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  #51  
Old 11-08-2019, 12:52 PM
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Originally Posted by Ravenman View Post
Wait, so are you debating the standard of proof for removing Trump? Or are you arguing that all future Presidents who have command over nuclear weapons wonít be that unstable and you will trust all future chains of command?
Yeah, this made me pause for a minute because I think I lost track of the topic at hand. Unfortunately I only find myself doubling down, all future presidents who have command over nuclear weapons won't be unstable and I trust all future chains of command.

I don't want to get too deep into that, in this thread (I'll follow you to another thread about it if you want). But if the President is too "unstable" to carry out his nuclear responsibilities then we have a different process to remove him from office. Being too unstable is not itself, in my opinion, an impeachable offense.
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This has nothing to do with what I wrote. You argued that it should be hard to reverse elections. Iím making the point that Presidents are not always elected. Further, arenít Vice Presidents also elected?
Yes, sorry, you are right. So if an unelected President is the target of an impeachment, I concede that there isn't really a reason to use such a high standard of proof. Vice presidents are also elected so I suppose I have to extend the same standard to a Vice President/Vice-President-turned-Acting-President.
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The Constitution already addresses this fear.
Could you elaborate?

~Max
  #52  
Old 11-08-2019, 12:53 PM
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Originally Posted by Banquet Bear View Post
...then perhaps you should be looking some of this history up. Whats happening right now in the Ukraine, whats happening in Korea, its all kinda related. It should be a concern for you.
Perhaps I should be looking some of this history up, I mean, I know about the cold war but I'm sure there are plenty of things I don't know. I'm not sure how I feel about the President having unilateral authority to order a preemptive nuclear strike against a nation we are not formally at war with. But I really don't want to make this thread about nuclear policy.

~Max
  #53  
Old 11-08-2019, 01:02 PM
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I don't expect to see principles driving senators to commit political suicide. I don't know of a senator with "no overriding incentive to vote either way". But I don't know them all.

I've a feeling the ultimate "standard of proof" will be overwhelming constituent pressure.
Perhaps that's the way things are, but in my opinion politicians should be willing to commit political suicide to defend their principles, and resign/lose reelection if it is clear that the constituency disagrees and can't be pursuaded. You know, in a perfect world.

If we're going to foray into the "real" world where politicians all act according to how they will be re-elected, there's no point in having Senators debate each other at all and no difference between a Senator and a Representative. Compromise and progress on the Hill are made literally impossible because the people's representatives are only there in the capacity of messengers.

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  #54  
Old 11-08-2019, 01:05 PM
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But I'll try to stay on-topic. If a presidential aide testifies that this POTUS talked of a "diversionary" attack, would that be evidence enough for the Senate to vote guilty? Or would a "standard of proof" require truth serum?
That would be difficult. I would need corroberating testimony or evidence. One person's word against another's is just not enough. A pattern of specific accusations of abusive behavior might be enough, if the alternative and exculpatory conclusion that all of the accusers are mistaken/lying is so improbable as to be unsound, illogical, beyond reason.

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  #55  
Old 11-08-2019, 02:01 PM
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Yeah, this made me pause for a minute because I think I lost track of the topic at hand. Unfortunately I only find myself doubling down, all future presidents who have command over nuclear weapons won't be unstable and I trust all future chains of command.
Well, good luck with that.

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But if the President is too "unstable" to carry out his nuclear responsibilities then we have a different process to remove him from office. Being too unstable is not itself, in my opinion, an impeachable offense.
Being a loose cannon and warmonger is not a mental disability.

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Yes, sorry, you are right. So if an unelected President is the target of an impeachment, I concede that there isn't really a reason to use such a high standard of proof. Vice presidents are also elected so I suppose I have to extend the same standard to a Vice President/Vice-President-turned-Acting-President.
So only elected Presidents benefit from your standard of proof? And do you see the standard of proof for impeachment of a Chief Justice to be different than an associate justice, too?

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Could you elaborate?
The Constitution says that high crimes and misdemeanors is the standard for removal from office. You may say that there's no way to enforce that, and it could be abused to remove a President for policy differences. But piling on another unenforceable standard on top of what the Constitution requires doesn't address the issue. If the Senate as a body is going to disregard the Constitution and remove a President for policy matters, what good does your "beyond reasonable doubt" do? In fact, it does harm, as I've argued, by making Presidents even more immune from being removed from office for misconduct.

Question for you on this "he could face a criminal trial sometime later so we should pre-empt that with an equal standard of proof." Should this same idea apply to civil matters which could later become criminal matters? Like, let's say Exxon pollutes my groundwater and I sue, arguing that they intentionally discarded toxic chemicals in serious violation of environmental laws.

If the judge recognizes that the misconduct is possibly so severe that Exxon employees could face criminal charges in the future for their horrible actions, should the burden of proof in my civil trial also be raised so that I have to prove beyond a reasonable doubt their culpability?
  #56  
Old 11-08-2019, 02:04 PM
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Sorry in advance for the long post. There are multiple inaccuracies on multiple sides here.

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Originally Posted by JohnT View Post
1. Any attempt to use my tax dollars in an attempt to bribe and extort a foreign government as to steal my vote is impeachable.

The weight of the evidence already presented me by the White House has led me to the following conclusion:

2. Donald Trump openly, and repeatedly, did #1.

Therefore,

3. He deserves a guilty vote in the Senate
This is not a standard of proof, it is a statement of what must be proved -- the elements of the charge.

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Originally Posted by kenobi 65 View Post
OK, I'll play along here, in part because the OP's numerous points in the Elections thread show that he has a non-standard, more strict view of what "reasonable doubt" means.

First, let me quote from two entries from an online legal dictionary.

First, "Beyond a Reasonable Doubt":



And, from that same link:



(Bolding mine)

Keep in mind: impeachment is NOT a criminal trial. If a President is removed from office, he does NOT go to prison, he does NOT face a firing squad, he is not even forced to pay a fine. He simply LOSES HIS JOB.

Impeachment is, fundamentally, an employment disciplinary process. The House conducting an Impeachment inquiry, and holding a vote, is fundamentally the government's HR department determining if there's sufficient evidence that the President has not been performing the duties of his job. The Senate trial is fundamentally the goverment's board of directors deciding whether or not to discharge the President from his job.

If "beyond a reasonable doubt" isn't even the usual standard in a civil trial (e.g., a lawsuit), I see no reason why it should be the criterion for firing someone, even the President.
That definition of reasonable doubt looks like it may be cobbled together from multiple sources, and it is deeply flawed. It goes astray in one of the ways that often occurs, and which showed up in Max's posts in the other thread. The standard of proof can also, and more accurately be called, the standard of persuasion. It is a measure of how convinced the factfinder has to be that the defendant committed the charged act. It is not about a quantum of evidence, or whether other reasonable explanations exist.

For example, tere could be two equally reasonable stories of what happened, one presented by one side, one presented by the other. A jury can still convict based on that evidence. If the jurors are convinced that one of the stories is what actually happened, and that, though a reasonable explanation, they do not have a reasonable doubt that the exculpatory explanation is not what actually happened. An easy example of this would be a trial where you have a victim saying "the defendant robbed me on the street. I know him, and recognized him right away. That's him. (Points out defendant.) The defendant calls a single witness, a friend of his, who testifies that the defendant was with him that whole day, and they never went near the scene of the crime. He says the victim does know defendant, and has never liked him, and is out to get him. A jury can believe the victim and disbelieve the defendant's witness. As long as they don't have significant doubts about that, they can convict.

The same is true even if the defendant calls 5 witnesses. It is not about quantity of evidence. It's about how strongly convinced one is about what happened.

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Originally Posted by JohnT View Post
Correct. In an HR review, in any right-to-work state, one can fire this guy at will, for any reason.

Given that's the standard Republican policy makers expect employees to work under, that they can merely be fired for displeasing their bosses, I do not see why insisting the President working under the same rules could be, in any way, be considered "unfair".
I strongly disagree with this. I don't think that any time the House is held by the opposite party from the president, they should be trying to impeach him or her, for doing what in their opinion is a bad job. It does have the effect of overturning an election, and it should be taken very seriously, and used very rarely. If it becomes commonplace, it will break our system.

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Maybe I'm not sensitive to this on account of my youth - having never done a bomb drill - but this just isn't a concern for me. I'm thinking, that just won't happen. He's not that unstable and even if he was I trust our chain of command.
Putting aside nuclear war, what if the accusation, which you think is likely, but not beyond a reasonable doubt, true, is that the President has taken steps to undermine the next Presidential election such that there would be serious doubts about whether it was a free and fair election. So the alternative to removal following impeachment -- being voted out -- is seriously undermined?

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I think it's the second strictest legal standard (the strictest being beyond all doubt), and I don't believe the President can do more harm to this nation without implicating himself under that standard than the nation did to itself by electing him.
I can't think of any legal use of a beyond all doubt standard in the US. Do you have an example? BRD is the highest legal standard of persuasion in actual use in the US, as far as I am aware.

In general response to the thread, I have read a Congressional Research Service report that says the Senate has previously decided that each senator will apply the standard of persuasion that his or her conscience dictates. I have to say that I think that is very strange. But, perhaps not too strange for what is a hybrid legal and political process. It seems to me that there are very good arguments for the preponderance standard and for the heightened standard of clear and convincing, but I don't think I've seen a single good argument for BRD applying.
  #57  
Old 11-08-2019, 02:28 PM
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That would be difficult. I would need corroberating testimony or evidence. One person's word against another's is just not enough. A pattern of specific accusations of abusive behavior might be enough, if the alternative and exculpatory conclusion that all of the accusers are mistaken/lying is so improbable as to be unsound, illogical, beyond reason.

~Max
Just to reiterate what I said in the lengthy post, the BRD standard or persuasion would allow you to look at "one person's word against another's" and decide that person A is telling the truth. As long as you are convinced of that BRD, you can convict. So, if Trump was on one side, telling you he never did that, he only ever made the most perfect, the best decisions about whether to order nuclear strikes, and a career civil servant, who has served the past 5 administrations gives a detailed account of exactly what happened, and you think it sounds exactly like something Trump would do, would you decide in Trump's favor that the allegation had not been proved? I mean, different people can be convinced by different things, but that seems like a pretty unreasonable decision to me.

You can say you would want more evidence, but that's not a choice you necessarily get -- jurors don't get to say what further evidence they want to see. They have to make the call based on what they've seen and heard.
  #58  
Old 11-08-2019, 02:42 PM
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My opinion is that the standard should be beyond a reasonable doubt, especially when the articles of impeachment are criminal in nature and expose the defendant to criminal liability should he be convicted.
Another misconception here. The articles of impeachment don't expose him to criminal liability. His actions expose him to criminal liability, and that fact should have nothing to do with the standard of proof at an impeachment trial. That's like arguing that, if OJ Simpson had been sued in a civil trial before his criminal trial, they should have to use the beyond reasonable doubt standard because if they find that he did it, that would also mean he committed a crime. Different proceedings about the same acts can have different elements, and have different standards of proof. They also have very different consequences.
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Old 11-08-2019, 02:52 PM
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Originally Posted by D'Anconia View Post
That's what elections are for, not impeachments.
Wrong. If a president is found to be "unfit" they can be impeached. He's the walking definition of unfit.

Of course, that will be much more evident if we FINALLY get the idiot on the stand after impeachment...
  #60  
Old 11-08-2019, 02:59 PM
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Wrong. If a president is found to be "unfit" they can be impeached. He's the walking definition of unfit.

Of course, that will be much more evident if we FINALLY get the idiot on the stand after impeachment...
Wrong.

Ill-advised tweets do not make him "unfit".
  #61  
Old 11-08-2019, 03:01 PM
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They're certainly a piece of the puzzle.
  #62  
Old 11-08-2019, 03:22 PM
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But that's balanced against the fact that removing an elected President is overriding the Democratic will of the people, and should not be easy.
This POTUS is a product of the undemocratic electoral system, not "the Democratic will of the people", who preferred Ms Clinton. As with gerrymandering, losers take power. Sad.

As for crimes: this POTUS has bragged of committing obstruction, and admitted a role in a conspiracy to violate federal election laws. But again, the Senate trial is political, not criminal. "High crimes" are not necessarily statutory violations but rather abuses of power. A Ukrainian quid-pro-quo violates the foreign emoluments clause as well as election laws, and degrades the office of the presidency, so we have both low and high crimes already evident.

This POTUS has already convicted himself. We'll see if GOP senators care.
  #63  
Old 11-08-2019, 04:04 PM
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Originally Posted by Ravenman View Post
Being a loose cannon and warmonger is not a mental disability.
What do you mean by this?
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Originally Posted by Ravenman View Post
So only elected Presidents benefit from your standard of proof? And do you see the standard of proof for impeachment of a Chief Justice to be different than an associate justice, too?
Yes, I am treating the President and Vice President differently from other civil officers on account of their being elected indirectly by the states. I don't presently see a reason to hold the Chief Justice to a different standard than Associate Justices. I'm thinking it should be clear & convincing evidence.
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The Constitution says that high crimes and misdemeanors is the standard for removal from office. You may say that there's no way to enforce that, and it could be abused to remove a President for policy differences. But piling on another unenforceable standard on top of what the Constitution requires doesn't address the issue. If the Senate as a body is going to disregard the Constitution and remove a President for policy matters, what good does your "beyond reasonable doubt" do? In fact, it does harm, as I've argued, by making Presidents even more immune from being removed from office for misconduct.
The two extremes are not no standard at all versus beyond a reasonable doubt. The two extremes are no standard at all versus no removal power at all.

I am actually comfortable with the current setup, where each senator decides for his or her self what standard to use. The Senate has two or three times debated whether to handicap themselves with a mandatory standard of proof (beyond a reasonable doubt I believe), and each time we see a resounding rejection of an actual standard rule.

But that's not what I am trying to debate here - clearly the standard is going to be acquittal for most Republicans until it becomes politically untenable - I want to know how an individual senator should consider the evidence, on principle and removed from self-interested politics.

With all of the other lesser standards, it is easy to dress up partisan accusations and overcome the burden of proof; but it is also quite difficult for a corrupt President to stay in office when Congress is against him. If the standard is beyond a reasonable doubt, then even if the accusations come from a partisan Congress, it is extremely difficult to remove an innocent President (thus wrongfully disenfranchising the states which elected him).

We could frame this as a safety versus liberty thing. On the one hand we have a corrupt President who threatens our safety, on the other hand we have a corrupt Congress who threatens states' liberties. I'll pick the corrupt President.

Take this to the extreme, the most slippery slope I can think of: at the beginning of each Presidential term, if the incoming president lost the popular vote, Congress announces their own President of the People (whoever won the popular vote) with official resolutions. Congress then passes a law naming the President of the People second in line for Presidential succession. The very same day they impeach and convict the President and Vice President. All constitutional as far as I can tell, unless SCOTUS thinks they have jurisdiction if the disgraced President/VP or disenfranchised states sue.
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Question for you on this "he could face a criminal trial sometime later so we should pre-empt that with an equal standard of proof." Should this same idea apply to civil matters which could later become criminal matters? Like, let's say Exxon pollutes my groundwater and I sue, arguing that they intentionally discarded toxic chemicals in serious violation of environmental laws.

If the judge recognizes that the misconduct is possibly so severe that Exxon employees could face criminal charges in the future for their horrible actions, should the burden of proof in my civil trial also be raised so that I have to prove beyond a reasonable doubt their culpability?
No, I don't think it should. But the standard of proof isn't that of a criminal case because a convicted president could face impeachment later, it is because the Constitution itself either implies that the impeachment case is criminal itself, or because conviction for impeachment deprives the ex-president of the right to a trial by jury. I'm going with the first interpretation.

That removing an elected president disenfranchises the states is a second, independent line of argument.

~Max
  #64  
Old 11-08-2019, 04:30 PM
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Putting aside nuclear war, what if the accusation, which you think is likely, but not beyond a reasonable doubt, true, is that the President has taken steps to undermine the next Presidential election such that there would be serious doubts about whether it was a free and fair election. So the alternative to removal following impeachment -- being voted out -- is seriously undermined?
Of course, that is the present accusation.

As such my current opinion was formed with that particular example in mind...

I think I've contradicted myself... I'll think about it some more.
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I can't think of any legal use of a beyond all doubt standard in the US. Do you have an example? BRD is the highest legal standard of persuasion in actual use in the US, as far as I am aware.
Right, beyond a reasonable doubt is the highest standard used here. I think beyond all doubt was used in Ireland or something, before beyond a reasonable doubt was developed.

~Max
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Old 11-08-2019, 04:42 PM
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Just to reiterate what I said in the lengthy post, the BRD standard or persuasion would allow you to look at "one person's word against another's" and decide that person A is telling the truth. As long as you are convinced of that BRD, you can convict.
I hate to disagree with you since that probably means I'm wrong, but I disagree. I as a juror can make a character judgement of a person but not if the only evidence and information about that person is a transcript of a solid deposition and an unenlightening cross examination in court. If a history of fraud and lying is accepted into evidence, that could tilt the scales. But a basic he-said she-said isn't going to convince me beyond a reasonable doubt.
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So, if Trump was on one side, telling you he never did that, he only ever made the most perfect, the best decisions about whether to order nuclear strikes, and a career civil servant, who has served the past 5 administrations gives a detailed account of exactly what happened, and you think it sounds exactly like something Trump would do, would you decide in Trump's favor that the allegation had not been proved? I mean, different people can be convinced by different things, but that seems like a pretty unreasonable decision to me.
I've placed emphasis on what I think is the pre-existing bias that I must willfully ignore as a juror. I think that sounds exactly like something Trump would do? Why would I think that, unless something in evidence establishes a pattern from which I can infer what Mr. Trump would do?
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Originally Posted by eschrodinger View Post
You can say you would want more evidence, but that's not a choice you necessarily get -- jurors don't get to say what further evidence they want to see. They have to make the call based on what they've seen and heard.
That's right, I would simply say "based on the evidence presented, the defendant is not guilty".

~Max

Last edited by Max S.; 11-08-2019 at 04:43 PM. Reason: of a solid deposition
  #66  
Old 11-08-2019, 04:56 PM
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The standard for conviction (notice, I do not use the term "guilt') in an impeachment is summarized perfectly in Justice Potter Stewart's 1964 comment about obscenity.

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Originally Posted by Jacobellis v. Ohio, 378 U.S. 184 (1964)
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it. . .
In other words, if it looks like a duck and walks like a duck and quacks like a duck, it's a duck, even if it calls itself President.
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Old 11-08-2019, 04:59 PM
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Regardless of what the standards for impeachment should be, that is not what they are.

This whole thread is predicated on the OP making statements that proclaimed a particular standard, which he had invented, as being the correct answer just a short while after having told everyone that they weren't using the Constitution enough in their view of what is going on.

Debating the topic is completely fair and there is no reason not to do so to the extent that one accepts that their fanciful view of the world that should be is just a fantasy.

Max S, you were and still are wrong.

The standard is not the same as a criminal court. I am unaware of any evidence that it was intended to be. That current reality is not up for debate. It is the fact of the matter, from the Constitution and history, and drawing people into a debate on the related subject of fantasy-land doesn't change the reality, it just helps you to convince yourself that the subject is up for debate.
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Old 11-08-2019, 05:00 PM
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Wrong.

Ill-advised tweets do not make him "unfit".
Who the hell said this was being done because of "ill-advised tweets"?
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Old 11-08-2019, 05:01 PM
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As a Senator, the primary metric on which I would base all of my votes would be the good of the country.

To this end I would weigh the likelihood that the president committed the act he is accused of multiplied by the damage to the country in allowing someone who committed those acts to remain president, against the damage to the country done by prematurely removing a democratically elected president from power. The latter not being insignificant.

So if there is a 99% liklihood that the president lied about a blow job, then I probably wouldn't vote to impeach, but if there was a 60% chance the the president tried to launch a nuclear strike at Russia because they insulted his hair (taking into account that given the low likelihood of this happening would have to mean that fairly good evidence would be required to raise it liklihood to 60%) then I probably would vote to convict.
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Old 11-08-2019, 05:35 PM
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Originally Posted by Sage Rat View Post
Regardless of what the standards for impeachment should be, that is not what they are.

This whole thread is predicated on the OP making statements that proclaimed a particular standard, which he had invented, as being the correct answer just a short while after having told everyone that they weren't using the Constitution enough in their view of what is going on.

Debating the topic is completely fair and there is no reason not to do so to the extent that one accepts that their fanciful view of the world that should be is just a fantasy.

Max S, you were and still are wrong.

The standard is not the same as a criminal court. [...] That current reality is not up for debate. It is the fact of the matter, from the Constitution and history, and drawing people into a debate on the related subject of fantasy-land doesn't change the reality, it just helps you to convince yourself that the subject is up for debate.
I'll concede all of that.

~Max
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Old 11-08-2019, 05:47 PM
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In case anyone wants to read what the nonpartisan Congressional Research Service concluded about the standard of proof in an impeachment trial: https://www.everycrsreport.com/reports/98-990.html

I think this is an interesting discussion, and I appreciate Max creating this thread so as not to hijack the other thread where it came up. I also am not seeing any bad faith arguments. I see arguments I disagree with, but also the willingness to take in new information, and concede ground. It's a good discussion.
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Old 11-08-2019, 06:09 PM
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eschroedinger, thank you for weighing in, and providing clarification on what "reasonable doubt" actually means in criminal courts.
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Old 11-08-2019, 06:47 PM
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I hate to disagree with you since that probably means I'm wrong, but I disagree. I as a juror can make a character judgement of a person but not if the only evidence and information about that person is a transcript of a solid deposition and an unenlightening cross examination in court. If a history of fraud and lying is accepted into evidence, that could tilt the scales. But a basic he-said she-said isn't going to convince me beyond a reasonable doubt.
There's what you are allowed to do when making a decision applying the standard, and then there is the issue of what would convince you as an individual in a particular case. If you say, in no case would I be able to find a person guilty if it came down to one person's word against another's, then you are, I think misunderstanding or misapplying or refusing to apply, the correct standard. If you are saying, in response to the present impeachment scenario and to hypotheticals so far proposed that you are not convinced without more, I still think you are likely misunderstanding the standard, but there's nothing that can force you to be convinced. But you should know that you may be cutting the defendant a huge break, and holding the prosecution to an impossible standard.

But, again, a juror is allowed to make that call, as long as there is evidence to support the elements, and the juror is convinced to the required degree.

Quote:
I've placed emphasis on what I think is the pre-existing bias that I must willfully ignore as a juror. I think that sounds exactly like something Trump would do? Why would I think that, unless something in evidence establishes a pattern from which I can infer what Mr. Trump would do?

That's right, I would simply say "based on the evidence presented, the defendant is not guilty".

~Max
I did a step in there without showing my work. My apologies for not being clearer, and I suspect it may be one.on.which we disagree. An impeachment is not a criminal trial in many many ways. This is one.of them. Normally, if a person is on trial, no juror could be seated who has a relationship to the defendant of the kinds that the Senators have with the President. I think they are allowed to use their experience as part of their decision, but not everyone will agree. You could strike that bolded part and still have enough for a juror to be allowed to decide the case either way, though. Juries decide cases that way all the time. And you should allow for the possibility that one person could be so convincing, and the other so obviously lying, that you would, too. Otherwise you are applying a standard other than BRD, I think. I mean, haven't you ever seen someone speak and been able to.tell that they are just making up the self-serving stuff they are saying? And have you ever heard someone speak and thought, that just rings true?

Anyway, it doesn't entirely matter, because in the impeachment there is corroboration, but it also relates to the concept that you've mentioned about having to disprove other possible explanations, which is not legally required (but could be necessary in practice in a particular case). It is not required as part of the BRD standard.
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Old 11-08-2019, 11:15 PM
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But now, let's entertain the question:

First, let us pretend that there is a reason for the criminal standard to be what it is and for the Presidential standard to be what it is. We will say that these decisions were not arbitrary.

Let's say, for example, that the President commits a crime. He has murdered the First Lady, in front of a whole host of witnesses, and the police have him in handcuffs.

Now should the President go through two criminal trials, for his one crime, or one trial?

The first criminal trial is to lose the Presidency.

He must be provided with an impartial jury of random citizens, since this is a criminal trial. It would not be a true act of justice, after all, if the President was being tried by those who might be prejudiced against him, nor by those who would be prejudiced in his favor.

He must be given all of the chances afforded to him in the Bill of Rights to defend himself. That means, similarly, we must have all the same prosecutorial steps available as are in a criminal trial.

We end up having a start-to-finish criminal trial, because that format is the product of the requirements for a criminal trial as given in the Constitution. If the House does not issue the President a Miranda warning, alongside their articles of impeachment, then the President will be free to go.

And all of this to ask the question: Should we hand the President to the authorities, to be tried for murder (now that we have tried him for murder), or give him the opportunity to - possibly - exceed the Statute of Limitations by continuing to win the Presidency?

And what if the President is pronounced innocent on a technicality, in either the first or second trial? If it happens with the first, then can the President reasonably govern with everyone knowing that he is a callous murderer, taking advantage of the system?

All of this is silly.

And that is all assuming that the President has committed a crime - which is not a necessity for impeachment.

Let's say, for example, that everyone simply missed the fact that the President had every intention of going to war with Europe during the campaign. It's not a thing anyone would expect and no one asked; why would you?

It becomes relatively clear that he is ordering the military to do things to provoke a fight with France, Germany, etc. though he incessantly states that "They started it." Even though, clearly, they did not. He refuses to explain the reason for his aggression, denying that it exists, "I love Europe! No one loves Europe more than me!"

And now we have Europe pointing their nuclear weapons at us and there a distinct possibility that we're looking at the end of life on Earth.

There's no way to prove that the President has an intent to murder everyone in Europe, even if it risks everyone in our country and on Earth. There's no motive. He denies it all. All of his personally selected cabinet members contend that he is sane and loves Europe.

Do we just die? We can't vote that this is stupid? Is the Second Amendment - armed rebellion - the only way out because what is plainly obvious to all is still just such an enigma in origin (plus the President can afford the very best legal defense) that you could never prove beyond a shadow of a doubt* the case?

I'm going to stop there but, I will note, this is probably 1/5th of the severe and unworkable issues with requiring a criminal standard for a job review, when talking about a position which is not actually that hard to refill.

* Of course, a "reasonable doubt" is a much different standard. It is the real one and it is far lower a standard than people like to naval gaze their way into. But it is where we would expect a jury to start weighing things because the President would, again, have the best legal defense and that's how a good defender clears his client: He creates an unreasonable standard of proof.

It is unreasonable to require more than a 1 in 1000000 chance that the President is innocent before being able to proclaim him (or any other person) guilty. The average person only knows a few hundred people. If there's a 999 in 1000 chance that you are the culprit, it is reasonable to send you to jail.

Last edited by Sage Rat; 11-08-2019 at 11:20 PM.
  #75  
Old 11-09-2019, 01:43 AM
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Who the hell said this was being done because of "ill-advised tweets"?
Locrian.

"Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There's your standard of proof in a Senate Impeachment trial."
  #76  
Old 11-09-2019, 01:51 AM
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Sorry in advance for the long post. There are multiple inaccuracies on multiple sides here.

This is not a standard of proof, it is a statement of what must be proved -- the elements of the charge.
Your mistake here is thinking anything needs to be proved. This is not a court. This is a political process.
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  #77  
Old 11-09-2019, 07:06 AM
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Locrian.

"Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There's your standard of proof in a Senate Impeachment trial."
Where did he say he was being impeached for tweets? Not there.
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Old 11-09-2019, 11:16 AM
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Locrian.

"Is the president an idiot? Yes. Evidence? Pick any 10 tweets. There's your standard of proof in a Senate Impeachment trial."
He didn't say that the tweets was all we have-he said that the tweets should have been enough.
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Old 11-09-2019, 01:46 PM
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Your mistake here is thinking anything needs to be proved. This is not a court. This is a political process.
It is a hybrid process. The Senate has debated the standard of proof in the past, so it has at least been relevant enough to discuss.
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Old 11-09-2019, 06:58 PM
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It is a hybrid process. The Senate has debated the standard of proof in the past, so it has at least been relevant enough to discuss.
I'm not even sure why we're arguing over a standard of proof. Assuming an article of impeachment would cite the phone call as an abuse of office, there would be no need to argue about "proof." Both sides would stipulate that the phone call took place. The question would be, do 67 Senators believe that action to be an act that justifies removing the President from office.

Last edited by Kent Clark; 11-09-2019 at 06:59 PM.
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Old 11-09-2019, 07:15 PM
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I'm not even sure why we're arguing over a standard of proof. Assuming an article of impeachment would cite the phone call as an abuse of office, there would be no need to argue about "proof." Both sides would stipulate that the phone call took place. The question would be, do 67 Senators believe that action to be an act that justifies removing the President from office.
Good point. When I have served on juries, the key question was whether we were certain that this defendant did an act that satisfied all elements of some crime.

In this type of case, it isn’t plausible to argue that someone else other than a President did a particular thing, nor are there elements of a crime to prove.

I guess the more important question is whether evidence should be excluded from the Senate trial because it was illegally collected. Pretty sure the answer to that is no, given Linda Tripp’s illegal tape recordings.

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  #82  
Old 11-09-2019, 09:00 PM
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I'm not even sure why we're arguing over a standard of proof. Assuming an article of impeachment would cite the phone call as an abuse of office, there would be no need to argue about "proof." Both sides would stipulate that the phone call took place. The question would be, do 67 Senators believe that action to be an act that justifies removing the President from office.
There could be fact questions about whether Trump had a corrupt purpose (as opposed to legitimately targeting corruption in Ukraine) and, for anyone who thinks the phone call alone is not enough evidence, there could be a question about whether Trump directed the communication from Sondland and others.

I acknowledge that, in the hybrid Senate proceeding, for at least some, but perhaps most or even all Senators, deciding on a standard of proof is academic -- it would just be about deciding what standard they will say they are applying to reach their foregone conclusion.
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Old 11-09-2019, 09:17 PM
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I acknowledge that, in the hybrid Senate proceeding, for at least some, but perhaps most or even all Senators, deciding on a standard of proof is academic -- it would just be about deciding what standard they will say they are applying to reach their foregone conclusion.
Right, it's what they'll say afterward to justify their vote. If evidence like hidden financial records show this POTUS is owned by foreign enemies, how do they excuse voting "not guilty" ??
  #84  
Old 11-09-2019, 10:35 PM
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There could be fact questions about whether Trump had a corrupt purpose (as opposed to legitimately targeting corruption in Ukraine) and, for anyone who thinks the phone call alone is not enough evidence, there could be a question about whether Trump directed the communication from Sondland and others.

I acknowledge that, in the hybrid Senate proceeding, for at least some, but perhaps most or even all Senators, deciding on a standard of proof is academic -- it would just be about deciding what standard they will say they are applying to reach their foregone conclusion.
I haven't read through the entire U.S. Code, but I'm pretty sure there's no Federal law that specifically says the President can't put the screws on a foreign government to dig up dirt that would embarrass the President's potential opponent in an upcoming election.

And since there's no specific law that covers what allegedly happened (unlike the evidence that specifically showed Nixon committed an obstruction of justice or that Clinton lied in a sworn deposition) then there's no "standard of proof." The question is, did the President do something sleazy and petty, or did he do something so sleazy and petty that he shouldn't be President anymore.
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Old 11-09-2019, 11:29 PM
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I haven't read through the entire U.S. Code, but I'm pretty sure there's no Federal law that specifically says the President can't put the screws on a foreign government to dig up dirt that would embarrass the President's potential opponent in an upcoming election.
That "dirt" is "something of value" and is thus illegal to solicit or accept from a foreign source.
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Old 11-09-2019, 11:44 PM
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I haven't read through the entire U.S. Code, but I'm pretty sure there's no Federal law that specifically says the President can't put the screws on a foreign government to dig up dirt that would embarrass the President's potential opponent in an upcoming election.
The bribery statute, 18 USC 201:


Quote:
Whoever... being a public official... otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person...
Trump took official acts (holding up aid) pending Zelensky delivering something (promise of investigation) that was of personal and not official value to Trump (dirt on a political challenger).
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Old 11-10-2019, 06:56 PM
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I haven't read through the entire U.S. Code, but I'm pretty sure there's no Federal law that specifically says the President can't put the screws on a foreign government to dig up dirt that would embarrass the President's potential opponent in an upcoming election.

And since there's no specific law that covers what allegedly happened (unlike the evidence that specifically showed Nixon committed an obstruction of justice or that Clinton lied in a sworn deposition) then there's no "standard of proof." The question is, did the President do something sleazy and petty, or did he do something so sleazy and petty that he shouldn't be President anymore.
So, this is a misunderstanding of "standard of proof." There does not have to be any crime -- the articles of impeachment will serve as the accusatory instrument -- like an indictment would in a criminal case. So, let's say an article of impeachment says that the president is accused of an abuse of office when he engaged in a plot to withhold aid to Ukraine in exchange for exclusively personal benefit. (Not sure how broadly or narrowly they might draft this. Maybe just abuse of the power of his office, and listing some examples.)

So taking my first example, at the trial, the Senate would need to decide if
Trump engaged in a plot to:
1) withhold aid to Ukraine
2) in exchange for personal benefit
and, 3) that was an abuse of the power of his office.

Those would be the elements of the allegation.
The standard of proof (better understood if we call it by an alternate name, the standard of persuasion) is a statement of how convinced one must be in order to find that those things are true. So, civil trial standard -- it's more likely than not that each of those elements occurred or is true.
Intermediate standard -- the evidence is clear and convincing, or it is highly likely that those things happened or are true.
Or the criminal standard of persuasion -- the factfinder is convinced beyond a reasonable doubt that those things happened or are true.

WHAT has to be proved will be set out in the articles of impeachment, drafted in the House Judiciary Committee..
HOW CONVINCED each senator has to be that the articles have been proved is what the standard of proof is about.
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Old 11-10-2019, 07:06 PM
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The bribery statute, 18 USC 201:


Trump took official acts (holding up aid) pending Zelensky delivering something (promise of investigation) that was of personal and not official value to Trump (dirt on a political challenger).
I agree. Note also that this statute covers this scenario perfectly well. Many seem to not see it as bribery, because I guess they don't expect it to cover solicitation of a bribe, and are instead calling it extortion. It does not seem to be extortion under federal law, because that would require threats of harm. Bribery covers it just fine. Also, demanding or seeking something for an official act is the crime -- the phone call is the crime, regardless of whether or not either side followed through -- which they both did, but after things started to blow up, so there are some weird arguments about it.
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Old 11-10-2019, 11:52 PM
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Does anyone here have an idea of what obstruction charges might look like?
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Old 11-11-2019, 12:42 AM
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I'd be okay with preponderance of evidence.
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Old 11-11-2019, 02:39 AM
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I think that the most reasonable standard would depend on the concern. A one-size fits all solution doesn't make sense. We don't, for example, maintain the same standard when someone jaywalks versus when they murder someone since that wouldn't make sense.

There are at least these buckets of concerns that should be considered separately and given different standards of treatment (beyond just the question of the standard of proof).

1) Failure to fulfill the oath of office
2) Corruption
3) National security risk
4) Crimes
5) Nigh-criminality

The Oath
I would put this one down as "Beyond a reasonable doubt". For failure to fulfill the oath - e.g., dereliction of duty, etc. - that shouldn't just be a subjective matter. There should be a damn solid case to the matter.

The current 2/3rds supermajority seems fine.

The principal issue, at the moment, is simply that no one is bringing this charge to bear - neither friend nor foe.

The problem is less with the standard of proof and more with the quality of our representatives. We need to reform our election processes to get a higher level of human being leading our country.

Corruption
Is a crime if it's actual corruption.

See crimes.

National security risk
I somewhat doubt that the Founders really considered this option. They probably never envisioned that someone like Trump could exist and be elected President.

And, basically, what this is is the concern that the President may have done something compromising during his time in office or previous to it, which could be in the hands of our enemies.

(Note: For the purposes of the Constitution, "our enemies", is in essence every single country that is not the USA. Allied or not, there is nothing to prevent the UK from deciding that they want a favorable trade deal and are willing to use their leverage over the President to get it.)

For this, I would say that the standard of evidence should be, "Credible concern".

Now, I grant that this is a problematic standard.

On the one hand, you need a standard that low in the face of the problem that fundamentally a nation-state has the powers to ensure that no evidence of the crime can ever come to a level of reliable proof.

But, you need that low of a standard or you are in fact risking national security. That is, after all, the bucket that we're talking about here.

The risk of the low standard, however, is that anyone who does not like the President simply needs to manufacture something that looks like a credible bit of evidence of ill behavior.

To counter that, however, one should note:

1) We would still maintain a super-majority requirement. You have to convince a whole lot of people that this is a credible risk. That's really not so simple. Specifically because....
2) There's a relatively good likelihood that the President will be able to establish an alibi or otherwise disprove the accusation.
3) Fundamentally, a big component of credibility will be the question of whether it's credible that the President is "the sort of person to do that sort of thing"?

If you ask whether Trump would have turned away a girl like Traci Lords if she appeared at his hotel door, when she was underage but looked like this, the the answer is a clear "no". And, if you ask whether he's gone to the sort of places (e.g. Russia) where they are both liable to send a girl like that to his hotel door and have film cameras in the room, the answer is "yes". And if you ask if he's the sort of person who, knowing that there were likely to be cameras in his room covertly filming him, would be smart enough to say "no" when a girl who looked a bit on the young side came to his room, then well, we know that he's the sort of person dumb enough to commit a crime on a phone knowing that there are 12+ different people listening to him.

That's not proof that that ever happened, but it's a credible concern because it's not just that there's a photo floating around of the President kissing a Traci Lords-looking girl on the cheek and some rumors about it; there's actual reason to be concerned, based on things that you can demonstrate about the President's known and provable behavior and who he associates with.

You might think of credible concern in much the way that criminality is considered. If you accidentally run someone over in your car, for example, that is not murder because there was no criminal intent (mens rea). Having a body wrapped around the wheels of a car - despite being real good and undeniable evidence that someone was killed - still doesn't equate to murder, unless you can demonstrate criminal intent. And if the police do believe that you ran the person over purposefully, with an intent to murder, then they need to prove beyond a reasonable doubt that you had such an intent.

Similarly, with "credible concern", we're only lowering the standard on the "body wrapped around the wheels" part of the matter. You still have to demonstrate that the other aspect of the matter - that this is the sort of person to do that thing - is part of the equation and that portion does still need to be proved beyond a reasonable doubt.

Additionally or alternately....

Of course, that sort points to the fundamental issue which is that a person for whom a credible concern could exist, simply, should never become President.

Ultimately, there isn't an actual shortage of people who could or should be President. For every random set of 1,000 people, there are probably a few people who could do the job at a level that everyone would be quite happy with. And so, from that perspective, trashing the President easily wouldn't be a big issue.

But, functionally, it is disruptive to the smooth flow of governance. Whether or not there are lots of good president-in-potentias out there, there are a lot of different ways to be good. A tank and a race car are both highly engineered devices that are very good for their purpose - but with much different goals. You don't want the President getting swapped out every few weeks - or even really, ever.

Putting complete divestiture of all business ties as a requirement for being able to accept your win of the Presidency into the Constitution would be one thing that would help to mitigate the concerns. Financial complications are the most easy way for problems to arise.

But, as I've proposed before, boning up the electoral college and giving them the ability and the mandate to perform a background check on the person - up to and including access to FBI, IRS, etc. records - seems like a thing that could and should be done. Obviously, the college would need to be put under an oath to maintain silence, with civil penalties. But, given that the candidates would have to accept being examined if they wanted to move into consideration for the role, you would expect people like Trump to never apply for the job. There wouldn't be much to keep secret.

Crimes
Fundamentally, some aspects of the job require that you ask people to do things that are generally viewed as bad.

Say what you will, but between being shot by a soldier or being shot by a crook, the general impact on my life is pretty much the same. We say that there's a difference between war and murder, but there is an argument to be made that that's just semantics.

And under that same heading you might have assassinations, kidnappings, using blackmail material against people, etc.

The President is the head of the military and, by that token, he is in essence a professional law-breaker with the right to do evil deeds in the trust that he will use that freedom to serve the greater good.

The government can do things like quarantine people, intern them (granted, that's not got a lot of popular support), force people into hard labor, put people in jail, etc. Ignoring semantics, these could all be considered to be acts of kidnapping.

At some level, the President needs immunity just from the fact that his position is quasi-lawless or, at least, operates under a very different view of legalities from the average mortal.

And then you have concerns that the States don't start inventing laws to charge the President with because they don't like his policy, or whatever.

But, by the same token, it's ludicrous to charge the President with a crime, hold an entire trial over the matter, and then declare him guilty...just to hand him over to a different court, to have the actual criminal trial because you weren't actually holding a criminal trial. (And, as noted, you can't have a criminal trial of the President unless you hold it up to the standards of a criminal court, across the board, including in jury selection.)

Personally, I'm fine with "beyond a reasonable doubt" for crimes but that the question being asked is not, "Did the President commit a crime?" It's whether Congress trusts that this is indeed a real crime and that the authorities have a real and apolitical intention in their request to be allowed to charge the President.

Of course, that hinges on the "a request to charge the President, by the authorities" part.

At the moment, because of Presidential immunity, only the states might be able to charge the President. But that allows the President to run rampant over the Federal system.

(Note: Technically, it's fairly conceivable that the Supreme Court would decide that the US Attorney General can charge the President with a crime, if ever there was one who decided to do so. But, from a practical standpoint, the current setup doesn't really allow for it.)

Ultimately, the Attorney General needs to become a more non-partisan role and get some extra requirements for appointment, similar to the head of the FBI, head of the Fed, etc. For example, give them 10 year terms, require a higher Senate approval vote limit, etc.

There shouldn't be a policy that the AG can't prosecute the President. It should simply be accepted that anyone who could win the role can be trusted to be extremely judicious in what they decide to allow through and what they decide to turn away. And it should be explicitly made clear that the AG is entirely free to charge the President with crimes, while he serves. (But, as said, it will be up to Congress whether they believe that the AG had a real, apolitical intent in bringing it.)

It would, after all, be ludicrous to be in a state where the President of the US was accused by a criminal compatriot of committing genuine "go to jail" crimes, under oath, in a criminal court, and have that be ignored by the authorities.

Nigh-criminality
The President should not be evicted from office because of jaywalking.

On the other hand, if it is discovered that he was skimming some cash off the the top of his charity, that feels like the sort of thing where you can comfortably say that, that sort of person shouldn't be President - regardless that Congress has decided for whatever reason to put such activity below the level of a crime.

See "Failure to fulfill the oath of office".
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Old 11-11-2019, 09:41 AM
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Excellent post, Sage.

Quote:
I somewhat doubt that the Founders really considered this option. They probably never envisioned that someone like Trump could exist and be elected President.
I would like to note that for a country which literally just had a revolution, they showed a remarkable lack of concern of anyone getting elected on a "Make America Britain Again!" campaign promise, and didn't give much thought as to what should be the process to getting such a person out of office should he start selling State secrets to George III. In some ways, this is a remarkable oversight.

In the end, the Founders... being effectively 18th-Century British chaps... effectively determined that since only "gentlemen" would be elected, they would just "know" how to behave. At least that's how it seems to me at times.

Last edited by JohnT; 11-11-2019 at 09:42 AM.
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Old 11-11-2019, 04:06 PM
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I suppose that "beyond a reasonable doubt" is a standard I could be persuaded to support; however, this comes with caveats:
  1. The very concept of "reasonable doubt" is based on a non-negotiable condition that it is to be applied exclusively by REASONABLE people.
  2. It is an objective and non-debatable FACT that anyone who is okay with the America-hating fuckstick occupying the Presidency is NOT a reasonable person.
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Old 11-11-2019, 04:11 PM
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OP, I assume we're talking about impeachment in general, not this specific case, right?

Because there's no doubt that this president did the things he's accused of. The question is whether those actions were impeachable, right? How do you ascribe a standard of proof to whether something is impeachable? It seems like a category error.
  #95  
Old 11-12-2019, 04:45 PM
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Re: Buck Godot


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To this end I would weigh the likelihood that the president committed the act he is accused of multiplied by the damage to the country in allowing someone who committed those acts to remain president, against the damage to the country done by prematurely removing a democratically elected president from power.
That's an interesting approach. How do you measure abstract concepts like "damage to the country"? For my reference, what would you say is about a tie between damage to the country from false conviction versus damage from not convicting when you should have?

And then relevant to the OP, do you take the side that weighs heavier if only by a hair? Or is there a threshold/bias to overcome?

~Max
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Old 11-12-2019, 05:42 PM
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There's what you are allowed to do when making a decision applying the standard, and then there is the issue of what would convince you as an individual in a particular case. If you say, in no case would I be able to find a person guilty if it came down to one person's word against another's, then you are, I think misunderstanding or misapplying or refusing to apply, the correct standard. If you are saying, in response to the present impeachment scenario and to hypotheticals so far proposed that you are not convinced without more, I still think you are likely misunderstanding the standard, but there's nothing that can force you to be convinced. But you should know that you may be cutting the defendant a huge break, and holding the prosecution to an impossible standard.

But, again, a juror is allowed to make that call, as long as there is evidence to support the elements, and the juror is convinced to the required degree.
Well, Sage Rat did a fabulous job in the impeachment thread of pointing out Mr. Trump's character flaws based on previous and existing litigation. I see no reason to exclude those admissions of wrongdoing from "the record" in his impeachment case, and therefore I am quite willing to downgrade Mr. Trump's word should he claim to do the "right thing", contrary to evidence of the opposite. If it is Mr. Trump's word versus a generic civil service officer, the officer prevails.

What I am saying though, in a general criminal context, is that I'm not willing to downgrade one person's word for some reason that I can't articulate. If the defendant's testimony is unimpeachable and the plaintiff's contradictory testimony is unimpeachable, and these testimonies constitute all of the evidence in the case, I will not take a side and therefore the burden of beyond a reasonable doubt has not been met. I am not ruling out character judgements, but there has to be some sort of relevant and articulable flaw or strength before I, the neutral juror, can put one person's word over another.

If none of this is present in a criminal case, because there really isn't anything to go on other than two contradictory but unimpeachable testimonies, then I am holding the prosecution to an impossible standard because in my opinion it is impossible to prove their case.
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Originally Posted by eschrodinger View Post
I did a step in there without showing my work. My apologies for not being clearer, and I suspect it may be one.on.which we disagree. An impeachment is not a criminal trial in many many ways. This is one.of them. Normally, if a person is on trial, no juror could be seated who has a relationship to the defendant of the kinds that the Senators have with the President. I think they are allowed to use their experience as part of their decision, but not everyone will agree.
Actually, I do agree with you on that. And it is different from a criminal jury. But there still has to be some sort of basis for the discrimination, be it in the public record or in experience, and my personal standard is that the reason be relevant and articulable.

If the President told me to my face that he hates me, or if he sent out a tweet that mocks me, I would not use that against him in my judgement (not relevant). If I just dislike the President in general, or get a vibe that he's lying and manipulative, I would not use that against him (not articulable).

I do consider documented admissions of wrongdoing to be a major detriment to the President's credibility, be it in the Trump Foundation settlement last month or in his public response to the Access Hollywood tape. These are both articulable, although the Access Hollywood tape may or may not be relevant unless we are left relying on the President's word alone (eg: 'I had good reasons, trust me they are solid, but it's classified and I can't tell you'). So too are public statements he has made which demonstrably contradict reality, which can only be evidence of ineptitude or malice.
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Originally Posted by eschrodinger View Post
You could strike that bolded part and still have enough for a juror to be allowed to decide the case either way, though. Juries decide cases that way all the time. And you should allow for the possibility that one person could be so convincing, and the other so obviously lying, that you would, too. Otherwise you are applying a standard other than BRD, I think. I mean, haven't you ever seen someone speak and been able to.tell that they are just making up the self-serving stuff they are saying? And have you ever heard someone speak and thought, that just rings true?
I do have those thoughts, however if I cannot articulate the reason, I would not use it in my capacity of juror. To use the language from the Eleventh Circuit, I would hesitate before betting the most important of my own affairs on just a general vibe. If it were beyond a reasonable doubt, I would be able to articulate the reason - for example, this witness is throwing away their career/life savings by testifying against their own company, this other witness has a strong record, this witness doesn't even know the defendant and has nothing to gain, you know, that sort of stuff.
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Originally Posted by eschrodinger View Post
Anyway, it doesn't entirely matter, because in the impeachment there is corroboration, but it also relates to the concept that you've mentioned about having to disprove other possible explanations, which is not legally required (but could be necessary in practice in a particular case). It is not required as part of the BRD standard.
Yes, a standard that requires a demonstrated refutation of all possible explanations is too stringent. I admit that if I have not already.

Upon review I am guilty of equivocation (in post #22), but I'm currently interpreting the "logical" from kenobi65's definition in post #6 as meaning "within reason" or "probable". I'm not going to pin down an exact percentage because it is intentionally fuzzy, but something like aliens dressing up as Clinton and Dole, if possible according to some formal logic, is definitely not a "logical possibility". In other words, beyond a reasonable doubt means that no reasonable exculpatory explanations remain. Where I criticized kenobi65's Wikipedia cite as stepping around the issue, I should have also criticized the legal-dictionary.thefreedictionary.com definition.

~Max

Last edited by Max S.; 11-12-2019 at 05:46 PM. Reason: without hestitation
  #97  
Old 11-13-2019, 06:41 AM
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Right, but in this case, the president definitely did the things he's accused of. The question is whether those are impeachable things, and I'm not sure how you have a beyond-a-reasonable-doubt standard for whether something is impeachable.

If you're trying to keep this thread general, I apologize for trying to get this point addressed.

In the general case, I'd love to have you on my jury. Officer: "He was speeding. Here's my radar evidence." Me: "No I wasn't. I was looking at my speedometer regularly and had my cruise control set." Max S.: "Not guilty."
  #98  
Old 11-14-2019, 02:12 AM
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Originally Posted by Sage Rat View Post
But now, let's entertain the question:

First, let us pretend that there is a reason for the criminal standard to be what it is and for the Presidential standard to be what it is. We will say that these decisions were not arbitrary.

Let's say, for example, that the President commits a crime. He has murdered the First Lady, in front of a whole host of witnesses, and the police have him in handcuffs.

Now should the President go through two criminal trials, for his one crime, or one trial?

The first criminal trial is to lose the Presidency.

He must be provided with an impartial jury of random citizens, since this is a criminal trial. It would not be a true act of justice, after all, if the President was being tried by those who might be prejudiced against him, nor by those who would be prejudiced in his favor.
Well, only one of those trials is before an impartial jury. Either the Senate trial is of the "criminal" standard sans an impartial jury and the post-removal trial has an impartial jury of peers, or the the post-removal trial is in front of a judge only, thus conviction in the Senate removes a right, thus the criminal standard is applicable. I go with the first interpretation.

You could interpret the Sixth Amendment as replacing this second option with two trials but I think that is an unnecessary expansion of the Sixth Amendment, especially since it causes the man to undergo the same trial under the same conditions twice, as you imply.
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Originally Posted by Sage Rat View Post
He must be given all of the chances afforded to him in the Bill of Rights to defend himself. That means, similarly, we must have all the same prosecutorial steps available as are in a criminal trial.

We end up having a start-to-finish criminal trial, because that format is the product of the requirements for a criminal trial as given in the Constitution. If the House does not issue the President a Miranda warning, alongside their articles of impeachment, then the President will be free to go.
Well, I disagree with the premise. The Miranda warning turns on the compulsory nature of police interrogation which simply isn't present in a Senate trial. Things like due process already apply to impeachment.

Quote:
Originally Posted by Sage Rat View Post
And all of this to ask the question: Should we hand the President to the authorities, to be tried for murder (now that we have tried him for murder), or give him the opportunity to - possibly - exceed the Statute of Limitations by continuing to win the Presidency?

And what if the President is pronounced innocent on a technicality, in either the first or second trial? If it happens with the first, then can the President reasonably govern with everyone knowing that he is a callous murderer, taking advantage of the system?
I actually cannot fathom an acquittal on a technicality. The vote is guilty or not guilty and there is no bar to double jeopardy with impeachment.

Also I'm all for a law tolling the filing deadline during time that someone is President.

Quote:
Originally Posted by Sage Rat View Post
All of this is silly.

And that is all assuming that the President has committed a crime - which is not a necessity for impeachment.

Let's say, for example, that everyone simply missed the fact that the President had every intention of going to war with Europe during the campaign. It's not a thing anyone would expect and no one asked; why would you?

It becomes relatively clear that he is ordering the military to do things to provoke a fight with France, Germany, etc. though he incessantly states that "They started it." Even though, clearly, they did not. He refuses to explain the reason for his aggression, denying that it exists, "I love Europe! No one loves Europe more than me!"

And now we have Europe pointing their nuclear weapons at us and there a distinct possibility that we're looking at the end of life on Earth.

There's no way to prove that the President has an intent to murder everyone in Europe, even if it risks everyone in our country and on Earth. There's no motive. He denies it all. All of his personally selected cabinet members contend that he is sane and loves Europe.

Do we just die? We can't vote that this is stupid? Is the Second Amendment - armed rebellion - the only way out because what is plainly obvious to all is still just such an enigma in origin (plus the President can afford the very best legal defense) that you could never prove beyond a shadow of a doubt* the case?
Actually, I believe impeachment is the wrong vehicle for that. Congress should defund or outlaw the President's "aggressions". Definitely not impeachment, because the flipside of this is the population and President wanting to go to war but Congress being the odd branch on the tree.

...I think that made sense. Maybe I should get some sleep before continuing this.

~Max
  #99  
Old 11-14-2019, 09:51 PM
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Originally Posted by RitterSport View Post
Right, but in this case, the president definitely did the things he's accused of. The question is whether those are impeachable things, and I'm not sure how you have a beyond-a-reasonable-doubt standard for whether something is impeachable.
The standard SHOULD be a showing of high crimes etc. The standard really IS whatever pressure any individual senator is subjected to. But I object to the OP premise. Since the Senate sessions are completely political, criminal-trial procedures are irrelevant. Has the Senate announced its trial rules yet? Maybe I missed that.
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