June 1, 2019

"So no one should express partisan certainty regarding President Trump’s suggestion that the Supreme Court might well decide that impeaching a president without evidence of high crimes and misdemeanors is unconstitutional."

Writes Alan Dershowitz, surprising me (and I taught the constitutional law relating to impeachment for many years). He writes:
Two former, well-respected justices of the Supreme Court first suggested that the judiciary may indeed have a role in reining in Congress were it to exceed its constitutional authority. Justice Byron White, a John F. Kennedy appointee, put it this way:

"Finally, as applied to the special case of the President, the majority argument merely points out that, were the Senate to convict the President without any kind of trial, a Constitutional crisis might well result. It hardly follows that the Court ought to refrain from upholding the Constitution in all impeachment cases. Nor does it follow that, in cases of presidential impeachment, the Justices ought to abandon their constitutional responsibility because the Senate has precipitated a crisis."

Justice David Souter, a George H. W. Bush-appointee, echoed his predecessor: “If the Senate were to act in a manner seriously threatening the integrity of its results … judicial interference might well be appropriate.”

It is not too much of a stretch from the kind of constitutional crises imagined by these learned justices to a crisis caused by a Congress that impeached a president without evidence of “high crimes and misdemeanors.” The president is not above the law, but neither is Congress, whose members take an oath to support, not subvert, the Constitution. And that Constitution does not authorize impeachment for anything short of high crimes and misdemeanors.
Here's the case he's talking about Nixon v. United States. — about a federal judge named Nixon who challenged the procedure the Senate used to convict him. All of the Justices rejected Nixon's attempted appeal to the judiciary. The Souter and White opinions were concurring opinions. The majority opinion written by Chief Justice Rehnquist (and joined by Stevens, O'Connor, Scalia, Kennedy, and Thomas) stressed the "textually demonstrable commitment" of the issue to the Senate, which is given the "sole Power to try all Impeachments." (The House is given "the sole Power of Impeachment.") Even though that case was about a judge, the Court took into account the special need for finality that would exist in the case of a President:
[O]pening the door of judicial review to the procedures used by the Senate in trying impeachments would "expose the political life of the country to months, or perhaps years, of chaos."... This lack of finality would manifest itself most dramatically if the President were impeached. The legitimacy of any successor, and hence his effectiveness, would be impaired severely, not merely while the judicial process was running its course, but during any retrial that a differently constituted Senate might conduct if its first judgment of conviction were invalidated. 
Now, I take Dershowitz seriously, but it's a question of how to take him seriously. He's not talking while there's any actual proceeding in the House or the Senate, certainly not one that's reached a conclusion creating an interest in finality and the avoidance of chaos.

Dershowitz is participating in what is only political dialogue, and he's criticizing expressions of partisan certainty about what the law is.

We're all just talking about impeachment, and that's what Dershowitz is doing too. If the question is Is there any way that the courts could get involved? and other lawyers are going on shows and writing op-eds to say, No, there's no way at all, the Supreme Court shut that down decisively in 1993 in Nixon v. United States, there's a place in this chattery dialogue for a lawyer to say, Oh, but there is a way.

By all means, get Dershowitz on your TV show if you can. Have him yell at the partisan certainty mongers and have them yell back at him. It's all theater. And you know as well as I do and Nancy Pelosi does that there isn't going to be a damned impeachment.

168 comments:

Mark said...

There are some things on which the judiciary gets NO say. And that includes that high court which thinks that its mere title -- "supreme" -- is descriptive of its place in the universe.

Gahrie said...

there isn't going to be a damned impeachment.

I'm not so sure. The Democrats are crazy enough to do it. There'll never be a conviction though.

EDH said...

The way I read Trump's comments and Dershowitz's article, they are talking not about the court overturning a Senate conviction, as in Nixon v US, but ruling on the sufficiency of the evidence (probable cause, if you will) in the House vote.

President Trump has said that if the House were to impeach him despite his not having committed “high crimes and misdemeanors,” he might seek review of such an unconstitutional action in the Supreme Court. On April 24, he tweeted that if “the partisan Dems ever tried to Impeach, I would first head to the U.S. Supreme Court … Not only are there no 'High Crimes and Misdemeanors,' there are no Crimes by me at all.”

Ken B said...

I am unclear what surprised you.

FWIW I see Dershowitz as simply countering the implicit idea that many have that, “hey we can just impeach him for whatever reason we want”. He is pointing out that no, there are requirements, and they cannot be so airily dismissed. People cited a case they think is a get out of jail free card, and he is correcting them.

EDH said...

Trump would prefer to expose the lawlessness of the House Democrats in the Supreme Court, and not rely on an acquittal vote of the Republican Senate that can be viewed as partisan.

Michael K said...

I'm not so sure. The Democrats are crazy enough to do it. There'll never be a conviction though.

I have read somewhere that McConnell has said he would not allow an impeachment trial.

How would this work ? Let's say Nadler and Schiff get a majority to vote impeachment. How much of a trial is required ?

What if McConnell called the question and held a vote without a trial ? The Chief Justice presides, as I understand it.

Would he allow such a vote without any hearing ?

Ken B said...

I think an impeachment would be clarifying. I would also enjoy seeing AOC and Ilhan Omar as House Managers in the senate trial, but maybe that is asking for too much.

Ken B said...

Michael K
That would be the obverse case wouldn’t it? The senate would have a responsibility to have a trial and let the house manager — hopefully AOC — present it.

rcocean said...

I can see how the SCOTUS could get involved. Constitution requires "High crimes and misdemeanors" and Trump could say it doesn't meet that standard and appeal to the SCOTUS. But once it gets to the Senate? If the Senate convicts by 2/3 and the POTUS appeals to SCOTUS? Nope.

BTW, is there any special reason the House Republican leadership are saying nothing? Or is it just there usual cowardice?

Francisco D said...

What if McConnell called the question and held a vote without a trial ? The Chief Justice presides, as I understand it.

It seems more appropriate that the prosecution presents its case and McConnell then asks John Roberts for a summary dismissal for lack of evidence.

I wonder if malicious prosecution statutes apply in this case.

Amadeus 48 said...

Interesting discussion.

I had thought that this was so clearly a political question that SCOTUS could have no role other than 1. to provide the Chief Justice to preside, and 2. to say, "This is a political decision. Get out of here."

But there is always room for lawyers. I think Dershowitz is explicating a more general rule: to a guy with a hammer, everything looks like a nail.

Big Mike said...

@Gahrie, some Democrats may be crazy enough to try it. The House of Representatives has 435 members, so impeachment requires 218 votes. The Democrats hold 235 seats, BUT!, the moderate “Blue Dog” Democrat caucus has 24 members. That leaves Pelosi and Hoyer with 211 votes, plus Amash gives them 212. So they need to get at least six Blue Dogs to do what they did in 2010 and put party over their constituents — and their own re-election chances. I think Pelosi is not pushing impeachment because she’s not sure impeachment will win.

Michael The Magnificent said...

"Who told thee that?" cried Ahab; then pausing, "Aye, Starbuck; aye, my hearties all round; it was Moby Dick that dismasted me; Moby Dick that brought me to this dead stump I stand on now. Aye, aye," he shouted with a terrific, loud, animal sob, like that of a heart-stricken moose; "Aye, aye! it was that accursed white whale that razeed me; made a poor pegging lubber of me for ever and a day!" Then tossing both arms, with measureless imprecations he shouted out: "Aye, aye! and I’ll chase him round Good Hope, and round the Horn, and round the Norway Maelstrom, and round perdition’s flames before I give him up. And this is what ye have shipped for, men! to chase that white whale on both sides of land, and over all sides of earth, till he spouts black blood and rolls fin out. What say ye, men, will ye splice hands on it, now? I think ye do look brave."

Ann Althouse said...

"I am unclear what surprised you."

Because I've spent scores of hours reading, thinking about, and teaching Nixon v. United States.

Ann Althouse said...

Given Nixon v. United States, which read the "sole power to try" provision of Article I to mean that the Senate has the sole power to decide what constitutes a trial (and the courts have no place disagreeing about that and saying that using a committee wasn't a Senate trial), I think it's a very clear inference that the "sole power to impeach" includes the power to determine what the grounds of impeachment are, including how to apply the language "high crimes and misdemeanors." There's a question of interpreting the Constitution, but the Constitution itself, by its text, has given that question of interpretation to a branch of government other than the judiciary. That's what's called the "political question doctrine" (a political branch of government has been designated by the Constitution to say what this provision of the Constitution means).

Ann Althouse said...

I think I have read and taught Nixon v. United States about 40 times. It came up in 2 course that I taught. I would have taught it even more times if it had come out in 1983 rather than 1993.

Ann Althouse said...

By the way, it's the liberal justices who've leaned toward letting the courts decide these things and resisted the political question doctrine, so the Court with its solid conservative majority should be MORE likely to find a political question.

And the BIGGEST political question doctrine issue these days is political gerrymandering, so I wouldn't expect the conservatives to look for a chance to weaken that doctrine!

SDaly said...

I haven't studied it, but from your analysis, Althouse, what legal authority does the Chief Justice have in the trial of a sitting President? He is granted the office of presiding over the Senate for such a trial. Is that just a figurehead role, or does he retain judicial power?

wwww said...

why is this a discussion? This has been done before. The House has its role, the Senate has its role. They are specific roles & the House and Senate each has a specific role. There is precedent: Andrew Johnson, William Clinton. We know how it works. Removal through these processes has never been done, and, is, extremely unlikely

Everyone knows a vote will fail in the Senate; McConnell wouldn't allow a vote. RE: Nixon. the voting populace was MUCH less partisan. The days are gone where a President can win a landslide election. Nowadays, nothing moves a large % on each side - I mean nothing -- the economy, scandal, nothing will move the partisans.

Andrew Johnson: Impeachment and removal is a political process.

Freder Frederson said...

So is Dershowitz also saying that if the Senate refused to remove the president from office, or if they ignored the impeachment, that the Supreme Court could review that?

Narayanan said...

The discussion may need some clarity:

I propose equate Impeachment = Indictment of President by House of Representatives.

Even if it is For eating Ham Sandwich on Fifth Avenue when others are eating pate.

SDaly said...

It seems to me that the Chief Justice can claim as much power as he can get away with (without risking impeachment himself). There's no reason why the Senate has to agree with the House's interpretation of "other high Crimes and Misdemeanors" and if the Chief Justice is, independently appointed by the Constitution as presiding over the trial, then Congress cannot by statute diminish that power. If the impeachment is clearly nothing more than a political stunt, I could see a deal whereby McConnell works out a deal that Trump moves for dismissal and the CJ grants it.

Narayanan said...

With Chief Justice presiding two branches outweigh the Executive.

Unless he sets aside the "Jury verdict."

I don't see anybody of such stature today.

wwww said...

"I propose equate Impeachment = Indictment of President by House of Representatives."

I agree, but some words have become twisted in common usage, to the point they have departed from their original meaning. Impeachment for Americans means removal. (see, for example, "liberal." People of other commonwealth countries get confused because the word has so far departed from its original meaning.)

But, yeah, this is the actual definition. & no, SCOTUS has no constitutional role because the house has "sole power." & There is precedent with Andrew Johnson. Anyways, cable news talks about all sorts of stuff that isn't relevant to the real world, and this is one of them. McConnell won't remove; Pelosi is unlikely to impeach because it is not in her political interest.

At the federal level, Article I, Section 2, Clause 5 of the Constitution grants to the House of Representatives "the sole power of impeachment", and Article I, Section 3, Clause 6 grants to the Senate "the sole Power to try all Impeachments".

Otto said...

Atta girl Ann, now you are smoking!
I take it from what you said that the there is no required standard for high crimes or misdemeanors for the House to start impeachment proceedings in our constitution. If so i find that odd. Essentially you indict a ham sandwich.

Hagar said...

John Marshall successfully added several things to the Constitution by lengthy discourses discussing all available options and concluding that if the system was to work, his interpretation of the Constitution in the case before the Court had to be the right one.
And everybody, or almost so, nodded and agreed that Mr. Marshall was right.

SDaly said...

With Chief Justice presiding two branches outweigh the Executive.

I don't think so, if he "presides" over the Senate for an impeachment of the President, he is not necessarily giving voice to the Judicial branch. The framers wanted someone other than an elected members of the legislature to "preside" over the trial of a President (unlike every other impeachment). To me, that means the CJ has real power, but I haven't reviewed the historical documents on why this procedure was adopted.

Lucien said...

The Congress is the only branch empowered to remove members of the other branches (and its own). Given the overall constitutional theme of checks and balances, Congress could have to much power if it could impeach and convict for purely political reasons. So a requirement of commission of high crimes or misdemeanors makes sense as limit on congressional power. To have teeth, such a limit must be enforceable by one of the other coequal branches.

Narayanan said...

..I have read somewhere that McConnell has said he would not allow an impeachment trial...

Hello, Pelican Brief scenario.

Bilwick said...

I'm still waiting to hear what impeachable offenses Trump has committed. If "I don't like his policies" or simply "I don't like the guy" or "My candidate lost the election" is an impeachable offenses, those of us in the pro-freedom camp should have been allowed to impeach Clinton or Red Diaper Barry.

Michael K said...

The senate would have a responsibility to have a trial and let the house manager — hopefully AOC — present it.

That is why I asked the questions. How much of a trial? Do the Democrats get to spend a month droning on about "Orange Man Bad?"

Can McConnell object ?

Frankly, I think the loonies will have trouble getting enough Democrats with survival instincts to vote with them. I assume Amash will be the only GOP vote,

Michael K said...

Congress could have to much power if it could impeach and convict for purely political reasons.

That was what the Johnson impeachment was about.

The Tenure in Office Act was unConstitutional.

Narayanan said...

Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.

So says John Adams.

History has proven it.

He won't have to eat his words.

Francisco D said...

So is Dershowitz also saying that if the Senate refused to remove the president from office, or if they ignored the impeachment, that the Supreme Court could review that?

Mitch McConnell is a pragmatic and procedure-savvy guy who doesn't seem to overthink things. There seems to be a lot of overthinking on this issue. It seems pretty simple to me.

If Trump is impeached, McConnell will have a trial with John Roberts presiding. If Roberts does not issue a summary dismissal for lack of evidence, then McConnell will use the forum to trumpet the illegalities in the Russian Hoax and FISC applications.

He knows the Senate will not convict, even if Trump were a Democrat. He will not risk SCOTUS action by ignoring the impeachment.

Original Mike said...

"Impeachment for Americans means removal."

News to me (an American).

SDaly said...

Narayanan -

I agree with you. If it reaches the point where these questions need to be formally answered, the answer doesn't matter because we are finished.

Narayanan said...

By the way: religious = bound to principle.

From re + ligere = To bind.

No god(s) or theism.

Kevin said...

Would he allow such a vote without any hearing ?

The hearing would have occurred during the House debate.

Having a partisan vote to impeach without evidence of a crime, McConnell can just immediately move to a vote to dismiss.

Zach said...

I hate these hypotheticals.

An impeachment process which results in the removal of a president would be a completely horrible experience. In many, many countries a contested impeachment is one act in a civil war or general societal collapse. Think of the English Civil War, or Venzuela today.

The idea that someone would unleash that whirlwind as a tactic -- an impeachment without a crime, a trial without a trial -- is just too awful to contemplate.

wwww said...

Can McConnell object ?

He can object as an American citizen. He can object as a political statement. But it has no constitutional force. As Senate Majority Leader he has no power in the House.

Michael K said...

Having a partisan vote to impeach without evidence of a crime, McConnell can just immediately move to a vote to dismiss.

That is my question. The House debate would be the equivalent of a Grand Jury hearing, ending in an indictment.

Is the Senate required to conduct a trial or could the matter be dismissed?

Michael K said...

But it has no constitutional force. As Senate Majority Leader he has no power in the House.

Missed the point, The Senate is the trial court,

steve uhr said...

Isn’t the issue sort of moot since there is evidence both of collusion and obstruction. Perhaps not enough to meet the criminal standard of beyond reasonable doubt, but that isn’t the burden in impeachment cases. The Court at most will look at whether there is a factual basis for the charges. The Court wont become the fact finder.

And don’t ask me what the evidence is. Read the report. It’s all there.

And remember Dershowitz is a criminal defense lawyer. He has a pro-criminal bias. He represented OJ among my other v ry bad people

wwww said...

The idea that someone would unleash that whirlwind as a tactic

It's been done before; it'll be done again. The country did not collapse in the 1990s. It's a political process for which the Constitution allows. The country is stronger then that. The "there's gonna be a civil war" stuff annoys me. No there's not. People are going to have BBQ and go to the lake this summer.

In fact, there's not going to be an impeachment. It's a bunch of drama over nothing. But if there was an impeachment in the House, it would look like Clinton in the 90s. A bunch of news coverage, and the Senate does not convict. Whatever.

Francisco D said...

And don’t ask me what the evidence is. Read the report. It’s all there.

Steve,

If it is all there, why don't you tell us what it is?

wwww said...

Missed the point, The Senate is the trial court,

No, I understood the point. The Senate is the trial court but it has no force of power in the House. It would be a violation of the separation of powers. The House has sole authority to impeach == meaning to indict. DAs can drone on as long as they want in front of grand juries. McConnell has no Constitutional power over the "indictment" process. It's not the trial process, it's the indictment process. They can talk about it, just as the DA can in front of a Grand Jury, for as long as they want.

wwww said...

But I wouldn't be concerned about it It's the summer. No one is watching cable news aside from partisans who are not going to change their minds.

wwww said...


"Isn’t the issue sort of moot since there is evidence both of collusion and obstruction."

It's moot because there's SCOTUS precedent. see the case Althouse discusses in her post.

Yancey Ward said...

It is all hypothetical, and I am about 99.9% certain the court would not involve itself on Trump's behalf as described in Trump's tweet. On just purely logical grounds, it is far more likely that the Democrats would be the ones to go to court if McConnell, as he has threatened, refuses to hold an an actual trial and schedules a vote for immediate acquittal, and I think the Democrats would definitely have significant non-zero odds of getting this case heard and decided in their favor, at least up to the DC Appeals court level.

cubanbob said...

I for one want the the House Democrats to impeach Trump. The Senate trial will be wonderful entertainment and if I am correct, the defense can subpoena any number of witnesses to testify in the proceedings. I relish the prospect of former presidents Clinton and Obama testifying to their roles in this affair under the pains of perjury. Followed by a boatload of former Obama Administration officials and DNC officials. A question for Althouse, could Trump's defense team call to the witness stand current Democrat members of the House and Senate for testimony on their roles in ginning up this debacle?

Narayanan said...

..To me, that means the CJ has real power,..

No doubt.

Under Article Three, the judicial branch consists of the Supreme Court of the United States, as well as lower courts created by Congress

Even if the number of Justices is not specifed, meaningful provision implies one at least.

Which is why I say Judicial branch has skin in the game.

Zach said...

Kudos to Pelosi for keeping a rein on this, by the way.

I think the real problem is that people are seeing longshot bids at total victory as strong moves when in fact they're incredibly weak. It's letting irresponsible people take what they want with no regards for the consequences for everyone else.

The strong move is to focus attention on actual misconduct and actual scandals. Some bad actors will be removed, and people will trust you with more power in the future.

Roy Lofquist said...

Dear Ms. Althouse,

A question of law: I seem to remember that in interpreting a statute that prior terms and definitions define the scope of subsequent provisions. Thus, in II.4 "Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." it would appear that Treason and Bribery, very serious offenses, would require that the charges against the defendant be of a similar nature.

McConnell has nothing to do with it. The Vice President is the presiding officer of the Senate.

Yancey Ward said...

"could Trump's defense team call to the witness stand current Democrat members of the House and Senate for testimony on their roles in ginning up this debacle"

He could absolutely call them as witnesses. Whether or not they can be compelled to appear is another question, though.

Narayanan said...

Law professors and scholars are punching inside their paper bags.

This discussion needs the perspective of Free Citizen not Subject.

Original Mike said...

Blogger steve uhr said..."Isn’t the issue sort of moot since there is evidence both of collusion and obstruction."

Bullshit. You people are trying to take down a sitting President, only a year before a scheduled election, because you don't like him. I hope wwww is right that "The country is stronger then that." If it is, it will because of the patriotism and forbearance of the people you perceive to be your enemies.

Narayanan said...

?Whether or not they can be compelled to appear is another question, though.?

Surely the entire House will be in the gallery. Do you doubt it?

Won't House Managers have the onus of producing witness subject to cross examination?

Yancey Ward said...

"Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

This construction has always puzzled me a bit. Does "high" modify both of the following nouns? Further, is "Treason" an example of a "high Crime", and "Bribery" an example of a "high Misdemeanor"?

Yancey Ward said...

I don't think the House was in the gallery in 1998, and you still have to have the ability to compel appearance, or compel the House to compel the members, and I don't see where that power comes from.

Zach said...

The country did not collapse in the 1990s. It's a political process for which the Constitution allows. The country is stronger then that. The "there's gonna be a civil war" stuff annoys me.

The Clinton Impeachment ended up sputtering out. He got a trial, and the opposition party decided they didn't want to go through with it. It was still a weak move in retrospect, showing that Gingrich didn't have control of his caucus.

I also dislike loose civil war talk. But come on, we are talking about a forced removal of the executive for no good reason, without a societal consensus that he has to go. Civil wars absolutely do result from that scenario. In fact, name me one civil war that doesn't involve that.

Impeachment is not a political tactic. It should not be used in disputed cases. In a functioning democracy, there should be a strong presumption that the decision of the voters is binding.

Charlie Currie said...
This comment has been removed by the author.
Charlie Currie said...

I'm certain there's something unwritten in the 10th amendment that will require the SC to override a Senate acquittal.

Because, Orange Man Bad.

Narayanan said...

!On just purely logical grounds, it is far more likely that the Democrats would be the ones to go to court!

Address the Question of proper venue (and standing)?

Zach said...

I tend to take the position that high crimes and misdemeanors mean whatever Congress says it means, because I also take the position that Congress should not invoke those powers unless there's overwhelming evidence that the President has to go.

The Clinton impeachment was a mistake. He was guilty of the things they accused him of, but it turned out that the country wasn't up for removing a lawfully elected president on that basis.

Clark said...

If the House were to say: we set aside the whole "high crimes and misdemeanors" standard, we just don't like him, then the Court would intervene if it had to. But it wouldn't have to because the Senate would never convict. The next question is, what if the House says, all honor to the "high crimes and misdemeanors" standard, we find Trump's [fill in the blank -- the way he eats steak] to be a high crime, would the Court intervene if it had to? I think it would. But, it wouldn't have to, because the Senate would not convict.

Dershowitz is right that there are lines the House might cross that would bring in the Court. Those lines are pretty darn likely not to get crossed this year or next. But never underestimate the level of incompetence of our politicians.

Narayanan said...

Don't ignore the fact that Trump can still be re-elected and take office for a second go round of this.

Citizen nullification. Who after all are the final Jury on this political issue.

Maybe that will be his WIN.

Browndog said...

"Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."

That specific language actually means "anything the opposing party in the House of Representatives wants it to mean."

That is the only acceptable interpretation of the clause, and has been affirmed by cable news and twitter.

Gospace said...

The Senate doesn't have to hold a trial. Mitch can just shelve an impeachment resolution and never bring it to the Senate floor. That actually might be the politically wise thing to do if there are no actual charges that amount to high crimes and misdemeanors.

Narayanan said...

*Dershowitz is right that there are lines the House might cross that would bring in the Court* = will other Justices get to stick nose in

Not unless CJ makes a panel to advise him - I assume he would be wise enough to do so. If it is en banc so be it.

wwww said...

Impeachment is not a political tactic.

You mean you do not like that it is a political tactic. It was a political tactic in the 1860s with Andrew Johnson; it continues to be a political tactic.

Impeachment is hard. It's meant to be hard to accomplish. It has never successfully removed a sitting President. Politicians are gonna politic. I can't get surprised about that. It's the summertime, most people are BBQing, there's not going to be a Civil War, there's not going to be a constitutional crisis. It's fine. Even if there were proceedings in the House, it would be fine. But there will not be proceedings in the house because it's not in Pelosi's interest to do so.

Ralph L said...

Congress could have too much power if it could impeach and convict for purely political reasons.

I've always assumed they have that power--then they have to face the voters, unlike the SCOTUS. A wrongly removed President can run again (See convicted fed judge, then Rep. Alcee Hastings). Perhaps a law prof could give us his or her opinion.

The Congress is not co-equal, it is the dominant branch. Thankfully, it rarely gets its act together.

The Ch Justice presides only because the Pres of the Senate, the VP, is an interested party.

Amadeus 48 said...

Jerry Ford, another football-playing graduate of Yale Law School, laid down the marker years ago: grounds for impeachment are whatever a majority of the House of Representatives say they are.

I say, bring it on. The GOP will be in office for a generation.

A majority of the the voters do not send representatives to Washington to (1) shutdown the government or (2) remove duly elected officials from office. It never works. It would not have worked with Nixon if he had not recorded himself.

chickelit said...

All this just to avenge a woman scorned. That's how history will see this.

Michael K said...

The Clinton impeachment was a mistake. He was guilty of the things they accused him of, but it turned out that the country wasn't up for removing a lawfully elected president on that basis.

I knew it would never happen because the economy was good. Congress was busy feeding the GDP with the Social Security surplus.

Michael K said...

McConnell has no Constitutional power over the "indictment" process.

I never said he did, which is why you missed the point. A Grand Jury and a partisan out of control House can indict/impeach a ham sandwich, The trial is in the Senate. The question is whether McConnell has to allow a trial.

Narayanan said...

"Law professors and scholars are punching inside their paper bags."

I say this because Constitution is not a legal document.

It is the political base for the frame work to build a legal system.

The weight and responsibility falling entirely on Citizens.

Ralph L said...

The Clinton impeachment was a mistake. He was guilty of the things they accused him of, but it turned out that the country wasn't up for removing a lawfully elected president on that basis.

Jonathan Turley opined it might have been the right outcome. Impeachment became a deserved stain on his blue presidency, bigger than a censure. Unfortunately, it, the 2000 election, and Bush's popularity after 9/11 helped push the partisan left minority into BDS and TDS.

walter said...

Original Mike said...
"Impeachment for Americans means removal."
News to me (an American).
--
News to BJ Clinton too

wwww said...

The question is whether McConnell has to allow a trial.

oh I see! Interesting question. I don't think he needs to allow a trial. Senate has sole authority over the trial. He is in control of the senate; he is the senate.

Otto said...

"Read the report. It’s all there." You mean like the doctored transcript of conversation between Trump and Flynn"s lawyer. When the full transcript was handed over to judge Sullivan it became apparent that the transcript was heavily doctored in the Mueller report to imply obstruction of justice. Hope Barr drains the swamp.

walter said...

Otto,
Merely editing for clarity ;)

SDaly said...

The Ch Justice presides only because the Pres of the Senate, the VP, is an interested party.

That's what I originally presumed, but why not then let just the Senate decide who should preside? Why specifically bring in the CJ?

Bruce Hayden said...

SDaly said...
“It seems to me that the Chief Justice can claim as much power as he can get away with (without risking impeachment himself). There's no reason why the Senate has to agree with the House's interpretation of "other high Crimes and Misdemeanors" and if the Chief Justice is, independently appointed by the Constitution as presiding over the trial, then Congress cannot by statute diminish that power. If the impeachment is clearly nothing more than a political stunt, I could see a deal whereby McConnell works out a deal that Trump moves for dismissal and the CJ grants it.”

Maybe a hybrid procedure where the dismissal is approved by a vote of the Senate. I don’t think that you can get away without acSenate vote, if they have received articles of impeachment from the House. But judges routinely don’t let criminal charges go to trial, based on, for example, no credible charges having been made, or dismiss after hearing the prosecution, because required elements of charges have not been supported by evidence.

Michael K said...

dismiss after hearing the prosecution, because required elements of charges have not been supported by evidence.

This is probably what McConnell would do if the Dims actually got enough suicide votes to impeach. Probably with a vote to dismiss.

Narayanan said...

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

This game has more than 18 Holes.

While Congress is impeaching Trump could be indicting.

Popcorn.

gadfly said...

Are we talking about THE Alan Dershowitz, who, like many of his colleagues, had to be bailed from obvious plagiarism by the head of Harvard Law School, Elaine Kagan in 2005. Later, while hanging out with his pediphile friend, Jeffrey Epstein, he gets sued for involvement in and personal raping of underaged victims of Epstein's child sex trafficking ring. Thanks to Ben Sasse, a Senate inquiry is now underway. Also charged in the suit was Trump's Secretary of Labor, R. Alexander Acosta, who served as Federal prosecutor in the case - and who permitted a non-prosecution agreement for the pedipile Epstein. From the lawsuit:

"Dershowitz would later play a significant role in negotiating the NPA on Epstein's behalf. Indeed, Dershowitz helped negotiate an agreement that provided immunity from federal prosecution in the Southern District of Florida not only to Epstein, but also to 'any potential co-conspirators of Epstein'. . . . Thus, Dershowitz helped negotiate an agreement with a provision that provided protection for himself against criminal prosecution in Florida for sexually abusing Jane Doe #3."

Ann Althouse said...

"I haven't studied it, but from your analysis, Althouse, what legal authority does the Chief Justice have in the trial of a sitting President? He is granted the office of presiding over the Senate for such a trial. Is that just a figurehead role, or does he retain judicial power?"

He's a trial judge. We can look at the historical examples. Rehnquist, in the Clinton trial, played a low-key role, and I don't remember any conflict between him and the Senators. I think the practice would generally be to avoid any conflict, but there's no way to get rid of him. It's explicit in the Constitution that "the Chief Justice shall preside." He has exactly the job that phrase represents and I wouldn't go outside it, especially to the term "judicial power" (which has a textual definition in Article III and lots of case law about that). I would say that CJ is the final interpreter of what "shall preside" means. He has to decide to do his assigned job.

Rabel said...

"While courts possess power to review legislative action that transgresses identifiable textual limits, the word "try" does not provide such a limit on the authority committed to the Senate."

- Rehnquist in Nixon v. US

Transgressing identifiable textual limits such as defining down "high crimes and misdemeanors" to a point which conflicts with its original meaning would allow judicial review per Rehnquist. Looks like an open door to me.

Ann Althouse said...

"It seems to me that the Chief Justice can claim as much power as he can get away with (without risking impeachment himself). There's no reason why the Senate has to agree with the House's interpretation of "other high Crimes and Misdemeanors" and if the Chief Justice is, independently appointed by the Constitution as presiding over the trial, then Congress cannot by statute diminish that power. If the impeachment is clearly nothing more than a political stunt, I could see a deal whereby McConnell works out a deal that Trump moves for dismissal and the CJ grants it."

I'm reading that after writing my last comment.

I agree that the CJ as a trial judge ought to be able to grant a dismissal motion on the ground that even if the facts are true, the standard "high crimes and misdemeanors" isn't meant. That's part of how a trial works, and, per Nixon v. U.S., the process is to be determined, conclusively, by those who are designated by the Constitution to conduct the trial. In the case of the President, the CJ is involved, and I would think he would see himself as having the same power to dismiss without a trial that a trial judge has. It's part of due process, not subjecting a person to a trial over the facts when there is no potential to meet the legal standard.

Bruce Hayden said...

“And don’t ask me what the evidence is. Read the report. It’s all there.”

Sorry. None of the fact patterns in the Mueller Report support an Obstruction of Justice charge, under current DoJ statutory interpretations. None. Not even close. It is only by using the highly aggressive, out-of-context Weissman interpretation of an unrelated Obstruction statute clause that they could even claim that Obstruction mighty be credibly claimed, and they get there by, among other things, essentially, turning the specific intent required in Obstruction charges into a general intent requirement. Most trial courts in the country would dismiss such a ludicrous statutory interpretation before trial, and the rest would be summarily reversed upon appeal. One of the big reasons that they didn’t determine whether there had been a crime committed, was that they knew that if they had, they either had to accept the DoJ/OLC/Barr interpretation (which meant determining No Obstruction), or explain to AG Barr why they believed themselves not bound by DoJ rules and OLC interpretations. By pretending they couldn’t make the determination based on the OLC opinion that a sitting President couldn’t be charged criminally by his own DoJ, they managed to get their dirt into the Mueller Report, without the ignominy of being publicly exposed as political hacks by the AG.

So, in summary, you reveal yourself to be completely ignorant about the legalities, and/or to be a completely partisan robot, by claiming that the Mueller Report showed Obstruction. It didn’t.

Rabel said...

"In the case of the President, the CJ is involved, and I would think he would see himself as having the same power to dismiss without a trial that a trial judge has."

Yea, but this is John Roberts we're talking about.

Ann Althouse said...

"Jerry Ford, another football-playing graduate of Yale Law School, laid down the marker years ago: grounds for impeachment are whatever a majority of the House of Representatives say they are."

This is another way of saying the House has the "sole power to impeach." But the House is bound to follow the Constitution, even if no court is checking their work. So they are, however, badly, saying what the law is, saying what "high crimes and misdemeanors" means, and they are subject to public criticism and the next election. If they say talking about firing Mueller (or whatever) is a high crime or misdemeanor then we can attack them about that and say they failed in their constitutional duty, but their answer is still the final answer on impeachment. Then it's the Senate's turn, and it has the "sole power to try," and that includes the power to say what that means (along with whatever role the CJ thinks is his to play), and nothing forces them only to consider what the facts are. They can consider whether the facts can amount to "high crimes and misdemeanors." I don't think they're stuck with the prosecutor's theory of what the law is. And the Senate is subject to public criticism and the upcoming elections.

Bruce Hayden said...

I think for Nancy Palsi, the question is not whether she could force Trump district members of her Dem caucus to vote for impeachment, but rather, if she did, what would be the ramifications. First, and foremost, Trump would very likely be almost assured of re-election. And secondly, she would almost assuredly, again lose her oversized Speaker’s gavel. Americans don’t like cheaters and bad losers. Denying a legitimately elected President his due is both. They are attacking the foundation of our Constitutional republic by denying the other side a peaceful transition of power. She might be having senior moments these days, but she is still a crafty politician. The question is whether her AOC wing of crazies can force her into electoral suicide by opening impeachment hearings (and if they don’t have the votes beforehand for impeachment, it would be political suicide to open impeachment hearings, just to lose the impeachment vote).

Original Mike said...

"While we recognize that the suspect did not actually steal any horses, he is obviously guilty of trying to resist being hanged for it."

Bruce Hayden said...

“If they say talking about firing Mueller (or whatever) is a high crime or misdemeanor then we can attack them about that and say they failed in their constitutional duty, but their answer is still the final answer on impeachment.”

Which is why Part 2 of the Mueller Report was always about impeachment, and never about the law. The Mueller prosecutors were bound by DoJ rules and OLC interpretations of Obstruction statutes, even if they pretended, on occasion that they were somehow magically exempt. But the DoJ is a part of the Executive Branch. The House, being part of the Legislative Branch is not bound by DoJ rules and OLC statutory interpretations. If the House wants to define Obstruction of Justice to include spitting on the sidewalk, they probably can.

Howard said...

There will be no impeachment. Joe Biden rallying slogan: vote the asshole out and lock him and his family up

traditionalguy said...

The Dems now want to start up Manson’s Helter-Skelter civil war, which means they are foreign agents out to kill this Republic. And most Americans and the USMilitary are on to them. They must have a death wish,

YoungHegelian said...

It's fun for all us non-lawyers to see the lawyers in the group (including, of course, our distinguished hostess as prima inter pares) go at it on the technical constitutional issues involved.

Good thread. Thanks, o ye members of the Bar.

Bob said...

Althouse said, '...So they are, however, badly, saying what the law is, saying what "high crimes and misdemeanors" means, and they are subject to public criticism and the next election...'

I sincerely hope this "impeachment" process continues to be a rarely-invoked remedy for....anything.

And, yes, as Althouse also said, "It's all theater. And you know as well as I do and Nancy Pelosi does that there isn't going to be a damned impeachment."

Amen to that.

stevew said...

"The Democrats are crazy enough to do it."

Some Democrats are crazy enough but not enough Democrats and not the right Democrats arecrazy enough to impeach the president.

Michael K said...

gadfly weighs in with a valid criticism of Alex Acosta, the Secretary of Labor who was nominated by Trump, probably at the instigartion of the GOPe and who is an embarrassment.

It is only by using the highly aggressive, out-of-context Weissman interpretation of an unrelated Obstruction statute clause that they could even claim that Obstruction mighty be credibly claimed,

Weissmann, the Hillary donor and supporter, and the other rabid leftists who wrote Volume II, tried and failed to write a good argument for impeachment. I doubt even the Democrats in the House have enough crazies to pass the impeachment articles.

Original Mike said...

"So, in summary, you reveal yourself to be completely ignorant about the legalities, and/or to be a completely partisan robot, by claiming that the Mueller Report showed Obstruction. It didn’t."

But he's our resident federal prosecutor!

Narayanan said...

Are we now admitting and accepting of the fact that three players with separate and distinct interpretations of * Treason, Bribery or other High Crimes and Misdemeanors * need to square up and be Congruent.

Quaestor said...

How can the House deliver a "True Bill of Impeachment" without probable cause? Is the truth in True Bill of Impeachment the same as the truth in "I never had sex with that woman, Monica Lewinski."?

Quaestor said...

Does the House have the constitutional authority to impeach a ham sandwich?

Hagar said...

"other high crimes and misdemeanors" may mean whatever the House says it means, if they want to go down that road, but in the end the people are going to have to buy it, or the effort will backfire badly on the instigators.

For the people to buy it, the alleged offense will have to have to do with the president's conduct of his office and be injurious to the nation.

In the case of Clinton, perjury in a private civil matter was indeed a crime and a terrible example for the nation's chief law enforcement officer to set (the A.G. is just the President's lawyer"), but the people considered it only a "low" crime and not grounds for removal from office.

Bilwick said...

"And don't ask me what the evidence is. Read the report. It's all there."
An answer that is essentially a non-answer. It's like when I asked a Climate Change advocate what the evidence was, and he said something like, "Read science. The evidence is all there." I find such non-replies distracting because when I read them I'm distracted by loud squeaking noises, as if made by a large weasel.

Jim at said...

The numbers floating around are approximately 50 votes in the House for impeachment.

It's not going to happen.

Seeing Red said...

Bubba stayed in office.

So will Donald.

It’s kabuki.

BleachBit-and-Hammers said...

The president is not above the law, but neither is Congress...

Not true. Democrats in congress, many of whom got there via vote harvesting and fraud in CA and other places, ARE above the law.

Because, said so.

bleh said...

Let’s say the House impeaches and the Senate convicts, but the President refuses to leave office. Still just a “political question”?

rcocean said...

"I would say that CJ is the final interpreter of what "shall preside" means. He has to decide to do his assigned job."

Given we precedent, I think he'd have to follow the previous 2 impeachment trials, and have a damn good reason to go beyond that.

Bottom line: This is partisan matter. With Clinton, the Democrats weren't going to vote to impeach NO MATTER WHAT. And there enough Republicans like McCain, who thought the whole thing was a waste of time. So, it was just a dog and pony show.

Here, there's zero grounds for impeachment. McConnell should skip the trial and go directly to the vote to acquit. Could have it done in a week.


rcocean said...

IT was extremely fortunate that the Democrats stood by their Liar-in-Chief. Had Billy Bob been convicted and thrown out of office, Gore would've become POTUS and gotten elected in 2000.

Static Ping said...

Impeachment is a political act that pretends to be a judicial proceeding. It is not inconceivable that the Supreme Court could get involved in the constitutionality of an impeachment, but whether Congress has any responsibility to obey is another story. Impeachment is about as close as a legal coup d'etat as we have. Power plays tend not to heed the criticism of others once they get rolling. I suppose it could be used as cover by some senators on the fence to vote "no," assuming the intervention happened soon enough.

The real risk here is that the population at large, or at least large swaths of the country, will find the proceeding illegitimate. And when you find the government illegitimate, it tends to get messy.

Amadeus 48 said...

Althouse--Thanks for your comments on this thread. Your 30 years of thinking about and discussing this pays off. As to the President, it really is a political question, informed by legal concepts, from beginning to end.

rehajm said...

There will be an election and that’s about it. No impeach no Barr.

The reason for this seems to be: because bureaucrats lazy and/or there would be backlash.

Molly said...

I find this discussion fascinating but there is still a question I haven't found a good answer to. Suppose the Senate adopted rules for a trial that were completely at odds with normal jurisprudence. Suppose the Senate adopted a rule (by majority vote) to forbid the House prosecutors from presenting evidence. I expect that the House prosecutors would appeal to the CJ, who would rule (I expect) you have to allow the House prosecutors to present evidence. But it's not clear to me that the CJ wold take the position that he alone could overturn the rules adopted by the Senate. Or suppose that the Senate adopted rules that said there can be no cross examination of witnesses by lawyers for the President. In either of these situations (and assuming that the CJ presiding ruled that the injudicious rules were enforceable), could the SC as a whole rule on whether the CJ had made the correct decision?

Amadeus 48 said...

With an election 18 months away, this whole topic seems highly overwrought. Some Democrats--a minority of the voting public--want to express their displeasure in a tangible way, probably because they think they will lose the next election. You could see the same thing happening with Clinton and Reagan (in Iran/Contra), perhaps because neither was eligible for re-election.

Both parties would be better off if they focused on winning the next election rather than undoing the last one. If Trump gets lucky, he can get both California's and New York's electoral votes without winning either state. That would be one way to restore the Electoral College to its proper place.

Amadeus 48 said...

I don't know the rules used in the House of Commons for impeachment before 1776, but I suspect that they would be used as a sort of common law of impeachment in considering the issues raised by Molly at 3:30. Wikipedia tells me that impeachment has not been used in Britain since 1806, and the rules do not reflect modern democratic and procedural fairness considerations.

Also, CJ Roberts would look to any materials prepared for CJ Rehnquist in connection with Clinton's impeachment trial. Remember the three stripes on the sleeves of his robe--allegedly something Rehnquist had seen in a Gilbert & Sullivan operetta?

Michael K said...

Gore would've become POTUS and gotten elected in 2000.

He would have been there when the fecklessness of Clinton with terrorism came home to roost, Remember the Cole just before the election >? The embassies in Africa ? Clinton got out of town just in time to avoid the 1999 crash and 9/11.

Rory said...

"Let’s say the House impeaches and the Senate convicts, but the President refuses to leave office. Still just a “political question”?"

Just to complicate matters, the Constitution is silent on the role of the people in the impeachment process.

wholelottasplainin' said...

Rory said...
"Let’s say the House impeaches and the Senate convicts, but the President refuses to leave office. Still just a “political question”?"

>>>> No. Once he's removed from office, he's no longer the POTUS and be arrested for trespassing on government property.

Just to complicate matters, the Constitution is silent on the role of the people in the impeachment process.

>>>> The role of the people here is to let their elected Congresscritters and Senators decide the matter. End of story.

Earnest Prole said...

There won't be an impeachment but if there were the Supreme Court would properly and contra Dershowitz cross the street and avert its eyes.

Gospace said...

Molly said...
I Or suppose that the Senate adopted rules that said there can be no cross examination of witnesses by lawyers for the President.


IIRC, a young lawyer on the Watergate investigation team named Hillary Clinton argued that Nixon shouldn't be allowed to mount a defense. One of the many reasons she was fired from the team.

The Godfather said...

(a) It would be incredibly stupid for the House Democrats to impeach the President. Even Speaker Pelosi, who has lost a step or three, knows that. There wouldn't be a better way to ensure Trump's reelection.

(b) But if the House DID impeach, the "trial" in the Senate would be a political drama, not a legal proceeding. My guess is that McConnell would handle it just right. He's been around a long time, and he knows that it's political. Only if the Senate screwed up REALLY badly would impeachment be anything but a disaster for the Democrats.

readering said...

Senate convicts after impeachment and Mike Pence says, sue Donald? Don't see that. More likely throws a bucket of water on him to see if he melts.

Big Mike said...

Here's the case he's talking about Nixon v. United States. — about a federal judge named Nixon

A very unfortunate last name as far as getting fairness from the Deep State is concerned.

walter said...

Actually, Mueller's reasoning is akin to Trump melting to prove innocence.
Only Russian trolls get presumption. Because collusion..or something.

cubanbob said...

Yancey Ward said...
"could Trump's defense team call to the witness stand current Democrat members of the House and Senate for testimony on their roles in ginning up this debacle"

He could absolutely call them as witnesses. Whether or not they can be compelled to appear is another question, though."

Just having them subpoenaed and that fact made public along with the furious refusal to testify will be rather informative and entertaining to the public and the voters.

Michael K said...

Senate convicts after impeachment and Mike Pence says, sue Donald? <

Have you won the lottery? You seem willing to bet on long shots. Very long shots.

Dad29 said...

Kudos to Pelosi for keeping a rein on this, by the way.

Sorry, she's not that crafty. As reported above, VERY good rumor has it that only about 50 Representatives really want the House to impeach.

That's a bucket of sand in the Sahara, friend.

And I concur with Althouse and another commenter that only the Lefty justices think they rule the world. Look, e.g., at the "national restraining orders" issued by some zit-on-an-elephant's-ass judge in east noplacestan....arrogant twit.

Fen said...

Let’s say the House impeaches and the Senate convicts, but the President refuses to leave office. Still just a “political question”?

The Senate doesn't "convict". The power of impeachment resides solely in the House. All the Senate does is determine "sentencing".

The House could impeach and the Senate decide it warrants a strongly worded letter of reprimand. And we would feel a great disturbance on Twitter, as if millions of idiot democrats cried out and were suddenly silenced.

raf said...

@Bruce Hayden

I think for Nancy Palsi, the question is not whether she could force Trump district members of her Dem caucus to vote for impeachment, but rather, if she did, what would be the ramifications.

If the Dems in moderate districts (who are presumably more moderate than the leftists) lost for reelection, might the AOC,etc wing gain enough power to essentially capture the party? It sorta reminds me of the McGovern takeover.

Fen said...

but the President refuses to leave office.

Reminds me of all the Democrats caterwauling "what if Candidate Trump refuses to accept the results of the election?" who then proceeded to deny the results of Trump's election for 3 years now.

So a better question would be: what if the Senate "acquits" Trump? Will the Democrats accept the results of the impeachment process they started? Or will they throw another 3 year tantrum over it?

BleachBit-and-Hammers said...

I'm still waiting for a clear idea of what exactly was obstructed> or why it would matter?
If Trump wanted to fire Mueller, and said so - who cares? Fuck Mueller. What is he? So scorched Hillary Rice bowl god?

Ray - SoCal said...

Barr’s interview on cbs seems to have ramped down a lot of the hysteria following Mueller’s resignation statement.

Per a body language analysis on YouTube he was not happy being there, and did not want to go before Congress.

My feeling is his appearance was a Hail Mary pass to get volume 2 in play again of his report, without any more of his direct involvement. And attempt to stifle the continued drip drip of information showing how biased the Mueller report was. The latest showing how cherry picking quotes, per power line, of a message from trumps lawyer to Flynn, was used to claim possible obstruction.

Fen said...

"...and they are subject to public criticism and the next election. ...is subject to public criticism and the upcoming elections."

There's a weak spot there: if a tyrant weaponizes the government to disenfranchise the will of the people through voter fraud or a soft coup, he can be punished by future elections? When he just overturned what will be known as the Last Election?

I think if Trump is removed from office, you're going to have a civil war. Many supporters feel that he is our last *civil* remedy to rolling back the Deep State. If they overturn Trump's election, they will prove the only way to deal with them is with violence.

DanTheMan said...

The Dems are getting exactly what they want... everybody is, and has been talking about removing Trump from office for going on three years. That blocks out any other news, especially the good news about historically low unemployment, and a growing economy.

The more everybody talks about impeachment, the more the Dem's smile. This is a deliberate attempt to cripple Trump's presidency.

For two years, it was "Russia! Collusion! Russia!". Now it's "Impeachment! Obstruction! Impeachment!".

If Trump wins in 2020, it will be something else. Probably more talk about the 25th Amendment. They are NEVER going to stop.

madAsHell said...

I also dislike loose civil war talk.

I'm guessing the O/U on the dead is about 300. It will be over once people see that your only holding the responsible accountable.

Michael The Magnificent said...

I'm still trying to figure out what the long game for leftists is here, though maybe I'm assuming way too much rationality on their part.

Let's say they succeed in impeaching Trump. Let's say the Senate does not vote to remove him. What do leftist do then? I doubt they'd get the fuck over it and move on.

Or let's say the Senate does vote to remove him. Pence is then sworn in as President, and immediately nominates a VP candidate, subject to Senate approval. What do leftists do then? Refuse to approve his nomination, and Impeach Pence?

Because if the whole Democrat strategy is to keep impeaching and removing until they get their preferred benevolent socialist dictator installed in the White House, then CW2 will make CW1 look like a bake sale.

Fen said...

I also dislike loose civil war talk.

It's not loose talk. That's what all the talking heads and analysts are missing, just as they missed the reasons for Trumps ascendancy. They think this is all just a game, that they can overthrow the will of the people and go back to their normal lives as if nothing happened.

The people they DONT talk to (and wouldn't be seen with) are fuming and see Trump as their last civil recourse to prevent enslavement by the Establishment.

You should take them seriously, or you'll be like the Hillary supporters on election night.

Fen said...

Someone wiser than me said what the Left doesn't understand is that, while they can dial their "resistance" level up and down with protests and petitions and antifa and impeachement, the Right doesn't really have that dialing control knob.

What the Right has is a switch: "off" is roll our eyes and put up with your bullshit, "on" is kill every last one of you motherfuckers.

Original Mike said...

Blogger steve uhr said..."Isn’t the issue sort of moot since there is evidence both of collusion and obstruction."

"Indeed, Mueller documented various foreigners who contacted, or who sought to contact, the Trump campaign. The problem here is that Mueller does not tell us, and we do not know, if the number of them was unusual."

"Many foreigners seek “contacts” with US presidential campaigns and have done so for decades. In this case, we do not know, for the sake of comparison, how many such foreigners had or sought contacts with the rival Clinton campaign, directly or through the Clinton Foundation, in 2016. (Certainly, there were quite a few contacts with anti-Trump Ukrainians, for example.) If the number was roughly comparable, why didn’t US intelligence initiate a counterintelligence investigation of the Clinton campaign?"

When it's The Nation rebutting your partisan talking point, you really should pause and take stock.

Fen said...

you really should pause and take stock.

You are asking this of someone who boldly asserts collusion and obstruction but offers not supporting evidence. In public.

When dealing with Leftists, we often make the mistake that they are just like us but reversed, the flip side of the same coin. They are not.

narciso said...

It's a question of power not law, delay Walker Gingrich Stevens Palin Mcdonnell all targets of lawfare, they want to take you off the board, by any means neccesary.

Fen said...

narciso, are you getting anything to confirm this:

"AG Barr has suggested US Attorney Durham will convene criminal grand jury to compel Comey, McCabe ( other DOJ officials who have left the department are outside the reach of IG Horowitz) to testify under oath, and to prosecute any criminal referrals from IG Horowitz"

narciso said...

It would be a logical next step, but I haven't seen logic prevail in three years.

Fen said...
This comment has been removed by the author.
BleachBit-and-Hammers said...

Steve Uhr still believes the Covington teens are horrible Native American wife beaters.

Leftwingers buy the Maddow /CNN narrative, and they don't want a refund.

Fen said...
This comment has been removed by the author.
Fen said...

Althouse: I think it's a very clear inference that the "sole power to impeach" includes the power to determine what the grounds of impeachment are, including how to apply the language "high crimes and misdemeanors."

I'm confused. Are these your thoughts or are you summarizing someone else's ruling?

Because I remember during the Clinton impeachment you had a very narrow definition of what "High Crimes and Misdemeanors" meant, and it certainly wasn't just whatever the House thought that day. I remember clearly, because your logic back then grudgingly turned me away from other legal analysts who assumed perjury "rose to the level" of high crimes and misdemeanors.

(gah I need an editor. Brunettes preferred.)

bagoh20 said...

The rapid and fevered descent of the Democrats over the last few years makes any prediction of what may be impossible for them to be very ill-advised. They are creating new normals that were considered far beyond the pale for much of this country's history. Nothing is beyond them except calm reasoned behavior. No precedent or tradition is safe, regardless of how important, even to them in the past.

madAsHell said...

I also dislike loose civil war talk.

How do they say "grape shot" in French??

Amadeus 48 said...

Fen--I don't know what your relationship with Althouse is, but she started blogging 2004. What were you up to in 1998?

wwww said...

"It's not loose talk."

It is loose talk. We all know there will be no trial in the Senate. There will be no impeachment in the House. This is a bunch of drama and most people are at summer BBQs.

In any case, anyone who has read about the US Civil War knows what it took, and, critically, how the landscape became divided. Hard to have a Civil War if you cannot identify your opponents on the basis of territory. The most difficult situations played out in the border states where some slaveholders supported the Union. Don't forget the Free State of Jones. It was hard to territorially split in 1861 and that's when entire states could be divided on the basis of slavery. Billions of dollars were invested in slave property.

Now it's a generational divide. It's a divide between urban areas and rural areas. Suburbs and Ex-urbs.

I don't see a bunch of Bushwackers preparing to invade Austin and kill everyone at video game and tech companies. Bushwackers did invade Lawrence, Kansas to kill civilians. I don't see a bunch of Boomers getting ready to kill their grandchildren. That's the largest divide in partisan politics; it's generational. A Civil War between the generations is not gonna happen. An invasion of Austin, TX is not gonna happen.

narciso said...

That's not how civil wars work in the modern era Lebanon, Bosnia Iraq

Michael K said...

I don't see a bunch of Boomers getting ready to kill their grandchildren. That's the largest divide in partisan politics; it's generational. A Civil War between the generations is not gonna happen. An invasion of Austin, TX is not gonna happen.<

Look at a county by county election map. Look at the blue counties. We in red counties not the invaders. Those of us who are in red counties are not attacking anyone. The abortion bills is an example. Nobody is losing rights. If you want an abortion and live in Alabama, Virginia has full term abortions. Women used to go to Reno for a divorce.

It's not really generational. It's cultural. A lot of it is religious. I have kids who are very religious and other kids who I'm sure are atheist.

There are two groups. One is in highly dense cities and wants to tell people who live in less dense areas with kids, how to live.

Narayanan said...

I just found this big spanner (wrench) to throw.

Smarter Dem strategy >>> win House and Senate in 2020. Impeach if Trump wins. Else Orange jump suit for the Orange Man

bleh said...

“The Senate doesn't "convict". The power of impeachment resides solely in the House. All the Senate does is determine "sentencing". ”

Wrong, the Senate does convict. That’s what it’s called when the Senate orders the removal of the president; the Senate “convicts” him.

Narayanan said...

***When it's The Nation rebutting your partisan talking point, you really should pause and take stock.***

I've a spin for that >>> Putin is behind The Nation saying this to keep !! Trump in office!!

wwww said...

"It's not really generational. It's cultural. A lot of it is religious. I have kids who are very religious and other kids who I'm sure are atheist."

The partisan split may be both generational and cultural, urban/ suburban/ rural/ ex-urban. But the USA is not on the verge of a Civil War, that's for sure.

Here's the thing in a Civil War: the other side needs to be identified. People aren't going to wear armbands. Lawrence, Kansas could be attacked because the Bushwackers knew about the specific role Lawrence, Kansas played during bleeding Kansas.

Today, Republicans and Democrats both live in Lawrence, Kansas. People would literally need armbands to identify an enemy. Anyways, it took a lot more then some news drama for the US Civil War to break out. States left the Union. Enslaved people were worth billions of dollars on the eve of the Civil War. Armies formed. The armies could identify each other as opponents. Things got messy in places like Kansas or Missouri where irregulars fought out of uniform. But, again, those irregulars didn't always know who to target. Tearing down telegraph lines or attacking supply trains were an easier target.

But, do you see what I mean? Even for irregulars, a target needs to be available to attack. Bushwackers might attack telegraph lines because the Army of the Republic sent orders on lines or a train supplying the Union troops. It's necessary to be able to identify an army or military targets for a war to break out. It's not obvious who voted for who, and there's no way grandparents are going to kill grandchildren who voted for Bernie. They might be annoyed with their grandkiddos, but they aren't that annoyed.

grackle said...

And don’t ask me what the evidence is.

Don’t ask me, either. Don’t ask anybody with a brain – because the “evidence” is bullshit.

While Congress is impeaching Trump could be indicting.

Speaking of evidence: Many of us are waiting with delicious anticipation for Barr’s first indictments.

The burning question in my mind is whether Barr drops the hammer before or after the election. A happy dilemma to have.

Per a body language analysis on YouTube he was not happy being there, and did not want to go before Congress.

Yes, the LAST thing Mueller wants to do is answer questions under oath.

If they overturn Trump's election, they will prove the only way to deal with them is with violence.

Readers, this type of thinking is how Timothy McVeigh happened. Yes, “they” are a pack of scoundrels, nincompoops and posers but violence isn’t the answer.

Mike Sylwester said...
This comment has been removed by the author.
Mike Sylwester said...

If the House impeaches on the ground that Trump obstructed justice, then the Senate should question, on national television, each FBI official who participated in the Crossfire Hurricane investigation and each staff lawyer who participated in the Special Counsel investigation. Each such official should be asked:

* Exactly how were you yourself obstructed by President Trump?

* Did you document those occasions?

* When you were obstructed, were you eventually able to overcome Trump's obstruction to your own part of the investigation?

* If you were not able to overcome the obstruction, then provide the relevant details so that the Senate can summon the obstructed witnesses and obtain the obstructed documents now for this Senate trial.

* When did you yourself arrive at a personal opinion that there had been no collusion with Russia? Did you tell any fellow investigators that you had arrived at such an opinion?

* Do you yourself personally think that President Trump should be removed from office for obstruction of justice? If you were a US Senator, how would you vote on this issue?

* What was your opinion about the impeachment of President Clinton? If you had been a US Senator at that time, would you have voted to remove him from office?

* What was your opinion of the Obama's refusal to give Congress information about the Fast and Furious matter? Was that refusal an obstruction of justice that should have been impeached?

Mike Sylwester said...

In a Senate trial, the first witness questioned, on national television, should be Robert "The FBI Whitewasher" Mueller. The questions should begin along these lines:

* When you and Rod Rosenstein met with President Trump on May 16, 2017, were you aware that Rosenestein had offered to secretly record his conversations with President Trump?

* Do you know whether Rosenstein secretly recorded that particular conversation?

* Did you yourself secretly record that conversation?

* Andrew McCabe wrote in his recent book that you left your cell phone in the room when you departed from that meeting. Is that true?

* Did that cell phone have extraordinary capabilities?

* Tell how you retrieved your cell phone afterwards.

* Is that cell phone on your person right now?

* If so, then surrender it right now for forensic analysis.

Mike Sylwester said...

One prominent obstruction-of-justice accusation against President Trump is that he proposed that Robert "The FBI Whitewasher" Mueller be removed from the Special Counsel position because Mueller had significant conflicts of interest. If such accusations are included in the impeachment charges, then the Senate should question whether Mueller indeed had such conflicts. On national television, Mueller should be asked:

* Describe your own and your family's personal relationships with James Comey and his family.

* Describe your professional relationship with Comey. When were you his supervisor? When did you write or endorse his performance reports?

* List all the FBI investigations in which you and Comey collaborated.

* List all occasions when you interacted with Comey while you and/or he were working outside the FBI.

* List all the occasions when your law firm and Comey's law firm collaborated in any cases or deals.

* When Rod Rosenstein offered you the Special Counsel position, were you aware that the situation might involve FBI misdeeds?

* After you began to act as Special Counsel, did you become aware of any apparent FBI misdeeds?

* Did you consider refusing the appointment or resigning from the appointment because your previous tenure as FBI Director might create an appearance of conflict of interest?

* If a President proposes to remove a Special Counsel because of conflicts of interest and to replace him with another Special Counsel, then do you consider that to be an obstruction of justice that should be impeached?

* When you selected your staff, did you consider that the staff's partisan composition created a perception of partisan conflict of interest.

* Did you ever become aware that there was considerable public criticism of your staff's apparent partisan composition? If so, did you think to remedy that conflict-of-interest perception by hiring a few non-partisan staff members?

Mike Sylwester said...

My comment at 8:48 AM
What was your opinion of the Obama's refusal to give Congress information about the Fast and Furious matter? Was that refusal an obstruction of justice that should have been impeached?

What was your opinion of the Obama Administration's refusal ....

MB said...

We all know it's not about law or justice, it's just political theater, meant to weaken Trump. Just like the original proceedings against Clinton.
Impeachment proceedings would make Trump vulnerable and perhaps force him to make concessions to the "moderates" in the Senate, preventing him from achieving his political programme. This is all there is to it.