Impeachment isn't a distraction from other work of Congress, or "How Congress Works"
Both houses of congress are organized by committees, each with its own sphere of influence. With few exceptions, the work of any one committee, say, the Intelligence Committee, neither hinders nor helps the work of another with respect to drafting bills, holding hearings, etc.
Here's how Congress works, in broad strokes: the aforementioned committees hold hearings (sometimes public, sometimes not) and meetings to draft and review bills and resolutions their staffers actually write (usually with considerable "help" from lobbyists). Then they vote on whether to move these items out to a vote in the larger body, where the leader (Speaker or President Pro Temp) has substantial power to move the item forward in the process or squash it completely.
The suggestion that Impeachment is a "distraction" because it takes focus away from other work of Congress is one of Trump's and his defenders' favorite lines, but it's also seen elsewhere in the wild, so to speak. It's equally false in all cases. Some consider it a distraction from these important issues, for example:
* Medicare for All
* (Other) Corruption in our government
* Foreign Policy that hurts America (broad bucket here: interventionism, military aid and direct combat assistance, etc., are all included)
Anyone who believes the impeachment hearings and process, in and of itself, is a distraction from these things, should consider the following instead: of the hundreds of candidates for federal office this season, approximately three are speaking about any one of these issues, and I can't think of a single one that is serious about addressing all of them. The few that are talking about these things seriously have got little chance of winning their elections, in part because of the second item in the list.
The reason these items aren't getting traction in our Congress isn't because they're busy playing political games with impeachment, and trying to distract from these issues: it's because fundamentally, America's government is broken and, roughly speaking, about half of its citizens don't want M4A (depending on how it's asked), don't care about (or, more often, simply don't understand) corruption, and actually think our FP is good. These issues aren't moving in Congress because not enough (almost none) care about them, and that's partly because they have to be made to care, and we (collectively) have been unsuccessful at doing that.
Comments
So, which think-tank or PR firm is paying you to push
“Embrace The Suck” here at C99?
Good grief
I simply disagree that impeachment is a distraction, and have made an argument why. I don't care if you "embrace the suck" or not, nor do I agree that holding elected officials to a standard of ethics and law is "embracing the suck." In fact, it isn't even clear to me what you actually mean by that.
If, as RA suggests, you're implying I'm some DNC hack, try again, I'll just note that you're wrong and leave it at that.
I thought calling other c99% members a shill was verboten
I specifically recall JtC saying it would not be tolerated here to accuse other members of being a paid shill.
And by the way, just because someone disagrees with you doesn’t make them a paid shill.
This site is billed as nonpartisan and one that welcomes (or at least politely tolerates) different points of view. Two comments in a row — the first two — calling this user a paid shill... ? Why? Just to shut down discussion and shut up a voice you don’t like. Sad.
Please note this comment has nothing to do with either agreeing or disagreeing with the content of the essay. It’s a comment expressing my frustration and disappointment that we can’t even discuss it without the name calling and mud slinging.
Agree , and I see
the number of finger-pointers has increased. I'm going to continue to comment in any impeachment thread, as I'm on recording supporting the effort. Better to leave it to the site proprietor to sort out any issue of poster legitimacy. I think it sets a bad precedent and tone to rather quickly let fly with accusations, and gives this place an air of the small town always on the lookout for those funny-looking, strange-talking Outside Agitator types. Who's the paid shill is a game I prefer not to play.
My apologies if I’ve broken a rule in the site discourse
I wasn’t aware of that edict and wouldn’t have strayed near it if I was. I do very much recall that was a big-time rule at TOP, which was uncoincidentally run by an “owned man” (whatever the nature of his compensation), staffed accordingly under his directive, and well-populated by operatives from both the NRA and David Brock’s CTR.
So sure, someone shows up with zero-credibility and spouting a poorly-framed/poorly-argued assertion of the company line? If it walks like a duck and quacks like a duck...
Not a duck.
BAL has made many thought provoking comments over the years but they didn't "just show up". Sometimes they may agitate as is the nature of the beast. I too have instigated agitated responses. We all do depending on the circumstances.
Where we are, here, is one of the last few bastions of civility.
May we all act accordingly.
Regardless of the path in life I chose, I realize it's always forward, never straight.
I agree with FutureNow ~
you must be a paid shill for the DNC. This is a distraction because nothing will come of it. Once it heads to the Senate, it will keep Bernie Sanders off the campaign trail, which is the goal. Are you aware of that or are you a corporatist dimorat?
Give it up, sanfran. We're on to you - or keep it up as it gets the site talking.
"The “jumpers” reminded us that one day we will all face only one choice and that is how we will die, not how we will live." Chris Hedges on 9/11
Bernie joined the dark side after 2016
I gave a lot to his campaign then. A lot. And although his rhetoric is still strong, my view is he's essentially joined the same machinery that screwed him then. I really couldn't care any less who is the Dems' nominee--because as far as I'm concerned they're all going to end up compromised.
Aside from that, supposing your suggestion that the impeachment proceedings are intended to derail Bernie, whatever makes you think the same conspirators won't work twice as hard to derail his candidacy in the general election, assuming he wins the nomination? There's an inconsistency in your thinking on this, in my view.
Well then, we're on the same page!
You are very inconsistent in your rhetoric. You remind me of the folks at TOP who love to derail conversations. Keep it up!
"The “jumpers” reminded us that one day we will all face only one choice and that is how we will die, not how we will live." Chris Hedges on 9/11
Hmmm let's see
The suggestion that Impeachment is a "distraction" because it takes focus away from other work of Congress is one of Trump's and his defenders' favorite lines, but it's also seen elsewhere in the wild, so to speak. It's equally false in all cases.
How many media and blog sites are covering this turd passed out of committee?
Senate Democrats Join GOP to Back 'Automatic Austerity' Bill That Would Gut Social Programs, Hamstring Bold Policies
I have only seen on alternative websites because we know that MSDNC won't tell people that their beloved resistance party is working with the hated GOP. And that they have voted on every one of the bills that the GOP has gotten passed since Trump became president. Think that democrats are sweating Trump being reelected? I don't.
There were problems with running a campaign of Joy while committing a genocide? Who could have guessed?
Harris is unburdened of speaking going forward.
How many would have covered
it anyway, sans impeachment? I reckon few, if any. It's not juicy enough. Meanwhile whatever vomit Trump says or tweets is smeared across the landscape. That's the whole point: "impeachment is a distraction" doesn't mesh with the reality, which is that these issues are regularly ignored by the media. Their job is to help the oligarchs screw the rest of us, and whether impeachment is happening or not they'll find something to help distract in service of their mission.
I'm talking left leaning blogs that used to cover stuff
like this. But since they are spending all their time now on this impeachment stuff lots of very critical issues are sliding by their attention.
There were problems with running a campaign of Joy while committing a genocide? Who could have guessed?
Harris is unburdened of speaking going forward.
Honestly haven't returned to all the blogs
I used to visit. I will say this: it likely doesn't matter much. Most of them are echo chambers. The people who need to see and understand what's going on don't visit them.
Yup
All this, and "Bail In" too. Deposits and savings are just assets to be seized in bank bankruptcies. Bipartisanship at it's best.
Yeah, BayAreaLefty
Corruption is one thing, but;
You left out the main ingredient with how our Congress works.
$$$$$$$$$$$
Neither Russia nor China is our enemy.
Neither Iran nor Venezuela are threatening America.
Cuba is a dead horse, stop beating it.
Heres my problem with impeachment,
and I should say that I agree with you on point two, corruption. In fact lets put that in all caps.
CORRUPTION.
My problem with impeachment is that we are asking a corrupt bunch of folks to rid of our government of ONE corrupt official.
I am not hearing officials saying that this is just the tip of the iceberg and that when they get done with Trump they are gonna go after Biden and Clinton for their corrupt Ukraine and Russia issues.
I want 'we the people' to remove Trump from office with electoral processes.
But thanks for trying to change my mind. As a person who reads political blogs and websites every day I find it odd of myself that I am not even the least bit interested in the impeachment process this go around. You are welcome to try change my mind.
General observation
Fee speech is not free speech.
You're right
Congress doesn't need any excuses for not getting anything meaningful done for us 99%. They've proved that for decades now. Besides, spending half the time out of what? 136 days? chatting up donors, and the rest campaigning they don't have much time for us.
call yo'sef a lefty?
leaving ugly fingerprints around here
could be right handed or left
better unsaid
This essay is a distraction.
The current working assumption appears to be that our Shroedinger's Cat system is still alive. But what if we all suspect it's not, and the real problem is we just can't bring ourselves to open the box?
glad someone else noticed
for whatever the purpose
distraction
not in keeping with the vibe here
nefarious porpoises
Ha!
Regardless of the path in life I chose, I realize it's always forward, never straight.
Looks like might be
a majority in this country not only favoring impeachment but also removal..
If that poll is reasonably accurate, it means far more are in this group as opposed to the 30% or 29% who favored removing GWB or BC.
And compared to Nixon-Watergate, it shows the public well ahead of the pace from '73-4, when a majority was reached (iirc) only some 11 days before Tricky resigned.
Meanwhile the one timorous Dem rep from MI who voiced a preference the other day for censure rather than impeachment has now reversed herself and come out supporting impeachment. And I doubt at this stage, with these good numbers, that Pelosi would act to thwart the process. If she did, it would bring on a major backlash against her and the DP and could dampen voter enthusiasm next year and hand a victory to the forces of fascism. She would lose to her impressive, assertive left-prog challenger in S.F..
One thing AOC won't have to worry about.
Pelosi is likely pissed.
https://villaricanews.com/2019/11/27/aoc-rakes-in-1-42m-in-third-quarter...
https://www.foxnews.com/politics/aoc-fundraising-pelosi-schiff
I'm not a huge fan of AOC.
Yet.
Regardless of the path in life I chose, I realize it's always forward, never straight.
Saw that earlier,
very encouraging. She's showing the old guard in the party, used to the old ways, that you don't have to sell out to corporate interests to get your job and you don't need to spend half your time in congress on the phone to big donors. Just stand on strong principle that's for the People and they will respond.
She's a breath of fresh air for a stale institution and party which need shaking up.
My objection to your posts is that you can't come up
With legal grounds for his impeachment. Being a dick is not legal grounds. It takes high crimes and misdemeanors and I challenged you last thread to come up with a crime (normally a statutory crime). You ignored my post.
This isn't relevant to the essay
and it also demonstrates a fundamental misunderstanding of impeachment--which does not, in fact, require the breaking of any statutory law.
I am a lawyer (retired). Don't give met that shit.
The Constitution says the President can only be impeached for high crimes and misdemeanors. It would be very rare indeed in this age to charge the President with a crime that was a common law crime. Nearly all common law crimes have been codified into statutes. When there was a question about Clinton's emails, her accusers came up with a statute. They did not come up with some common law crime.
I posted information to you above, showing this is incorrect
Blustering and bellowing won’t change the fact that you are mistaken. It happens. Life is for learning.
[video:https://youtu.be/HKdsRWhyH30]
Edit: just realized my other response to you was in another essay. Here: https://caucus99percent.com/comment/453917#comment-453917
Look. Whether you think it is important or correct
Is not the issue. Lawyers want to make their own analysis. I could write pages and pages about why statutes are far more important than common law when it comes to impeachment or any other criminal situation.
Statutes are the issue that are being constantly avoided by impeachment advocates. And it sticks out like a sore thumb.
Why are statutes so important?
In the modern era, criminal liability is based on statutory law not common law. In fact this has been the case since early in our history. I will make one historical specific point that illustrates why. Take the crime of piracy. That crime was both a common law crime and international law crime and early in the history of this country many people were accused of it.
And very early the Supreme Court began to overturn piracy convictions based upon the common law of privacy for two very important reasons, both involving the notice requirement of due process.
The common law crime of piracy was not clear on (1) who exactly met the definition of pirate and (2) what exactly should be the punishment which ordinarily was death and which seemed extreme in many situations. So the Supreme Court began insisting that Congress make clear statutes defining exactly what it meant to be a pirate and what punishment a person convicted of piracy should get.
So one would think that the President of the United States should be given as much due process as one accused of piracy. And nearly all lawyers I know would agree.
I don't know what your authority is for the proposition that today impeachment does not have to involve statutory law. It may still be technically correct, but it is certainly not correct in any practical sense.
So again, I would you ask you for the statutory authority for impeachment because this will be the debate among lawyers.
I gave you a link to a very detailed analysis
I’m not an “authority” nor do I claim to be one. I’m just a curious, open minded person who can read, and who enjoys learning how certain things work and why. So I’ve read a lot on this topic.
I gave you a link, and the source for the information I posted. In anticipation of this type of response, I almost decided to spend this morning creating a list of more links to more sources.
But then I realized I don’t want to. Not now anyway. It’s not really that hard to search for it, if anyone actually cares.
Here’s one more (out of many) that makes the same conclusion, after a lengthy and well-researched article explaining the meaning and history. This one, unfortunately, uses a stilted, academic style that I find hard to read (unlike the previous article I linked to), but we do get to the same place. Here’s the concluding paragraphs:
Now, if you provide any counter information or law that supersedes the constitution on this, I’d be happy to read it, and if I’m wrong I’ll change my mind. So far you’ve provided nothing but your own opinion on it. The information I’ve read says your opinion is mistaken.
Once again, these are the facts: congress is not a court of law, impeachment is not a criminal trial, and congress does not even have power to convict anyone of a crime.
Although obviously every president could have been/could be impeached under this system, it is rare because there’s a high bar, especially in the senate, to obtain the necessary votes. And because voters can in turn remove from office elected officials who use impeachment unfairly. This keeps congress from impeaching every president that some simply don’t like.
But on those extremely rare occasions when 2/3 of the senate agrees to remove a president (which has actually never happened, and only came close once, with Nixon, which is why he resigned), they can do so — for any reason they determine warrants it. Crime or no crime.
Now for today I’m off to relax and enjoy the holiday with friends. Hope you have an enjoyable day as well.
I see the excerpts
but you forgot to provide the link.
Could be the words of a very formal, traditionalist perfesser from Yale, Charles Black, who wrote a small but highly influential book on impeachment which was published during Nixon-Watergate.
Ah, sorry about that; here’s the link
“What, then, is the meaning of ‘high crimes and misdemeanors,’ for which a President may be removed? Neither the Constitution nor the statutes have determined.” C. M. ELLIS JANUARY 1867 ISSUE
It seems the language style is because apparently this article was written is 1867.
I didn’t even notice the date on it before. But if that date is correct then I give it slack for the stuffy tone.
I think the
small but highly influential book by Prof Charles Black (Yale) on impeachment, even if written in 45 yrs ago during Nixon, is still the gold standard for understanding the overall, and particularly what constitutes a HC&M.This article is a very good overview of Black's thoughts, and includes a link to the original material. For a shorter read, go directly to the portion about HC&Ms and also "Applications".
Here is one colorful, reductio ad absurdum offering by Black as to why impeachable conduct need not involve a violation of criminal statute.
Not too far-fetched considering who is in the WH currently. And this additional hypothetical which really hits the mark:
Thank you
More good stuff to add to my reading list. Most appreciated.
Despite some folks who evidently think that reading and learning on one’s own is a useless endeavor that cannot lead to any valid understanding of a subject, I will no doubt continue my life-long habit of doing so.
I’m not deterred.
I've commented before on this,
but just a couple of final points. First is a question: What about violations of clear constitutional provisions and prohibitions, and does it matter for impeachment if any of these are codified?
Re your assertion that DJT is somehow being denied due process (a WH talking point): first, that involves situations where the defendant would be subject to being deprived of life, liberty or property. His life is not at stake, he would get more liberty to golf and fool around grabbing women in their privates from not being president, and his hotels and casinos and bank accounts, however obtained, would still be his.
Second, the House Judiciary in impeachment and the House as a whole give ample opportunity for the true facts to be revealed. But it is within a context that is likened to an indictment being presented, much like a grand jury, and as such is geared to establishing whether there is a case that can be presented for trial. Even so, the current House rules, unlike the usual grand jury process, will allow both sides of the impeachment question to call witnesses. The process will also be done publicly, again in contrast to the grand jury secrecy. So, some due process is given Trump even at the House stage.
It's at the senate trial stage where the defendant Donald would have the opportunity to have arguments presented in his defense, again all done publicly.
Finally, just a comment that it seems might strange that you are insisting on the violation of a criminal statue angle. From the legal sources I've seen, and those going back to Clinton, there doesn't seem to be any dispute by experts in the area that impeachment need not involve statutory violations. GOP House manager Lindsay Graham during Clinton's 1999 trial argued just that in the well of the senate. Perhaps you can point us to the legal sources who back your position. It seems you've been arguing a point which was long ago settled in the impeachment area.
Since the criminal act question has already been resolved, the more interesting questions become what other conduct should be considered as validly impeachable -- ie, what is a HC&M. During Nixon, the House failed to agree on including Nixon's income tax evasion and his conducting the secret war in Cambodia. I suppose that in the tax area, the House considered that private conduct not involving official acts. This will probably be the case for Trump too with any tax evasion. But NY state authorities may not so easily let him off the hook, and in criminal law ways.
Forgot to note
how rich it is for Trump and his defenders to whine about due process and fairness when it's been the Trump WH denying the House the requested documents and witnesses.
Presidential salary and pension are arguably property.
Presidential salary is mandated by Article II of the Constitution and every president has essentially been required to accept it even if they subsequently donate it for other purposes.
Clause 7: Salary
The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Due process
doesn't say you can't be deprived of these things, just that you can't be deprived of them without proper and reasonable legal process. With impeachment, it's provided for in the Con, the House makes its rules which reasonable people should consider fair -- and that's just for the "indictment" phase -- and then the Trump-friendly senate establishes its own rules for the trial.
DJT will undoubtedly get a fair chance to present his case. McConnell will see to that.
Second point: Trump, even in the unlikely event of being removed from office, would undoubtedly see his annual personal income increase as he's freed to accept ridiculously lucrative speaking fees and book contracts plus all the other $$$ offers from his rich Republican friends. His personal property situation would actually be substantially enhanced.
Then it's time.
In fact, well past time to amend the Constitution to reflect modern language. The term "high crimes and misdemeanors" as understood by most modern Americans is very different from what your linked article posits.
Yes, I agree completely, edg
That’s exactly why I’m frustrated. I’ve invested probably 40 to 50 hours of my time over the past year reading to try to really understand this archaic system. Very few people do this, or have enough time to do so. I’m lucky in that my job is project-based and involves cycles of extreme busyness and then downtime while waiting for the next phase or next project. So, I read. A lot.
I know I’m shouting into a hurricane, as the whole world thinks they already know it means something criminal, and most ain’t open to hearing anything else. Confirmation bias in full swing. Launch personal attacks on anyone who tries to educate at all. Sigh... why bother?
I dunno, which is why I decided last time around to stop talking about this.
I thank you sincerely for taking a look at the article and being open to the information.
The fact that you have spent forty or fifty hours
Does not impress me much. I became a lawyer in 1977 after three years of law school.
If forty or fifty hours isn't good enough for you to get a handle on this, well that is why they have law schools.
Good thing I’m not here to impress you
You think no one but a lawyer is capable of understanding English? Wow.
The thing is, I know a lot of lawyers. Friends with several. One I’m closest too is a guy who spent several years as a prosecutor, then became a public defender, and now works with a legal group specializing in DUI defense. His story of evolution from prosecutor to defense is a very interesting one.
The lawyers I know are all very fine people. Not one of them is infallible.
Fortunately they realize that, and avoid being insufferably pompous about their self-perceived superiority.
It is not about superiority at all.
It is about how much you have read. It is called putting in the time and effort.
It applies to anything. Like someone saying he has spent forty hours learning to play guitar.
How about putting
in some time and effort in providing just one generally recognized legal authority who backs your very narrow and incorrect interpretation of impeachment. I'm no lawyer and am always willing to learn, esp about the Constitution..
Once again you misunderstand how the law works
There are majority legal views and minority legal views. It doesn't make one right and the other "incorrect". In some states a majority rule will be chosen by its courts and in other states a minority view will be chosen. Same thing happens in the federal circuit courts and often the Supreme Court has to decide which view it wants to take, and then sometimes even the Supreme Court reverses itself.
But to call my interpretation incorrect is nonsense.
And my point is that it is quite likely the Republicans will side with my view (and perhaps some Democrats as well). Bruce Fein is concerned about it or he wouldn't have looked up a federal statute. You cited the guy, not me. But he essentially agrees with me that it is going to take a federal statute to convince a lot of people, especially the lawyers in Congress. Or he would not be looking at statutes.
I didn't find his statute very persuasive because it was very general. It was not like the specific statute HRC was accused of violating which said she could be guilty by being grossly negligent in her failure to keep her classified documents from being disclosed.
Looking up legal authorities on this will take some time. I will see what I can find. But it is not likely that I will find an authority that says statutes must be considered over common law. That is not the way it works. Lawyers are supposed to know certain things. As I explained above in my comment about piracy, we know the concept because it has been around for 200 years. It is not something that is repeated in modern legal authorities. It doesn't have to be expressly stated. It is implied from cases that have overruled common law convictions.
What is more interesting to me are recent interpretations of "high crimes and misdemeanors."
I have no doubt
the Rs in the senate especially will arrange to interpret things in ways to favor Trump at each step.
But as Fein notes, there seem to be at least a couple of statutory violations that could be voted on as articles of impeachment, even as some such as you don't find them to your liking. Lots of goalpost-shifting happening with Donald's defenders -- statutes or lack thereof, due process, witnesses.
I think lawyers call this pounding on the table when pounding on the law and the facts doesn't seem to work.
Putting in the time.
I'd appreciate it if you list law schools that spend 40 or more hours teaching specifically about high crimes and misdemeanors. I did a Google search and found 1 or 2 hour seminars on the topic and a plethora of articles and opinion pieces but no full semester courses at any accredited law school. Perhaps you can recommend one.
That is not the way it would be taught.
It would be rare indeed for a law school to have a course on high crimes and misdemeanors. But you learn this concept in a variety of other courses on criminal law, constitutional law, and procedure and evidence. Even courses in torts can give you an insight as to how this works.
Perhaps it should be.
With the increasing frequency of presidential impeachments and attempts, this is a topic that should receive enhanced coverage. Impeachment 101?
It was never intended to be for political purposes
Yet it seems like every election the losing party wants to impeach the winner.
Question
It took a 2/3rds super-majority for the House to impeach Johnson. Yet it seems only a simple majority is required now. When did this change and why?
Unlike the Senate, the Constitution does not specify
The number of Representatives necessary for impeachment, so if it changed, it changed by a house rule. It makes a lot of sense for the house to require the same super majority as the senate or at least more than a mere majority to avoid unnecessary Senate trials. A mere majority smacks of politics.
I don't know when it changed. Guess I will have to do some research. Interesting question.
Disregard question. It was based on a misunderstanding. n/t
I'm not sure
it did require a 2/3 House majority during Johnson. Cite for that?
The House vote in 1868 achieved a greater than 2/3 vote for impeachment, but that's different than a requirement for same.
The Constitution says the 2/3 is required in the senate for conviction. It makes no such requirement for the House -- "the House shall have sole power of impeachment". By simple accepted rules of textual interpretation, as I understand them, the fact that there is no stated supermajority requirement in the House for impeachment means a majority vote would be constitutional.
Ambiguity
Time Magazine: "Johnson was impeached by a two-thirds super majority of the House, and the case moved to the Senate for trial."
My bad & misunderstanding. I construed the way that sentence was written as meaning the two-thirds was a requirement that was met rather than a result that was attained.
Increasing frequency
also of presidential misbehavior and brazenness in disregarding the law and Constitution. Starting at least with Nixon. Certainly Reagan and Iran-Contra. RR should have been impeached and convicted, but the Ds were wimpy. GWB and Cheney had the lies that got us into Iraq. The stuff of impeachment.
With Clinton, the Rs abused the impeachment process for purely partisan political purposes.
But yes, maybe law schools should require that the Impeachment clauses be studied for at least 1-2 classes during the year when students study Con Law. But I'm not familiar about case law in that area, and law school, or at least for most of the major, required classes, is about studying case law. Maybe Impeachment could be inserted in a small sub-unit of study involving constitutional interpretation.
For anyone willing to invest even one or two hours
Here’s another article that is quite informative. Even not-lawyers can read it and learn something.
What Do Scholars Say About the Impeachment Power?
———-
Of the 11 lawyers/experts covered in this overview, there is one, Dershowitz, who argues that impeachment requires a criminal offense.
Ten out of the eleven legal experts whose work is addressed all agree that it doesn’t.
So, are you basing your position on Dershowitz, or do you have any other legal analysis or proof of your assertions? Like I said, I’m curious and will happily consider any facts you put forward.
Well there is obviously much to consider in these opinions.
And if I had to choose among them, I would side with Dershowitz. I think he gets it right. Every legal scholar agrees that impeachment should not be a political hit job. How do you insure that it is not? If there is a written law that says you cannot do X and the President does it anyway, the appearance of a political hit job is minimized.
The examples that some of the other scholars gave seemed to be quite extreme, like the President continuing to pardon law officers who killed citizens in DC, or severe dereliction of duty (and actually there is a statute regarding that for officers in the military and the President is commander in chief so it would probably apply).
Then there is this comment that is supposedly the views of Tribe and Matz: “the distinction between criminality and impeachment doesn’t mean that criminal law is irrelevant.” To me that is an admission that if you can't prove there has been a violation of a statutory crime you can forget about impeachment having any real merit.
I have said that technically the law does not require a violation of the criminal code (when the Constitution was written there was no criminal code as there was not yet a Congress to write one so that has to be the case); but practically, if you do not have a violation of a criminal statute sufficient to meet the high crimes and misdemeanors standard, it smacks of a political hit job and nothing more than Congress' decision to override an election.
It is also clear to me that all of these authorities agree that in the senate this is a trial -- although the President is only removed from office and not punished in any other way. And the normal rules of evidence do not apply -- like hearsay. In every trial in the US, either criminal or civil, the defendant has to be put on notice of the charges or claims against him/her.
Does every senator get to make his or her own charges up and ignore the Articles of Impeachment the House brought? They should be able to do so if they can just decide the trial based on their own consciences. If so, the President could face a thousand charges. But on the Flip side, how does the House come up with articles of Impeachment that violate due process rights?
The primary tenet of due process is that you have to have had a warning ahead of time before you act and then choose to ignore the warning anyway. So if the warning is not in writing and not clearly stated, then there is no notice of what you are expected to do and thus, there is no due process. And due process should be part of every trial, impeachment of Presidents included.
Somebody made the point that a four year limit on the President's term is the means by which any political question should be decided. If you can't point to a written warning not to do something that has been previously approved by Congressional vote, impeaching the President of some vague notion of bad behavior just smacks of a political decision. The remedy is to make him stand for re-election or to just wait out his second term.
I'd prefer there be
some modernizing and amending of several items in the Constitution, not just updating the 18th C language. But re interpretation of constitutional provisions, it's standard form for courts, fed courts and Scotus, to dig into the context and history surrounding the original use of such terms to determine more specifically what was meant. And the impeachment authors were obliged to use language which was both specific ("treason, bribery") and general, as they could not contemplate all the actions which could amount to impeachment, so there was always baked-in some flexibility and room for debate.
It would still be flexible using modern language.
As well as far more understandable. The Constitution is riddled with esoteric arcane usages that, despite your statement about courts, are still argued and unsettled today. Examples include interpretation of the 2nd Amendment and it's pesky misplaced commas and archaic use of the term militia.
Yes, that's why
I said I prefer there be some modernizing and amending of certain items in the Const. But easier said than done obviously.
Although I would think the 2A and its opening language about a well-regulated militia tends to mean the amendment is about bearing arms for the purpose of maintaining a well-regulated militia, and isn't just superfluous language that can be tossed aside. But that's my final comment on that one, as on the internet there are always the small group of 2A fanatics ready to argue and nitpick every assertion that goes against a strict interpretation for individual gun rights.
In any case, I thought Garry Wills' writings in the 2A area, a few decades back, were a solid argument in favor of a collective not individual right to bear arms.
I agree with you but ...
The Supreme Court doesn't. They held in Heller that there's an individual right.
By the way, the article you site is not particularly
Informative, especially to a lawyer. It is not close to what a lawyer would be expected to know about the Constitution in a general sense or what he/she would be expected to know about high crimes and misdemeanors.
The target audience is us commoners
Obviously it’s written in far more accessible language than
godslawyers are steeped in, because it’s purpose is to educate regular people.Maybe you will like the more stuffy, aloof language in the one I posted above, which gives the same conclusion.
But yeah, obviously any single essay on the subject is not comparable to attending years of law school. Nor does it need to be. It is information provided in clear, accessible language that informs the general public about this complex constitutional issue.
Great stuff.
I agree that impeachment does not fall under rules of evidence or procedure involved in criminal law.
A good argument could be made that without an actual crime being committed, impeachment will tend to look like a partisan overthrow of an election.
In my life, the two impeachment proceedings actually did involve black letter law criminal statutes, a burglary and perjury. Even Clinton's perjury didn't offend sensibilities, as so many people thought that most men in that situation would lie about getting a blow job. That impeachment was viewed as more of a political hit job than a righting of the wrong.
As for the proceedings being a distraction, my own view is that it dominates the news while laws are being passed that are enormously hurtful to the 99%ers. It may also serve the purpose of keeping Bernie and Warren off the campaign trail.
I do not trust anything Pelosi does. She always has "reasons" that she doesn't quite explain to us.
"We'll know our disinformation program is complete when everything the American public believes is false." ---- William Casey, CIA Director, 1981
The article seems
right to me, very consistent with the literature on impeachment from legal scholars that I've read.
And did you have a cite to a legal scholar to argue for your position? So far I haven't seen you present anything from any recognized expert in the area to back your argument.
Derschowitz did
Dershowitz just did in the article CS cited from Harvard Law Review and after reading the link I made comments about it. And I think Derschowitz has the concept down better than the others, because the thing that is missing from their arguments (really standing out for me)and really the entire essay, is due process notification.
There are a number of things the framers got wrong, or omitted, and have required change. Due process requiring written notification was one of them (the common law crime of piracy brought that front and center), along with some other very important things: like not needing a standing army (war of 1812 proved that didn't work), and of course slavery, and women's suffrage, and failure to pass the ERA and more recently corporate personhood.
And Derschowitz had this to say a couple of days ago regarding Trump:
So it is clear that he thinks for impeachment to proceed there needs to be an identificable crime committed by the President.
https://www.washingtonexaminer.com/news/dershowitz-mcgahn-ruling-will-ha...
I am not a fan of Derschowitz, but he is a top legal scholar both constitutionally and on criminal matters.
Yes, but he often
has quirky views (e.g., on torture) and his overly narrow view of impeachment is not generally accepted, as CS's cited article indicates. Judging from that piece, AD would seem to be in a very tiny minority. On just about any matter regarding the Constitution, you are not going to find 100% agreement.
That doesn't mean that the lawyers in Congress
Will be impressed with their views.
I just looked up the number of lawyers in Congress. There are 170 members of the House (37%) and in the Senate there are 60 (60%). In the senate legal authority will be more important than it would be in the House.
All of the scholars above all agree that impeachment should not be a political hit job.
And my question to all legal scholars and legal practitioners would be: "Doesn't a preexisting statute, passed by both houses of Congress, and either not vetoed by the President, or if vetoed, having overridden the veto, best insure that this is not a political hit on the President?
But in the end, I think the issue of whether the Constitution requires the accusation of a statutory violation or not, will end up being a theoretical question that does not get answered. I expect any articles of Impeachment to contain accusations of statutory violations as the was the precedent in both the Clinton and Nixon cases (although I don't think in Nixon's case they were actually drawn up before he resigned -- not sure whether there was an actual working draft or just discussions of statutory violations).
Oh c'mon
I didn't say statutory criminal law "should not be used for impeachment." Nor did I argue impeachment should be a "political hit job". Those are your wild misreadings of my comments. I thought lawyers were supposed to be well versed in reading carefully?
On the first, again I argue that violation of a criminal statute should not be a NECESSARY threshold for impeachment. It's of course helpful and therefore relevant in the entire process as it affects public acceptance. But as a constitutional matter, it's not required, in the view of the vast majority of legal scholars, whose views would carry considerable weight in any non-insane Congress.
On the second, I've already noted how the Clinton impeachment was about as close to a pure political hit job, an abuse of the impeachment power, as we've had. Agree?
In the other instances, A. Johnson was overall a valid impeachment process. Too bad for the country that one R senator, Edmund Ross, who was expected to vote with the majority of his party to convict, failed to do so, probably as a result of a bribe according to some recent research. Nixon of course was valid. And double ditto for Trump.
As for Fein, his article was more about laying out all the possible impeachable offenses -- he didn't seem to have to stretch to also include a couple of statutory violations, and I don't get the sense he felt it was necessary to include them to make the entire process valid.
See my next post to CS
Applies to you as well.
A breakthrough!
Although I don’t mind all this wandering into the weeds, it’s looking a little like a smoke screen at this point. I’m happy now that we have finally gotten to the point I made from the beginning.
The reason I wrote anything at all here was in response to this comment you made to the OP.
You’ve been using this like a bludgeon to attack and shut down anyone who supports impeaching trump. You state this so-called “requirement” as if it were a fact. And in doing so, you’re not only controlling the discussion but spreading more misunderstanding and disinformation. Neither is helpful.
So at least now we have established that it’s not in fact required, the vast majority of legal constitutional experts agree that it’s not required, and your statements now reflect accurately this this is simply an opinion — a very minority “fringe” opinion of one highly partisan pro trump lawyer who wrote a book on why trump should skate. (And, coincidentally, another book on why BDS is anti-Semitic... so he’s a real thinker...) anyway,
You’ve now clarified that your opinion is that the lone dissenter, Dershowitz, “got it right” and everyone else got it wrong. You believe it *should be* required, and that the process would seem more legitimate if it were based on criminal offenses.
But the fact is established that this is a very small minority legal view, and that in reality it is not actually required. So, yay for truth.
I trust that you will cease using these demands for “where’s the crime!?!?” to try to steamroll other commenters and writers here into silence.
I am going to disagree with you and your mischaracterization
Of my arguments. What I have said all along is that you are relying on a very technical reading of the Constitution, and while technically correct, (and I have explained why as there was no statutory authority when the Constitution was written), it is not a practical reading of the Constitution in our era.
I also think you misread the legal authorities you claim do not support me. They are clearly against political hits. And I think that they understand these technicalities can easily lead to political hits. Saying that something is not necessary is not the same thing as saying it is the right thing to do or even the appropriate thing in our era.
And as for Derschowitz, he is by far the most well known and most well recognized of these legal authorities. That is why he is asked for his opinion all the time. To say he is some kind of outlier is not the case at all.
I am not trying to defend Trump. I am just tired of every time there is an election, the party who loses starts in on the impeachment argument. It has been happening way too long.
We shall see what happens and I will leave it at that.
That is an insult to non-lawyers
that they might not realize.
Non-lawyers, a jail house lawyer is a prisoner who spends his time reading law, writing writs and appeals. Sometimes other inmates pay for the legal eagle prisoner to write one for them.
They are generally junk, more for nuisance than anything else, and it is mostly just a way to while away your life behind bars.
That is what you just got called here.
Smart aleck prisoners who write junk.
edit: the insult is now gone from davidgmillsatty's comment.
"We'll know our disinformation program is complete when everything the American public believes is false." ---- William Casey, CIA Director, 1981
Wendel Turley also takes the view that this impeachment
Is likely going nowhere. But nobody seems to be asking what the Ukainians think about quid pro quo and they are saying there was none and Turley does not seem to know that is the case either as he concedes there was quid pro quo.
Do the Democrats want Hunter Biden to testify? Because he will certainly be called to testify in a Senate trial.
Well, I too agree that “this impeachment” — if it happens
at all, will “go nowhere” — except to the senate, where trump will certainly not be voted out of office. It doesn’t take a legal expert to see that writing on the wall. It’s also off topic to what we’ve been discussing.
ETA: by the way, that is Jonathon Turley on the video. I’d never heard of a Wendel Turley so I watched it to see who you meant.
Thoughts?
Seems lots of people have decided Trump is guilty even though the proceedings haven't concluded yet. Do we no longer believe in the presumption of innocence in this country anymore. The senate haven't called their witnesses yet.
President Trump's Defense
Worth a read.
There were problems with running a campaign of Joy while committing a genocide? Who could have guessed?
Harris is unburdened of speaking going forward.
Worth a read for sure.
Good article, SD.
While I haven't wasted any time watching the House impeachment circus, the Senate version will have me stocking up on popcorn.
How rich people like Gordon Sondland
Buy their way to being US Ambassadors
http://www.informationclearinghouse.info/52606.htm
And you will understand why he is not a credible witness at all. He never supported Trump, bought the Ambassadorship (yes they are commonly bought and in this case it would appear to be under false pretenses) had his own agenda wanting US to provide military support to Ukraine, and was absolutely POed when Trump didn't have the same agenda as he did.
Read it and weep. Literally. I never knew.
Between pies and such...
I've been busy cooking all day and evening, but between tasks I managed to sling a few thoughts together regarding this essay. I hope it's coherent...
***
Your title, in part, "Impeachment isn't a distraction from other work of Congress," is something I tend to agree with. I'm not aware that anyone has opined that the impeachment proceedings are distracting Congress specifically. If they have, I missed it. However, I've certainly heard the argument that the impeachment debate and/or actions are distracting the public from the ability to focus on other issues. You have listed some of those issues.
My view is that Congress isn't distracted. At least not in the sense that were it not for the impeachment they'd be busy at work doing the will of the American people. They aren't doing that anyway because the people who bribe them don't want what the American people want. For the Democrats, the impeachment does provide a cover – "Oh, we were going to get to that Medicare for All business, but that damn impeachment got in the way." Well, no, they weren't going to get to it. That's the last thing they want to deal with. Impeachment, though? Well, no problem. Plenty of time for that!
Working up backwards through your essay, you mentioned this:
You'll get no argument from me here. Yep. It's broken. Fixing it is not what this is about however, so I come to the second part of the statement (immediately above):
Finishing with:
So, I ask you to consider that the "collective we" you mention are up against the most effective and well financed propaganda machine that we've ever known. Ever. Note well the "well financed" part. Millions of dollars are being spent daily on think tank (propaganda) writers, newspaper editors, television advertising, magazine and/or online outlets, etc. The cumulative effect is that "... we (collectively) have been unsuccessful at doing that," "that" being to cause our elected representatives to pay attention to the wants, needs, and desires of the 99.9% of We the People. Which takes us right back to your statement regarding the broken American government. Perhaps it's even broken American society.
Your essay starts off with a basic rundown of the day-to-day operations of Congress. Nothing controversial there. Most folks here understand those processes well enough.
You mention that of all those running for federal offices in this election "... approximately three are speaking about any one of these issues, and I can't think of a single one that is serious about addressing all of them" – and those issues you list as MfA, government corruption, and the rather-all-encompassing Foreign Policy. I can't say how serious any of these people actually are, as I can't read their minds, but I have to assume any willing to take the slurs coming from everyone from Obama to the mainstream press are quite serious. I think you might be right that the few willing to put it on the line for the ideas you listed are in for an uphill battle. However, I suspect every one of them knew this going in.
So, is impeachment a distraction? Yes, but not to Congress. Hell, the Democrats at least probably find it a relief that they don't have to lift a finger regarding things desired by those pesky deplorables. Republicans have seen the ratings for their man Trump bounce straight up, and may get the chance to rake the Democrats over the coals when the show goes to their court. A distraction for the people – who find their newspapers, television news, etc., blanketed with impeachment talk and little else, probably.
Mostly I find folks disinterested. Those I talk to are more worried about where the money to pay medical bills, car payments, rent or mortgages, is going to come from than the Democrats chasing Trump around.
Some Ds have been
working to make things better for those "pesky deplorables", as with a number of progressive bills passed by the Dem House since the start of the year. They all go to die in Grim Reaper Mitch's senate graveyard. Election reform, immigration reform, employee protections, gun control, on and on. And this is just from the first half of 2019.
This little fact not only rebuts the charge that Ds have been doing nothing, but also is evidence against the lazy idea that both parties are the same, both equally corrupt, etc. Yes, Ds are corrupt too and more than a few have been bought off -- just not nearly to the 99% extent that we see in the GOP.
The above inconvenient fact about the good Dem House bills doesn't get a lot of play in the media or on lefty blogs. Part of that is due to the usual pathetically weak Dem messaging machine, part due to MSM resistance to discuss the issues raised as they are deemed ratings losers, and part b/c on prog blogs these reform measures go sharply against the grain of the ingrained cynical thinking about Ds.
Yes, the system is corrupt and needs fixing, particularly in how Congress is allowed to take bribes from Big $$ interests. But as shown some efforts have been made on behalf of the people and it's important to acknowledge that not all is indifferent inaction and complete corruption. And I welcome anyone here from the Both Parties Are Equally Corrupt faction to point me to similar extensive progressive legislation proposed by Rs. Operators are standing by 24/7.
I disagree.
Your contention is that Republicans are more corrupt than Democrats because they don't promote "progressive" legislation.
WTH?
The two parties have opposing philosophies on many subjects. Republicans are attempting to do what their constituents want -- stop gun control, put religion in the public square, cut social programs, cut spending (except on military and other Republican priorities), reduce regulation, yada yada yada.
The real question is this: Which party is working harder for its constituents?
I'd argue that it's Republicans. You may not agree with what they are working for, but that does not make them either corrupt or ineffective.
Oh I'd say
a major corrupting factor wrt Congress is the large sums of money from the rich and big corps which go to buying off politicians. As the Rs are the party of the rich and big corps, have been for over a century, they are by definition the ones most susceptible to these corrosive types of corrupting influence.
And bc Rs control the WH, senate and have enough blue dog D sellouts to cajole, it isn't all that difficult to occasionally pass the type of legislation of, by and for the rich and powerful that they are paid to produce. Not much heavy lifting needed. But, yes, they are definitely working for their constituents. Doing what they're paid to do.
It's not exactly what most people have in mind when they contemplate democracy, but there you are.
Well, ...
as conservatives are overly fond of pointing out, we're not a democracy, we're a republic. And a poorly managed one at that. As for Dems not being the party of money and business, I'd argue that unions, tech companies, Wall Street firms, Hollywood and other entertainment companies, as well as many other businesses keep the Democratic Party and its elected officials well-greased with money -- equal to or exceeding the Republican's take.
Here's the Top 25 hard money donations for the 2018 election cycle. Note that #1 is Mike Bloomberg's and #2 is Tom Steyer's.
1 Bloomberg LP $95,892,625
2 Fahr LLC $73,100,331
3 Las Vegas Sands $62,359,400
4 Adelson Clinic for Drug Abuse Treatment & Research $61,388,300
5 Uline Inc $39,717,011
6 Senate Majority PAC $29,379,212
7 Paloma Partners $27,697,200
8 American Action Network $26,566,362
9 Senate Leadership Fund $24,221,940
10 Soros Fund Management $20,251,221
11 Citadel LLC $19,604,380
12 Carpenters & Joiners Union $18,792,505
13 One Nation $18,550,000
14 Euclidean Capital $16,391,900
15 Laborers Union $16,281,645
16 Renaissance Technologies $15,768,764
17 Blackstone Group $15,701,490
18 League of Conservation Voters $14,567,651
19 America Votes $14,271,726
20 Microsoft Corp $14,107,059
21 American Federation of State/Cnty/Munic Employees $14,094,569
22 Service Employees International Union $13,883,795
23 Amazon.com $13,626,791
24 American Federation of Teachers $13,170,002
25 Newsweb Corp $12,688,124
Las Vegas Sands is the casino owned by Sheldon Adelson, yes?
If #3 and #4 are both Sheldon Adelson, combined that would make $123 million, topping the list.
Sheldon Adelson has also used his fortune to steer Israel’s politics. To support Benjamin Netanyahu, Adelson financed the founding of Israel Hayom, a daily newspaper distributed gratis, putting its rivals in the print journalism market under severe economic pressure.
One is tempted to ask when, if ever, anyone in Washington is going to be investigated and impeached for subordinating themselves and their constituents to the priorities of Sheldon Adelson & Co.
VERY well connected folks.
I don't think it's even close. When I consider everything from their funding to their organization to attempting to sponsor legislation favored by those who put them in office, the Republicans are in a class alone.
One example: A few years ago, while attempting to research a demagogue who was running the hard-core Mid-western Baptist church my mother attends (and also the local GOP), I ran into something I never expected to discover. What I swerved into was a vast grass-roots network, church-based and encompassing the entire nation. (In fact, it crossed our borders.) This network is made up of various groups and other networks with many names, but their goals and discussions seemed pretty much the same. Also, it didn't start yesterday. Best as I can tell, it sprang up in the late 1980's and early 1990's. Quite a bit of it seemed to stem from the "Patriot" movement, although it was not that. It was 100% Republican, excepting the usual spattering of greedster Libertarians.
Oddly enough, they seemed to be using tactics promulgated by the late (and supposedly hated) Saul Alinsky. I saw references to him more than a few times. So, even though they publicly proclaimed Alinsky to be the devil incarnate, and accused leftists of following him (which I have never seen much evidence of happening), they themselves had no problem organizing their own right-wing and/or fundamentalist/dominionist cells along lines proposed by him. I didn't expect to see that, but I did. The organization of all this was impressive. These people can respond to current events and apply pressure at the drop of a hat ... and they do.
Anyway, I've never seen any such networks run on the left. Not even close. I don't even think such a thing would be possible due to in-fighting. Further, any network would be filled with various government moles and paid instigators.
One of the problems is that people do not share the same
Ideas about what is in their best interest.
And progressives love to say that XYZ is in the best interests of certain people as if these people are clueless about what is in their best interest.
A lot of people do not care about money. A lot of people do not care all that much about their health or going to doctors. A lot of people do not care about education. A lot of people care about their religious beliefs more than they care about other thing like money and health and education. And some think it is in their best interest for the US to be the world's policeman.
Timely tweet and article by Caitlin
There were problems with running a campaign of Joy while committing a genocide? Who could have guessed?
Harris is unburdened of speaking going forward.
Caitlin Teaches Rhetoric for Bloggers.
An excellent first lesson on ad hominem.
Hope she covers some other establishment tactics like strawmen and 'no evidence'.
Of course, for most of us this is all pretty basic, and any of the Agent Orange veterans here could easily teach graduate level courses in this stuff.
Heck, there's a whole seminar's worth of material just on 'Interacting with Armando' alone.
The current working assumption appears to be that our Shroedinger's Cat system is still alive. But what if we all suspect it's not, and the real problem is we just can't bring ourselves to open the box?
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