Recommended by Ricochet Members Created with Sketch. Impeachment: Did I Miss Something?

 

In all of the recent unpleasantness surrounding President Trump’s impeachment and subsequent Senate trial, I have yet to hear or read the following theory regarding why the impeachment itself was inappropriate, and thus why acquittal is justified. Given that I am neither a legal scholar, nor particularly more intelligent than the average person, I suspect that other much better educated and/or smarter than I have already proposed this argument. I must have missed it. However, here goes…

The current articles of impeachment brought against the President do not specify any actual crime, only the improper exercise of executive power for political advantage (both individually, and as pertains to the President’s interactions with Congress). However, the last two presidential impeachments (Nixon and Clinton) established the precedent that a violation of Federal law was the requisite grounds for such action. In both cases, there was no question that the President had in fact broken the law. Allowing for the fact that Nixon was not in fact impeached, rather resigned before such action was taken, the 1998 Clinton impeachment was predicated on the unquestioned fact that the President had both committed Perjury, and Obstruction of Justice. However, the Senate did not remove Clinton from office, thus setting the “common law” precedent that these crimes were below the threshold for “High Crimes and Misdemeanors.” (I recall the justification at the time being that, “everyone lies about sex, and there was no harm done to any national interests, so it doesn’t really matter.”)

Okay. Remember, I’m not a lawyer of any kind. But I do understand (and deeply appreciate) the common legal heritage the US shares with ancient English Common Law traditions. Legal precedents set by earlier rulings or judgements are held to be binding unless later law explicitly addresses changing the common interpretation of the law, and justifies why the change is warranted by new conditions. Therefore: Based upon the precedent set in the most-recent previous case (Clinton, ’98) any presidential malfeasance short of the threshold of perjury or obstruction of justice simply does not meet the precedent set in the relative case law for the removal of the President from office.

It seems to me that the more common argument made these days on behalf of the President, that he “has broken no laws” is too shallow and lacks the necessary context. Even if President Trump has acted inappropriately, or even illegally under white-collar ethics law, the behaviors identified in the Articles of Impeachment come nowhere close to the level of perjury. In saving Clinton in ’98, the Democrats established a precedent that vacates their whole argument now.

Frankly, until the US Constitution is amended to specify the threshold of criminal actions covered by the phrase “High Crimes and Misdemeanors,” no action short of Perjury or Obstruction of Justice can qualify. The precedent has been set, and I see no reason to believe that the current Senate trial is going to reverse that precedent. (Thanks again, Bill Clinton … the wreckage of your administration continues to this day.)

(By the way, if this argument has been made by others elsewhere, especially using better prose or logic, I’d appreciate any links or citations. I certainly want to acknowledge those who said it first.)

Published in Domestic Policy
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There are 44 comments.

  1. RightAngles Member

    It’s a farce. Where was the outrage when Obama constantly exercised executive actions while bypassing Congress, and some of HIS were actually unconstitutional? Oh wait, I forgot, that was back when the Constitution was “a living, breathing document,” unlike now, when suddenly the Democrats revere it as written in stone. Do they think we forgot that they spent the prior decades wiping their feet on it?

    • #1
    • January 27, 2020, at 11:31 AM PST
    • 10 likes
  2. Hoyacon Member

    You look at this with a lot of clarity. Maybe it’s better that you’re not a lawyer.

    My thought is that the Clinton impeachment isn’t “precedent” because (AFAIK) the issue of whether he committed a crime wasn’t determinative. In other words, no one really said “we can only impeach him because he committed perjury.” And it did not factor into his “acquittal.” As an aside, I don’t think that there’s any real constitutional consensus on whether an actual crime is necessary, although it certainly helps

    • #2
    • January 27, 2020, at 11:40 AM PST
    • 8 likes
  3. RightAngles Member

    The difference between the Republicans’ presentation and the Dems’ is striking. Finally there are grownups in the room.

    • #3
    • January 27, 2020, at 11:43 AM PST
    • 5 likes
  4. DonG (skeptic) Coolidge

     

    Gerald Ford has a famous speech that Dems like to quote out of context. But it applied it only to judges, which are not accountable to voters. For the office of president and vice-president, Ford’s standard is that impeachment should only be done for the Constitutionally explicit crimes of bribery and treason. Ford’s speech set the standard in 1970. 

     

    What, then, is an impeachable offense?

    The only honest answer is that an impeachable offense is whatever a
    majority of the House of Representatives considers to be at a given monent in
    history; conviction results from whatevcr offense or offenses two-thirds of the
    other body considers to be sufficiently serious to require removal of the
    accused from office. Again, the historical context and political climate are
    important; there are few fixed principles among the handful of precedents.

    I think it is fair to come to one conclusion, however, from our history
    of impeachments: a higher standard is expected of Federal judges than of any
    other “civil Officers11 of the United States. The President and Vice President,
    and all persons holding office at the pleasure of the President, can be throw
    out of office by the voters at least every four years. To remove them in midterm
    (it has been tried only twice and never done) would indeed require crimes of the
    magnitude of treason and bribery.

     

    • #4
    • January 27, 2020, at 11:47 AM PST
    • 6 likes
  5. Django Member

    RightAngles (View Comment):

    The difference between the Republicans’ presentation and the Dems’ is striking. Finally there are grownups in the room.

    I love those colorful Southern expressions. My cousin sent me a text saying, “Those lawyers are making Shifty look like somebody about to be thrown out of kindergarten for not shaving.” Not entirely sure what that means, but I don’t think it’s a compliment. 

    • #5
    • January 27, 2020, at 12:14 PM PST
    • 6 likes
  6. Max Ledoux Admin

    Postmodern Hoplite: The current articles of impeachment brought against the President do not specify any actual crime

    Ken Starr actually made this exact argument on the Senate floor today. 

    • #6
    • January 27, 2020, at 12:18 PM PST
    • 6 likes
  7. Arahant Member

    The problem here is that precedent is normally set through judicial decisions, often at appellate levels. It is not set at jury trials. One jury may use jury nullification to let go someone who is obviously guilty because they think the law shouldn’t be on the books. Another jury might take the same crime more seriously, or even choose to punish more harshly an even lesser crime. The trial in the Senate is more like a jury at a basic court level. The jury empaneled in 1998 happened to let a scalawag off, despite his obvious guilt. The jury (Senate) empaneled in 2020 does not have to respect that in their case against the current man accused of doing his job. This is not a matter of precedent. Juries are not bound in any way to the decisions of earlier juries.

    • #7
    • January 27, 2020, at 12:46 PM PST
    • 5 likes
  8. Hoyacon Member

    Max Ledoux (View Comment):

    Postmodern Hoplite: The current articles of impeachment brought against the President do not specify any actual crime

    Ken Starr actually made this exact argument on the Senate floor today.

    This is pretty close to what’s known as “alternative pleading.”

    1. The impeachment articles are insufficient because they do not allege a crime.
    2.  Even if impeachment does not require a crime, the alleged Abuse of Power and Obstruction articles don’t rise to the level of an impeachable offense.
    3.  Even if impeachment does not require a crime and even if the articles allege an impeachable offense, they have not been proven.

    Standard issue alternative pleading: You claim my dog bit you. But I say: That dog doesn’t bite. Besides, the dog was leashed that night. And, besides that, you didn’t prove you were bitten. Oh, and I don’t own a dog.

    • #8
    • January 27, 2020, at 12:46 PM PST
    • 8 likes
  9. Max Ledoux Admin

    Hoyacon (View Comment):
    Oh, and I don’t own a dog.

    🤣

    • #9
    • January 27, 2020, at 1:07 PM PST
    • 4 likes
  10. Hank Rhody, Badgeless Bandito Contributor

    Postmodern Hoplite: Okay. Remember, I’m not a lawyer of any kind. But

    The Constitution is too important to be left to the lawyers.

    Jonah Goldberg had a guest on recently, that was his line. It’s a good line, and I wish they had spent some time exploring it rather than whatever it was they actually talked about. So, first of all, please don’t apologize for not being a lawyer. That’s the sort of thing that resulted in Congress passing laws and the President signing them while waiting for the Supreme Court to decide if those laws are constitutional.

    And consequently, I think your argument is pointed in the wrong direction. You’re treating the law like it’s mathematics; a purely logical structure independent of reality. Your logic works if it’s a mathematical proof. But the law isn’t just a logical structure*, it’s also directed towards a purpose. “…that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed…”. If you play the law out like a chess game you no doubt get an interesting chess game, but you don’t necessarily get a just society. 

    Now, as to whether impeachment serves those ends, I’ll refer you to my comment on the Fradulent Galt’s post

    *One imagines that, on the desert island where the mathematician starved himself by assuming a can opener, a lawyer filed a brief proving beyond a shadow of the doubt that he should habeas some hummus already. I doubt he came to a better end.

    • #10
    • January 27, 2020, at 9:46 PM PST
    • 4 likes
  11. The Reticulator Member

    Hank Rhody, Badgeless Bandito (View Comment):

    Postmodern Hoplite: Okay. Remember, I’m not a lawyer of any kind. But

    The Constitution is too important to be left to the lawyers.

    Jonah Goldberg had a guest on recently, that was his line. It’s a good line, and I wish they had spent some time exploring it rather than whatever it was they actually talked about. So, first of all, please don’t apologize for not being a lawyer. That’s the sort of thing that resulted in Congress passing laws and the President signing them while waiting for the Supreme Court to decide if those laws are constitutional.

    And consequently, I think your argument is pointed in the wrong direction. You’re treating the law like it’s mathematics; a purely logical structure independent of reality. Your logic works if it’s a mathematical proof. But the law isn’t just a logical structure*, it’s also directed towards a purpose. “…that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed…”. If you play the law out like a chess game you no doubt get an interesting chess game, but you don’t necessarily get a just society.

    Now, as to whether impeachment serves those ends, I’ll refer you to my comment on the Fradulent Galt’s post.

    *One imagines that, on the desert island where the mathematician starved himself by assuming a can opener, a lawyer filed a brief proving beyond a shadow of the doubt that he should habeas some hummus already. I doubt he came to a better end.

    Comment of the day, I’ll wager. And it’s only 1 a.m. Twenty-three hours to go yet.

    • #11
    • January 27, 2020, at 10:00 PM PST
    • 2 likes
  12. Rodin Member

    @postmodernhoplite, find the presentations by Ken Starr and Alan Dershowitz today and all your questions will be answered. [Spoiler] You’re right and they provide all the legal reasons therefor.

    The CSPAN2 video for the entire day is here. Starr presents from 15:36 to 1:11:08 and Dershowitz from 6:48:47 to 7:55:52.

    • #12
    • January 27, 2020, at 10:52 PM PST
    • 3 likes
  13. Percival Thatcher
    Percival Joined in the first year of Ricochet Ricochet Charter Member

    Hank Rhody, Badgeless Bandito (View Comment):
    You’re treating the law like it’s mathematics; a purely logical structure independent of reality.

    Mathematics is reality. Everything else is just winging it.

    • #13
    • January 28, 2020, at 5:03 AM PST
    • 4 likes
  14. Stad Thatcher

    Postmodern Hoplite: nor particularly more intelligent than the average person

    If you are on Ricochet, you are more intellegent than the average person . . .

    • #14
    • January 28, 2020, at 6:58 AM PST
    • Like
  15. MarciN Member

    As far as the “crime” committed by Trump in the July 25, 2019, phone call with the Ukrainian president:

    At that time, Joe Biden was only one of sixteen Democratic Party candidates running for his party’s nomination. He was not political rival in the sense that a nominated Democratic Party candidate would be. Trump’s inquiry of the Ukrainian president concerned only the son of a former U.S. vice president. The call was not Trump’s attempt to harm his political foes in the way the Communist dictators harm their opposers. Nor did the president threaten the Ukrainian president (extortion) in any way if he did not comply with his request for information. Thus no “high crime or misdemeanor.”

    As for “treason,” Ukraine is not our enemy, and neither Trump nor the Ukrainian president wanted to work with each other to hurt the United States in any way. Treason occurs only when a president or other U.S. citizen helps our enemies to hurt us.

    • #15
    • January 28, 2020, at 9:21 AM PST
    • 3 likes
  16. Jeffery Shepherd Member

    Whatever the act, it has to rise to the level (or near it) of treason. The narrative created by Schiff and the democrats (starting with the whistleblower) is cheap, tawdry and BS. To wit: POTUS wanted Ukraine to investigate corruption – namely the Bidens. And, how does the US pressure other governments – with our largesse. The bribery spoken about in our constitution, with respect to impeachment, isn’t about us bribing them, it’s about them bribing us – or in this case POTUS.

    Of course the Biden’s corruption should be investigated. It obvious – Joe point man, Hunter on board. Whether a crime is found, who knows. But, looking into it – yes!

    The Dems are killing two birds with one stone (or maybe 3): helping Joe win (and hide many politicos familial corruption) and impeaching the Donald.

    • #16
    • January 28, 2020, at 9:26 AM PST
    • 2 likes
  17. The Reticulator Member

    Jeffery Shepherd (View Comment):
    The Dems are killing two birds with one stone (or maybe 3): helping Joe win (and hide may politicos familial corruption) and impeaching the Donald.

    This impeachment ploy is basically an effort on the part of Democrats to cover-up corruption, stonewall, and obstruct justice. 

    • #17
    • January 28, 2020, at 9:45 AM PST
    • 3 likes
  18. LibertyDefender Member

    DonG (skeptic) (View Comment):

     

    Gerald Ford has a famous speech:

    What, then, is an impeachable offense?

    The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given monent in
    history;

    conviction results from whatever offense or offenses two-thirds of the
    other body considers to be sufficiently serious to require removal of the
    accused from office.

    Ford was absolutely correct, and clearly familiar with the text of the Constitution. First, the House may literally impeach for anything:

    Article 1, Section 2, Clause 5

    The House of Representatives … shall have the sole Power of Impeachment.

    That’s it for the House’s role.

    Article1, Section 3, Clause 6

    The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside; And no Person shall be convicted without the Concurrence of two thirds of the Members present.

    So the Senate can only convict on a 2/3ds vote, as Gerald Ford stated. But notice it doesn’t say anything about what the impeachment is/must be for.

    Article 1, Section 3, Clause 7

    Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.

    The main message here is that conviction in cases of impeachment doesn’t prevent criminal prosecution for the same offense, after impeachment and conviction – impeachment is entirely political, not criminal.

    But this is the end of the Constitution’s description of the Congress’ role in Impeachment. “Treason, Bribery, or other High Crimes and Misdemeanors” have not yet been mentioned.

    Article 2, Section 4

    The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    The verb is “shall be removed.” This is essentially a minimum sentencing provision for the specified offenses.

    The Clinton impeachment for perjury wasn’t actually tested against the High Crimes and Misdemeanors standard, since he wasn’t convicted. Had he been convicted, there would have been a necessary debate to determine if perjury – a felony – qualifies as an example of “other High Crimes and Misdemeanors” so as to require removal from office.

    All that said, what these Dems are doing is indeed a farce.

    • #18
    • January 28, 2020, at 10:13 AM PST
    • 1 like
  19. LibertyDefender Member

    MarciN (View Comment):

    As far as the “crime” committed by Trump in the July 25, 2019, phone call with the Ukrainian president:

    Perhaps the most offensive aspect of this impeachment is that the Articles of Impeachment do not allege misconduct in the phone call:

    1. Abuse of office is based on the delay in delivery of foreign aid, which was not part of the call; and

    2. Obstruction of Congress is based on Trump’s assertion of Executive Privilege, which has nothing to do with the call.

    And yet, the transcript of the phone call is the entire body of direct evidence in the case. Everything else is hearsay at best.

    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 of any kind has been committed.

    That offends my constitutional sensibilities.

    • #19
    • January 28, 2020, at 10:24 AM PST
    • 8 likes
  20. Arahant Member

    LibertyDefender (View Comment):
    That offends my constitutional sensibilities.

    Amen, brother!

    • #20
    • January 28, 2020, at 10:28 AM PST
    • 3 likes
  21. The Reticulator Member

    LibertyDefender (View Comment):
    First, the House may literally impeach for anything:

    Including “literally, Hitler.”

    • #21
    • January 28, 2020, at 12:15 PM PST
    • 2 likes
  22. Bill Nelson Member

    Postmodern Hoplite: The current articles of impeachment brought against the President do not specify any actual crime, only the improper exercise of executive power for political advantage (both individually, and as pertains to the President’s interactions with Congress).

    The bulk of the legal scholars, and reading the Federalist and other papers (Madison’s address to the Virginia ratification committee) it would appear that the founders did not intend for impeachment to be for actual crimes. The GAO did find that with holding the aid was illegal, but that is not part of the impeachment articles.

    In Federalist 65, Hamilton writes:

    there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

    And…

    The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.

    This statement gives a fairly clear view of what the intent was.

    It really comes down to one decision for the Senators: does Trump’s behavior rise to a level of something impeachable. Over a National Review, Andrew McCarthy (not a never-Trumper) writes a good column on how the use of the lack of a quid-pro-quo was a poor choice of a defense. Because now, with Bolton’s statements (reported) That seems clear and for those congressmen and senators who were repeating this, they are left with egg on their face.

    Trump’s constant series of lies is not helping him. His statement that he did not know Lev Parnas, who is in multiple pictures with the president, now seems patently false with the recording made at a dinner with Pres. Trump, Parnas and others.

    Frankly, I believe that it is going to be difficult for many Senators to acquit.

    • #22
    • January 28, 2020, at 12:38 PM PST
    • 1 like
  23. LibertyDefender Member

    Bill Nelson (View Comment):

    It really comes down to one decision for the Senators: does Trump’s behavior rise to a level of something impeachable. Over a National Review, Andrew McCarthy (not a never-Trumper) writes a good column on how the use of the lack of a quid-pro-quo was a poor choice of a defense. Because now, with Bolton’s statements (reported) That seems clear and for those congressmen and senators who were repeating this, they are left with egg on their face.

    Trump’s constant series of lies is not helping him. His statement that he did not know Lev Parnas, who is in multiple pictures with the president, now seems patently false with the recording made at a dinner with Pres. Trump, Parnas and others.

    Frankly, I believe that it is going to be difficult for many Senators to acquit.

    If those many Senators willfully ignore the complete lack of evidence supporting the Articles of Impeachment, you might be right.

    There is no evidence. None. Hearsay is not evidence. Furthermore, every single hearsay witness’ testimony has been contradicted.

    Still, you might be correct. Evidence is not necessary. After all, Christine Blasey Ford had none, yet she was permitted to testify.

    Does Lev Parnas have something to do with Trump’s perfectly legal ability to condition aid to any country on that country’s investigation of corruption?

    Those Senators might also be willing to disagree with Alan Dershowitz, lifelong Democrat, in order to vote to convict Trump.

    But I doubt it.

    • #23
    • January 28, 2020, at 12:55 PM PST
    • 1 like
  24. Django Member

    LibertyDefender (View Comment):

    Bill Nelson (View Comment):

    It really comes down to one decision for the Senators: does Trump’s behavior rise to a level of something impeachable. Over a National Review, Andrew McCarthy (not a never-Trumper) writes a good column on how the use of the lack of a quid-pro-quo was a poor choice of a defense. Because now, with Bolton’s statements (reported) That seems clear and for those congressmen and senators who were repeating this, they are left with egg on their face.

    Trump’s constant series of lies is not helping him. His statement that he did not know Lev Parnas, who is in multiple pictures with the president, now seems patently false with the recording made at a dinner with Pres. Trump, Parnas and others.

    Frankly, I believe that it is going to be difficult for many Senators to acquit.

    If those many Senators willfully ignore the complete lack of evidence supporting the Articles of Impeachment, you might be right.

    There is no evidence. None. Hearsay is not evidence. Furthermore, every single hearsay witness’ testimony has been contradicted.

    Still, you might be correct. Evidence is not necessary. After all, Christine Blasey Ford had none, yet she was permitted to testify.

    Does Lev Parnas have something to do with Trump’s perfectly legal ability to condition aid to any country on that country’s investigation of corruption?

    Those Senators might also be willing to disagree with Alan Dershowitz, lifelong Democrat, in order to vote to convict Trump.

    But I doubt it.

    Today Warren said she couldn’t follow Dershowitz’s “nonsensical” remarks. 

    • #24
    • January 28, 2020, at 1:06 PM PST
    • 1 like
  25. DrewInWisconsin, Influencer Coolidge

    Django (View Comment):

    Today Warren said she couldn’t follow Dershowitz’s “nonsensical” remarks.

    She’s not the sharpest knife in the drawer.

    • #25
    • January 28, 2020, at 1:16 PM PST
    • 3 likes
  26. Percival Thatcher
    Percival Joined in the first year of Ricochet Ricochet Charter Member

    DrewInWisconsin, Oaf (View Comment):

    Django (View Comment):

    Today Warren said she couldn’t follow Dershowitz’s “nonsensical” remarks.

    She’s not the sharpest knife in the drawer.

    Yeah. She’s been writing the wrong answer in the “Race” box all these years.

    • #26
    • January 28, 2020, at 2:22 PM PST
    • 4 likes
  27. Bill Nelson Member

    LibertyDefender (View Comment):
    There is no evidence. None. Hearsay is not evidence.

    There is no hearsay. Throw the whistle blower out, doesn’t matter, as Trump has admitted fully in his description of the “perfect” call.

     

    • #27
    • January 28, 2020, at 2:22 PM PST
    • Like
  28. DrewInWisconsin, Influencer Coolidge

    Bill Nelson (View Comment):

    LibertyDefender (View Comment):
    There is no evidence. None. Hearsay is not evidence.

    There is no hearsay. Throw the whistle blower out, doesn’t matter, as Trump has admitted fully in his description of the “perfect” call.

    See what I mean about Trump haters weirdly fixating on the word “perfect”?

    It’s like they think that’s the nail in the coffin of the Trump Presidency. HA! It wasn’t “perfect” so we have to impeach!

    • #28
    • January 28, 2020, at 2:27 PM PST
    • 1 like
  29. Bill Nelson Member

    DrewInWisconsin, Oaf (View Comment):

    Django (View Comment):

    Today Warren said she couldn’t follow Dershowitz’s “nonsensical” remarks.

    She’s not the sharpest knife in the drawer.

    Warren is very intelligent. Make no mistake on that. That is why she has to be considered very seriously in this content for president.

    That being said, she also has problems with the truth and seems more guided by what can get her the nomination than a principled position.

    But she ain’t dumb.

    • #29
    • January 28, 2020, at 2:27 PM PST
    • 1 like
  30. Django Member

    Bill Nelson (View Comment):

    DrewInWisconsin, Oaf (View Comment):

    Django (View Comment):

    Today Warren said she couldn’t follow Dershowitz’s “nonsensical” remarks.

    She’s not the sharpest knife in the drawer.

    Warren is very intelligent. Make no mistake on that. That is why she has to be considered very seriously in this content for president.

    That being said, she also has problems with the truth and seems more guided by what can get her the nomination than a principled position.

    But she ain’t dumb.

    What does it say about her ability to grasp an argument that she would call Dershowitz’s presentation “nonsensical”? Or does it say more about the nature of political discourse today? I’ve seen no evidence that she is anything other than an utterly conventional intellect. 

    • #30
    • January 28, 2020, at 2:41 PM PST
    • 2 likes