I’m not sure I’m seeing your point here. I certainly acknowledge that not every Senator voted in favor of the decision in 1876 or 2021. But I think every Senator is bound by the decision once the majority votes on it.
Suppose a majority of Senators voted to end filibusters. Let’s say it was a 70-30 vote. That doesn’t mean the thirty Senators who voted against eliminating filibusters would be allowed to continue conducting filibusters because they didn’t agree with the rule and therefore aren’t bound by it.
On the issue of Clinton, you raise a valid point. I said “If a Senator feels a person isn’t guilty of the charges then they can vote to acquit him. But they should not hide behind the false claim that they lack the authority to try the person.” and I stand by that. But I would add that if a Senator feels the charges don’t rise to the level of an impeachable offense then they can vote to acquit the accused, even if they feel he is guilty of the charges.
And I will raise an issue I didn’t mention in my previous post. I spoke of precedents but I’m not certain that concept applies to Senate impeachment trials. Is there a rule of stare decisis or is each Senate free to set up its own rules, even if they contradict a decision made by a past Senate? If that’s the case then the 1876 Senate vote did not bind the 2021 Senate and the current Senators could have voted that post-term impeachments are unconstitutional.
I wasn’t actually talking about what you said. I wrote my post with what a different poster said in mind, but was addressing the general concept.
That said, the point of my post is to say that at least none of the current Senators thought they couldn’t convict, based on the evidence we have from their own actions. I can’t say anything about those in the past, though I do wonder their relevance to the current case.
Honestly Little Nemo, I think the difference between your posts and mine is the difference between what theoretically should happen and what actually happens and in fact the 1876 Belknap trial is a perfect example of it. Even though the Senate voted that a private citizen could be put on trial for crimes committed while in office, fully 1/3 of them voted to acquit, despite admitting Belknap was guilty, specifically because he had resigned from office. Should they have voted guilty under the rules? Yes. But did they? No.
The Senate is very much like a court jury. While they have certain rules they need to abide by their decision cannot be questioned - you cannot even ask them why they voted a certain way. Because of this, is a juror ever really bound to follow the rules of guilt or innocence? Likewise for Senators. There is no way to question their vote so there is no way to bind them to following the rules and you have to trust them to do their job properly. You even give an example of this
But I would add that if a Senator feels the charges don’t rise to the level of an impeachable offense then they can vote to acquit the accused, even if they feel he is guilty of the charges.
The Senate does not decide what is impeachable or not. The House has the sole right to do that. What you are arguing is the impeachment form of jury-nullification. Under the rules if he is guilty of whatever act the House charges him with they need to vote for conviction. So in this case you are saying (and I agree with you) that the Senate is NOT bound by the rules.
Suppose a majority of Senators voted to end filibusters. Let’s say it was a 70-30 vote. That doesn’t mean the thirty Senators who voted against eliminating filibusters would be allowed to continue conducting filibusters because they didn’t agree with the rule and therefore aren’t bound by it.
Completely different beast. A public violation of the rules is known to everyone. As I said above a Senator’s reason vote voting is private so how would you know if he violated any rules with his vote?
And I will raise an issue I didn’t mention in my previous post. I spoke of precedents but I’m not certain that concept applies to Senate impeachment trials. Is there a rule of stare decisis or is each Senate free to set up its own rules, even if they contradict a decision made by a past Senate? If that’s the case then the 1876 Senate vote did not bind the 2021 Senate and the current Senators could have voted that post-term impeachments are unconstitutional.
You raise an interesting parliamentary question. Is the Senate a continuing body or does each session start ex nihilo? The Senate has chosen to view itself as a continuing body and as such the rules carry over from year to year, not only the standing rules but also the rules on impeachment trials.
Thanks for that. With the rush of posts its hard knowing who is replying to whom. That was an open question in the Belknap case and the Senate answered it as yes they can. That would not prevent some dumbass Senator from thinking they couldn’t and if we found out one of them supported delaying the trial because, “You can’t convict him after noon January 20th anywhere on this great Flat Earth that God created 6000 years ago.” it wouldn’t shock me.
An interesting historical note. We all know that Andrew Johnson was acquitted of violating the Tenure of Office Act. That is true but that was that backup charge. The first charge voted on, the one everyone thought was an easy conviction, was the charge of disparaging Congress. Johnson said in a speech that Congress was not the full Congress and could not take legislative action because it did not include the southern (former CSA) states and that to the House was an impeachable offense.
I tend to disagree. If I’m following your argument correctly, you’re saying the House has the sole decision making power over what constitutes an impeachable offense and that the Senate’s role is only to decide if the accuse did or did not commit the offense the House charged him with.
I interpret the text differently.
The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.
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.
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 Constitution describes each body’s role in the impeachment process. But it then defines what constitutes an impeachable offense separately - and it specifies that process includes both impeachment and conviction. So I view the determination as to whether a charge is sufficient to rise to the level of a high crime or misdemeanor is one in which both halves of Congress jointly decide. If the House feels an action isn’t a high crime, then it can decide not to impeach. And if the Senate feels an action isn’t a high crime, then it can decide not to convict.
I think you and I are just using two lines of thought to get to the same place or maybe a subtle difference between our conclusions. I believe that since the minimum punishment is removal from office, an acquittal could be the Senate saying even if the officer is guilty, it is not an offence that warrants removal from office. He was impeached and it was a crime but if you want to define “impeachable offence” as one that the officer deserves removal from office if guilty (and that seems a tautology) then we are in complete agreement.
That’s why I call it jury-nullification. It’s the way of a jury to say the person did commit the crime they were accused of but in this case a conviction is not appropriate. Let’s take President Clinton. Did he commit perjury? Yes. Had other people been convicted of perjury by the Senate and removed? Yes. Therefore was the perjury Clinton committed an impeachable act? Yes. Did his perjury warrant removing the President of the United States (as opposed to a Judge) from office? According to many of the Senators that convicted Judge Claibourne on the same offence, no. So to me it wasn’t the Senate saying it is non-impeachable. It was saying it was not worthy of removal from office.
An interesting point is that several members of Congress questioned whether the Tenure of Office Act even applied to Johnson. The law essentially said the officials who had been jointly appointed by the President and the Senate (with the President nominating them and the Senate confirming them) could not be removed from office solely at the discretion of the President. He needed Senate approval to remove a person from office just as he needed it to appoint a person to office.
But Johnson hadn’t appointed Stanton to the office of Secretary of War; Lincoln had. So Johnson plausibly argued that he hadn’t appointed Stanton and therefore he was not bound to keep him in his position. The law stated officials “shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter”. Some argued that Lincoln’s term didn’t end until March 4, 1869 even though he had died on April 15, 1865. But Johnson supporters argued that Lincoln’s term ended on the day he died and it was now Johnson’s term. (Personally, I feel Johnson had the much stronger argument here. ) So Stanton was not protected by the law after May 15, 1865.
Yes “term” was a key term in the trial. And we all hear how Johnson was acquitted by one vote but a few Senators were willing to make that deciding vote. It fell on Senator Ross from Kansas so the others could look good and vote the party line. Another example of the discepency between how people should vote and how they actually vote.
I quoted the text. It says the Senate tries impeachments. So the Senate is explicitly part of the impeachment process.
The problem is that if we call what the House does impeachment and what the Senate does conviction, it creates more confusion than the distinction is worth. Especially because the Senate often does not convict, as we have seen.
But that doesn’t mean a vote for acquittal mean it’s not a high crime. Let’s take Trump’s abuse of power charge. Is it a high crime. By the classic definition yes. By the modern definition, yes. Was he guilty? Absolutely yes. All 100 Senators agree he did the crime and it was worthy of impeachment. However if we vote guilty then we must remove him from office. Suppose me and 33 of my fellow Senators think, “Well he did it but every other President does the same thing. He was just stupid enough to be caught doing it by people who hate him. It is certainly not worthy of removal and this will scare him into being smarter next time. The trial is punishment enough.” He gets acquitted but the Senate (or the 34 for acquittal) did not say it is not an impeachable act.
There is plenty of precedent for convicting the impeached former official - in fact, during the recent Senate trial the Democrats rattled off a whole bunch of them as part of their presentations.
Nothing “fair” about it - they let a guilty man go.
Yes, pretty much – impeachment as a political procedure, like a filibuster, and not as a constitutional mechanism to protect democratic republican government from abuses or fundamental imbalances of power.
Technically, yes, they can impeach based on whatever they vote for, but that is only because the people who wrote the Constitution didn’t want to get into the weeds of creating a script of binding language that would spell out and restrict what is and isn’t impeachable, knowing they couldn’t possible conceive of all the many scenarios that could lead to political controversy which might invoke that clause. They understood that it was best left unrestricted and up to the judgment of the people of the time.
In turn, that assumes that people who have the power of impeachment will use it judiciously, and not just because they can, and not on the basis of ‘whatever they vote for’ and nothing else. The power of impeachment, along with other powers, privileges, and rights, assumes a degree of common sense, a degree of skepticism and restraint, as well as some moral or legal justification for impeaching, and not strictly to further one party’s political advantage over the other.
. . . while it was true Harris publicly expressed support for the nonprofit and encouraged others to donate to it in summer 2020, she did not say on social media — or via any other public statement — that she herself donated money to the organization.
So it’s true that she supported the Minnesota Freedom Fund, although not with money.
And it’s true that the MFF did post bail for a small number of people arrested during the summer protests. It’s also true that the MFF was posting bail for pre-trial detainees for a long time before the protests. They’ve been around for a few years.
The idea that impeaching a vice president, or anyone else, for supporting in any way an organization that perfectly legally posts bail for people who have been arrested and are awaiting trial and who have been granted bail by the courts is, of course, ridiculous.
This reflects one of the unusual aspects of an impeachment trial; the punishment in automatic in the event of a conviction. In most trials, there is an element of discretion that the judge or judges have in deciding on the punishment.
Ideally, the Senate would have this same option. They would then be able to convict the accused official of the crime - but decide that the conviction does not merit removal from office. Conviction without punishment.
But as the law is written, there’s no option for this. So the Senate would have to acquit the accused in the situation you described in order to avoid the requirement of removal.
