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What Is the Standard for Removal when No Crime Is Alleged?
The Democrats have seemingly abandoned the position that President Trump did a criminal act — an act defined in statutory or common law as a crime. Instead, their constitutional scholars are saying that a consensus of scholars agree that a crime need not be committed for impeachment and removed.
Prof. Alan Dershowitz is going to argue against that position on the theory that once you have no restriction to statutory and common law crimes, it is a violation of due process. Due process requires that you be on notice of a prohibited act, which is impossible if no crime is involved, and thus it makes policy disagreements into impeachable offenses — something that the Founders specifically determined not to do.
Prof. Jonathan Turley testified to the House Intelligence Committee and in writing subsequent to his testimony to the effect that impeachment can be based on something not a statutory or common-law crime, but has similar concerns to those expressed by Dershowitz about the imprecision of what that might be. Further, Turley has been clear that the two Articles passed by the House are not the sort of non-crimes upon which impeachment and removal should be based.
The significance of the conceding that no crime has been committed is that it opens up the House impeachment to a motion to dismiss in the Senate. And that is precisely what Dershowitz will be arguing — that a motion to dismiss should be made and granted. But let’s assume that Dershowitz is wrong. And, if so, what is the standard for a president’s removal when no crime is alleged?
Maybe it’s like obscenity, we can’t define it precisely but we know it when we see it. OK, so how do we know whether it is something that we will know when we see it? One way is to test whether the acts alleged are sui generis, something unique to this president. That is, something that no other president has done. After all, if another president has done such a thing and Congress did not respond by impeaching the president then it can’t be an impeachable offense, right?
I’m not a particular fan of “whataboutism” as a defense for bad behavior. But when your guy gets a pass and their guy gets impeached, it sounds an awful lot like a policy disagreement, not an impeachable offense.
Seems like Dershowitz’s argument is making more sense — if your objective is to carefully, prayerfully, and solemnly defend the Constitution. Right, Nancy?
Published in Law, Politics
Whataboutism is a thing. It is used as a deflection: “Yeah, my guy is a s***, but what about all these other s***s in the past that you seemed okay with? Can’t we just move on and agree that we are both s****y sometimes?”
But these things are not that. They are inquiries into the past, to try to establish precedent. If the behavior you are complaining about has occurred in the past in front of you and you have NOT complained, then the burden is on you to explain how this time it is different.
“Whataboutism” to me seems to be a concept to invoke to defend bad behavior. Comparing President Trump’s actions to other Presidents’ actions in the past to see if there is a discrepancy from what has been to date acceptable behavior is just invoking precedent, which is what we do in every case before the courts.
Of course, by just such comparisons, precedents if you will, President Trump is well inside acceptable presidential conduct… except for the unforgivable sin of exposing the age old lie that all politicians are expected to lie to get elected and then govern “sensibly” in conformity with D.C. culture and expectations. His record of actually keeping political promises, noted through gritted teeth by the Washington Post, is kryptonite to our political and social betters.
“Whataboutism” is the Left’s new favorite rejoinder (next to “OK Boomer”) as a way of dismissing our rebuttals out of hand. If they don’t dismiss this ridiculous charade, they’ll change the Republic forever, and that’s their goal. They have to be stopped. They’re a bunch of five-year-olds, and we have to stop even dignifying them with a response of any kind.
Dershowitz explained a lot of his thinking in Mark Levin’s interview with him. I’ve been seeing his hand behind every headline the last few days. He is loaded for bear, as the saying goes. :-) And thank goodness he is. He makes the point eloquently that if the effort on the part of the House Democrats succeeds, it will reduce the strength of the presidency irreparably.
Since I heard Alan Dershowitz speak on this subject, there’s been this nightmarish image that keeps appearing in my mind, like an old political cartoon, of the U.S. president with Congress, the FBI, and the CIA sitting on his desk watching his every move. If the Democrats get away with this, they could completely incapacitate the presidency. That would ruin our country.
The idea that the Dems can re-conceptualize how to handle impeachment most likely won’t serve them well in the short term, as it is unlikely that they can get the Republican Senators to vote to impeach Trump. (Of course, stranger things have happened, so I wouldn’t bet on the outcome.)
The bigger danger for the Dems is that it will handicap them in the future, assuming that at some point in time one of their candidates will win the Oval Office. And six minutes after that person is inaugurated, it should not surprise them if that President must then deal with the same type of attacks that Trump has been dealt.
Few people have the amount of chutzpah Trump has shown in these situations. He is attacked by the press, by the late night comedians, within the subtext of movies, and then of course in actual impeachment hearings. Often he seems to enjoy it.
It would be interesting to see how their guy or gal would manage even a single year of such ugliness. I can’t imagine that individual would hold up at all.
Well, I suppose if he started giving every State of the Union address wearing only a thong.
OTOH, he might widen his base of support . . .
The other theory about this impeachment strategy is that it is aimed at 4 Senators whose election is in jeopardy. Martha McSally is one and she was appointed after losing the election to replace Flake. There were shenanigans in that election with evidence of some ballot harvesting. Arizona is a mail-in ballot state, which opens the door to fraud. California, Oregon and Washington are all mail-in ballot states and are dominated by the left. Arizona has been a conservative state so far but a lot of California money is flooding in to change that.
The impeachment vote is supposed to motivate Democrat voters. I’m not sure it will work as hoped for. The November election resembles the BREXIT vote in the UK. We will find out who is correct.
I completely agree with this. I believe it is both. They want control over the president and the Senate.
I see overlapping issues here. First, there’s the point that the Articles of Impeachment make and misuse, i.e. that impeachment is entirely political, no crime need be alleged. The House has the sole power of impeachment – full stop.
Second, removal is mandatory upon conviction of treason, bribery, or other high crimes and misdemeanors. Otherwise, the Senate’s power to try impeachment is unlimited. Absent the specified convictions, removal is not required.
These clear constitutional conditions were surely intended by the Framers to prevent exactly what the duplicitous, hypocritical Democrats have done: impeach for purely political reasons, for policy disagreements. This in my opinion exposes a weakness in the Constitution, one that the Democrats have exploited. They ought to suffer consequences for their behavior, but they are protected by a press that has misused its 1st Amendment protection, and had become indistinguishable from the Democrat Party.
I will be encouraged if the Democrats lose the House in the 2020 elections, as it will reinforce the effectiveness of the constitutional system, despite this potential fatal flaw, and despite its abuse by the Supreme Court in such disastrous rulings as Wickard v. Filburn and Kelo v. New London. But it won’t be easy, given the treachery of the press.
Lincoln was at one time a divorce lawyer. His First Inaugural is very lawyerly. :-) What he says to the South is, yes, you have the right to secede but only for just cause, and keeping your slaves in slavery is not just cause. This is the 1850s divorce lawyer speaking: yes, you have the right to a divorce, but only for just cause.
This is exactly what Dershowitz is saying. Yes, Congress has the right to impeach but only for just cause. The conversation President Trump had with the president of Ukraine was not just cause. In fact, the charges are frivolous, and the Democrats know they are.
This is as serious a situation as we have faced in our country for a very long time. I’m not worried about violence, but I am worried about the future and how the government will govern us.
The biggest test for any impeachment is the question: Are the people sovereign? (Is their decision being respected?) When crimes are alleged and proved it is expected that the people’s sovereignty is not reduced as the Congress is acting on their behalf to remove someone who has betrayed the trust invested in him/her. And even when crimes are alleged and proved, Dershowitz would argue, they must be “high crimes” (such as bribery and treason) that affect the interests of the nation as a whole. That is why Dershowitz argued that Clinton should not have been impeached as his proven crimes did not involve matters of state. Although a portion of our electorate felt that the crimes were significant, in general the public agreed with Dershowitz and that is why Clinton was not removed. (Clinton was assessed a financial penalty and disbarred.)
If the electorate comes to a broad view that Trump should be removed, then should the Senate do so, the people remain sovereign. But with an election so near, Democrat bloviation about impeachment being needed to hold the president accountable rings hollow. The people can do their own work and fashion their own remedy. Whatever else impeachment should be, it should not be taking the power out of the hands of the people when they are perfectly positioned to make the judgment themselves.
I agree with the seriousness, and think perhaps it’s even more serious than you describe (or fear).
The Articles of Impeachment don’t actually allege any misconduct in the phone call, and the phone call is the entire body of evidence in this case. The President of the United States has been impeached for allegations of conduct for which there isn’t sufficient evidence to support probable cause to suspect that a wrong has been committed.
This dovetails with my impression that impeachment, while a necessary element of the constitutional framework of our republic, is potentially fatally flawed.
The Senate tries all impeachments, and in the case of Impeachment of a president, the Chief Justice presides – to enforce rules that the Senate may set and/or change by simple majority vote. Thus the Chief Justice has no real judicial power. Power such as, for instance, to dismiss an impeachment that is not supported by probable cause.
This is indeed serious business. Is the American voting public sufficiently informed and responsible to act accordingly? If so, the Democrats ought to be tossed out on their collective ear in the November elections.
On target. This thought kept coming back to me yesterday when I heard the House Managers bloviating about how this and that occurred in the Nixon or Clinton investigations. Both of those proceedings were pre-dated by an extensive investigation that developed evidence for probable cause before the House began their investigations. In President Trump’s case the preceding investigation turned up exactly the opposite — no collusion, no obstruction. And the circumstances for the preceding investigation is still being examined over the question of whether their was a sufficient predicate for the FBI to open a counterintelligence investigation.
So whatever cooperation or compulsion that the Democrats argue, it must be placed in the context that there has never been probable cause for seeking cooperation or to compel compliance. The president’s lawyers are making the right argument to the American people: remember how we got here. It turns out the only “high crime” is to beat Hillary Clinton and the MSM.
I am quite sure once we have a Democratic president again. The Media and the Democrats (why do I feel like I just repeated myself there?) will become ardent supporters of executive power and executive privileged again. I am also sure that they would scoff at an Impeachment attempt of a Democratic president for obstruction of Congress. Trump’s high crime is that he is an elected Republican and of course that is enough reason for the Democrats and the Media to demand that he be removed.
Unless that Democratic president is cursed with a Republican House and Senate. Then we can see how they spin that.
This ignoring of the Constitution has been growing for quite some time. Others have opined the real target of this impeachment exercise are the Supreme Court Justices, not the Senate Races because it is feared by the Democrats that one way or another Ginsburg will die and will be replaced by a strict constructionist cementing a majority of those on the Court who could turn back all the unconstitutional rulings of the last eighty plus years which give the Progressive monster it’s lifeblood. The bar for impeachment has been lowered to almost nothing and speaking the truth has become a criminal act in some quarters. In such an environment, it’s open season on all the strict construction justices.
I know a lot of pundits who somehow think the Pubs won’t do well in the House and Senate races this year – I can only see that happening if the Pubs collectively fold their tents and refuse to bring up the issue of the abject Unconstitutional and Anti-American behavior of House Committees shepherding Impeachment which was inanely followed by an endorsement of those same UnConstitutional Impeachment allegations by all but two House Democrats and all of the Senate Democrats. This ripping to shreds of our Constitutional rights not only threatens illegally Donald Trump’s Presidency but absolutely all our rights. People who once thought well of the Dems are beginning to see behind the curtain of the Dem lies. The Democrats have come out of the Closet and gone full Bolshevik Stalinist Thug for all the world to see, and only an incredibly bad campaign by the Pubs could save these Democrats now. This shame will be lasting and will dog these Democrats forever. Threatening our rights will be a heavy albatross to bear.
OK, they don’t pull it off. Trump is still President.
Scenario 1: The Dems keep the House, don’t take the Senate.
Scenario 2: They lose the House and don’t take the Senate.
Scenario 3: The Dems keep the House and by hook or by crook, take the Senate.
In scenarios 2 and 3, new impeachment hearings are begun, articles of impeachment are passed, and given to the Senate. In scenario 3, the Senate convicts.
Or: Trump is impeached. President Pence becomes #46 and names his successor who must be approved by both House and Senate. Either a Deep State candidate is the only one accepted by both houses, or the Dems gum up the works until the election. Pelosi might technically be the obvious choice if there is a stalemate over Pence’s nominees, but she would be unlikely to win in the Senate.
Meanwhile, legal challenges are filed to prevent the Trump campaign organization from passing its funds on to any other Republican, win or lose, restraining orders tie up the money. On to the elections.
Win or lose in November, the House passes articles of impeachment on Pence. Much may depend on who his VP is. The Democrats have already established the precedent that they don’t need to present the articles to the Senate immediately; they hold them until after the election.
Scenario 1: Pence is elected:
Fork 1: The Dems keep the House, don’t take the Senate.
Fork 2: They lose the House and don’t take the Senate.
Fork 3: The Dems keep the House and by hook or by crook, take the Senate.
In #3, the articles are presented by the outgoing Speaker to the newly Democrat Senate and Pence’s impeachment trial begins.
In other words, even if Pence keeps the White House after a truncated campaign, there’s a path to overturn that election as well.
Scenario 2: Pence loses. TEOT
WUSAAWKI.———————
The take home is that the House and Senate elections are now even more important than ever.
I don’t think there’s any projection showing the Democrats getting a two thirds majority in the Senate so Trump wouldn’t be convicted. I think the House will impeach him again if he wins and Dems retain the House.
Twenty-one state attorney generals on why the articles of impeachment presented by the House are not only wrong but dangerous. Fox News has a summary.
What part of “high crimes amd misdemeanors” don’t Democrats understand?
You’re probably right for 2020, though I think it will be the dirtiest election in US history. Beyond that, the magic 8 ball says “unclear.” Or maybe that’s “nuclear.”
I’ve only watched clips, but is it me? Adam Schiff looks like a psychopath. He speaks with these bulging eyes and yet his voice is monotone. He comes across like a Ted Bundy. Calm and suave but deranged.
I am quite sure that if a Democratic president is cursed with a Republican House and Senate that nothing he did would ever be considered an Impeachable offense by the media. This would include dissolving the Supreme Court and the Congress and outlawing the Republican party. In fact I am sure we would get op eds, pundits and professors explaining to us why the Climate crisis demanded such bold action. The only open question I have is what the Bulwark’s position on this would be, I am uncharitable enough today to believe some of that crowd would support it, although I realize that is probably just me being dyspeptic today.
I usually don’t “reply” to my own comments, but Byron York’s piece on the House managers’ claim that Clinton provided 90,000 documents in his impeachment fit in with my prior comment. The claim, as York points out, is disingenuous in that it is cited for a proposition that is totally incorrect: that Clinton cooperated in ways that Trump has not and under comparable conditions
They keep saying the President is guilty. Guilty of what?
It seems to me that even if no actual crime has to be alleged that justifies removing the President then the very least his accusers have to show is that there is a damn good reason for removing him, a reason for which there can be strong bipartisan agreement. The Democrats haven’t even come up to that standard! Not by a mile.
And obviously the Democrats know that’s the case. You can tell by the fact that they apparently feel that they have to keep telling lies and using hoaxes to support their allegations. It appears that their hope now is that more evidence can be revealed in the Senate trial — something, anything — that will provide such a reason. But the Republicans are under no obligation to cooperate in extending what has been little more than a fishing expedition up to now.
I say they end this farce now.
This impeachment is of a kind with the Kavanaugh confirmation hearings. By any judicial standard, both the Articles of Impeachment and Christine Blasey Ford would not be eligible so much as to appear in court. There simply is nothing factual to support the allegations. As I have said in both instances, there isn’t even sufficient evidence to support probable cause to suspect that a wrong has been committed.
In a court of law, the judge would dismiss out of hand. Christine Blasey Ford should not have been permitted to testify.
This is dangerous business. And the press won’t even ask questions.
It used to be partisan to say the press was the mouthpiece of the Dems. It has trended more an more each year as far as I can recall. It is truly and fully the case now.
Ten years ago, Andrew Breitbart correctly characterized the mainstream press as the Democrat-Media Complex. That characterization describes a grave danger to the republic, because it describes an institution – the press – that has strong Constitutional protection from regulation, using that protected status to benefit a “faction.” The Framers wanted to avoid “factionalism,” and here the Constitution is being used to promote factionalism.
We’re on the verge of discovering that the problem is far worse. The press, in the person of Glenn Simpson, founded Fusion GPS, which was hired by Democrat Hillary Clinton and the Democrat National Committee to invent political dirt on the Republican candidate. Fusion GPS hired Nellie Ohr, wife of no. 4 guy at the FBI, and also hired Christopher Steele, who fabricated dirt on Donald Trump, dirt that the DMC was willing to promote. The Steele-fabricated dirt was used by both FBI director and soon to be acting Attorney General Rod Rosenstein to secure warrants to spy on the Trump Presidential campaign.
The Press is the Democrat Party is the federal government.
By 2016, they were fully integrated and indistinguishable. Had Trump lost the election, we’d never have learned any of it.
My household just received the March 3rd Primary ballot info pamphlet from the local registrar of voters.
I am terrified thinking of the “same day voting” that now is to be allowed inside California. You simply show up the day of the election, ask for a ballot, which is called “provisional,” then also fill in a registration form. Then “if approved” your provisional ballot will be admitted.
So I imagine everyone who votes for a Dem and declares that as their party during any 2020 elections, then the same number of provisional ballots will be approved, and then, low and behold, the Dem candidates win in a landslide. While the provisional ballots from republicans and third party voters will somehow not be approved.
But in 2020, a woman wronged has to be believed, as does any woman who believes she has been wronged. Democratic leaders have been insistent that if enough people believe an injustice has occurred against some woman, the charges should prevail in a court of law.
The press asks questions only of those who are to the center and to the right of the Leftists. And those folks had better not have removed the mattress tag back in 1994 if they wish to prevent their reputation from being smeared.
Even if the
Evil EmpireDemocrats take the Senate, they won’t have enough votes to convict. However, they will make hay out of getting more than 50% . . .