Showing posts with label 2016 Election Post Mortem. Show all posts
Showing posts with label 2016 Election Post Mortem. Show all posts

Monday, November 9, 2020

Monday Morning Repeats. An Election Recollection Issue. The best post of the week of November 5, 2017.

We are running two Monday Morning repeats today, for two reasons.

One is that we missed last weeks, so we're making up for it.

The other is that this is suddenly timely again, but likely forgotten.

Lex Anteinternet: Go Donna! In a week of revelations, Donna Brazile...

Had Brazile had her way, the recent election probably would have been on whether or not to reelect Joe Biden. . . and his opponent probably would have been a much younger Republican.

2020 Election Post Mortem I: The Conspiracy theorists.

Let's start with something that has seemingly been forgotten about the 2016 General Election.

Hillary Clinton got more votes than Donald Trump.

Pause. . . let that sink in.

She won the popular vote.

That's why Democrats have been talking about abolishing the Electoral College since 2016, and why Republicans have been defending it. When Cynthia Lummis noted in her campaign that "they even want to do away with the Electoral College" what she was really stating is that if the popular vote decided Presidential elections HIllary Clinton, not Donald Trump, would have been running for reelection.  I.e., the majority would decide.

Democrats didn't like that, until probably now.  This race is so close that Democrats will now be able to take advantage of the Electoral Vote exaggeration.  I.e, at the time I'm writing this Donald Trump has 214 elector votes and Biden 290.  Biden is probably going to exceed 300.  It'll look, therefore, like he swamped Donald Trump.  He didn't.  He barely won.

He did get more votes than Trump, however.

Which isn't too surprising, there are more Democrats than Republicans.

All of which brings me to this.  There were more votes for Democratic Presidential candidates in 2020, 2016, 2012, 2008 and 2000.

More.

So all this stuff about voter fraud. . . is just hoping against hope.

It didn't happen.

Pretending it does is adopting a fiction, and that's dangerous to those who adopt it and in the end to reality.

Conservatives did really, really well this election. They might have kept the Senate, we don't know yet, and they gained in the U.S. House and State Houses.  That's something to build on.

And Donald Trump, in spite of all of his vices, had some real accomplishments.  Judiciary appointments were prime among them.

Moving forward involves looking forward.  The Presidential Election of 2020 shouldn't become the Republican Lost Cause.  The 2016 Presidential Election, in real terms, was a gift, and 2016 to 2020 breathing room.  Conservatives need to move on.

Saturday, February 8, 2020

The Impeachment of Donald Trump

Yesterday evening, December 18, 2019, the House of Representatives voted to impeach Donald Trump.

The Impeachment Trial of Andrew Johnson.

The Articles of Impeachment read:
Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors.










Resolved, That Donald J. Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following articles of impeachment be exhibited to the United States Senate:
Articles of impeachment exhibited by the House of Representatives of the United States of America in the name of itself and of the people of the United States of America, against Donald J. Trump, President of the United States of America, in maintenance and support of its impeachment against him for high crimes and misdemeanors.

Article I: Abuse of power

The Constitution provides that the House of Representatives "shall have the sole Power of Impeachment and that the President shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors". In his conduct of the office of President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald J. Trump has abused the powers of the Presidency, in that:

Using the powers of his high office, President Trump solicited the interference of a foreign government, Ukraine, in the 2020 United States Presidential election. He did so through a scheme or course of conduct that included soliciting the Government of Ukraine to publicly announce investigations that would benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage. President Trump also sought to pressure the Government of Ukraine to take these steps by conditioning official United States Government acts of significant value to Ukraine on its public announcement of the investigations. President Trump engaged in this scheme or course of conduct for corrupt purposes in pursuit of personal political benefit. In so doing, President Trump used the powers of the Presidency in a manner that compromised the national security of the United States and undermined the integrity of the United States democratic process. He thus ignored and injured the interests of the Nation.
President Trump engaged in this scheme or course of conduct through the following means:
(1) President Trump—acting both directly and through his agents Within and Outside the United States Government—corruptly solicited the Government of Ukraine to publicly announce investigations into—
(A) a political opponent, former Vice President Joseph R. Biden, Jr.; and
(B) a discredited theory promoted by Russia alleging that Ukraine—rather than Russia—interfered in the 2016 United States Presidential election.
(2) With the same corrupt motives, President Trump—acting both directly and through his agents within and outside the United States Government–conditioned two official acts on the public announcements that he had requested—
(A) the release of $391 million of United 5 States taxpayer funds that Congress had appropriated on a bipartisan basis for the purpose of providing vital military and security assistance to Ukraine to oppose Russian aggression and which President Trump had ordered suspended; and
(B) a head of state meeting at the White House, which the President of Ukraine sought to demonstrate continued United States support for the Government of Ukraine in the face of Russian aggression.
(3) Faced with the public revelation of his actions, President Trump ultimately released the military and security assistance to the Government of Ukraine, but has persisted in openly and corruptly urging and soliciting Ukraine to undertake investigations for his personal political benefit.
These actions were consistent with President Trump's previous invitations of foreign interference in United States elections.
In all this, President Trump abused the powers of the Presidency by ignoring and injuring national security and other vital national interests to obtain an improper personal political benefit. He has also betrayed the Nation by abusing his high office to enlist a foreign power in corrupting democratic elections.
Wherefore President Trump, by such conduct, has demonstrated that he will remain a threat to national security and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self- governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any Office of honor, trust, or profit under the United States.

Article II: Obstruction of Congress

The Constitution provides that the House of Representatives "shall have the sole Power of Impeachment" and that the President "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors". In his conduct of the office of President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—
Donald J. Trump has directed the unprecedented, categorical, and indiscriminate defiance of subpoenas issued by the House of Representatives pursuant to its sole Power of Impeachment. President Trump has abused the powers of the Presidency in a manner offensive to, and subversive of, the Constitution, in that:
The House of Representatives has engaged in an impeachment inquiry focused on President Trump's corrupt solicitation of the Government of Ukraine to interfere in the 2020 United States Presidential election. As part of this impeachment inquiry, the Committees undertaking the investigation served subpoenas seeking documents and testimony deemed vital to the inquiry from various Executive Branch agencies and offices, and current and former officials.
In response, without lawful cause or excuse, President Trump directed Executive Branch agencies, offices, and officials not to comply with those subpoenas. President Trump thus interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, and assumed to himself functions and judgments necessary to the exercise of the "sole Power of Impeachment" vested by the Constitution in the House of Representatives.
President Trump abused the powers of his high office through the following means:
(1) Directing the White House to defy a lawful subpoena by withholding the production of documents sought therein by the Committees.
(2) Directing other Executive Branch agencies and offices to defy lawful subpoenas and withhold the production of documents and records from the Committees—in response to which the Department of State, Office of Management and Budget, Department of Energy, and Department of Defense refused to produce a single document or record.
(3) Directing current and former Executive Branch officials not to cooperate with the Committees—in response to which nine Administration officials defied subpoenas for testimony, namely John Michael "Mick" Mulvaney, Robert B. Blair, John A. Eisenberg, Michael Ellis, Preston Wells Griffith, Russell T. Vought, Michael Duffey, Brian McCormack, and T. Ulrich Brechbuhl.
These actions were consistent with President Trump's previous efforts to undermine United States Government investigations into foreign interference in United States elections.
Through these actions, President Trump sought to arrogate to himself the right to determine the propriety, scope, and nature of an impeachment inquiry into his own conduct, as well as the unilateral prerogative to deny any and all information to the House of Representatives in the exercise of its "sole Power of Impeachment". In the history of the Republic, no President has ever ordered the complete defiance of an impeachment inquiry or sought to obstruct and impede so comprehensively the ability of the House of Representatives to investigate "high Crimes and Misdemeanors". This abuse of office served to cover up the President's own repeated misconduct and to seize and control the power of impeachment and thus to nullify a vital constitutional safeguard vested solely in the House of Representatives.
In all of this, President Trump has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice, and to the manifest injury of the people of the United States.
Wherefore, President Trump, by such conduct, has demonstrated that he will remain a threat to the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. President Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.
 So what happens now?

So, now that this has occurred, and to use the correct vernacular, Donald Trump is "impeached".  He remains in office, of course.  Now what occurs is that the Articles of Impeachment will be submitted to the Senate for an impeachment trial.

That will occur. . . probably.

Okay, now what really occurs.

At this point the commentary starts.  So if you only wanted the news, stop reading here.

a.  First a little history and comment

There are a lot of problems with impeachment and ever attempt at it has been a dog's breakfast in more ways than one. The Impeachment of Andrew Johnson, the first occur, was an illegitimate attempt to unseat the President by Radical Republicans who were upset he wasn't a Radial Republican.  Make no mistake, I think the Radical Republicans of the 1860s were right and Reformation should have been radical.  But the impeachment was complete nonsense and it rightfully failed.

The illegitimate act didn't bring down the Republic, however, which is something we should keep in mind here.

The second, only only legitimate, attempt at impeaching a President came in 1974 when the House was about to impeach Richard Nixon in the wake of Watergate. The committee working on the effort had adopted some articles and rejected others and was about to send them to the full House when Nixon resigned.  Had he not, the articles would have been as follows:

Article I, obstruction of justice
On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.



Article II, abuse of power
Using the powers of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has repeatedly engaged in conduct violating the constitutional rights of citizens, impairing the due and proper administration of justice and the conduct of lawful inquiries, or contravening the laws governing agencies of the executive branch and the purposes of these agencies.



Article III, contempt of Congress
In his conduct of the office of President of the United States, Richard M. Nixon, contrary to his oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.
That effort, of course, came over 100 years after the first one.

The nation unfortunately wouldn't have so long to wait to experience the third, which was the illegitimate attempt to impeach William Clinton.

For reason that are difficult to grasp now, Clinton, who was a moderate, was detested by Republicans.  Of course, he followed in the wake of Ronald Reagan in some ways, who was detested by Democrats.  Neither of them are detested now and Reagan is widely regarded as a hero, but at the time, he was vilified. So was Clinton, the last President, fwiw,  to not run a deficit.

Anyhow, the whole effort against Clinton was simply silly and it was a charade based on the fact that he had the personal morals of an alley cat. That may be despicable, but then no body tried to impeach JFK who had the same problem.  He was really being impeached due to a gotcha moment with Monica Lewinsky in which he testified he hadn't had sex with her.

In fact, he told the truth on that, and it shows how dense Americans are that they now think fellatio is actually sex.  It isn't.  That doesn't make it right, and what Clinton did was icky, but sex is a pretty clearly defined act in mammals and that isn't it.  Anyhow, his articles of impeachment read:
Article I 

In his conduct while President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed, has willfully corrupted and manipulated the judicial process of the United States for his personal gain and exoneration, impeding the administration of justice, in that:


On August 17, 1998, William Jefferson Clinton swore to tell the truth, the whole truth, and nothing but the truth before a Federal grand jury of the United States. Contrary to that oath, William Jefferson Clinton willfully provided perjurious, false and misleading testimony to the grand jury concerning one or more of the following: (1) the nature and details of his relationship with a subordinate Government employee; (2) prior perjurious, false and misleading testimony he gave in a Federal civil rights action brought against him; (3) prior false and misleading statements he allowed his attorney to make to a Federal judge in that civil rights action; and (4) his corrupt efforts to influence the testimony of witnesses and to impede the discovery of evidence in that civil rights action. 

In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States

Wherefore, William Jefferson Clinton, by such conduct, warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. 

Article IV 

Using the powers and influence of the office of President of the United States, William Jefferson Clinton, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in disregard of his constitutional duty to take care that the laws be faithfully executed, has engaged in conduct that resulted in misuse and abuse of his high office, impaired the due and proper administration of justice and the conduct of lawful inquiries, and contravened the authority of the legislative branch and the truth seeking purpose of a coordinate investigative proceeding, in that, as President, William Jefferson Clinton refused and failed to respond to certain written requests for admission and willfully made perjurious, false and misleading sworn statements in response to certain written requests for admission propounded to him as part of the impeachment inquiry authorized by the House of Representatives of the Congress of the United States. William Jefferson Clinton, in refusing and failing to respond and in making perjurious, false and misleading statements, assumed to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives and exhibited contempt for the inquiry.

In doing this, William Jefferson Clinton has undermined the integrity of his office, has brought disrepute on the Presidency, has betrayed his trust as President, and has acted in a manner subversive of the rule of law and justice, to the manifest injury of the people of the United States.

Wherefore, William Jefferson Clinton, by such conduct warrants impeachment and trial, and removal from office and disqualification to hold and enjoy any office of honor, trust,or profit under the United States.
One and Four?  Yes, the House didn't vote to impeach on proposed articles two and three.

Note, by the way, how lengthy these are.  That's notable as while the impeachment effort was pure political bs theater, the Congress of that era was seemingly able to be a bit more substantive in drafting text.

Lots of Democrats warned at the time that the impeachment of Clinton would prove to be a mistake as it lowered the bar for impeachment down to moral ickyness and "we don't like you", a standard which would at least require John F. Kennedy to be exhumed from his grave and posthumously impeached for championship level moral ickiness.  The Senate, of course, thought better of it and acquitted but none the less the bar was now set pretty low.

And it has been ever since. All during President Obama's two terms of office there were cries to impeach him for no reason at all and the cries to impeach President Trump commenced prior to his even taking an oath of office.

Trump and his supporters note that there have been cries to impeach him ever since he took office and therefore the entire process is illegitimate.  The fact that there was early animosity doesn't make the effort illegitimate, but it does raise real questions.  Trying to answer those now, more than one Democrat has now claimed that Trump's actions are "worse than Nixon's".

Oh, get real.

Trump's actions may be bad, but worse than Nixon is absurd.  Nixon is the only American President who really deserved to have been impeached.

In fact, President Ford did the country a massive disservice by pardoning Nixon.  He shouldn't have.  Nixon should have been arrested, tried and convicted after his resignation, and gone on to have served a term in prison. That would have been a real lesson that nobody was above the law, and set the bar on impeachment, even though it would not have occurred, right where it should have been.

b.  So where we are now?

Proceeding an a turtle like pace the House has voted to impeach.  So now the matter needs to be sent to the President.  And Speaker of the House Nancy Pelosi is set to do just that. . . well maybe not.
Indeed, as it is clear that the GOP in the Senate intends to pretty much shut an impeachment trial down after doing is bare duty, now the Speaker his holding the Articles trying to negotiate with the Senate.

Pelosi, who didn't want to (correctly) proceed with impeachment in the first place, now delusionally or desperately believes that by withholding the articles from the Senate, she can get the Senate to guarantee a full blown Senate trial with procedures she wants.

That's a little like a person on the block who is known for not washing his clothes and bad hygiene who wants to talk conspiracy theories while belching, threatening not to come to the block party if you don't accept his home made bourbon flooded fruit cake.  The choice there is pretty easy. The Senate isn't going to say "Oh please Nancy, don't hold the articles of impeachment! We'll do what you want".

That's nonsense.

Indeed, as if nobody in Congress has noticed so far, this entire process has been so slow glaciers are like drag racers in comparison.  Not submitting the articles puts this further and further into 2020 every day.  If she doesn't get the articles over until January, this won't get rolling until March, or later.  That would suit the GOP in Congress just fine.

Of course, everyone knows that once this gets to the Senate it will fail, and in fact stands a really good chance of being summarily dismissed. Senate Republicans have made that plain and the recent history of impeachment supports it.  Clinton was impeached as he and Lewinsky were being nasty in the Oval Office. That's not really a crime, it must means that Lewinsky and Clinton both had trashy morals.  The effort was political.  

Trump isn't being impeached for an actual crime and by this point the Democrats have a hard time actually saying what he's being impeached for. Basically, it amounts to using his office to try to get an investigation into a political rival's son rolling, which isn't illegal but is immoral.  Of course, Hunter Biden's occupying a highly lucrative position with a Ukrainian gas company is corrupt in its own way, and Joe Biden's protection of his son earlier on is corrupt in its own way.  None of it is illegal.  Added to that, the concept of Ukrainian interference rather than Russian in the 2016 election is pretty absurd.

Absurdity isn't illegality, however, and that's the problem.  The Clinton impeachment lowered the bar to using the process as a means of trying to remove a President simply because the other party didn't like him.  Given it being lowered that far, "political midemeanoring" seems like a legitimate exercise in impeachment.  Indeed, this may be a watershed moment not for what it appears to be, but for the final conversion, which started during the Clinton process, of the impeachment clause into a Congressional vote of no confidence.

Ultimately, we don't really know, however, what is and isn't legitimate, as its never gone to the United States Supreme Court.  The Court would probably just hold its a political act, but that can't be guaranteed.  Indeed, the impeachment process really gives the Court hte opportunity to make itself absolutely the top branch of government as it could define "high crimes and misdemeanors" in such a way as to actually require a, well. . . high crime or misdemeanor.  Congress doesn't seem to have considered this possibility, however.

Well, it's not going to happen here.  Nancy Pelosi is going to threaten for a while to hold her breath until she turns blue and the Senate is going to let her do just that. After that, she may or may not eventually send the articles over, and a short trial and acquittal will result. The American public is already completely tired of the whole thing and ignoring it.  In the fall, those who already think Trump the worst President ever will still think that, those who think he's the best President ever will still think that, and those in the middle will be making up their decision on other grounds, with a lot of that ground being the question of how much they dislike whomever the Democrats nominate.

At any rate, the republic wills survive no matter what occurs.  The cries about democracy being in the balance are simply that, cries.  If anything comes out of this maybe there's a chance, albeit a small one, that a Congress that quit doing its job over the 20th Century will rediscover that it has one.  Indeed, if the impeachment clause has become a vote of no confidence, it implies that Congress is actually going to work, as its replaced the Chief Executive.  The Chief Executive, starting as long ago as the Administration of Theodore Roosevelt, has been allowed to rule in ways that exceeded the vision of the founders of the republic.  Bringing an imperial presidency to an end, if not necessarily by impeachment, would be a good development, really, in terms of democracy, but only if the national legislature is prepared to resume its constitutional role.

________________________________________________________________________________

I'd forgotten that I'd started a separate thread on this topic and was lamenting not having done so, particularly as the news has become quite odd recently following the entire NPR/Pompeo incident.  So, now aware that I did start this, I'm going to update with my recent entries, and then go from there.

In other news impacting the election, the impeachment trial hasn't commenced and Mitch McConnell is threatening to start the process in the Senate unilaterally without the House resolution actually having been sent over.  And a situation is developing with Iran that threatens to make Trump a wartime President with an additional war, although how that develops has yet to be seen.

January 8, 2020.


The House finally voted to send the Articles of Impeachment to the Senate yesterday and the Senators will be sworn as impeachment jurors today.  Just before that seven House impeachment managers will walk over to the Senate and read the articles.  The managers, which NPR claims all have strong legal backgrounds, are Hakeem Jeffries, Sylvia Garcia, Jerry Nadler, Adam Schiff, Val Demings, Zoe Lofgren, and Jason Crow.

Schiff is the only widely known name right now, due to his role in the Impeachment inquiry in the House.  That role is likely why he was chosen, although he strikes a lot of people the wrong way, including myself, due to his pompous demeanor.

January 16, 2020

In other campaign related news, the very day that the Impeachment indictment went over to the Senate an indited Russian born witness claimed first hand knowledge of the Ukrainian events and claimed that it was always an effort to get the Bidens.  This has been treated as explosive news by the Press and even more explosive by left wing Twitterites.

The problem with that is that so far its being met with sort of a collective yawn nationally and it doesn't seem surprising so it's not clear how much of an impact this really makes. Additionally, the news coming in the form of a Rachel Maddow interview of an indited person makes it a bit problematic, rather obviously.  I doubt it'll have much of an impact on actual proceedings when they get rolling.  On those proceedings, we still don't really know what they'll be like.


January 17, 2020

On the Impeachment, Trumps team rolled out and tested their defense, which is that whatever Trump may have done was bad, but it's not illegal, and therefore not impeachable.  Democrats dissed that argument but frankly there's at least something to it.  Following this impeachment trial that may very well end up being the standard for the process when the results are combined with the earlier Andrew Johnson impeachment trial.

January 20, 2020.

That trial started yesterday but it was all motion practice that went late into the night.  Justice Roberts admonished the lawyers for both side for the nature of their remarks about their opponents.

January 22, 2020

Here are the rules for the Impeachment Trial being held in the Senate:

Rules.

I think they've actually been somewhat modified from this form.  The argument that was originally to be delivered over two days, for a total of twenty-four hours, is now to be delivered in three days.

That's for each side.  I.e., each side presents their arguments over a three day period. That's basically the meat of each side's case.

Reporting on this has been somewhat inaccurate, as the press has been referring to these arguments as "opening arguments", such as occur in trials. They are not.  This is basically a gigantic motion hearing in front of a jury of Senators with the evidence being whatever it already is, as generated in the House.  There will be no additional witnesses and the testimony won't really be presented by the parties in a normal fashion, but rather through their arguments.  It's frankly a bizarre way to conduct proceedings of this type, but that's the way they are doing it. As such, it's not really a trial.

After the arguments the Senators may question the parties for up to sixteen hours, which also isn't much.  Following that, there will be arguments again with each side being given four hours.

So this "impeachment trial" is really one long impeachment hearing argument with some ability to present questions by each side.

January 23, 2020

And so that's where we are, sort of.  That doesn't address the Pompeo event, of course, which we'll have to do.

January 26, 2020

________________________________________________________________________________

Okay, now that we're more or less up to date and the Senate had Sunday off, where are we at?

Well, the thing that revived this thread was the interview of Mike Pompeo by NPR's Mary Louise Kelly.  Something went wrong in the interview at the point where the topic of Ukraine came up and Pompeo terminated the interview, called Kelly into another room, and dressed her down for what he apparently saw was an off the grid topic she wasn't supposed to bring up.  According to Kelly, Pompeo indicated that the American people didn't care about the Ukraine and he challenged Kelly to find Ukraine on a map, which she says she did.

Apparently Pompeo believed all of this was supposed to be off the record, which wasn't how Kelly viewed it, and she reported on it. That sent Pompeo off on an attack with his own version of this in which he claims that Kelly couldn't find Ukraine on the map.

Frankly, while only Pompeo and Kelly know the truth here, Kelly's version sounds a lot more credible and Pompeo's reaction is off the charts and strange.

What's this have to do with the impeachment?  Well, maybe nothing, but it does show that the administration must be on pins and needles about it in order for a high level official to have such a weird reaction to something of this type.

If so, the drama now circling former official John Bolton must be doing the same.  Bolton has been flirting with being a witness at the impeachment for awhile and now the New York Times is reporting that his as yet unpublished memoir of this period will state that Trump did hold up funds to the Ukraine in an attempt to get Ukraine to investigate his political rivals.  This has sent Twitter lefties into a feeding frenzy.

Frankly, at this point, that news would be a lot like a member of the Franklin Roosevelt Administration publishing a memoir in 1942 stating that the US knew that our ships would probably get shot at escorting convoys prior to our entry into the war.  We all know this already.  Indeed, it isn't really being argued about that much.

The interesting argument that developed with the close of the Democratic argument last week is whether there will be any witnesses or not.  The GOP appears unlikely to support a motion to do that and the Democrats are flustered on what to do.  Both sides advance arguments that are somewhat weak in regard to the general topic.  The Republicans have been saying, about the evidence submitted, "is this all you have?" while the Democrats are saying "there'd be more if we called witnesses" to which the GOP replies "well why didn't you do that then?"

Proceduraly, there's no reason that the Democrats couldn't have called more witnesses in the House, but then there also wasn't a reason that they'd have to, which brings us to the dog's breakfast nature of this provision of the U.S. Constitution.  In spite of all of the yammering about it, nobody really knows how this provision was supposed to work.  We know that the Senate is the jury and the Chief Justice presides, but we don't know anything else about how exactly  it is supposed to be done.

What would appear to be the case is that the founders had a real trial in mind, with the Senate sitting as a real jury and the Chief Justice actually running the trial.  That's not what's occurring and that's now what occurred in the Clinton impeachment trial either.  In the Clinton impeachment deposition testimony was used, which at least is testimony.  In contrast, in the Andrew Johnson impeachment, actual witnesses were called.

The Johnson impeachment, which was as political as any of them, was at least in the form of a trial and probably the last impeachment to be conducted in the manner envisioned by the drafters of the Constitution.  The current one likely grossly departs from what the founders imagined, irrespective of whether a person feels that it should be occurring or not.  Defenders of the proceeding have argued that the Senate has the authority to craft the rules but frankly I'm skeptical that they do if they depart too greatly.  Basically, what is occurring are epic length oral arguments.

The Chief Justice may have the ability to order witnesses to appear on his own and I suspect he does.  In the Andrew Johnson impeachment it was clear that the Chief Justice had conventional judge powers should he have chosen to exercise them.  In both this and the Clinton impeachment the Justice doesn't seem to be doing much of anything.

Indeed, there's no reason to believe that John Roberts couldn't have voir dired the Senators about their ability to act impartially, in which case at least a few Senators would have been tossed out as Senator jurors.

The Administration's arguments, I should note, are based on the position that whatever Trump may have done, it wasn't illegal.  If the Democrats are generally right on there being a need to call witnesses, and after all the House sits more as a Grand Jury rather than as a trial court in its own right, the Republicans are probably right here.  The text of the Constitution seems to be drafted to require a real trial about real crimes.  This isn't in the form of a real trial, but the accusations against Trump aren't real crimes, they're just really bad behavior.  The Democrats have more or less acknowledged this and have argued that the founders really meant really bad behavior too.  The problem with that argument is that its really subjective in general, and moreover its an argument that the impeachment process isn't a judicial or quasi judicial one, but a purely political one.  If that's the case, the GOP is right that it can craft the hearing any way it wants to.

It seems unlikely that the drafters would have created a purely political process to be presided over by the Chief Justice of the United States, which I guess shows the entire mess of the current proceeding.  Nancy Pelosi was reluctant to go down this route for real reasons, and right now it looks like this will be a mistake all the way around.  It'll probably conclude by the end of the week, Trump will be able to use it with his base to declare vindication, those on the left who were outraged about Trump's conduct before the impeachment still will be, but those numbers haven't grown, the rebuke by the voters that the Democrats keep claiming will happen likely won't, but for the second time in less than fifty years the impeachment clause of the Constitution has been misused and damaged.  The whole process will likely wrap up this week, but the damage will be lasting.

January 27, 2020
________________________________________________________________________________

Well the presentation of arguments by both sides is over and the questioning session begun.

So far, the only really dramatic event to come out of that was an effort by Senator Rand Paul to have Chief Justice Roberts read a question that contained the name of the "whistle blower".  The Chief Justice had made it known before hand he'd not do that, and when in fact he didn't, Rand went shooting out of the room to reveal the name in a press conference.

That was really childish and inappropriate on the part of Rand and frankly it violates the rules of the road for the impeachment.  The Chief Justice really ought to find him in contempt for doing that.

Somewhat missed by the public, we'd note, is the fact that in order for the President Trump to be removed from office twenty Republicans will have to cross party lines and vote for it.  From the press coverage a person would get the impression that if one or two do so, Trump is in trouble.  No, it would take twenty. That won't happen.  It's not even clear at this point that all the Democrats will vote in favor of it.

Of course, if a majority, but still far short of twenty, voted for it, it would be embarrassing for the President.  That's a possibility.  But a greater possibility is that a few Democrats will vote to acquit.

January 31, 2020
________________________________________________________________________________

Two things didn't occur in the impeachment trial yesterday.  The Senate didn't vote to hear witnesses and the trial didn't end.

There was a lot of speculation on whether there would be enough GOP Senators cross over and vote for witnesses. In the end, there wasn't and the vote fell short.  So, we've had the odd spectacle of a trial without witnesses, although frankly the overall procedure was odd to start with.

There was widespread speculation that if the Senate didn't vote for witnesses the trial would conclude.  That didn't occur either.

February 1, 2020
_________________________________________________________________________________

Oops, bumped up in error.

But while here, the impeachment trial will resume today with closings.  It appears that President Trump may very well deliver his State of the Union address with this matter still pending.

February 3, 2020.

_________________________________________________________________________________

Both sides delivered their closing arguments yesterday.  The Democratic prosecution had their's presented by Adam Schiff and took their full two hours.  The Republican defense took a little over half of its allotted time, showing that they had a better idea of how to do summations than their opponents.  Using the full two hours was a sign of weakness and potentially a degree of self focus that served their cause ill.

Indeed, while not directly connected, the two big political events of yesterday made the Democrats look rather pathetic in general.  The full realization that there was never any chance whatsoever that twenty Republican Senators would cross over to vote to remove the President on the charges presented seemingly finally sank in even though it was obvious to anyone who took a calm view of the proceedings from the onsets.  Only in the fevered imaginations of House Democrats and Sunday political show pundits was there ever any chance that would occur.  It was always a complete fantasy.  The ancillary view that at least it would expose corruption to the "American People" who would rise up in electoral anger is just as much of a fantasy.  The public is tired in the fatigued sense and this merely contributed to it at first, before the public became bored with a bunch of yapping figures on the Senate floor arguing about a result that was foreordained.  In the end, only the pundits really remained interested and even they were moving on to Iowa.  The impact on the "American People" that Democrats cited to again and again was probably to increase the universal contempt that a lot of average Americans feel for Congress in general.

And then came Iowa and the Democrats managed to botch the caucus.  A more pathetic showing wouldn't have been possible and the Democrats manage to come out of both events of yesterday looking like the gang that couldn't shoot straight.  As that occurred, Democratic campaign adherents began to complain about each other, with Sanders fans calling Buttigieg "Pete the Cheat".  A past history of ignoring procedural defects and going for unelectable candidates was clearly reviving itself.

Today the vote will be taken and this chapter will close.  Most of the public is glad that it will be over.  Those who backed it in the first place now have to consider that the end result may have been to weaken the Constitution in general, the very objective they claimed to hope to avoid.  One GOP figure already has claimed that if Joe Biden is elected, he may have to be impeached over the entire Hunter Biden in Ukraine matter.  I think that unlikely, but the path this is taking the country off on, a path that was started with President Clinton was impeached and shouldn't be, is one that is pretty hard to turn around and go back down to find another starting place.

February 4, 2020

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And so the vote was finally taken yesterday and it fell, with the solitary exception of Mitt Romney, strictly along party lines.

I say unfortunately not for the reasons that unhappy Democrats, who were delusional that this would result in the removal of the President in the first place, do.  I.e., not for comments like this one on Politic's breakdown on the vote:
Hmm gotta say I underestimated Romney. The only Republican in America with any integrity and decency.
Nor do I think replies like this one make any sense:

I understand that a "yes" vote also voted for Trump's removal from all state ballots in the Nov election. If that is true, the Democrats have officially become the Communist Party.


Rather I think it's unfortunate as a vote without a few Republicans voting to impeach and/or a few Democrats voting to acquit de-legitimizes the entire constitutional provision.  We've now had an impeachment trial without any witnesses that was sent over to the Senate on a strict party line vote under the completely delusional belief that the same wouldn't occur in the Senate.  Indeed, the surprising thing isn't so much that Romney was the only Republican to vote to remove, and he only voted yes on one article, not both, but that no Democrats voted to acquit.  In the end, this wasn't a waste of time, it was an attempted vote of no confidence that largely ignored the Constitutional text, which is admittedly very poorly defined, and cheapened the impeachment process.

Given that this was so predictable a person has to wonder what the Democrats were actually thinking.  If the concept was to take the moral high ground it would appear that the ground is recognized only to a limited degree and it's unlikely to profit them in taking it.  If it was to take a pre 2020 swipe at Trump, they took the swipe but they didn't connect and that likewise appears to have had no effect.  If they simply felt they must as it was their duty, and Mitt Romney was no doubt motivated by what he felt his duty to be, well they've done it, and perhaps that achieves something, although by way of a process that was bizarre in how it was done and whose long term impacts appear to have been poorly considered.

On long term impacts, after Richard Nixon was nearly impeached Congress, although only temporarily, acted to take back some of the powers which has lazily ceded to the President over time.  The Democrats here have shown themselves to be bitterly unhappy with the actions of the current President and at least some Republicans had qualms as well, although only Romney was sufficiently burdened by them as to vote to remove Trump.  Maybe its time for both the House and the Senate, if their displeasure is genuine, to resume their own Constitutional duties in full, which hasn't happened for an extremely long time.

As for Romney, the sole dissenter in the GOP ranks, nobody, including President Trump, should criticize him for that.  There's no reason to believe that his vote wasn't genuine.  The irony here is that he was run down by Democrats, who are now praising him, when he ran on the basis that he was an elitist.  And for those who wonder if he's positioning himself for a future run at the Presidency, well so what if he is?

February 6, 2020

Mitt Romney's speech:


The President withheld vital military funds from that government to press it to do so. 
The President delayed funds for an American ally at war with Russian invaders. 
The President's purpose was personal and political.Accordingly, the President is guilty of an appalling abuse of the public trust. 
What he did was not "perfect"— No, it was a flagrant assault on our electoral rights, our national security interests, and our fundamental values. Corrupting an election to keep oneself in office is perhaps the most abusive and destructive violation of one's oath of office that I can imagine. 
In the last several weeks, I have received numerous calls and texts. Many demand that, in their words, "I stand with the team." I can assure you that that thought has been very much on my mind. I support a great deal of what the President has done. I have voted with him 80% of the time. But my promise before God to apply impartial justice required that I put my personal feelings and biases aside. Were I to ignore the evidence that has been presented, and disregard what I believe my oath and the Constitution demands of me for the sake of a partisan end, it would, I fear, expose my character to history's rebuke and the censure of my own conscience. 
I am aware that there are people in my party and in my state who will strenuously disapprove of my decision, and in some quarters, I will be vehemently denounced. I am sure to hear abuse from the President and his supporters. Does anyone seriously believe I would consent to these consequences other than from an inescapable conviction that my oath before God demanded it of me? 
I sought to hear testimony from John Bolton not only because I believed he could add context to the charges, but also because I hoped that what he said might raise reasonable doubt and thus remove from me the awful obligation to vote for impeachment.Like each member of this deliberative body, I love our country. I believe that our Constitution was inspired by Providence. I am convinced that freedom itself is dependent on the strength and vitality of our national character. As it is with each senator, my vote is an act of conviction. We have come to different conclusions, fellow senators, but I trust we have all followed the dictates of our conscience. 
I acknowledge that my verdict will not remove the President from office. The results of this Senate Court will in fact be appealed to a higher court: the judgement of the American people. Voters will make the final decision, just as the President's lawyers have implored. My vote will likely be in the minority in the Senate. But irrespective of these things, with my vote, I will tell my children and their children that I did my duty to the best of my ability, believing that my country expected it of me. I will only be one name among many, no more or less, to future generations of Americans who look at the record of this trial. They will note merely that I was among the senators who determined that what the President did was wrong, grievously wrong. 
We're all footnotes at best in the annals of history. But in the most powerful nation on earth, the nation conceived in liberty and justice, that is distinction enough for any citizen.

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When I posted Mitt Romney's speech I figured that would be the last entry on this thread.  It should have been in a world in which people were acting normally.

But they aren't, so it isn't.

On the speech, in reviewing it again, I'm struck by the numerous references to Romney's religious convictions. 

Religion played an immediate post impeachment role in a story as President Trump dissed Nancy Pelosi at the National Prayer Breakfast which came soon after the impeachment vote.  It wasn't gracious and his remarks weren't very Christian either.  Perhaps we shouldn't really expect Trump to act as a devout person might, but it definitely wasn't gracious.  Of course, Pelosi, whose better instincts were to avoid an impeachment trial, seems out to sea right now and acted rather petulantly in ripping up her copy of President Trump's State of the Union Address.

Pelosi is the Speaker of the House, of course, and now there's real questions if the House is essentially out of business until 2021.

Three people who are out of their jobs are Ambassador to the European Union Sondland and the Colonels Vindman, both the one who testified in the House hearings and his brother.  The latter two men were replaced from their White House roles but will remain in the Army, where I'm sure they will do well.  But the acts show that crossing Trump, not surprisingly, has consequences, something that at least some GOP Senators feared in regard to their votes.

Hopefully this all calms down soon, although it seems unlikely to.

February 8, 2020

Monday, November 25, 2019

So we've had a week of Impeachment hearings and

they don't make President Trump look good.  It's clear that he was pressuring the Ukrainians to engage in the investigation of Hunter Biden and that he had intellectual capitol invested in a conspiracy theory that nobody believes in who has looked at it.

Moreover, as Ms. Hill noted, the Administration's ongoing belief about Ukraine and election interference means that Vladimir Putin's efforts to mess with our election were not only successful, but it continues to be successful.

Yume, Vladimir Putin, and Buffy.  Any way you look at it, the figure who looms large over all of this is Vladimir Putin, the autocrat of Russia.  He has to be laughing as Americans openly continue to struggle with Russian interference in the 2016 election and the success of those efforts in destabilizing American democracy right up to the present moment.  Krelim official photograph, kremlin.ur.  

Beyond that, the current President doesn't seem to have any lines between the personal and political.

All of which is bad.

But is any of it illegal?

A reader poses the question if this conduct violates 52 U.S.C. § 30121

Apparently there's been some speculation out there that this is the provision that all this bad conduct violates.  


It doesn't.


Here's what this provision states:

Contributions and donations by foreign nationals  
(a)Prohibition 
It shall be unlawful for— 
(1)a foreign national, directly or indirectly, to make— 
(A)a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election; 
(B)a contribution or donation to a committee of a political party; or

(C)an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or 
(2)a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national. 
(b)“Foreign national” defined  
As used in this section, the term “foreign national” means— 
(1)a foreign principal, as such term is defined by section 611(b) of title 22, except that the term “foreign national” shall not include any individual who is a citizen of the United States*; or 
(2)an individual who is not a citizen of the United States or a national of the United States (as defined in section 1101(a)(22) of title 8) and who is not lawfully admitted for permanent residence, as defined by section 1101(a)(20) of title 8.

Let's take out the obvious.  Trump isn't a foreign national.

Okay, so in order for this statute to apply, the President would have to "to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national."

So, some are theorizing, by pressuring the Ukrainian president to investigate Hunter he's soliciting "a contribution or donation".


That's strained in the extreme.


Whether the Democrats rely on this provision in their upcoming articles of impeachment is yet to be seen, and I doubt they will.  Frankly, I don't think the articles will have any citations to statutory law at all.  It'll be a series of accusations that he did improper things, but they won't be things that they can pin as illegal.  Immoral?  Perhaps?  Exceptionally crude and inappropriate?  Perhaps again. Vested in debunked theories?  Perhaps yet again.  But violating a statutory code?  So far, that seems unlikely.**


All of which puts everyone in a bad spot.  


The simple solution to this is an election. But the Democrats now have so much invested in this that they seemingly  have to go forward no matter what. For that matter, the Republicans have been put in a terrible spot as well as they've been left with seeming little choice but to defend conduct that they never otherwise would have.  All of this is serving to elevate extremist in both parties to greater heights.  And that will serve to make the upcoming election ever more extreme.


Indeed, as a trial will occur in the Senate, at this point it's impossible not to imagine the Impeachment Trial turning into a weeks long Republican effort to praise the President and perhaps give credence to discredited theories and, moreover, for the entire process to be converted by the Administration as a way to dominate the news for election purposes.  It'll be one long campaign rally, potentially, just as the House Impeachment hearings have been one long No Confidence Hearing in a country that lacks a No Confidence feature in its Constitution.


All in all, this is doing damage to everything and now that the ship has sailed there's no recovering it.  The Democrats are yielding to uber snark rather than doing anything serious.  The GOP has been reduced in its arguments to defending conduct it no doubt doesn't really approve of, which may be why the GOP figures we've heard from in the House are people that we've never heard of before.  Adam Schiff is coming across like a pampas jackass.  Devin Nunes as somebody who needs to take a public speaking class. And Jim Jordan looks absurd.  The President comes across just as he always has, which shouldn't surprise anyone. Everyone looks pretty helpless.  


Indeed the only ones who have come out looking good so far are career diplomats and government service officers who are the heroes of the moment.  Unfortunately, at the exact same time this gives credit to those on the hard right who argue that Trump is sabotaged at every turn by "the Deep State" and disloyal staffers.  And not doubt those sort of claims will be amplified in the upcoming election.


Indeed, the election itself will become even more about Trump than it already is. And that's not going to be a good thing.  Issues and policies will be buried.  And that will mean, should the Democrats win in the fall, the country will have elected somebody it probably knows almost nothing about.  The vast field of Democratic candidates right now operates to to increase that problem in that its tough to know very much about any of them, particularly with this element of background chatter constantly going on.


All of which goes to show that those who claimed that Nancy Pelosi was a master politician were pretty much right.  Her instincts were to not go in this direction, and now we know why.  When she did, she probably didn't have much of a choice.  But my guess is that her absence from the press attention during this has been studied on her part.


________________________________________________________________________________


Addendum:



Thomas Jefferson.  Morally problematic and enigmatic, but still brilliant.  Has the day that he feared we'd get to arrived?

After I wrote it, but before it was published, I received an email from The New Republic which I think demonstrates the really surreal state of our republic at the current time.


The email linked in an article in the current issue entitled:



To Lock Up a President


It goes on to start off with:

Democrats seem to agree that Trump should be brought to justice. Whether they agree on the precise nature of that justice is an open question.
The Article notes that there are now protesters on the left wanting to "lock up" Trump. This quote from Bernie Sanders is included in the article.
“I think the people of this country are catching on to the degree that this president thinks he is above the law,” Sanders said. “And what the American people are saying, nobody is above the law. And I think what the American people are also saying is, in fact, that if this president did break the law, he should be prosecuted like any other individual who breaks the law.”
And hence the really disturbing problem.

Things may change, and if they did substantially I'd agree that the implications of violating the law are what they are. But so far, there's been no evidence at all that Trump broke the law.  What the evidence is that he mixed his personal political aspirations with official policy in a highly inappropriate way.


But that's political.


We've definitely had Presidents break the law.  Indeed, I'd argue that both George Bush II and Barack Obama broke the law in their licensing the use of military force without a Declaration of War, although I'm one of the very few people who seem bothered by that.  Richard Nixon undoubtedly broke the law.  Reagan's lieutenants broke the law in a way that would certainly seem to implicate Reagan.  Probably most of the Cold War Presidents crowded the law in some fashion.  But what we are really seeing here is the suggestion that Trump must have broken the law because, those people argue, they don't like what he did.


Well, that doesn't make it illegal.  There's been a lot of Presidents who did stuff that was outright icky and morally questionable in the extreme (John F. Kennedy for example), but that doesn't mean all of that was illegal (although the Bay of Pigs invasion may have been).


At some point since George Bush I we've started to stray into that dangerous area of making moral failings illegal and political failure illegal.  That's a scary development.  The entire effort to impeach Bill Clinton was a spectacular example of that, but there have been plenty of others.  Since at least the Clinton Administration simply being in an Administration has exposed office holders to potential prosecution simply for failure.  It's spread to industry and commerce as well, with "insider trading" laws being an example of actually making simply being in the know illegal, and crises to prosecute bankers for failed banking practices something we've heard since 2008.


Crises of "lock him up" can't come as too much of  surprise for somebody who campaigned against his 2016 opponent with cries that she was "Crooked Hillary" and who didn't shut down supporters when they yelled "lock her up".  So a person really can't feel too sorry for a politician who is now receiving treatment similar to that which he meted out.  But a person can feel sorry for the country.  People vilified nearly every President we ever had, but the efforts we've seen since Clinton to remove them on pretexts is new and distressing in the extreme.


When the country was founded, it was famously given a republican form of government which, as Benjamin Frankly wry noted, may be difficult to keep.  We have so far. A republican government is a democracy, in spite of those who really haven't thought it out occasionally stating "a republic isn't a democracy".  Yes, it is.  What we didn't get with that republic is a democracy without a written constitution, like the British Parliament, or a pure unrestrained democracy, like the ancient Athenian democracy.  And for good reason.


Thomas Jefferson theorized from the onset that American democracy was in fact completely doomed.  His view is that it would have a long run, but only as long as it had territory to expand into and therefore a population of yeomen farmers.  Once that class yielded to an urban class, and he was certain that it would, he was certain that the urban class would rise and that politicians would purchase its votes through favors to the urban class, which he regarded as a mob.


Jefferson proved absolutely correct that the yeoman unfortunately yielded to the urbanites.  But a lot of modern democracies are more urban than rural and appear very stable.  Quite a few of the European democracies were urban when they became democracies, although at least early in the history of most of them, and ongoing in some, a yeoman class was strongly represented politically.  Ironically, in recent years some European economies have become much more open and free market than our own and are functioning politically much better than we are.


At any rate, Jefferson's view was long term gloomy.  He probably didn't regard it as such as he thought that settling the western expanse of the continent would take 1,000 years, something he was massively off the mark on.  But there are real reasons to feel that what he featured would take place after the conclusion of that 1,000 years may have been right in some form.  Americans don't seem to interested in the democratic process any more.  Like Athenian democracy, they appear okay with screaming for the head of political opponents simply because they can, and are fine with making the opponents criminals because they are opponents. And like Jefferson feared, one party at least is pretty comfortable with buying the loyalty of voters in economic positions promising to fund all of life's decisions, from education (Sanders and others) to having children (Booker), and any other number of things that prior generations would have been insulted to have the government involved in.


A republic. . . if you can keep it.


Addendum, November 25, 2016.

This Week featured a couple of lawyers who are "Constitutional Scholars".  I don't know what their backgrounds are other than the very short snipped regarding them, and they may very well be that, although what that likely means is that they're academic lawyers.  Most practitioners don't get that title as a rule, unless they're being interviewed by the press on a specific topic or case.

Anyhow, they, and the panelist, irrespective of political persuasion, all tended towards the view that "high crime and misdemeanors" is sufficiently vague such that an impeachment can be done for political reasons.  That view surprises me, but it was the uniform view.  

Indeed, they discussed the current statute on bribery and debated if it is really relevant at all.  There was no real consensus.  Some suggested no, as it wasn't the law at the time.

Frankly, I think its relevant as the Constitution says "high crimes and misdemeanors", but the provisions are admittedly vague.  The uniform view is that its a political process, which means that as a quasi judicial process, if that view is held, it's more political than my general view here would have it.

_________________________________________________________________________________


*For those who might wonder, the line excepting foreign nationals who are U.S. citizens creates an exception for dual citizens.  It might frankly be impossible for a person to know who and who is not a dual citizen in common politics and therefore this exception precludes all sorts of accidental violations of the law.


**Indeed, in my view relying upon 52 U.S.C. § 30121 creates a legal risk as if the Senate was actually to remove Trump from office, which it is not going to do, it would raise the question on whether or not the Senate can remove a President from office for the violation of a crime upon which he has not been convicted.


This problem would exist anyhow, and always exists in Impeachment hearing in which the President has not been so convicted.  Of note, no U.S. President who has been subject to an impeachment trial has actually been convicted of a crime.  Nixon came the closest but he wasn't impeached.  Indeed, the Nixon example shows why the strange presumed prohibition on prosecuting a President for an actual violation of a crime during his office doesn't make any sense at all.  Anyhow, as no President has been removed, the impeachment clause of the Constitution has actually never been tested.


What we don't know, and its an interesting question, is what would happen if a President was removed.  It's a power clearly vested in Congress and up until quite recently such powers were pretty much absolute.  In recent years, however, the Supreme Court has held that they are not.  


In other words, had Nixon been impeached, or Clinton, and then they tried to take their impeachment to the Supreme Court, the Court would have ruled quickly it had no jurisdiction over the matter.  Now, we can't be so sure.  If the Court found it did have jurisdiction and took the matter up (there's some procedural matters that would have to occur in order for that to happen) it might very well hold that it has the exclusive right to interpret the clause and render a decision on its meaning.  There's good reason to hope that this never occurs.