's supposed to be bias. The framers intended bias.
 

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Every time Dilan says "political process," DRINK!

The political process factors in a range of things. One thing is expectations of various constitutional norms. The Chief Justice presiding (as compared to someone else) factors in there.

[I saw the second reply. Covers old ground. The issue here is specifically the presiding officer. If we are talking about original understanding, I think they expected the presiding officer to be neutral as a whole. This is a basic point of choosing the Chief Justice over the Vice President here.]

"Basically" means that something might come up. The OP set forth an absolute rule. If the wife of a Chief Justice was impeached, no, I don't think the Constitution compels the CJ not to recuse. Ditto if a judge is impeached and the Vice President decides they cannot preside. The impeachment might also directly involve the Supreme Court such as an allegation the President bribed justices, including the Chief, etc.

GM's posts are regularly all about such special possibilities. Basically.
 

Dilan:

OK, I revisited Nixon v. US over lunch and a court could easily distinguish the opinion in a case determining whether the 5A Due Process Clause applies to the impeachment process.

Nixon did not raise a due process claim, but rather asked the court to interpret the term "try" in the Impeachment Clause to mean evidence must be received by the entire Senate and not a subgroup as called for under Senate rules. In holding this challenge was non-justiciable, the Nixon Court noted: "A holding of nonjusticiability is consistent with this Court's opinion in Powell v. McCormack, 395 U. S. 486. Unlike the situation in that case, there is no separate constitutional provision which could be defeated by allowing the Senate final authority to determine the meaning of the word "try" in Art. I, § 3, cl. 6."

While the Democrats could reasonably cite some of the Nixon court's reasoning in arguing their denial of due process to Donald Trump was non-justiciable, the holding itself does not decide the issue.
 

Dilan:

If neither the voters or a court of law are willing to check the body, the Congress could indeed "get away" with any violation of the Constitution.
 

Joe, I agree with you that the CJ can recuse. The statute is clear, and there's nothing in the Constitution that prohibits it.

In point of act, the CJ won't recuse, and I don't think any CJ should recuse, even if his wife were the President or something.

Indeed, that would be a nice occasion for a civics lesson about the political nature of impeachment. That since this isn't anything like a real trial, we don't require an unbiased presiding officer.

And there's zero danger if the CJ is biased, because all of his rulings can be overruled by the Senate.

Indeed, I much prefer the open unreviewable bias of impeachment processes to the pretense that the Supreme Court deciding a case like Bush v. Gore is applying legal principles when they aren't.
 

Bart:

You can distinguish the case only by ignoring numerous paragraphs of the opinion that say things like the Court has "no role" in impeachemnt.

If the Court had actually just made a technical holding on the word "try", there would be no need for Justice White's concurrence (arguing that the Court should have made a technical holding on the word "try" and not foreclosed entirely challenges to impeachment).

Nixon's actual holding is that impeachments are a political question reserved for the Senate. Nobody seriously doubts this.
 

The bottom line is that there's nothing but politics stopping them from railroading him, the courts won't save him if impeaching him is politically viable.

Which is true, but it utterly destroys the idea that being impeached is some kind of black mark. From this perspective, impeachment signals nothing more than that your political enemies had a majority in the House, and conviction nothing more than that your political enemies had a large majority in the Senate.

Impeachment will simply become routine any time the House and the President are of different parties, and nobody will attribute any moral significance to it.
 

Which is true, but it utterly destroys the idea that being impeached is some kind of black mark.

Didn't we know that already from Clinton? I don't know how historians will view the Clinton impeachment- I could see it going in many directions, from the sort of standard liberal narrative of Republican overreach to it being seen as one of the first shots fired in the #metoo era, holding a powerful predator accountable for his mistreatment of women.

But it was perfectly obvious that being the second President to be impeached wouldn't AUTOMATICALLY be seen as a black mark. Historians would of course look at the context and make a judgment as to whether it should be seen as such.
 

The impeachment inquiry resolution has been released:

https://docs.house.gov/billsthisweek/20191028/BILLS-116-HRes660.pdf

Per one summary from Washington Post:

Toplines:
--Intel Cmte holds the public hearings
--Schiff can authorize longer questioning periods, followed by usual 5-min rounds
--minority gets to request subpoenas, ultimately subject to cmte vote
--similar procedures for Judiciary
--no provision for Trump counsel

Per aides familiar: Rights for Trump counsel will be set out pursuant to separate Judiciary Committee authority, incorporated by reference in the floor resolution.

Like a recent court opinion, it cites an existing impeachment inquiry.
 

This comment has been removed by the author.
 

Dilan:

The Nixon Court expressly limited its non-justiciability holding to the substantive issue raised by Judge Nixon and distinguished that holding from cases involving seperate contrary provisions of the Constitution like the 5A Due Process Clause.

Yes, the Nixon Court offered broad dicta of deference to a Senate's impeachment trial. However, no previous impeachment proceeding has begun without a vote of the House or denied the POTUS all due process. This earlier Court's deference does not fit our brave new world of the Democrat star chamber.
 

Of note from the Democrats proposed resolution...

The resolution directs the various committees to continue their ongoing impeachment investigations. If the Constitution authorized the original investigations, why the need to authorize them now?

The public hearings will be extremely short, apparently only 5 minutes of questions per member and 90 minutes total per witness.

The minority can request witness subpoenas, which the majority can deny.

The Dems will freely redact released transcripts of prior secret testimony. Presumably, the Democrats will forbid the Republicans from raising any redacted testimony during their 5 minutes of questions.

Dog and pony show.
 

Yes, the Nixon Court offered broad dicta of deference to a Senate's impeachment trial.

It wasn't dicta. It was a holding. The REASON Nixon had no claim is because the political question doctrine barred any review of impeachments.

As I said, that's why Justice White authored his concurrence- he thought the majority should have left open due process and other challenges.
 

The resolution directs the various committees to continue their ongoing impeachment investigations. If the Constitution authorized the original investigations, why the need to authorize them now?


You got this everyone? So if the House doesn't pass a resolution, it's illegal. If it does pass a resolution, it's still illegal.

Bart, "heads I win tails you lose" is not serious reasoning.
 

Dilan:

My point was, if the Constitution does not require a vote of the House to begin impeachment proceedings, why is Pelosi holding a vote after the fact?
 

I would have to say that the resolution, if it passes, cures any constitutional deficiency from my perspective, since the constitutional requirements are fairly minimal. Though if it represents an effort to dispel the impression this process is rigged, it fails badly.

They've set things up so that the minority can only issue subpoenas with the majority's approval, and the amount of cross examination permitted is nominal. Total failure if they were trying to create the impression of procedural fairness.

This won't particularly bother Democrats, of course, since a majority of them, as I've demonstrated from polling, wanted Trump impeached before they'd even settled on an excuse for doing so. Any procedural irregularities along the way are trivial so far as they're concerned, the end always justifies the means.

But it demonstrates that Pelosi isn't really anticipating a real effort to obtain a conviction. As was likely all along, it's purely a PR effort.
 

My point was, if the Constitution does not require a vote of the House to begin impeachment proceedings, why is Pelosi holding a vote after the fact?

Because people on your side are demanding one.
 

Dilan:

So the GOP used their super powers to force Pelosi to hold a vote which the Constitution does not require? For their next trick, the GOP will force Pelosi to drop impeachment altogether!

More like GOP libertarians and conservatives shamed the Democrats into belatedly holding a constitutionally required vote they should have had months ago.
 

Bart:

The GOP used their political powers to pressure Pelosi to hold a vote. Which, by the way, was completely within their rights to do.

And if you want to say they shamed them, that's fine too.

But doing something because you look bad politically is not the same thing as either breaking the law or conceding that what you did before was illegal.

And you are very aware of this fact. It's no different then when a lawyer responds to a motion to dismiss by amending a complaint. It's not in any way necessarily a concession that the original complaint was deficient. It's just saying to the other side "OK, since you are demanding we amend, we're amending".
 

Dilan: The GOP used their political powers to pressure Pelosi to hold a vote.

Political powers? Aren't the Democrat media polls saying Trump and the GOP are about as popular as whale sh_t?

If you are suggesting the Democrat star chamber is pissing off voters (at least the ones that count in swing states and districts) and the scared Dem leadership is holding this dog and pony show in an attempt mollify them, you Trump and I agree.

Trump is not running away from the Democrat star chamber, he is featuring it during his mass rallies and even more massive fund raising.

When I turn on AM conservative talk radio (local and national) winding through the mountains to court, fury at this impeachment attack is all I hear.

If the Democrats launched this farce to get out the vote, I believe they will succeed, just not the way they expected.
 

If the Democrats launched this farce to get out the vote, I believe they will succeed, just not the way they expected.
# posted by Blogger Bart DePalma : 6:27 PM

These poll numbers are great news for John McCain!! - Baghdad Bart
 

The person who thinks Trump is better than past occupants of the White House while saying in a past thread he still thinks the party he heads is a bunch of crooks is not satisfied things are fair. YMMV. Similarly, many strongly ideological Democrats never thought the Clinton impeachment was fair. So it goes.

They've set things up so that the minority can only issue subpoenas with the majority's approval, and the amount of cross examination permitted is nominal. Total failure if they were trying to create the impression of procedural fairness.

I don't know what "nominal" means. The minority gets to question. What Trump's lawyers get is pending. Any "total failure" -- other than strong Trump partisans like Brett, perhaps -- is far from clear especially before it is even applied. Allowing a minority, especially one that already showed they abused the process with that stunt, to subpoena w/o limit seems dubious. After all, the party is full with crooks according to the Trump supporter.

This won't particularly bother Democrats, of course, since a majority of them, as I've demonstrated from polling, wanted Trump impeached before they'd even settled on an excuse for doing so. Any procedural irregularities along the way are trivial so far as they're concerned, the end always justifies the means.

A majority of Democrats thought Trump did something impeachable based on the facts. They did not need an "excuse." For instance, the former head of the FBI appointed by George W Bush set forth stuff in the Mueller Report. Or, the Ukraine stuff via testimony by a range of career people, military or not. There are no "procedural irregularities." The process has been done deliberately, including their respect for governmental rules and norms.

But it demonstrates that Pelosi isn't really anticipating a real effort to obtain a conviction. As was likely all along, it's purely a PR effort.

As Dilan notes, impeachment is a political matter, but it need not be for a careful deliberate process that factors in a range of things including appearances to be factored in. There is an actual set of offenses here but the person who thinks Trump is better, following a civics view of the government, disagrees. YMMV.
 

"A majority of Democrats thought Trump did something impeachable based on the facts. They did not need an "excuse.""

Again, polling mere WEEKS after Trump took office showed 58 percent of Democrats in favor of impeaching Trump, and the majority of those Democrats didn't care if an impeachable offense could be identified.

The impeachable thing they though he did was winning the election.
 

polling mere WEEKS after Trump took office showed 58 percent of Democrats in favor of impeaching Trump,

Which is meaningless wrt the current situation. The question is not what 58% or whatever thought, but whether the current accusations, if true, are sufficient to merit impeachment. I mean I assume that even you would support impeachment for a 5th Ave. shooting. Would it matter then what 58% of Democrats thought in early 2017?
 

Again, polling mere WEEKS after Trump took office showed 58 percent of Democrats in favor of impeaching Trump, and the majority of those Democrats didn't care if an impeachable offense could be identified.

The actual people involved in impeaching is the House of Representatives, and when they gained power, those Democrats did not rush to impeachment. Pelosi on down "cared" about how things operated. I note the "didn't care" numbers could amount to less than 30% of the Democrats. Or, a majority of 58%. Even going by those numbers.

Democrats and others saw Trump do various things that they thought warranting impeachment though since Republicans controlled the House, they knew it wouldn't happen. So, I take such poll data and talk with a lot of salt. Anyway, Bush won the election. Pelosi said impeachment was off the table. His father won the election. Reagan won the election etc.

Trump is treated differently, including by Never Trumper "scum" in his words because the facts on the ground are different. As the Mueller Report alone shown, the facts were out there even in January 2017. They are much more clear now.

And, byomtov is correct too.

(on an alternative universe, Hillary Clinton is being impeached & ideological supporters are saying it was all fixed, pointing out how Brett et. al. said she was a felon in 2016 so they were out to get her, trying to lock her up, since the beginning)
 

Re: minority subpoenas, if Republicans are denied the ability to bring a key witness, they can take the complaint public. If the public agrees with them, the Democrats are almost certainly going to have to back down.

And because of this, I don't think the Democrats are going to impose a lot of restrictions on who the Republicans can subpoena. I think the resolution is best seen as retaining the power to restrain the Republicans if it is clear they are just engaging in delaying tactics or something, but I would be shocked if any important witnesses whom the Republicans believe will give favorable testimony for Trump will not be brought in.
 

"Allowing a minority, especially one that already showed they abused the process with that stunt, to subpoena w/o limit seems dubious."

The rule on this is the same as in past impeachments.
 

Dilan:

The first witness the GOP will want to call is the “whistleblower.”

The first question they will want to ask him are to describe in detail his coordination with Schiff.

The second will be to identify his cited sources.

Then the GOP will want to call those sources.

Not a chance in hell Schiff allows the GOP to blow up this conspiracy.
 

Blankshot, the Dems don't need the whistleblower any more. They have LTC Vindman.
 

BB:

What precisely did Vindman say?

I was concerned with the call. I did not think it was proper.

I thought the ambassador’s statements were inappropriate.

Wow! Smoking gun evidence of “high improprieties”


 

Yeah, good luck with that.
 

"Re: minority subpoenas, if Republicans are denied the ability to bring a key witness, they can take the complaint public. If the public agrees with them, the Democrats are almost certainly going to have to back down.

And because of this, I don't think the Democrats are going to impose a lot of restrictions on who the Republicans can subpoena."

No, I think, for the reasons Bart identified, the Democrats are pretty much certain to impose serious restrictions on the Republicans. They'll simply rely on the MSM, consisting almost entirely of Democrats, to cover the action in a manner favorable to themselves.

The news this morning is that Schiff, when Republican committee members ask questions, is directing the witnesses to refuse to answer them. (The questions? Exactly the sort Bart proposes.) This does not suggest the Democrats are going to be interested in allowing Republicans to ask questions that might cause the Democrats problems.
 

Here's the text of the resolution.

On scanning it, I find that the minority is basically forbidden to do ANYTHING the majority objects to.

They can only call witnesses the majority agrees to, and have to explain in advance what they want to ask them about.

They can only ask questions of witnesses if the majority doesn't object to them.

Only the majority is permitted to release transcripts, and is permitted to redact them prior to release.

When the report is issued, the minority is permitted to include a dissent, but the majority can redact that, too.

Basically it's a kangaroo court, with all participation by the minority conditioned on the majority agreeing to it.
 

Bircher Bart has, in admitting the other day to being one of the Trump lemmings that would support Trump even if he knew Trump literally committed murder, totally discredited himself in these discussions. It's safe to assume that his comments on this topic are in the order of this total overwhelming of his moral sentiments by his partisan propagandist proclivities.

 

"On scanning it, I find that the minority is basically forbidden to do ANYTHING the majority objects to."

My goodness, when Bircher Brett reads things thoroughly he's prone to weird partisan-tinged conclusions...His 'scanning' is unreliable indeed!

Do some work Bircher Brett, cite page and line for assertions. Be careful, not sloppy, maybe this once?
 

So, I take it you didn't bother reading the resolution, then?

For instance,

"4
(4)(A) The ranking minority member of the
1
Permanent Select Committee is authorized, with the
2
concurrence of the chair, to require, as deemed nec-
3
essary to the investigation—
4
(i) by subpoena or otherwise—
5
(I) the attendance and testimony
6
of any person (including at a taking
7
of a deposition); and
8
(II) the production of books,
9
records, correspondence, memoranda,
10
papers, and documents; and
11
(ii) by interrogatory, the furnishing of
12
information.
13
(B) In the case that the chair declines to con-
14
cur in a proposed action of the ranking minority
15
member pursuant to subparagraph (A), the ranking
16
minority member shall have the right to refer to the
17
committee for decision the question whether such
18
authority shall be so exercised and the chair shall
19
convene the committee promptly to render that deci-
20
sion, subject to the notice procedures for a com-
21
mittee meeting under clause 2(g)(3)(A) and (B) of
22
rule XI. "

So, the minority can "request" these things. The chair does not have to accede to the requests. If he doesn't, the minority can appeal to the full committee, which, of course, (And properly!) has a majority of the majority party.

So the minority can only do these things if the majority permits it. The minority can not bring any witnesses or evidence that the majority objects to.
 

And,

"3 (5) The chair is authorized to make publicly
available in electronic form the transcripts of deposi-
4
tions conducted by the Permanent Select Committee
5
in furtherance of the investigation described in the
6
first section of this resolution, with appropriate
7
redactions for classified and other sensitive informa-
8
tion."

The chair, which is to say, the majority. Not the minority. And the chair can redact.

"16
The chair shall transmit such report and appendices,
along with any supplemental, minority, additional, or
17
dissenting views filed pursuant to clause 2(l) of rule
18
XI, to the Committee on the Judiciary and make
19
such report publicly available in electronic form,
20
with appropriate redactions to protect classified and
21
other sensitive information. "

Again, the minority is permitted to dissent, but the majority can redact any part of the report it wants, including the dissent.

Really, just read the thing, it's not that long.