The Trump Impeachment Trial

[Ravenman]

I totally disagree.

Hamilton is clearly talking about wrongdoing against the state or society, which should be considered “POLITICAL” in nature. The only plain reading of this is that the range of offenses he is talking about is broader than just the violation of a particular criminal statute.

After all, if Hamilton was arguing for a narrow definition of high crimes and misdemeanors that was at odds with the definition of the term at the time. He probably wouldn’t have described the offenses as being “POLITICAL” either, in that his description included violations of criminal law and other attacks on society, and instead clearly stated that only punishment for criminal acts are contemplated.

[Snowboarder_Bo]

@UltraVires

.They are close enough for my argument’s purposes. When you have this idea about someone, it is easy to impute the most improper motives possible to them.

Pot, kettle.

[Hamlet]

@UltraVires

They are assertions.

I really don’t understand your point. Certainly the conclusion as to what the President’s motive for withholding the money from Ukraine until they announced an investigation is an assertion. But all the testimony, all the statements, all the facts the hearings established are, indeed, not assertions. Trying to dismiss all the evidence as the facts of the case as “assertions” is patently false (and smacks of desperation to me). All of the evidence: from the timing of the withholding, when it was released, the lack of a single mention of corruption on the phone call, the request for a “favor”, the sending of Guiliani, and a ton of other actual evidence points clearly to his motive and is not, as you pretend, just assertions. There are certainly assertions (such as the conclusion that it was a quid pro quo), but those assertions ARE BASED ON THE ACTUAL EVIDENCE. You simply continue to choose to ignore it.

@UltraVires

I did read it and refuted it. You didn’t respond.

I must have missed it. Here’s what I said on Page 9:

@Hamlet

, for one, am shocked, SHOCKED!, you would agree with Trump’s latest headline chasing attorney. Want to play the Dershowitz v. Dershowitz game?

Dershowitz when it was Clinton: "“It certainly doesn’t have to be a crime. If you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty, you don’t need a technical crime.”

Which is why the words and descriptions of Alexander Hamilton, reported above, are important. They tell you what is required.

Or, we could do a textualist approach. The Impeachment Clause says: “High Crimes AND misdemeanors”. If you believe someone can only be impeached on the basis of crimes, there is no reason whatsoever for the Constitution to include “and misdemeanors”. And, lest we take a tangent into a definition of misdemeanors, I’ll point you to another founder, John Adams, who said: "If an office be granted to hold so long as he behaves himself well in the office, that is an estate for life, unless he lose it for misbehaviour; for it hath an annexed condition to be forfeited upon misdemeanor, and this by law is annexed to all offices, they being trusts; and misdemeanors in an office is a breach of trust.”

And, if your concern for vagueness is so important, it might help to remember that, during the discussion of Impeachment Clause, one founder, George Mason, wanted to add “maladministration” to the list of impeachable offenses. James Madison objected to that language, for the same reason you just did: " “so vague a term [as maladministration] will be equivalent to a tenure during pleasure of the Senate.” So the language was changed to “other high crimes and misdemeanors". which set a standard above “maladministration”, but clearly did not require a crime. Madison said as much when he objected the the term misdemeanors as too vague. Yet it passed and got into the Constitution. Showing, clearly, that crimes are not necessary.

We can also ask Constitutional scholars: "This argument is constitutional nonsense,” Mr. Bowman said. “The almost universal consensus — in Great Britain, in the colonies, in the American states between 1776 and 1787, at the Constitutional Convention and since — has been that criminal conduct is not required for impeachment.”

““They had to go outside the realm of constitutional lawyers and scholars to a criminal defense lawyer to make that argument because no reputable constitutional law expert would do that,”

[Cite to a NY Times article]

Hell, even William Barr said: [the president] “is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the president is not the judge in his own cause."

Then, after you didn’t respond, I asked again on Page 11. I have been unable to locate a post of yours where you responded to my points. Maybe I missed something, though, so could you kindly point out where you think “refuted” them.

[UltraVires]

Further support from former Justice Benjamin Curtis, who dissented in Dred Scott, arguing in the Andrew Johnson impeachment case:

@Justice Curtis

My first position is, that when the Constitution speaks of “treason, bribery, and other high crimes and misdemeanors” it refers to, and includes only, high criminal offenses against the United States, made so by some law of the United States existing when the acts complained of were done; and I say that this is plainly to be inferred from each and every provision of the constitution on the subject of impeachment.

“Treason” and “bribery.” nobody will doubt that these are here designated high crimes and misdemeanors against the United States, made such by the laws of the United States, which the framers of the Constitution knew must be passed in the nature of the Government they were about to create, because these are offenses which strike at the existence of that Government—“other high crimes and misdemeanors.” Noscitur a sociis. High crimes and misdemeanors; so high that they belong in his company with treason and bribery. That is plain on the face of the Constitution in the very first step it takes on the subject of impeachment. "High crimes and misdemeanors; so high that they belong in this company with treason and bribery. That is plain on the face of the Constitution; in the very first step it takes on the subject of impeachment. “High crimes and misdemeanors” against what law? There can be no crime, there can be no misdemeanor without a law, written or unwritten express or implied. There must be some law; otherwise there is no crime. My interpretation of it is that the language “high crimes and misdemeanors” means “offenses against the laws of the United States.” Let us see if the Constitution has not said so.

The first clause of the second section of the second article of the Constitution reads thus: “The President of the United States shall have the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Offenses against the United States" would include “cases of impeachment” and they might be pardoned by the President if they were not excepted. Then cases of impeachment are, according to the express declaration of the Constitution itself, cases of offenses against the United States.

Still, the learned Manager says that this is not a court, and that, whatever may be the character of this body, it is bound by no law. Very different was the understanding of the fathers of the Constitution on this subject.

The next position to which I desire the attention of the Senate is, that there is enough written in the Constitution to prove that this is a court in which a judicial trial is now being carried on. “The Senate of the United States shall have the sole power to try all impeachments.” “When the President is tried the Chief Justice shall preside.” The trial of all crimes, except in case of impeachment, shall be by jury. This, then, is the trial of a crime. You are the triers, presided over by the Chief Justice of the United States in this particular case, and that on the express words of the Constitution. There is also, according to its express words, to be an acquittal or a conviction on this trial for a crime. “No person shall be convicted without the concurrence of two thirds of the members present.” There is also to be judgment in case there shall be a conviction.

“Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office of honor, trust, or profit under the United States.”

Here, then, there is the trial of a crime, a trial by a tribunal designated by the Constitution in place of court and jury, a conviction, if guilt is proved, a judgment on that conviction, a punishment inflicted by the judgment for a crime; and this on the express terms of the Constitution itself. And yet, say the honorable Managers, there is no court to try the crime and no law by which the act is to be judged. The honorable Manager interrupted me to say that he qualified that expression of no law; his expression was “no common or statute law.” Well, when you get out of that field you ar in a limbo, a vacuum, so far as law is concerned, to the best of my knowledge and belief.

I say, them, that it is impossible not to come to the conclusion that the Constitution of the United States has designated impeachable offenses as offenses, that it has provided for the trial of those offenses, that it has established a tribunal for the purpose of trying them, that it has directed the tribunal in case of conviction to pronounce a judgment upon the conviction and inflict a punishment. All this being provided for can it be maintained that this is not a court, or that it is bound by no law? . . .

[Ravenman]

Shame that Republicans couldn’t find anyone to argue that point of view when they went looking for a legal scholar to testify before the House. Justice Curtis being dead, and Dershowitz being an embarrassment.

[Hamlet]

@UltraVires

Further support from former Justice Benjamin Curtis, who dissented in Dred Scott, arguing in the Andrew Johnson impeachment case:

"Professor Dershowitz relied heavily on the argument of Benjamin Curtis, the distinguished ex-Supreme Court Justice, who argued that view to the Senate during President Johnson’s impeachment trial. The problem is that none of the Senators who explained their votes in that trial accepted Justice Curtis’s view. They issued self-styled written “opinions” at the end of the trial, which you can read here at pp. 417-524 of the Supplement to the Congressional Globe. If the weight of authority supported Justice Curtis’s position as Professor Dershowitz and Judge Starr claim, then surely at least one Senator would have accepted that view in 1868. But none did, or at least none said that they did.

Professor Dershowitz invoked Senator James Grimes of Iowa several times in his presentation. Senator Grimes voted to acquit President Johnson. Professor Dershowitz implied that Senator Grimes supported the Curtis argument. But he did not. At pages 423-24 of the Globe, Grimes explained that he did not think that the President’s alleged abuse of power was a high crime and misdemeanor due to the First Amendment’s guarantee of freedom of speech. He did not say that he thought that any abuse of power was invalid as a high crime and misdemeanor. Professor Dershowitz also quoted a comment from Senator William Pitt Fessenden implying that he endorsed Curtis’s position in voting not guilty. But read his opinion at pp. 456-57. He did no such thing. Senator Fessenden instead said that he thought that that a President could be guilty of a high crime and misdemeanor for abusing his office by insulting the Constitution through words alone. He just said President Johnson had not done so.

The Senate is free to adopt Justice Curtis’s arguments today. But this would set a new standard, not apply the one supported by the weight of authority.

From here

[Hamlet]

Instead, maybe we ask Supreme Court Justice Jospeh Story, who wrote in 1833:

“our fathers adopted a Constitution under which official malfeasance and nonfeasance and, in some cases, misfeasance, may be the subject of impeachment, although not made criminal by act of Congress, or so recognized by the common law of England, or of any State of the Union.”

[Fiddle_Peghead]

@UltraVires

Further support from former Justice Benjamin Curtis, who dissented in Dred Scott, arguing in the Andrew Johnson impeachment case:

Alan Dershowitz pretends that Curtis is the only one whoever had a say on the matter. I do not discount what Curtis says out of hand, but if AD was truly serious about his claim that he is only involved in the trial because he wants to protect the Constitution, and not to get Trump acquitted, he would have brought up dissenting opinions. Dersh embarrassed himself, and the sad thing is that he doesn’t even seem to know it.

And on a side note, I see you are echoing that lawyer thing AD did, where you drop in the irrelevant fact about Curtis’ opinion in the Dred Scott case, as if once a person does one thing that is unquestionably correct, he can’t do something else that isn’t.

ETA: To reiterate, Dershowitz could have written a book or gone on FOX to make his case, if he were truly only interested in protecting the Constitution.

[Hamlet]

Or we could ask Senator William Blount, Judge John Pickering, or Judge Chase what the founders thought was impeachable. They were all impeached (in 1797 and 1804 when the founders were still around) without having had committed crimes.

[Hamlet]

Or we could ask the House of Representatives, which does the impeaching. Their practice manual notes: " In drawing up articles of impeachment, the House has placed little emphasis on criminal conduct. Less than one-third of all the articles the House has adopted have explicitly charged the violation of a criminal statute or used the word criminal'' or crime’’ to describe the conduct alleged. Much more common in the articles are allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions". From here

[UltraVires]

The attacks on Dershowitz are amazing. He admitted that he was going against the weight of other constitutional scholars. He admitted it. I posted Curtis not to say that since he said it, it is the word of God. I posted it for his arguments and simply stated his Dred Scott opinion lest it be said that he was a racist shill for Andrew Johnson.

Disagree with the argument if you want, but when you have the word “offense” in a document discussion a trial, I think it is pretty clear that means a criminal offense and not a personal indignity.

Curtis’ arguments are apt. The text of the Constitution: “other high crimes or misdemeanors.”
It says crime right in it! A misdemeanor is also a crime. If it is not the criminal law we are referring to, then what law does a person infringe upon?

Every reference in the Constitution and in Federalist 65 has the underlying assumption that it contains a crime, otherwise, why the discussion of pardons and followup criminal trials?

Dersh’s argument is the only one that properly limits an impeachment to something tangible. The counterarguments do not ands invites an open ended “we have the votes” standardless type of impeachment. If the GOP had the votes, would it be legitimate under this view to impeach a president for the “high misdemeanor” of being a Democrat? Say the rationale is that being a Democrat shows misconduct in that they want a socialist welfare state.

Is that legitimate? I’m not asking if you agree with the article of impeachment, but would you agree that if the GOP had the votes that such an impeachment would be legitimate? If not, then why not? You cannot simply say that Dems are good and GOP bad, because now you are arguing the merits.

I am saying that the Constitution did not provide for such an impeachment.

[drad_dog]

@UltraVires

The attacks on Dershowitz are amazing. He admitted that he was going against the weight of other constitutional scholars. He admitted it. I posted Curtis not to say that since he said it, it is the word of God. I posted it for his arguments and simply stated his Dred Scott opinion lest it be said that he was a racist shill for Andrew Johnson.

Disagree with the argument if you want, but when you have the word “offense” in a document discussion a trial, I think it is pretty clear that means a criminal offense and not a personal indignity.

Curtis’ arguments are apt. The text of the Constitution: “other high crimes or misdemeanors.”
It says crime right in it! A misdemeanor is also a crime. If it is not the criminal law we are referring to, then what law does a person infringe upon?

Every reference in the Constitution and in Federalist 65 has the underlying assumption that it contains a crime, otherwise, why the discussion of pardons and followup criminal trials?

Dersh’s argument is the only one that properly limits an impeachment to something tangible. The counterarguments do not ands invites an open ended “we have the votes” standardless type of impeachment. **If the GOP had the votes, would it be legitimate under this view to impeach a president for the “high misdemeanor” of being a Democrat? ** Say the rationale is that being a Democrat shows misconduct in that they want a socialist welfare state.

Is that legitimate? I’m not asking if you agree with the article of impeachment, but would you agree that if the GOP had the votes that such an impeachment would be legitimate? If not, then why not? You cannot simply say that Dems are good and GOP bad, because now you are arguing the merits.

I am saying that the Constitution did not provide for such an impeachment.

"If the GOP had the votes, would it be legitimate under this view to impeach a president for the “high misdemeanor” of being a Democrat? "

Apples and oranges. As of this week the repubs cannot launch any legit investigation of anyone ever again.

If you are on the right you will need a whole other party to take over, and if it has the same people in it, that won’t work either.

[iiandyiiii]

UltraVires,

Just to be clear (borrowing from steronz in another thread):

1. The president can ask a foreign country to investigate a US citizen in order to receive congressionally approved aid.

2. The investigation can personally benefit the president.

3. The subject of the investigation need not have actually done anything wrong, as long as the president really deep down thinks they did.

4. The subject of the investigation is not subject to the protections afforded to suspects and criminal defendants per the US constitution.

That’s your position?

[Sage_Rat]

@UltraVires

Tell me if this is a fair paraphrase: The people are too stupid to elect their own leaders. They need the overarching power and guidance of their betters on the left. However, at this point in time, we should preserve democracy even though it gives us short term bad things in the hopes that the betters on the left can convince the rubes on the right of the superiority of the left. The rubes get a little time to come around but this is possibly the only free-bee. But next time, maybe not.

I’m not on the left, said that it’s just luck of the draw which side happened to hit the jackpot before the other in the very text that you quoted, and was just as dismissive of CNN as I was of Fox and of their customers.

It would be difficult to come up with a description less connected to what was said than what you wrote.

If you didn’t read it, then that’s perhaps fair. If you did read it, then I’d say that you seem to have your partisan goggles turned up past 11, and that’s not a healthy way of interacting with the world. There is not a Lefty Man living under your bed nor the Librul Monster hiding in your closet, ready to get you in the middle of the night. If your brain is that busy looking for lefties out to fool you with their rhetoric, that you see them in every shadow and milkshake, then you might want to take some time off from politics.

IMHO

[Fiddle_Peghead]

@Hamlet

Or we could ask Senator William Blount, Judge John Pickering, or Judge Chase what the founders thought was impeachable. They were all impeached (in 1797 and 1804 when the founders were still around) without having had committed crimes.

Surely. Dershowitz could have presented their opinions. Not being a mind-reader, I cannot know what was in his head. I do know that he has said he thinks of himself as a lawyer of last resort (see his Wiki page):

He sees himself as a “lawyer of last resort”—someone to turn to when the defendant has few other legal options—and takes those cases that are what he calls “the most challenging, the most difficult and precedent-setting cases”

This suggests to me that he just likes a good legal challenge, and I think he certainly likes to be in the spotlight. Thus, there was no way in hell that when he was asked to join the Trump team, he was going to miss a chance to be involved in the biggest legal/political story of the century so far.

A really sad thing to me is that I’ve heard him make what seem to be to be good arguments related to impeachment. Last night speaking to Chris Cuomo, the idea came up that while surely Trump will be acquitted, he will still be remembered as one who was impeached. And the fact that witnesses are NOT required in the impeachment phase, means that the House could just not call them, thus leaving the “impeachee” with no way to defend himself during that phase. Dershowitz said that the impeachment process in this respect was unfair to Trump, Clinton, Nixon, and even Johnson. IANAL, so maybe this argument in the end has no merit, but it does suggest to me that Dershowitz has relevant things to say.

On the one hand, I want to respect him for his ideas, but in the end cannot get past his nonsensical and dangerous arguments. I wish I could ask him the following question:

“Suppose a president is counting on the Senate to pass a bill that has already been passed by the House, so that he can then sign it into law. The president REALLY believes this would be in the best interests of the country, yet the majority leader is blocking the bill from coming to the Senate floor. By your logic, Mr. Dershowitz, since any president acting in the interests of the country cannot be impeached for what he does in this respect, would it not be okay for the president to have the majority leader murdered, if the president is pretty sure that his successor will allow the bill to reach the floor and it will pass?”

[Fiddle_Peghead]

@UltraVires

The attacks on Dershowitz are amazing. He admitted that he was going against the weight of other constitutional scholars. He admitted it. I posted Curtis not to say that since he said it, it is the word of God. I posted it for his arguments and simply stated his Dred Scott opinion lest it be said that he was a racist shill for Andrew Johnson.

Just to make sure you get my point. The Curtis opinion has merit, and should be heard. My attack on Dershowitz is not that he shouldn’t have raised it, but that he said that he was only interested in protecting that Constitution, and therefore the correct forum was not this trial, acting as a defense attorney for Trump. I am very well aware of the fact that Dershowitz says he wasn’t acting as Trump’s defense attorney, but that is pure bullshit.

[Ravenman]

@UltraVires

The attacks on Dershowitz are amazing. He admitted that he was going against the weight of other constitutional scholars. He admitted it.

It’s almost like nobody respects lawyers who say things that aren’t supported by anything for the sole purpose of benefitting their client! What the hell is wrong with everyone?!?!?

[Fiddle_Peghead]

@UltraVires

They are close enough for my argument’s purposes. When you have this idea about someone, it is easy to impute the most improper motives possible to them.

Okay, but this doesn’t address my point: saying someone wants Trump impeached just because they hate him is a cheap ploy. It’s very easy to do that, but it gets a bit harder when you have to deal with actual, justifiable reasons he should be. So tell me, exactly who in this thread are you accusing of wanting Trump impeached simply because they hate him?

[Sherrerd]

@Max_S

Every article I can find says the investigation into Burisma was “dormant” or “slow walked” or “not being pursued”, or similar language.

Is it your position that “slow walked” is synonymous with “not being pursued”?

The news sources I’ve looked at suggest that the problem many had with Shokin was not that he was pursuing investigations slowly. The problem was that he was not pursuing them at all. (And of course Bondi made the opposite claim: that Shokin was pursuing investigations into Burisma.)

@Max_S

The misleading part of what Pam Bondi said (according to you) is that she gave the impression that Shokin was actively pursuing an investigation into Bursima, when he was in fact sitting on the investigation. It is misleading, and not a lie, because she did not explicitly say Shokin was actively pursuing an investigation.

To deliberately mislead is to lie. Assertions to the contrary are mere sophistry.

@Left_Hand_of_Dorkness

Something I was thinking about, which may be real dumb, or impossible: what if Democrats vote “present”?

This is an impeachment trial without witnesses, where the Republicans are open about working closely with the president to coordinate strategy, where the president’s lawyers are repeatedly making unambiguously false claims without any pushback from the presiding officer, where a key Senator has said that he believes the president used his position to encourage foreign interference in a US election in order to sabotage his enemy but also says this isn’t impeachable conduct.

Would it be possible, and reasonable, and politically savvy, for Democrats to refuse to dignify Wednesday’s vote? For them to say the Senate hasn’t reached the point of holding a real vote, so they can’t cast one? For them to vote “present” instead of “aye”?

This is an intriguing idea. A short period of research fails to offer a definitive answer: I searched “United States Senate” and “vote present.” I see examples in the news of “present” votes happening in the House, but not in the Senate.

There is an answer. (But I need to put in more time to find it, apparently.)

[drad_dog]

@drad_dog

The defense of dt is about “You don’t know what he was thinking”?

Implying “We must atribute innocence to an act if we can’t read the perpetrators mind”

What legal principle is that?

Yamiche Alcindor (That was Kareems last name btw) just said that the mixed motive excuse was critical for GOP senators to vote on.

I have never even heard of it.