I don't see any profiles in courage anywhere in this mess. The prosecution is every bit as tawdry as the defense, a transparent political hit job. The delay in transmitting the impeachment really underscored that.

Sometimes there just aren't any heroes on the playing field.
 

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The Republican motive for impeaching and attempting to remove the racist Democrat Johnson may have been his opposition to Republican efforts to enact legislation under the 14A, but such resistance was not a high crime or misdemeanor, nor an article of impeachment.

The Republican pretexts for impeaching and removing the irritating Democrat was Johnson's violation of two unconstitutional laws forbidding the POTUS from firing his subordinates and forcing the Commander in Chief to issue orders through his subordinate General Grant.

Thus, the Republicans have the dubious record of attempting the first partisan impeachment and removal without a high crime or misdemeanor. The Democrats' even weaker effort against Trump is the second.

Interestingly, both occurred when the nation was badly divided from a shooting civil war and now a cold civil war.

Putting aside the subjective notions of courage and cowardice, every Congress critter who voted or will vote for the impeachment and removal of Johnson or Trump violated the Constitution's limits on this congressional power.
 

You wrote: "Was Senator Edmund Ross of Kansas, whom JFK and the Vice President single[d] out, one of those [courageous] men? Definitely not. He was bribed for his not guilty vote. Ross was promised lots of federal patronage if he voted in favor of the President." That seems pretty bold: Do you have good sources for that?

I thought the standard claim against Ross was that he feared that his already-in-office patronage would be removed by the Senate President Pro Tem should President Johnson be removed and replaced by the SPPT (who was next in the line of succession). Andrew Johnson would just leave his people in the federal offices they already held. That's hardly a "promise[] [of] lots of federal patronage." And I am pretty confident that behavior (or, in this case, inaction) does not amount to being "bribed." Even that more limited claim -- that Ross voted in order to keep his people in the Executive Branch and on the federal payroll -- has (as far as I know) only threadbare support. What is the support you have for your position? Is it just David O Stewart's book? What exactly was his support?

You also wrote: "These senators [who voted to acquit Johnson] were, in fact, cowards." I don't see how you can say that about W.P. Fessenden--the chair of the Joint Committee on Reconstruction. He, and the other 6 Republicans who voted to acquit Johnson, committed political suicide against the will of rank-and-file Republicans back in their home states. Everyone knows that. Are you really saying that each and every of the 7 Republican senators who voted to acquit did so because they were bribed or otherwise self-interested? That is hard to square with the fact that each committed political suicide. Do you actually have support for that statement--in regard to each of the 7 seven?

Again, you wrote: "The real profiles in courage were the House impeachment managers, led by John Bingham, who fought body and soul for the Fourteenth Amendment against President Johnson's determined opposition." I think your statement is something akin to a non sequitur. The oppositino Bingham faced in regard to the 14th Amendment was in the House and Senate -- where he needed to reach 2/3 -- and in parts of the country who opposed slavery, but did not support broader moves toward civil equality across racial lines. Johnson opposed the Amendment, but his support was not necessary to it, as the President does not have a veto power over proposed amendments. This particular partisan fight--the fight over the 14th Amendment--was not the same as the partisan fight over the impeachment of President Andrew Johnson. Kennedy's book addressed the latter partisan fight. I do not see how you can make your point stick (about courage and cowardice) by pointing to evidence involving the former. And I think it telling that this is the first evidence you offer in support of your point.

Johnson did things that I think were bad: very bad. Whether his actions warranted impeachment--is another matter. And whether the 7 Republicans voted to acquit him had decent publicly spirited motivations for doing as they did, or did so for self-interested or illegal reasons, or had motivations which were more in a zone of twilight -- is something we should carefully consider. Painting one's claims with over broad brush strokes about groups of people--who took their decisions separately--asserting that they were bribed or cowards...I just don't see how that can be the right approach.

Why not put your cards on the table? What precisely do you think Johnson did wrong that warranted his impeachment--such that the House managers acted rightly in trying him before the Senate? Was it just his naked opposition to the 14th Amendment? That would be odd.

Seth
 

"The Democrats' even weaker effort against Trump is the second."

The charge and effort against Trump is much stronger. As even Bircher Bart admitted recently than can be little worse abuse of one's office than to use it to push for prosecutions, investigations, etc., aiming to defame and destroy political rivals of the office holder. This is the perfect abuse warranting impeachment because it seeks to subvert the electoral option for dealing with bad office holders. And all one needs is to look at Trump's perfect phone call where he perfectly asks for the Bidens to be investigated by name twice without once mentioning 'corruption' or 'Burisma.' A political hit.
 

People, including some historians, have made a case that Andrew Johnson was properly impeached though the exact counts might not have been "really" what he was being impeached over. There are grounds to think that once impeached, especially for what he was impeached over, that removing him in mid-1868 when he wasn't going to be the nominee & agreed to basically go away quietly was justified.

Maybe, not. But, the OP including the "cowards" talk is overheated. I'm not sure how courageous it was to impeach someone like Andrew Johnson. It might have been the right thing to do. But, how courageous was it, especially if you are someone who was a critic of the guy anyway?

The profile in courage that stands out for me now is Rep. Amash. I supported making him an impeachment manager, but understand not picking him. But, the vitriol a few people expressed to me for bringing it up (a few others thought so and said so on liberal leaning blogs) is unfortunate in my view. He's a profile of courage, willing to go against his party though long term he might be doing the prudent thing too.

There are some Democrats who showed some courage here too, supporting impeachment even when they are from Trump districts and might have reason to fear they will lose the next election. This is akin to someone like Heidi Heitkemp, who had reason to fear that voting against Kavanaugh would help cost her the election, which was going to be close even if she had a shot at winning, but decided to vote on principle.
 

(To be clear, I saw a few people on liberal leaning blogs saying Rep. Amash would make a good impeachment manager. He said in an interview that he wasn't asked but would have been open to it if he was. I again understand not asking him.)
 

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Mr. W: The charge and effort against Trump is much stronger.

The Republicans enforced some unconstitutional statutes to at least create the pretense Johnson violated a law. After a ridiculous, focus group generated flirtation with "bribery," the Dems dropped all pretenses Trump violated a law.

As even Bircher Bart admitted recently than can be little worse abuse of one's office than to use it to push for prosecutions, investigations, etc., aiming to defame and destroy political rivals of the office holder.

It usually takes three or four exchanges where you lose the argument before you resort to misrepresenting my posts. Today, you are throwing mud from the outset.

For new lurkers out there. the distinction between the Obama spy and dirty tricks operation against Trump and the evidence-free allegation that Trump denied taxpayer money to Ukraine to force Ukraine to investigate the Bidens is evidence.

As the Mueller report admitted, the Obama FBI and Justice Department never possessed any evidence the Trump campaign committed any crimes or were acting as foreign agents before spying on campaign members.

In contrast, we have evidence and confessions in the public domain that (1) Obama gave VP Biden control over Ukraine foreign policy and aid, (2) a Russian oligarch paid Biden's son a million dollars a year to sit on the board of his Ukrainian energy firm Bursima, (3) VP Biden bragged about denying Ukraine aid until it agreed to fire the prosecutor investigating Bursima, and (4) Bursima dropped Hunter Biden's name to get the Obama State Department to drop its investigation of Bursima. This evidence constitutes a prima facie case the oligarch bribed the Bidens.

Law enforcement has a duty to investigate evidence of a crime. Criminal investigations without a crime or intelligence investigations of Americans who are not foreign agents is spying.
 

The issue with Johnson is that he tried to use the power of his office to undermine Congressional Reconstruction. That included attempting to restore former Confederates to power and to block Republican electoral chances in the South. These actions were (correctly) seen as little more than attempting to undo the Civil War and put the South back in charge of the federal government. It's hardly a surprise that a war-weary North would have little patience for that. Sadly, Johnson's prejudices mostly succeeded in the long term.
 

I'm not sure the Dems qualify as "heroes" here. To paraphrase Churchill, they did the right thing after trying everything else first. But credit where it's due: they have now acted, and acted honorably and fairly.

Judging cowardice is entirely different. R officeholders have shown themselves craven, dishonest, and cowardly for many years now. Their willingness to sacrifice the country for their own political benefit is shocking but not surprising.

And full credit to Justin Amash (and blame to Collin Petersen).
 

The impeachment prosecution and defense teams for the removal "trial" have been announced.

Jerry Nadler and Adam Schiff are the lead House prosecutors.

Ken Starr and Alan Dershowitz will be the lead POTUS defense attorneys.

When you add in GOP Senators like Ted Cruz who will be acting as de facto defense attorneys cross examining any witnesses the prosecution may call, the legal and intellectual firepower in this "trial is stunningly one sided.

Dershowitz alone could shred the House team in his sleep after a night of heavy drinking.
 

I hate to say this but Bart's right. The Tenure in Office Act was unconstitutional.

Now I don't particularly mind Radical Republicans impeaching Johnson over a policy disagreement. The Constitution allows the Congress to define anything as a high crime or misdemeanor, and impeachments are completely unreviewable.

But the actual stated grounds of the Johnson impeachment were BS.
 

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Dilan: The Constitution allows the Congress to define anything as a high crime or misdemeanor, and impeachments are completely unreviewable.

The Impeachment Clause expressly limits Congress's impeachment and removal power to "treason, bribery and other high crimes and misdemeanors" and, thus, prohibits Congress from exercising this power for purely political reasons as a de facto parliamentary vote of no confidence.

Words have meanings. Under the textual interpretation canon Eiusdem Generis ("of the same kinds"), a provision where a list of two or more specific items is followed by a general item, the general item is restricted the same class as the specific items. Thus, when following "treason" and "bribery," the general term "high crimes or misdemeanors" is best interpreted as restricted to the same class of crimes as treason and bribery. At minimum, the general term refers to a violation of law.

To the extent the Nixon case dicta suggesting Congressional exercise of the Impeachment and removal power is a non-justiciable "political issue" is enforceable precedent, the Court was flat out wrong. The exercise of the impeachment power is no different from any other Article I power.
 

Bart:

The House and Senate get to define what the words mean. They have no obligation to listen to lawyers when doing so.

Indeed, they have an electoral obligation to ignore lawyers and do whatever their constituents want them to do.
 

Dilan: The House and Senate get to define what the words mean. They have no obligation to listen to lawyers when doing so. Indeed, they have an electoral obligation to ignore lawyers and do whatever their constituents want them to do.

So a GOP Congress has the power to redefine the words of the 13A to enact legislation permitting Republicans to enslave Democrats. Indeed, such legislation is an electoral obligation if GOP voters demand the right to enslave Democrats.

Please report to my home for your work assignment. You may call me Dominus.
 

I should add to my first comment that the real heroes in this case are the witnesses who came forward: the whistleblower, Yovanovich, Taylor, et al. They did so at real personal cost. And that tells us who the (other) cowards are: all those who refused to testify or produce documents.
 

The issue with Johnson is that he tried to use the power of his office to undermine Congressional Reconstruction.

The counts can be found here: https://www.senate.gov/artandhistory/history/common/briefing/Impeachment_Johnson.htm

Whatever "the issue" was, he was impeached for specific things and the senators would have a duty to take that into consideration when determining if removal is appropriate. This is the value, e.g., of the Trump impeachment counts referencing past action, which not only shows a pattern but as Adam Schiff angrily noted once underlines the wrong.

Use of impeachment to fight over certain constitutional disputes instead of using the courts is not exactly off -- just the other week, Trump's own Justice Department said the courts shouldn't be used to fight over a subpoena of a top advisor & it was something to use political tools to address. Impeachment was specifically addressed. This is especially useful to remember regarding the second count this time.

The constitutionality of the Tenure of Office Act along with some other battle such as certain Whigs who thought President Tyler abused his veto power very well can be fought via the impeachment route. On the merits, removal would be dubious though. It might not even have applied in this instance. In the 1860s, however, there would be some good arguments on both sides. The removal issue was something that split people in various ways since the 1790s.

There was debate and some Republicans felt there needed to be some concrete act to hang their hat on, but other Republicans knew this was a bit silly but went along since it advanced their wider ends. Also, Secretary of War Edwin M. Stanton was specifically a symbol of their opposition to Johnson's policies. There was one count that is somewhat akin to the current impeachment since it was specifically concerned with Johnson in the process of these events unconstitutionally and illegally trying to promote his policies by an alternative route than the one required by law.
 

As to heroes, Mark's comments are fine, but I do think as noted that "some" courage was necessary for someone in a deep red district to vote to impeach Trump. I wouldn't call that a "profile in courage" as such, but after the Dems had the necessary votes, it wouldn't really have surprised if a few more didn't vote for impeachment.
 

You're right about the specific charges, obviously. I was referring to the fundamental motivation behind the effort.

You're also right about the Tenure of Office Act. The issue had a long history, beginning with lengthy debate in the first months of Congress in 1789. It certainly was not a settled issue in 1868, and arguably didn't become so until the late 1920s (and even then there are caveats such as independent agencies).
 

Mark Field said...I should add to my first comment that the real heroes in this case are the witnesses who came forward: the whistleblower, Yovanovich, Taylor, et al. They did so at real personal cost.

Try disgruntled former employees.

The "whistleblower" (sic) Eric Ciamarella and Ambassador Marie Yovanovitch were Obama holdovers. The former was a Democrat operative who was removed from the White House for leaking to the Democrat media and the latter was removed for actively working against the POTUS's foreign policy.

Impeachment was their revenge.
 

For those interested in the circumstances of Edmund G. Ross's vote to acquit A. Johnson, David O. Stewart summarized the evidence at https://hnn.us/article/173849 It's all circumstantial -- they were not taking notes on a criminal fucking conspiracy -- but it's pretty damning for Ross.
 

So a GOP Congress has the power to redefine the words of the 13A to enact legislation permitting Republicans to enslave Democrats.

No Bart. Because the interpretation of the Thirteenth Amendment isn't a political question, textually committed to the political branches of government.

It amazes me that you are a lawyer and don't understand basic notions of jurisprudence.

Texts are ambiguous. A very few aren't- the limitation of Presidents to two terms, for instance. But most texts are. "High crimes and misdemeanors" certainly is.

So the way law is made is someone interprets it. In many areas, this is the courts, because Article III of the Constitution locates the judicial power, including the power to interpret laws, there. But there are some areas where this is not true. For instance, each house of Congress gets to make and interpret its own rules. If you have a problem with a House rule, you have to go to the House. You can't go to court.

And when interpretation is committed to political branches, they will follow political considerations in determining how to interpret it. If a Senator's constituents overwhelmingly believe that Trump committed a high crime or misdemeanor, that Senator will vote in that way. Because he or she wants to get reelected. If a Senator's constituents overwhelmingly believe that Trump did not do so, that Senator will vote in that way, for the same reason.

That's what a political question means. It means politicians get to decide, and they will decide based on the political considerations of their constituents.

And we lawyers get no say and SHOULD get no say. Some areas of law are outside the scope of the court system.
 

Let's summarize things in song: https://www.youtube.com/watch?v=0VMg9C1zGuY

There is some good evidence that the passage of the 13A in Congress in January 1865 was helped by some greasing of palms and that will factor in when political process occurs. This does go to "profiles in courage" and Mark's link is helpful there.

Anyway, Pence is from the evidence available part of the conspiracy here and an op-ed by him is not worth it even without the paywall.
 

I agree, as a practical matter, the House is able to declare anything they want "impeachable", and the Senate is equally entitled to tell them to stuff it where the Sun don't shine. As a practical matter, because the judiciary isn't going to have any input. That's not the case for most issues.

As a historical matter, they alleged real crimes for both prior impeachments, and would have for Nixon if he hadn't resigned. So this impeachment is violating precedent, and in a disturbing way, by cutting impeachment loose from criminality.
 

1. I think impeachment was ALWAYS cut loose from criminality. It never became an issue, but if there had been a 19th Century President so incompetent that large numbers of Americans demanded his immediate impeachment, and threatened to vote out representatives and Senators who did not take action, I have no doubt that such an impeachment would have occurred.

2. It's also worth nothing that while you are right that prior impeachments alleged crimes, they didn't ONLY allege crimes. The Nixon articles that passed out of committee, in particular, contained a number of allegations that were not technically crimes.

3. I also think you can at least argue that the second article, obstruction of Congress, does in fact allege a crime, in the sense that disobeying congressional subpoenas is punishable as a criminal offense under the law. Now, I am not saying the Administration's conduct is criminal, as asserting a privilege is very possibly a defense to any prosecution. I am simply saying that "obstruction of Congress" is, indeed, a criminal offense in at least one sense.
 

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Dilan: Because the interpretation of the Thirteenth Amendment isn't a political question, textually committed to the political branches of government.

Exercise of all Article I powers and enforcement of the 13A are "textually committed" to the Congress, but the Constitution nowhere states or implies that "the House and Senate get to define what the words mean." Such a concept undermines the core purpose of a written constitution limiting the powers of government.

Texts are ambiguous..."High crimes and misdemeanors" certainly is.

Standing alone, the general term of art "high crimes and misdemeanors" is broader than used in our Constitution, but could still be defined by hundreds of years of English usage to include such things as "maladministration."

However, as I noted above, the application of the general term "high crimes and misdemeanors" after the specific terms "treason" and "bribery" dramatically restricts the general term to the same class of things as the specific terms. Confirming this basic canon of statutory interpretation is the legislative history where the Constitutional Convention expressly rejected "maladministration" as a ground for impeachment.

Congress cannot redefine these meanings any more than they can redefine "remove" to mean "execute" and hold a trial to draw and quarter the POTUS after a Senate trial. Or the POTUS can redefine his "executive power" to mean "absolute power" including the ability the legislate and adjudicate.

What you are arguing is not law, it is nihilism.
 

Exercise of all Article I powers and enforcement of the 13A are "textually committed" to the Congress, but the Constitution nowhere states or implies that "the House and Senate get to define what the words mean." Such a concept undermines the core purpose of a written constitution limiting the powers of government.

No it doesn't, any more than Article III does.

Written texts are starting points. Almost all texts have ambiguities, and statutes and constitutions have huge ambiguities. They are just outlines. Someone has to fill in details.

In most instances, the courts do it. And you don't like that either. For instance, you hate Roe v. Wade. But Roe was a product of Griswold and Eisenstadt, which were a product of Carolene Products, which was a product of Lochner. The Common Law system, which is just as constitutionally required as anything in the text (and indeed is the center of the Judicial Power of Article III), is an iterative process where you don't go back and read the Constitution every time to decide every case. You decide cases and derive legal rules which then get used in other cases.

But in some cases, the political branches do it. And they do it differently than courts. The entire point of committing legal questions to the political branches is to take those matters out of the strictly precedent-based system of common law rulemaking and instead make it susceptible to public opinion.

A great example is the pardon power. No President has to follow his or her predecessors' precedents on pardons. Nor should they. Part of the point of the power is to give the political branches an opportunity to afford mercy when the public demands it.

Now does the pardon power "undermine the Constitution"? Is it "an affront the rule of law"? Is it "nihilism"? Nope. Not at all. Not one bit. It is entirely consistent with a constitutional system of law.

Why? Because there's nothing inherent in constitutional government that requires that all cases be decided by a strict reading of legal texts. Indeed, it's actually impossible for all cases to be decided that way. Distributing power to political branches ensures that the public gets input, and further ensures that rigid rules do not prevent substantial justice.

The reason the Constitution commits impeachment to the Congress is exactly the same. Because rigid rules on when a President is removed are ANTI-constitutional, not constitutionally required. Political processes ensure flexibility and mercy where appropriate.
 

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"alleged real crimes for both prior impeachments"

The alleged acts here overlap with "real crimes" and a GAO report just released underlines the point. Multiple counts of impeachment over the years did not include "real crimes."* The articles of impeachment also match the purpose of impeachment, including if you read what the Framers said. "Real crimes" is not the only thing at issue here & in fact further prosecution is possible without it being double jeopardy.

Not very disturbing.

The courts are going to be involved in a range of things that might in some fashion overlap with the disputes that lead to impeachment. Battles over subpoenas, grand jury testimony, financial records from third parties etc. alone is seen here. The courts also keep out of many areas, especially military and foreign policy related. Determining impeachment generally is a political question is not THAT special.

BTW, the Supreme Court today decided to delve into the issue of "faithless electors."

---

* "Both" is a tad misleading since there were non-presidential impeachments, but just what is impeachment worthy is something likely to develop some over time anyhow. Two cases, both a tad lacking, is thin precedent at any rate.
 

Even if we had lots of precedents, I would still argue this is something akin to the pardon power.

Let's say you have the exact same high crime or misdemeanor- the President takes a small bribe from an interested industry insider in exchange for saying that he will sign a minor piece of legislation favoring the industry.

In the one case, that bribe is taken by Richard Nixon.

In the other case, it is taken by Abraham Lincoln in 1863.

I can argue, very easily, that the Congress should remove Nixon and let Lincoln stay in power. And indeed, I believe that such a result is ENTIRELY consistent with the text and history of the impeachment clause, and further does no violence whatsoever to the rule of law.
 

Just to follow up on Joe's comment, the current articles of impeachment allege "high misdemeanors", but they include criminal misconduct as part of the proof. Thus, for example, "abuse of power" is the general accusation, but the activity which constitutes abuse of power includes violation of the Impoundment Control Act as well as extortion and/or bribery.
 

Dilan: In most instances, the courts do it. And you don't like that either.

Most definitely. Our written constitutions and statutes are NOT common law and courts have NO power to erase to rewrite them under the guise of "interpretation," any more than does Congress or the POTUS. Judges which do so are violating the Constitution and should be Impeached and removed for violating our basic law, as written in the perfectly understandable Impeachment Clauses.
 

Our written constitutions and statutes are NOT common law

This reveals how ignorant you are.

Nobody says a statute is "common law". However, the judicial decisions interpreting it certainly are.

Similarly with constitutional provisions. The general principle that unreasonable searches and seizures are prohibited is not common law. It's in the Fourth Amendment. The knock and announce rule, however, is a product of the common law process, because the text of the Fourth Amendment does not tell us whether and when a failure to knock and announce renders a search unreasonable. So the courts have to decide it and generate a rule.

Statutes and constitutional provisions set the parameters. The common law fills in the details.
 

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Mark: the activity which constitutes abuse of power includes violation of the Impoundment Control Act as well as extortion and/or bribery.

Stuff and nonsense.

Putting aside for the moment there is no evidence of the alleged act - Trump conditioned aid or a meeting on Ukraine investigate the Bidens, the alleged act does not constitute bribery, extortion or violate the Impoundment Control Act.

If you disagree, you are free to offer the evidence proving each element of the crimes of bribery and extortion.

As to the Impoundment Control Act, §681 Disclaimer states in pertinent part: Nothing contained in this Act, or in any amendments made by this Act, shall be construed as—(1) asserting or conceding the constitutional powers or limitations of either the Congress or the President

As the sole executive, Article II grants the POTUS nearly all power to conduct foreign policy apart from a small handful of narrow powers granted to Congress. One of those executive powers exercised by every POTUS subject to the Impoundment Control Act has been to suspend or withhold aid to foreign nations.

No POTUS of either party ever believed otherwise. Hell, Joe Biden bragged about doing so to force Ukraine to fire the prosecutor investigating Bursima. Biden's exercise of this executive power delegated to him by the POTUS was not his crime. Doing so after Bursima paid off his son is what forms the prima facie case for bribery.

Even the Democrat House did not include this nonsense in their Articles of Impeachment.

 

BD: Our written constitutions and statutes are NOT common law

Dilan: This reveals how ignorant you are. Nobody says a statute is "common law". However, the judicial decisions interpreting it certainly are.

Rocks and glass houses, my friend.

The federal judiciary admits they are not common law courts. Common law is derived from custom and judicial precedent rather than statute. Applying a constitution or statute as written is enforcing that law and the antithesis of common law. As Justice Scalia noted: “[I]n the federal courts, . . . with a qualification so small it does not bear mentioning, there is no such thing as common law. Every issue of law resolved by a federal judge involves interpretation of text—the text of a regulation, or of a statute, or of the Constitution.”

Of course, this does not keep outlaw progressive jurists from erasing or rewriting the written law under the guise of "interpretation," which is the problem.

 

Bart's right about at least the bribery part of the count 1 stuff. President Trump never took a bribe here- that was just a lie and a talking point floated by Pelosi for awhile. It's not even a close case

The impoundment issue is a little closer. This gets back to the Iran-Contra issue and the Boland Amendment- to what extent can Congress tie the hands of the President on foreign policy. It seems to me that Congress can order the President to aid a particular country. However, I am not sure that's the same as merely appropriating the aid. Here's an issue that might get to Bart's concern. Let's say Congress appropriates aid for Guatemala. And then an anti-American revolution occurs. Does the President still have to send the aid? It would seem as though he would be allowed to hold it up, at least absent clear language in the law that said he had to send it no matter what happens in Guatemala.

And that's somewhat different from the domestic spending impoundment issues that the impoundment statute covers.

OTOH, Bart's notion of presidential supremacy in foreign policy goes too far. E.g., the cut-off of funds at the end of the Vietnam War, and the Boland Amendment, always seemed fully constitutional to me. If Congress wants to explicitly tie the hands of the President, knowing all the risks, it can.
 

The federal judiciary admits they are not common law courts.

You just failed federal courts, Bart.

The federal judiciary admits there is no GENERAL federal common law. That's not the same as there not being any federal common law at all.

If the federal courts are not common law courts, what the heck happens in Admiralty cases, Bart?
 

"you resort to misrepresenting my posts"

Bircher Bart confuses (elides?) the difference between me misrepresenting him and him misrepresenting himself, or rather, his inability to formulate and/or stick to a neutral principle and then apply it to political comrades and foes alike. Yesterday Bircher Bart clearly stated that a government official using the power of their office to engage law enforcement against a political enemy and/or their associates in order to defame and destroy the political opponent is one of the worst abuses of power that can occur. In that he was actually correct. What he didn't realize he had stepped in (because he lacks basic self awareness) is that this describes what Trump is accused of doing to a T. Trump is accused of using his position as executive and chief foreign policy official to push a foreign government (one desperate for our aid) to engage law enforcement proceedings against his chief political opponent.

Now, the question is, what evidence is there for the accusation? Why, a perfect phone call is all one needs! In the quasi-transcript Trump's White House released (let's stop now and acknowledge that if a Democratic President had released such a quasi-transcript Birchers like Bart wouldn't just be saying 'what is he hiding' they would have already leaped to a conclusion about it and stating it as fact) we find Trump 1. citing all the US is doing for Ukraine (much more than Germany and Merkel!), 2. asking for a favor and 3. citing as that relevant favor an investigation into...corruption? No, he never uses that word. Burisma? No, he never uses that word. All he wants looked into is Biden(s). This has all the trappings of a political hit, not an investigation into corruption or Burisma, but the targeting of his chief political opponent.

This is a far stronger offense than any quasi-constitutional tenure of office congressional act (btw the general consensus, of both scholars and the courts, based on historical understandings and logic, is that impeachment is not limited to enumerated crimes) because it subverts the electoral option for getting rid of a bad official.
 

"For new lurkers out there. the distinction between the Obama spy and dirty tricks operation "

Bircher Bart gets so confused here (when you fling propagandist poo all the time it's easy to get confused about what poo you threw when yesterday). He wasn't talking about the 'Obama spy and dirty tricks operation' (which wasn't that, as the IG report that Bircher Bart trumpeted, in classic fashion, as fully vindicating his over the top jumped to conclusions on this matter concluded the investigation was not politically motivated, indeed anyone could know that given the Obama administration scrupulously kept the entire investigation secret throughout Trump's successful campaign [some dirty trick that would be!]), the discussion was about the prosecutions of Michael Cohen and Lev Parnas. Bircher Bart and Brett were peddling the half, well that's too charitable, 1/32nd baked idea that Trump was the victim of 'Democrat prosecutors' who were going after his associates and stacking charges against them to push them to reveal dirt on Trump.

This intricate theory they confidently brayed about was, or course, as usual, built upon multiple toothpicks and playing cards. A slight breath could topple it. In a five second google based on what should have been the easiest surmise I found that Parnas' prosecution was being conducted under the office of a *Trump appointed* US attorney!!! So their theory was that a Trump appointed DA was stacking charges against Parnas to get Parnas to deal dirt on Trump. Think about what nonsense that was, but they were confidently declaring it as casual fact, ignorant either of that key premise or unable to piece together how much it undercut their cocky conclusion. This is the norm for these two guys, but also for conspiracy theorists in general.
 

"it subverts the electoral option for getting rid of a bad official."

It's pretty amazing how many people don't get this, but argue that the proper recourse is to let the 2020 election decide the issue. The whole point of Trump's criminal scheme was to corrupt the integrity of that election. It would be similar to (though not as bad as) telling Southern blacks in the Jim Crow era to just vote out their oppressors. And it's not like Trump (or the Rs generally) would have stopped with just the one attempt.
 

"Law enforcement has a duty to investigate evidence of a crime. "

It gets worse for Bircher Bart. Remember, he was originally talking about the prosecution of Michael Cohen as being a gross abuse of power to hobble a political opponent. But when I pointed out the analogy of Trump going after Biden he tries to defend the latter by saying 'law enforcement has a duty to investigate evidence of a crime.'

Well, not only was there evidence of a crime in Cohen's case, he was actually convicted of many counts! So Bircher Bart is hoisted on his own petard (he spends a lot of time there). You can't say Trump's selective targeting of Biden and his son are ok because law enforcement has a duty to investigate evidence of a crime and there's evidence of one there (arguendo) and then say the 'targeting' of Cohen is an abuse because there's evidence of crimes by Cohen, in fact many convictions!

The man is unable to formulate and/or apply a neutral principle to political comrade and foe alike.
 

"This evidence constitutes a prima facie case the oligarch bribed the Bidens."

It's instructive to look at how Bircher Bart thinks about political foes and friends. Because he's unable to formulate and apply a neutral principle to both alike he doesn't realize that *structurally* the evidence for 'Biden acted on bribe' is the same as 'Trump quid pro quo.' Yet for the former he easily declares 'prima facie case' and the later 'evidence free.'

In the first scenario, accepting arguendo Bircher Bart's facts, you have 1. company being investigated 2. company hires Biden's son and 3. Biden calls for investigator to be fired.

From this, Bircher Bart concludes 'prima facie case.' He doesn't consider things like 'maybe Biden Sr. had decided the prosecutor must go before Biden Jr's appointment,' 'maybe Biden Sr. decided the prosecutor must go for reasons having nothing to do with Biden Jr's appointment [for example, most reports of officials involved say Biden Sr., and many others, thought the prosecutor was, among other things *not effective enough* in prosecuting Burisma and similar cases],', 'maybe Biden Sr. saw the appointment of his son and others as signs Burisma was serious about cleaning up' (that's fishy but short of proving criminal bribery I should think), etc.

Now, with the Trump quid pro quo theory you've got: 1. Trump asks Z to do favor, 2. Trump immediately after holds up aid in a way considered alarming and illegal by many in the know, 3. Trump releases aid when 1 comes to light.

Notice the circumstancial structural similarities. But Bircher Bart's immediate, and firm and conclusive conclusion is: 'but there's no recording of Trump saying explicitly 2 is connected to 1 so there is 'no evidence'' of wrongdoing!

Partisan derangement syndrome.
 

Mark, you couldn't be more correct. But let's explore some levels of amazingness.

There are people who say 'sure, Trump tried to kneecap his chief political opponent, but that's not ground for impeachment, instead he should be voted out for that kind of thing!'

And then there are people like Bircher Brett whose take is 'it's fine and dandy for people in power to use their political power to kneecap their chief political opponents, the only problem is that there isn't more of that!'

The first is deluded, the second is an authoritarian near-sociopath. The second is the mainstream of the GOP right now.
 

The first is deluded,

No it isn't.

Impeachment is a political process. That means, fundamentally, that it isn't some end run around public opinion. You don't get to lose the election and then use the impeachment process to achieve what you couldn't achieve at the ballot box.

Rather, impeachment is a tool OF the public. It's a way in which the PUBLIC can say "yes we voted for this person, but now we demand that the President be removed". And in the face of overwhelming public opinion, the political process will move and do it.

If the public does not overwhelmingly feel this way, the partisan political process- the 2 party system that our stupid framers created- will protect the President. That's how the system works.

And in that circumstance, which will be true almost all of the time, the remedy is you convince the public in the next election that whatever the President did was wrong and that they need to vote the other party in.

There's nothing deluded about that.

Indeed, what's "deluded" is the idea that there are non-political neutral principles that can be applied to the Presidency, that are exempt from partisan consideration, and that will allow you to "win" a Senate trial without overwhelming public support for removal. That's the delusion here.
 

"As a historical matter, they alleged real crimes for both prior impeachments, and would have for Nixon if he hadn't resigned. So this impeachment is violating precedent, and in a disturbing way, by cutting impeachment loose from criminality."

Sometimes I think the main problem of Birchers Brett and Bart is just plain ignorance. Like, Brett obviously doesn't know that other officials (like judges) have been fully impeached and removed for things that are not enumerated crimes.

But you know what? It's not that. It's that in a morally and intellectually normal human being being informed you were wrong on that would invite shame about being wrong, introspection into how you came into such a confident blunder, and then incredible carefulness in ensuring you don't do it again.

But that's not Bircher Brett at all. He'll be doing it all over in ten minutes. There's something much more weird and disturbing going on here.
 

"In the first scenario, accepting arguendo Bircher Bart's facts, you have 1. company being investigated 2. company hires Biden's son and 3. Biden calls for investigator to be fired."

While you accepted these facts for purposes of argument, my understanding is that the prosecutor the US (and Europeans) wanted fired was NOT investigating Burisma, and that they wanted him fired for precisely that failure. Biden was just the messenger.
 

Dilan, you're making a simple but important mistake here, confusing what's legally, or perhaps empirically right, with what is logically or morally right. You're like the person who, on a discussion board in 1897, responds to someone who posts 'segregated schools is an abomination to equal protection of the laws' with the response 'look, Plessy has ruled that equal protection doesn't entail desegregated schools!'
 

Mark, everything I've read on the subject supports that. For example, iirc the UK was working with the prosecutor against Burisma and was very upset about his performance.

Of course conspiracy theorist cooks like our Birchers (and most mainstream GOPers) would say 'those UK elites were in on the Deep State Pizzagate conspiracy too!'
 

"Like, Brett obviously doesn't know that other officials (like judges) have been fully impeached and removed for things that are not enumerated crimes."

Which is particularly inexcusable since Joe provided a link to the charges against A. Johnson in this very thread, and it's easy to see that a number of the charges alleged acts which were not crimes (Article 10 being the most obvious). Johnson was, of course, not removed, but the fact that non-criminal charges were brought in this and other cases reinforces the clear evidence of the Founding Era that crimes were not necessary for impeachment.
 

Mista:

You are dead wrong. The political nature of impeachment incorporates the moral concerns of the voters (which are the moral concerns that matter- if you think the voters are immoral, in a democracy, you lose).

If the voters were so morally offended by President Trump's conduct that they overwhelmingly demanded his removal, it would happen. That was also true in 1999 with Clinton.

But I don't think there are any ex ante moral principles that particularly apply to whether the President should withhold aid to Ukraine. Honestly, we shouldn't be aiding Ukraine anyway. What happens in Russia's legitimate sphere of influence is none of our business. And had the President actually impounded the aid forever, there wouldn't have been anything immoral about it.

Nor is the White House asserting privileges in response to subpoenas-- something EVERY White House does- particularly immoral.

Indeed, if we are talking pure morality, Clinton's conduct, both in terms of completely thumbing his nose at his obligation to tell the truth in judicial proceedings, and in terms of ordering his supporters and associates to trash Monica Lewinsky, the woman he thought highly enough to have sexual trysts with, was a delusional stalker is some of the most immoral conduct in the history of the American presidency. And yet it was found to be not worthy of removal, and I do not question that conclusion, because it is what the public wanted.

So yes, morality is a part of this discussion. The public's moral outrage, or lack of it, counts. But it seems to me that the moral case for the removal of the President is actually far weaker than any legal or political case you might want to make.
 

Dilan, another way to make my point is with the old Einstein quote: war doesn't decide who is right, it decides who is dead.

Does the Constitution set up an impeachment process that has all kinds of 'high falutin' language about 'high crimes and misdemeanors,' trials and justices presiding and such? Yup. And yet, in the end, is it all just up to politics, who has the 'brute force' (the votes)? Yup.

You could say the same about most trials in US history. On the face, there's all this talk of fairness, due process, and such. In reality, a racist jury and judge would combine to railroad a black defendant into jail.

So, how should we talk about this? Should we point out, a la Martin Luther King, that we would, in the best world, live up to the aspirational language? Or should we not only acknowledge that brute (political?) force will in the end win the day, and embrace it?

For me, I agree that the Constitution is probably best interpreted to allow people to think, if they want, that even murder on 5th Avenue is not impeachable. But that would never stop me from arguing that such an interpretation is anathema to the aspirational language in the document.
 

"and I do not question that conclusion, because it is what the public wanted."

Do you, as a person, have any moral conclusions that might be contrary to what the public wants?

I mean, heck, let's even go easier, to aesthetics. The public loves Brittany Spears (I'm dating myself, but pick any contemporary relevant example). You (and I!) believe the public should be free to like and buy the music of whomever they like.

Someone writes 'Brittany's music is the BEST!'

You think writing 'no, it's not' is delusional, but not the original statement?
 

Mista:

Your mistake is in comparing this to an ordinary criminal trial.

In an ordinary criminal trial, the purpose of the rules of due process is to create a process where it is difficult to railroad that black defendant. Now, of course, many black defendants got railroaded. But- and this is an unknown part of history, but it's true- many others didn't. There was, for instance, so much nullification of racist legal rules in the era of slavery that Robert Cover wrote a bestselling book about it.

And indeed, there are a number of rules that are designed, however imperfectly, to prevent the political influence over a criminal trial. Convictions have been reversed by appellate courts on such grounds throughout American history. Again, not enough to prevent black defendants from sometimes being railroaded. But still, that's not the way the process was supposed to work- it's the way it worked despite a bunch of protections.

That's totally different from impeachment. Impeachment is a purely political proceeding. It's NOT supposed to be fair. It's NOT supposed to protect the innocent. It's supposed to allow for a mechanism for removing a venal or incompetent President in a rare situation where there is a public consensus demanding removal. That's all it is.

A criminal trial where politics intervenes is an error. An impeachment trial where politics intervenes is the process working precisely as intended.

And thus, you can't talk about these political considerations as being immoral. They aren't. They are exactly what is supposed to happen, to prevent zealots from the other party from removing a President and overriding public opinion.

Finally, in terms of "aspirational language" in the Constitution. I am not sure what language are you talking about. "High crimes and misdemeanors"? That's just a placeholder. All the BS in the preamble? The preamble is a bunch of lies and always have been. We the people had nothing to do with the Constitution- it was imposed by a bunch of people who wrote it in between rape sessions with their slaves. It did not establish justice, it did not promote the general welfare, and it secured no blessings of liberty. Especially if you were black.

It's best to view the Constitution as an amoral charter. It is sometimes right and sometimes wrong. Start having aspirations in it and you will be sorely disappointed.
 

Do you, as a person, have any moral conclusions that might be contrary to what the public wants?

Many. But in a democracy, they don't count. I'm outvoted.

Someone writes 'Brittany's music is the BEST!'

You think writing 'no, it's not' is delusional, but not the original statement?

It's actually a good example. Because while I can personally have an opinion on Spears (actually, I think she is one of the greatest musical artists of this century, and when she started her residency in Las Vegas, I immediately bought a ticket), my opinion really has no relevance to her place in music history. The public gets to decide that as a whole.
 

I find your Clinton analogy to be laughable. Let me give an analogy:

I think a person who tells a woman she's cute and interesting and will you date me I will pick you up at 7 Friday, looking forward to it, it's going to be special...and then doesn't show up because they found something more interesting to do is a prize cad.

I think a person who speeds is reckless, but probably not a bad guy.

It would be crazy to think the first guy is 'more immoral' in the sense that legal action should be taken against them over the second guy.

 

"The public gets to decide that as a whole."

You're basically what they call these days a post-modernist, what they used to call a sophist.
 

"Does the Constitution set up an impeachment process that has all kinds of 'high falutin' language about 'high crimes and misdemeanors,' trials and justices presiding and such? Yup. And yet, in the end, is it all just up to politics, who has the 'brute force' (the votes)? Yup."

The Senators also take a special oath for impeachments: “I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.” Nothing in there about politics or power. Sure, Senators can vote to acquit Trump just as Southern juries could and did vote to acquit the KKK. But we don't have to pretend either of these is or was anything more than a cynical violation of their oath.
 

"You're basically what they call these days a post-modernist"

The whole right wing has adopted post-modernism. The Trump cultists here are perfect examples.
 

"Your mistake is in comparing this to an ordinary criminal trial."

Could it be all that trial like language in the Constitution about impeachment?

"But still, that's not the way the process was supposed to work"

Lol, I'm glad you acknowledge that empirically you've got no case at all here.

I mean, you're like 'well, the Constitution might mention and trial and a Justice presiding, but look how it says X amount of representatives voting this way determines the outcome! Politics!' but a process that says 'all trials will be held in the jurisdiction in which the crime was committed' and 'all crimes will be decided by a jury from that jurisdiction', well, that's *tots* different! Look at the many cases where federal agents tried to convict KKK operatives in the South but were thwarted by the local juries.

In a discussion board from that period here's how you'd go:

Me: "These decisions are contrary to the law!"
You: "The law says the decisions are in the hands of the juries, they're tots lawful."
Me: "WTF? Do you think these decisions are correct?"
You: "Maybe not, but I acquiesce to what the juries decide."
 

I think a person who tells a woman she's cute and interesting and will you date me I will pick you up at 7 Friday, looking forward to it, it's going to be special...and then doesn't show up because they found something more interesting to do is a prize cad.

That isn't anything like what Clinton did.

Clinton, as I said, thought so highly of Monica as to have sexual trysts with her. He did so despite the fact that she was his subordinate and the relationship was highly improper.

Then, when the scandal erupted, he not only didn't tell the truth, and not only lied under oath, but he did the following:

He instructed his subordinates, including strategists, cabinet officials, and even his wife, to do an all out media blitz where they leaked to sympathetic reporters that Monica was a "delusional stalker".

And you know what? Had she not kept that blue dress, that strategy was going to work. Every liberal would still, to this day, be saying Monica was a liar.

That is disgusting. We are not talking about sexual immorality. We are talking about trashing a powerless young woman because he didn't want to take the political hit of telling the fricking truth.

And, of course, it has later come out that Clinton is both a rapist and was probably a participant in Jeffrey Epstein's pedophilia. What a complete and total scumbucket.
 

Ah, Mark beat me to the obvious KKK example. He's always so smart, I'm at best the James Holzhauer to his Ken Jennings!
 

The Senators also take a special oath for impeachments: “I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.” Nothing in there about politics or power. Sure, Senators can vote to acquit Trump just as Southern juries could and did vote to acquit the KKK.

Mark, I have pointed out how you are a racist for worshipping the framers before. Now, your racism has reared its ugly head again.

So voting to allow the VOTERS to decide if President Trump stays in office is somehow the equivalent of a Southern jury acquitting racist terrorists?

Wow, Mark. You are really a stone cold bigot. You don't give a crap about the suffering of black people except to use as a convenient tool for your hackish political arguments.
 

Could it be all that trial like language in the Constitution about impeachment?

What language? There's the word "try", and there's an "oath". That's it.

There's no language about right to counsel, juries, due process, vicinage, self incrimination, or anything else we associate with criminal trials.
 

Ah, Mark beat me to the obvious KKK example.

So you think that it's OK to compare the "crime" of allowing a President to stay in office for 4 years to the terrorist murder of black people too?

No wonder black people get crapped on by American society. The partisans of the party who is supposed to care about them see their suffering as nothing more than a tool.
 

"We are talking about trashing a powerless young woman "

This shows me you don't get my point. Let me illustrate this.

1. Sheriff has sex with young intern. When it comes out he obfuscates, lies, defames the intern...

2. Sheriff tells deputy to surveillance the house of the guy currently running against him for the office, tells them if he speeds, litters, etc., make an arrest.

It's crazy to argue the first guy is equally warranted for impeachment. The first guy hasn't tried to hobble his possible replacement.
 

"Mark, I have pointed out how you are a racist for worshipping the framers before. Now, your racism has reared its ugly head again."

This is one of the dumbest things I've read here. Mark often quotes the framers, but he's light years from worshiping them.

"So voting to allow the VOTERS to decide if President Trump stays in office is somehow the equivalent of a Southern jury acquitting racist terrorists?"

Uh, yeah? The right to local juries railroaded many blacks and let go many white supremacist terrorists. This is just empirical fact.
 

"What language? There's the word "try", and there's an "oath". That's it."

Don't be so silly. You're well aware that most of the world sees this as a quasi-trial, why do you think that is?
 

"So you think that it's OK to compare the "crime" of allowing a President to stay in office for 4 years to the terrorist murder of black people too?"

Analogies, how do they work?
 

"Ah, Mark beat me to the obvious KKK example. He's always so smart, I'm at best the James Holzhauer to his Ken Jennings!"

LOL. We have to work Joe into this too.
 

Joe's a treasure, I consider him to be my archivist and research librarian, among other things!

I'm very worried about the lack of responses from Shag...
 

Joe would work well as Alex, or the judges...
 

This comment has been removed by the author.
 

"Who will be the 2020 Profile in Courage?" The answer is the same as it was in 1868. The House impeachment managers.

I deeply respect Schiff and think Nadler has not gotten some of the respect he deserved in part because handling the Judiciary Committee is different. Nadler was for impeachment earlier than Schiff. Val Demings has impressed me from what I have seen of her. I'm not sure how the other four stood out though seem good additions, in part from their experience. Perhaps, a form of courage, especially "grace under pressure" is shown here. Schiff showed a lot of grace, for sure. But, I don't know.

Yes. Shag also regularly commented at "Dorf on Law," and hasn't shown up. I wish someone he knew would be able to tell us how he's doing. He took a break, I believe, for a while later last year, so hopefully we will hear from him soon.

 

It's bedtime here...So long.
 

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Wow, you guys were really going to town after we found other things to do. Out on the West coast, or just insomniacs?

"I'm very worried about the lack of responses from Shag..."

Well, we can agree on one thing. I find him irritating at times, but his recent absence is somewhat concerning.

"It's crazy to argue the first guy is equally warranted for impeachment. The first guy hasn't tried to hobble his possible replacement."

No, he's just demonstrated that he's categorically unfit for any position of trust. The second guy has, in a plausible interpretation of events, merely decided that his opponent isn't above the law.
 

Bart's rather unusual praise for Starr and Dershowitz misses the point. The impeachment trial is a political event. There are two juries: the Senate (already fixed beyond redress) and the public watching TV (majority hostile to Trump). Will the TV public be impressed by Starr and Dershowitz? I think not. Starr is too old and Dershowitz too cranky. The House impeachment managers, in contrast, are professional politicians who understand very well which audience matters.
 

Deciding your chief political rival is not above the law because he's your chief political rival is one thing, deciding to go after him because he's your chief political rival is another, it's the use of power for entrenchment. Trump never asks about corruption or Burisma, he asks about *Bidens.*

You'd think an ostensible libertarian would find that concerning. But of course it's normal for Bircher Brett to have valued different than an actual libertarian would.
 

Trump actuall called Ken Starr crazy and a disaster.

It's actually great his team, Dershowitz and Starr seem to have a history of looking the other way while crimes happen around them (Dershowitz with Epstein, Starr at Baylor).
 

Starr also represented Epstein.
 

Mr. W: Let me illustrate this.
1. Sheriff has sex with young intern. When it comes out he obfuscates, lies, defames the intern...
2. Sheriff tells deputy to surveillance the house of the guy currently running against him for the office, tells them if he speeds, litters, etc., make an arrest.
It's crazy to argue the first guy is equally warranted for impeachment. The first guy hasn't tried to hobble his possible replacement.

:::chuckle:::

Let me correct your lies, er analogy.

1. Sheriff has sex with an intern, lies about it under oath in a suit by woman he molested and lies again under oath before a criminal grand jury, while defaming both the intern and a variety of other women he raped or molested over the years.

2. Sheriff reads an article in the paper suggesting an political opponent and his son were taking bribes and strong arming the commission in a neighboring county when the opponent was deputy sheriff a few years back and tells the neighboring sheriff he might want to look into it.

Now ask your average voter which situation they think is worse.

I don't have time to correct all of your misrepresentations about my positions above. Folks can read what I actually posted.
 

James Wimberley said...Bart's rather unusual praise for Starr and Dershowitz misses the point. The impeachment trial is a political event. There are two juries: the Senate (already fixed beyond redress) and the public watching TV (majority hostile to Trump). Will the TV public be impressed by Starr and Dershowitz?

Dershowitz currently makes a handsome living as the progressive attorney who tours GOP news media destroying the Dem impeachment case.
 

Speaking of misrepresentation Bircher Bart leaves out a few inconvenient facts from his analogy, like that the neighboring sheriff is dependent on funds from the sheriff in question, that the sheriff in question has sent his personal lawyer to ask that the neighboring sheriff look into the former deputy sheriff, and that the sheriff in question illegally held up the funds when he 'asked the neighboring sheriff to look into' the alleged strong arming.

In other words, a political hit, abuse of power the exact kind of which Bircher Bart conceded was one of the worst abuses of power an official could commit (when he ludicrously thought it was being done by the other side, of course, Bircher Bart has no moral or intellectual principles other than partisanship).
 

So the ends justify the means, and we are a country of men, not a country of laws. I wonder who will be able to stand when the gales of lawlessness blow and the devil turns 'round on us.
 

Mr. W: Speaking of misrepresentation Bircher Bart leaves out a few inconvenient facts from his analogy, like that the neighboring sheriff is dependent on funds from the sheriff in question, that the sheriff in question has sent his personal lawyer to ask that the neighboring sheriff look into the former deputy sheriff, and that the sheriff in question illegally held up the funds when he 'asked the neighboring sheriff to look into' the alleged strong arming.

I was hesitant to even play your analogy game because there is zero evidence to support the second analogy that the Trump sheriff suggested the Ukrainian sheriff investigate the Biden former deputy sheriff's crimes in Ukraine. I assume this evidence-free allegation to show the allegation itself amounts to nothing.

As for your other parroted Democrat lies...

The Democrat witnesses admitted Ukraine had no knowledge of the temporary suspension in funding when Trump's alleged suggestion occurred, which is why the Dems no longer chant "quid pro quo."

The indicted Giuliani associate witness never observed Giuliani make the alleged suggestion and is instead is doing the Democrat media rounds claiming only that “That was the way everyone viewed it.”

The Dem case is such BS that I would personally love to see every single Dem witness called before the Senate and shredded in cross-examination by the POTUS defense team and GOP Senator/attorneys like Cruz and Graham, then have the defense team call in the other Democrat operatives in the shadows like the "whistleblower" (sic), Eric Ciamarella, so they could take the fifth on national television. Schiff would not be able to shut down questioning as he did repeatedly during the House farce.

Not going to happen, though. Shame.
 

The op-ed in the Wall St. Journal (strong ideological conservative opinion page; the publication as a whole is more newsworthy) has certain functions. I don't think Pence expects much traction from a self-professed conservative with Never Trumper tendencies who wrote a biography on one of the impeachment managers of the Johnson impeachment.

Trump's legal team also has a certain function. Pat Cippollone, the White House counsel, probably brings the most legal talent, which he is willing to use to promote Trumpian extreme executive power arguments such as the infamous letter he sent out. He basically is the professional here though even there some feel he is a tad kneejerk.

Kenneth Starr and Robert Ray have experience in the investigation of Clinton (Starr and maybe Ray has other baggage, though not of the sort Trump might seen as a net negative), which provides a certain useful experience. Starr especially comes off as a tainted hypocrite but the base Trump appeals to probably sees him as a hero.

Alan D. (RIP Ron Silver) said on a talk show that he was just going to be shall we say a "special guest star," dropping in to give a speech on how impeachment is being abused here or the like. A Killer B, perhaps, not being available. He's not part of the "legal team," mind you. Again, probably aimed to a certain crowd.

And, there is Jay Sekulow, a type of "court evangelist" (h/t the dissenting evangelical, John Fea, who wrote a book on them) lawyer. I don't know what sort of legal chops he brings in this specific area but apparently like his former life as a Supreme Court advocate defending religious speech claims, it's a bit of a calling.

The team as a whole is not really likely to move the needle much for the non-believer. The cynical might think no side cares there. As comment notes, however, that is a tad exaggerated. The Dems are trying to appeal to the general public as such, including the non-Democrats who are concerned about what is going on as well as the average person who might not care much. There being many of such people and that will also have long term political effects.

Some Republicans also care somewhat about more than the base and might find the legal team a bit dubious. Jonathan Turley left something to be desired but he's no Alan D.
 

"there is zero evidence to support the second analogy that the Trump sheriff suggested the Ukrainian sheriff investigate the Biden former deputy sheriff's crimes in Ukraine"

Bircher Bart can't get even basic facts correct.

From the White House quasi-transcript

"The other thing, There's a lot 6f.talk about Biden's son,. that Eiden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you ·can look into it"
 

Also

""So you did ask Ukraine to look into Joe Biden?" Cuomo pressed.
"Of course I did," Giuliani said."
 

Mr. W:

I do not have to time to correct your lies and misrepresentations yet again today. My wife and I are off to a Monet exhibit.

I would refer any new lurkers to previous corrections on previous Magliocca impeachment threads.
 

"Deciding your chief political rival is not above the law because he's your chief political rival is one thing, deciding to go after him because he's your chief political rival is another,"

Precisely my point: They are two different things, but they both involve you siccing your law enforcement minions on your rival. So, siccing his law enforcement minions on his rival doesn't establish that he's doing anything wrong! To convict Trump you need to prove it was the sleazy alternative, not just assume it.

Trump's foes have fallen into the habit of just assuming the worst possible interpretation of every set of facts. It's reaching the point where it doesn't even seem to occur to you there's any alternative to doing this, and that you actually have to prove your case when talking to people who don't share your hatred of Trump.

It also doesn't seem to occur to you that starting a brick throwing contest when you live in a veritable city of glass is not a smart move.
 

Trump's foes have fallen into the habit of just assuming the worst possible interpretation of every set of facts.

Keep the straw away from open flame. And, something about glasshouses.

As to proof, it was provided. Hundreds of pages of stuff is out there. Lots of witnesses. Their own words. No "just assuming" required.

At some point, all the same, a general sense of person -- both good, bad or indifferent -- is apparent & people can reasonably make assumptions. But, impeachment doesn't allow just that. It took a lot more even for a Democratic controlled Congress to impeach.

The same applies to litigation. A lot of work goes into it. Not just "Trump is bad, QED." Foes of Trump foes might be getting into bad habits.
 

Assuming by the metric ton is required. You don't notice because assuming the worst where Trump is concerned has become your default, to the point where you don't even notice you're doing it. You don't even notice your witnesses are testifying as to their assumptions and conclusions, where the objective events are still amenable to more than one interpretation.

Take Mista Wiskas above: """So you did ask Ukraine to look into Joe Biden?" Cuomo pressed.
"Of course I did," Giuliani said.""

He seems, bizarrely, to view that exchange as incriminating. But, wait, isn't the current line that Trump DIDN'T want Biden investigated, he just wanted an announcement without an investigation? If Trump thought there was something going on with Biden that was possibly criminal, why wouldn't he ask Ukraine to look into it? We even have a treaty with them covering such requests!
 

It's interesting Bircher Brett now calls what's alleged 'sleazy' given in the past he was on record being straight up fine with an official selectively using law enforcement to go after political rivals.

Well, he was when it was Trump going after Biden. Then on another day he complains about prosecutors supposedly going after Trumps associates for political reasons (particularly ludicrous because the prosecutor in question is a Trump appointee).

His position is best described as partisan incoherent.
 

"He seems, bizarrely, to view that exchange as incriminating."

No, I think it 100% refutes Bircher Bart's idiotic claim that there's no evidence Trump asked Ukraine to look into Biden. Giuliani and Trumo have flatly admitted they did that.


What's dispositive that it was sleazy is that he never mentions corruption or even Burisma, just Biden. He obviously was going after Biden, not wrongdoing.
 

Think about how incoherent partisan Brett is. Yesterday he complained about an official using an investigation on Trump associate to hurt Trump politically. He assumed there was that motive behind it and it was bad. Come to find out the official in question is a Trump appointee!

On the other hand when Trump calls Z up and asks him to investigate Biden by name, never mentioning Burisma, corruption, etc., Bircher Brett alternates between 'well we can't assume fishiness here" and 'it's not bad to do that.'

Partisan incoherent
 

"You don't notice because assuming the worst where Trump is concerned has become your default."

Assuming the worst about people you disagree with is perhaps something you are familiar with, but that isn't my approach here. A reasonable judgment and wariness when dealing with someone with his level of power of authority is appropriate.

"You don't even notice your witnesses are testifying as to their assumptions and conclusions, where the objective events are still amenable to more than one interpretation."

A typical witness testifies based on their own assumptions, conclusions and factual/expert knowledge in general. Objectively, judging all of the evidence, not just assuming the worst, the evidence is clear here.

 

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To highlight the "amenable to more than one interpretation."

There are various things that meet that test. A person's home can be searched and the person might even be arrested based on a more probable than not standard. A person's child can be taken away using a heightened standard but not beyond a reasonable doubt.

A civil jury need not be unanimous. The Supreme Court will judge the ability of a criminal jury being unanimous this very term. Impeachment requires a majority of the House. Removal can have over 30 senators disagree.

The fact that a strong Trump supporter disagrees here is not too surprising and the Constitution doesn't expect beyond any shadow of a doubt agreement, especially since some will ignore their honest beliefs here for partisan reasons as Mark noted.

But, objectively, the evidence is repeatedly clear on Trump's actions. It doesn't even require Sandy Levinson's proposed loss of the presumption of good faith, which his article says is warranted if evidence is provided to do that. I didn't support that proposal, supporting using current rules in place.
 

wariness when dealing with someone with his level of power of authority is appropriate.


This is a critical point, given the power of the official in question and the nature of the charge (political entrenchment) if there's just a preponderance of the evidence standard impeachment is warranted. A real libertarian would get that more than most, but incoherent partisans like Bircher Brett will continue to have over developed wariness about officials on the wrong team and almost childlike faith for those on the right team.
 

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"your lies and misrepresentations"

What's a misrepresentation, no, actually a flat out denial of easily demonstrable reality, is Bircher Bart's claim that there is zero evidence Trump asked Z to investigate Biden. Trump says so plainly in the quasi-transcript *he himself released.*

This is going into the pantheon of the Best Bonkers of Bircher Bart alongside 'Iraq certainly has WMDs,' 'I guarantee a Romney win,' 'the word person means one thing in the beginning of the 14th Amenment but changed later in the middle,' Etc
 

I don't understand the supposed difference in culpability between

a. "Investigate the Bidens" OR
b. "Announce an investigation of the Bidens"

Seems to me that while b. is worse, both are "high misdemeanors".

Also, the focus on Trump's subjective intent is the wrong standard. The law judges intent all the time, but it does so using an *objective* standard: reasonable person. Juries determine criminal intent all the time on the basis of the defendant's conduct, not on the basis of reading his mind.
 

The difference is that, unless the Bidens are somehow rendered above the law by Joe potentially being Trump's opponent, investigating the Bidens can be every bit as legitimate as investigating anybody else. So you have to ask whether there was cause to investigate them. And Hunter's job with Burisma stank on ice, so it isn't immediately obvious that investigating the situation was unreasonable.

While if Trump had sought an investigation being announced, and ONLY announced, (Rather than announced in order to achieve commitment to conduct the actual investigation.) this could serve no legitimate law enforcement purpose, and presumptively would only be for the purpose of harming Joe as a candidate.

The reason Trump's subjective intent is indeed the correct standard, is because the objective actions themselves were NOT illegal. So they could only be wrongful if done with bad intent.
 

However the Biden arrangement may or may not have stank what reeks worse is the evidence against M Cohen and L Parnas, yet Birchers Brett and Bart had no problem assuming a bad intent of the prosecutors there (when they were obviously ignorant that the prosecutors were Trump appointed). It's just partisan incoherent.
 

So to be clear, when a prosecutor goes after a Trump associate in a case where they plead guilty to half a dozen crimes or are indicted while trying to leave the country, Bircher Brett assumes the prosecutors are politically motivated and decries them.

When the chief law enforcement official pushes for a investigation of his chief political rival Bircher Brett and Bart cry 'we mustn't rush to judge as we can't be certain of his intent!'

Bircher Brett, partisan incoherent.
 

Or dishonestly arguing in bad faith. Remember Brett is on record here defending Trump or an official in general selectively targeting political opponents as long as they think the target did something wrong. He gave a big nihilistic speech about how we hoped politicians would politically target rivals until they 'burnt it all to the ground.'

Of course then he joined Bircher Bart in decrying the Cohen and Parnas prosecutions contradicting himself a few days later, so maybe it is just partisan incoherent after all?
 

"investigating the Bidens can be every bit as legitimate as investigating anybody else."

You keep saying this, but it's false. It's grossly improper for the President to demand an investigation into a particular individual. It's much worse to make such a demand of a foreign country. And it's downright unforgivable to make such a demand while extorting/bribing the foreign country with the use of public funds, unlawfully withheld, for the President's personal benefit in the corruption of the 2020 election.

"Hunter's job with Burisma stank on ice"

This is irrelevant to the President's wrongdoing. But in any case, as MW keeps pointing out, Trump wanted investigation (or the announcement of one) of the Bidens, plural. There's no evidence that Joe Biden did anything wrong.

"the objective actions themselves were NOT illegal."

Nonsense. He withheld money lawfully appropriated in order to pressure Ukraine to perform a wrongful act for his personal benefit.


 

Bircher Bart we must note displays the same dishonest/partisan incoherence.

He says re Trump holding up aid while asking for an investigation that there's 'zero evidence' of a quid pro quo because there's no direct evidence of Trump himself verbally or in writing linking the two.

But re Biden he notes the circumstance of H Biden given the job and J Biden pushing for the prosecutors ouster and says there is a 'prima facie' case of bribery. But of course there's no evidence of J or H Biden linking the two verbally or in writing.

So if Bircher Bart was being honest, non partisan and coherent he'd have to admit that either there's no prima facie case against Biden or that there is one against Trump.
 

Long time readers here may remember that I used to go out of my way to give Bart and Brett a fair hearing. I used to criticize BB and Shag for mocking them so much.

Most of my formative political energy was spent not as a Democrat but as a third party advocate, namely the Reform Party. I supported Perot, Buchanan, Ventura. My views are pretty centrist and often conservative. I actually liked Trump's inaugural speech, benefited from his tax cut, believe in America First, want to see less immigration, support tariffs generally and oppose most gun control laws. I think Bernie Sanders is a dangerous demagogue and Warrens policies are far too costly and likely wasteful.

But after years of hearing them I just think Bart and Brett are the equivalent of Birchers. They're conspiracy kooks and are usually dishonest or partisan incoherent. I no longer address them just as I would no longer address Woody Allen's proverbial 'guy pushing a shopping cart down the road screaming about socialism.'

Yesterday and today's discussion contains an illustrative moment. Bart and Brert espoused the theory, no, wait, this is part of the problem with them, they don't frame anything as a theory, they confidently asserted that the prosecution of Michael Cohen and Lev Parnas were conspiracies by 'Democrat' prosecutors to target Trump associates, stack charges against them to push them to reveal or fabricate damaging information about Trump.

Now, it's bad enough that they jumped to this assumption in the same discussion where they berated others for jumping to assumptions. It's bad enough that they decried this alleged political hit while at other times defending political hits.

No, what's egregious is this: I revealed that their assertion was goofy as the prosecutors of Cohen and Parnas are Republicans that were appointed by the Trump administration, donated money to Trump's campaign, and worked on his transition team. What was their response? Was there any admission of 'huh, I didn't know that, I guess I should reexamine that assertion.' No. Nothing. They just started to throw more poop on the wall hoping that this time some of may stick.

These are dishonest, partisan incoherents. Their dishonest partisan incoherence should be corrected but not engaged. They're not interested and/or coherent in having an honest discussion.
 

Blogger Mista Whiskas said...
Long time readers here may remember that I used to go out of my way to give Bart and Brett a fair hearing. I used to criticize BB and Shag for mocking them so much.

It usually does not take long for people to realize that they're just clowns. Unfortunately, they're also largely representative of today's GOP. Fortunately, the demographic reckoning is on the way.
 

"Fortunately, the demographic reckoning is on the way."

I think this underestimates how long a determined minority can hold on to rule. The Jim Crow South is an obvious example -- we're 150 years after the Civil War and it's not clear that the oligarchy has lost control of even a single state (VA is perhaps now the exception). Obviously, this requires reliance on many techniques of minority rule: the EC (in the US nationally); the Senate; the Courts; voter suppression of various kinds; and foreign interference. The Rs are desperately grasping at all of these. They may yet hold on; the 2020 election is crucial.

If you don't see the South as a good example, then take Britain. It took 50 years from the end of the American Revolution to the first Reform Act, and that despite (or maybe because of) 20 years of constant war. 45 years then passed before the next reform act, and reasonably full democracy (for men) didn't arrive until 1912.
 

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I think this underestimates how long a determined minority can hold on to rule.
# posted by Blogger Mark Field : 7:08 PM

It’s not coming as fast as I would like, but it’s definitely coming.
 

If there is a blog anywhere with a bigger gap between the intellectual quality of the posts and that of the comments, I haven’t seen it. Posts are smart and thoughtful, but the same bunch of clowns seem to keep showing up in the bottom half.
 

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