"Tasked with delivering an opening statement for the House managers, who present the House’s case to the Senate, Rep. Robert Barr, R-Ga., reminded the senators of Clinton’s tendency to 'nitpick' over details or 'parse a specific word or phrase of testimony.' To Barr, the conclusion was obvious: 'We urge you, the distinguished jurors in this case, not to be fooled.' That was the moment Sen. Tom Harkin, an Iowa Democrat, had been waiting for. 'Mr. Chief Justice,' he said, addressing William Rehnquist, who was presiding over the trial, 'I object to the use and the continued use of the word "jurors" when referring to the Senate.'... The chief justice sustained the objection. 'The Senate is not simply a jury,' he ruled. 'It is a court in this case.' Rehnquist thus admonished the House managers 'to refrain from referring to the Senators as jurors.' For the balance of the trial, they were called 'triers of law and fact.'... In an ordinary trial, the jury’s role is generally limited to fact finding, while the judge determines the scope and application of the law. In an impeachment trial, however, the Senate itself has the 'sole power' to decide every issue. Recognizing the Senate’s all-encompassing responsibility, and his own limited role, Chief Justice Rehnquist referred to himself throughout the proceeding only as 'the chair.'"
Writes lawprof Steven Lubet in (The National Interest).
December 18, 2019
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96 comments:
Speaking as a native Iowan; There has NEVER been as big a scum, as Tom Harkin
The man represents EVERYTHING that is wrong with both Iowa, and the World
Thus Schumer will make a mockery of the entire process. I'm gonna need moar beer & popcorn.
I like to call them Senators, but that is just me.
Interesting point of constitutional law, can a president appeal their impeachment?
Regardless of the outcome, can a President make a procedural case that their 'trial' was not procedurally sound? That certain evidence was inadmissible? Who does the President appeal to? The Supreme court?
The Senate's procedures in this impeachment might set a lasting precedent.
I have come to like the idea that
* The House proceedings are like the presentation of witnesses and evidence in a trial.
* The Senate proceedings are like the closing arguments and jury deliberations in a trial.
This structure compels the House to conduct its own proceedings fairly, with due process.
If the Senate conducts a second trial, then there will be many opportunities for mischief. The Senate should have learned a good lesson from the Kavanaugh proceedings.
During the Senate trial, we should not have a last-minute appearance of a nutty woman claiming that Donald Trump grabbed her pussy during a high-school party.
No, a president cannot appeal the decision of the Senate, but I suspect the Democrats somewhere in Hawaii will try.
We are way outside the bounds of the constitution at this point.
One of the "articles" is "Obstruction of Congress."
No matter what happens the democrats and their GOPe allies have destroyed all faith in the electoral process.
If they do not pay a real price for this now, then the price will be paid later.
Regular courtrooms lack jester and clowns, too.
It’s unclear what presides means as far as what the Chief Justice of the Supreme Court should do.
Rehnquist was basically a Tennis Referee who wore garish stripes on his robe.
If the Senate is the judge then why does the Chief Justice preside?
God I hope and pray to Gaia that Mitch "Yertle" makes quick work of the exoneration.
So, a motion to dismiss would be in order? Jurors can't dismiss a case.
Bipartisan would be easier if there were more parties.
That is a timely article.
Of course, some of us Neanderthals rely on:
The Constitution of the United States of America
Article 1, Section 2: :"The House of Representatives ... shall have the sole Power of Impeachment and
Article 1, Section 3: "The Senate shall have the sole Power to try all Impeachments.
Are the chief justice robe stripes part of the tradition now or not. Roberts has a serious decision to make here.
Roberts should choose plaids for this one.
In the previous three attempts at impeachment (including Nixon's short-cut) the fact and guilt of the offense was either prima facie (in Johnson's case) or established in the regular courts.
It was only left for the Senate to decide if the offense amounted to "bribery or high crimes and misdemeanors" and, if so, sufficiently severe to merit removal from office.
In Trump's case there is no agreement that an offense has occurred under either of the articles presented nor, if indeed there was, did it amount to any kind of a "crime," high or low.
Mr. Chief Justice,' he said, addressing William Rehnquist, who was presiding over the trial, 'I object to the use and the continued use of the word "jurors" when referring to the Senate.'
Boy, he really got them with that one! From here on in, they will not be called jurors.
There has NEVER been as big a scum, as Tom Harkin
Ahh yes. Tommy Bahama Harkin. He spent six weeks in Iowa every 6 years. All of his free time he spent at the home he owned in the Bahamas. When in Iowa making campaign presentations, rarely submitting to an interview. Iowa is home to WHO radio. Harkins 30 years representing Iowa in the Senate, he never talked to anybody at WHO radio. A mystery to me how Democrats kept voting for him.
He was one of those "Catholics" that abhorred abortion, but would never think about refusing that "right" to a woman...as much as he disagreed with their decision.
he exaggerated his Vietnam record, and based on that, served as a sandanista sock puppet, and of course, he gave f chuck, his start right after dropping out of American U,
@Yancey Ward
So an impeachment 'trial' is the only judicial process in the US where technical and procedural rules can be suspended and the right of appeal is denied. Well, a senator is a senator is a senator...
Interesting
Impeachments almost always will happen when the opposition party has a majority in the House.
We see in the current impeachment that a party with a small but united majority in the House can obtain an impeachment without fairness and due process. This strategy will be developed further in future Congresses. Impeachments will become quite common whenever the opposition party has the House majority.
If, however, the presentation of witnesses and evidence does not continue in the Senate, then the Senate can complete the proceedings quickly. There will be no arguments or other delays in the Senate because more evidence might be collected and presented.
The impeachment process should not last a long time in the House and then last a long time again in the Senate. The lengthy process should be limited to the House. Them the Senate should deliberate and vote rather quickly.
The Senate should not allow itself to be turned into a circus.
Howie Carr is spelling it out.
Today is Impeachment Day, but what this really is for the unhinged Democrats in Congress is Festivus — the Airing of Grievances, as in the old Seinfeld show.
Despite the fact that their trust funds are doing better than ever, these pampered pukes have one overriding grievance, and one grievance only, and they just keep airing it, over and over and over again.
Donald Trump won the 2016 election! No fair, no fair! Mommy, make the bad orange man go away! No fair!
Happy Festivus, everybody.
Forget impeaching the president, what should be happening today is the arrest of all the crooked G-men and Deep Staters who started this ongoing coup attempt against Donald Trump.
The Inspector General’s report — it’s worse than you’ve been told. A few years ago, you would have said that this sort of top-to-bottom corruption, even in the ethical cesspool that is the FBI, was beyond belief.
It isn't a "judicial process". The Constitution gives the Senate all of the power to try the case, and the Senate all of the power to set its own rules.
Now, the Supreme Court itself, in my not so humble opinion, has far overstepped its actual granted powers under the Constitution, so it isn't impossible or even implausible that someone will run to federal court asking for an injunction of some kind regarding what the Senate does with this impeachment. There are going to be unhappy people regardless of what the Senate does, and I would not be surprised to find lawsuits filed and injunctions issued, I just wouldn't take even odds on it.
The Rehnquist pronouncement reinforces the principle that the Senate can do anything it wants in handing the impeachment. The Senate is the judge who decides the law and the facts. This would be similar to waiving jury and having a court trial.
What Lubet is trying to do is limit this broad power of the Senate by saying it must be objective. But a court can summarily dismiss a case if it determines that the allegations do not support a viable cause of action.
Go for it McConnell.
If the Senate is the judge then why does the Chief Justice preside?
Because otherwise it would be the Vice-President's job, and he has a conflict of interest.
So as usual we have no idea what incredible shit is about to occur?
Only known thing is that Trump will win, and be stronger than ever.
And those that oppose him will collapse in a heap.
Go for it McConnell.
Yup. If you’re gonna go for it don’t drag it out. If you take the quick option, make it quick...
Future Senates can change their impeachment rules, but if Senator McConnell does manage to prevent new witnesses, then it will be a good precedent that will guide the House in future impeachments.
In a normal jury trial, the jury can examine the evidence and ask for the re-reading of testimony.
Similarly, the Senate might re-question witnesses who already appeared in the House.
However, if the Senate wants to call a new witness, then the matter should be sent back to the House, where the witness will be questioned first there.
Festivus? Next up: feats of strength...
It's "judicial" when it's convenient for the Dems, and it's "political" when it's convenient for the Dems.
Clown nose on, clown nose off.
lol,
https://www.newsbusters.org/blogs/nb/mark-finkelstein/2019/12/17/cnns-toobin-refuses-believe-cnn-poll-showing-drop-democrat/
Today is Impeachment Day, but what this really is for the unhinged Democrats in Congress is Festivus — the Airing of Grievances,
Brilliant!
A mischievous Senate minority can drag the proceedings out endlessly. One new witness leads to an endless series of other new witnesses. The Senate minority's main purpose is not to collect necessary evidence, but rather to torment the President and his supporters.
Senator McConnell should establish a new, lasting precedent that the Senate will deliberate and decide the impeachment quickly.
The House will learn a lesson. Do the impeachment correctly and completely in the House. Do not try to turn the Senate into a circus.
sadly so,
https://babalublog.com/2019/12/18/corruption-and-questionable-alliances-by-venezuelas-interim-government-significantly-erodes-support/#comments
Meanwhile, that ticking sound you hear is Trump's approval rating inching ever so slowly higher.
https://dailycaller.com/2019/12/18/trump-coal-obama-democrats/
Get 51 votes and dismiss out of hand, That's what's needed. don't dignify this farce with a serious trial.
Obstruction of Congress = Separation of the three branches of Government. balance of powers.
so Grijalva and company, want to put us at the mercy of Qatar and other powers, that want a monopoly on electricity production,
This "Impeachment is a political function, not a legal function" keeps butting heads with the fact it is a legal function afforded to the Legislative branch in this, and only this instant.
narciso said...
https://dailycaller.co.m/2019/12/18/trump-coal-obama-democrats/
This article is what this impeachment is all about.
The democrats and their GOPe allies hate the American people, particularly the working class, and are angry at the prosperity and self sufficiency of our nation.
We do so much better without them.
rhhardin said... Roberts should choose plaids for this one.
_________________
more importantly - shorts or briefs
Maybe all politicians do this, but it does seem like this is another example where the Dems were so intent on achieving a short term victory ("We kept them from calling the Senate a Jury!" "We eliminated the filibuster for court appointees!" "We laid down the historical marker that impeachment along party lines and without a clear majority is an illegitimate impeachment!") that they fail to see how it may rebound on them when the roles are reversed. I hope the Senate will proceed with rules that they would be happy to follow when the impeached President is a hated Democrat.
In the current situation we have Senate Majority nominally R's. but not super
how do these arguments turn if Chumer had majority but not super - would he allow R's to call witness? Would R's have wits to confound Chumer as he is confounding Michconnell
If the Democrats controlled the Senate, the trial would definitely be rigged heavily against Trump- we only need to see what the House to did to understand this. I wouldn't even have been surprised to find the Democrats trying to rig it so that some Senators would be forcibly recused. I wouldn't think such a thing likely, but 3 years ago I wouldn't have even thought it possible.
"Now, the Supreme Court itself, in my not so humble opinion, has far overstepped its actual granted powers under the Constitution, so it isn't impossible or even implausible that someone will run to federal court asking for an injunction of some kind regarding what the Senate does with this impeachment. There are going to be unhappy people regardless of what the Senate does, and I would not be surprised to find lawsuits filed and injunctions issued, I just wouldn't take even odds on it."
This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures. The case is Nixon v. United States (about an impeached judge named Nixon).
If the Chief Justice refuses to preside (or the Position is vacant) then what happens? The VP? President Pro Tempore? Ghost of Steve McQueen
Roberts should refuse to preside.
Trump is going to try this on Twitter and Hannity under the guise of color commentary.
The Senators are jurors, in the old sense of a jury of one's peers that required English nobles to be tried in the House of Lords. The idea of impartial jurors is modern. Per Encyclopedia Britannica, "Originally, the jurors were neighbourhood witnesses who passed judgment on the basis of what they themselves knew."
"Interesting point of constitutional law, can a president appeal their impeachment?"
If we regard the proceedings in both the House and Senate as judicial rather than legislative, the trial in the Senate is an appeal of the impeachment by the House. When we are amending the Constitution to require a two-thirds vote in the House (and eliminate the electoral college), we should also require the House to take their vote on oath or affirmation, like the Senate.
I could also imagine a case where an impeachment conviction might be given a rehearing by the Senate. Let's say that a Federal Judge were impeached and convicted on evidence that was later found to be false. The courts can't overturn and the President can't pardon, but the Senate could be asked to overturn its conviction and reinstate the lifetime appointment. That would be a little trickier with a President whose term had by then expired, but perhaps the right to hold public office could be restored. That would be a novel case, to be sure.
I’m away from the tube for a while - anyone know what time they’re expected to vote? Thanks!!
Althouse: " The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures."
What about penumbra's and emanations and shadows and other recently discovered....stuff?
I heard McCarthy say 7-7:30 for the vote.
Jury Nullifications says that the jurors can try BOTH the facts and the law.
"If the Chief Justice refuses to preside (or the Position is vacant) then what happens?"
If the Chief Justice dies there is an acting Chief Justice until a new one is appointed. If the Chief Justice refuses to preside, the Chief Justice can be impeached by the House for the refusal, and then be convicted and removed from office by a two-thirds vote of the Senate, at which the acting Chief Justice can preside over the impeachment of the President.
This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures. The case is Nixon v. United States (about an impeached judge named Nixon).
Yet we know it can happen, and we know it's entirely possible 4 justices will rule in favor of democrats no matter the precedent.
peach mint tea must steep for 10 hours, I'm reminded of Charles mccarry's shelleys heart, where a deep state cabal, first prevents a reform minded conservative from election, but then finds the democrat challenger wanting, and a greek version of William Kunstler has been nominated for the supreme court,
This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures. The case is Nixon v. United States (about an impeached judge named Nixon).
This is a bit naive isn't it?
The executive branch should also be the,b"last word on its own procedures."
But the courts have refused this president the ability to reverse DACA.
Which was a memo.
After this Impeachment I never want to hear the word "bi-partisan" from a democrat ever again.
Precedent only matters when Republicans want to overturn one.
Precedents that Democrats don't like are automatically invalid.
It's a one way ratchet. Always has been. It's advantageous to Democrats to not notice, so they don't. Keeps things simple.
A federal judge in El Paso blocked Trump's border wall last week, ruling he cannot use his emergency declaration to use DOD funds to build it-
Already adjudicated in the higher courts.
Didn't matter-
As Schumer, and every liberal says when they defy law, precedent, common practice, etc...
"This time it's different."
Liberals play to win.
Everyone else still tries to play by the rules they set.
It's maddening.
The Senators are jurors, in the old sense of a jury of one's peers that required English nobles to be tried in the House of Lords. The idea of impartial jurors is modern.
Yes, but I have one quibble.
The Senate jurors do not try the POTUS according to Article 1/Section 3, they try the Impeachment.
In other words, they are ruling on the evidence collected and presented by the House.
That seems like a Appeals Court function to me.
it's called gas,
https://twitter.com/charlescwcooke/status/1207302553454727169?s=20
It's worse than Calvinball, cause in Calvinball both players can change the rules whenever they like. Republicans aren't even permitted to follow the rules if a Democrat decides otherwise.
I heard McCarthy say 7-7:30 for the vote.
At the same time, Trump will be holding a rally. Will Ann be live-blogging either one?
Another way I can imagine that the President might appeal his impeachment conviction would be through a Constitutional amendment overturning his conviction and reinstating him. While getting a two-third vote in the House and Senate might be hard if they have just impeached and convicted him, two-thirds of the States could call for a Constitutional convention. Then he would need three-fourths of the states to ratify his reinstatement.
I would suppose that by that same process of Constitutional convention and amendment, 38 states might join together and remove the President from office.
In other words, they are ruling on the evidence collected and presented by the House.
That seems like a Appeals Court function to me.
Exactly.
I have been saying this all along. Glad I am not alone. It's because they are sitting as Judges, with near total knowledge of the case already, that they will skip any"witnesses" and go directly to Dismissal for failure to State a Claim.
Left Bank: "Another way I can imagine that the President might appeal his impeachment conviction....."
LOLOLOL
There will be no impeachment conviction.
Left Bank is a real riot sometimes.
Based on what McConnell said the Senate is the body that moves through the formalities to get to the motion to dismiss, then does that.
Thanks, Browndog!
We can count on the SCOTUS following SCOTUS precedent. We CANNOT count on liberal district court judges or liberal Appeals court judges doing so. They PROBABLY will not intervene THIS TIME, but only because it will hurt the D's, and everyone knows this is going nowhere.
If this was a *real* impeachment, with a real chance of Trump being removed, it would be completely different. In that situation, No liberal judge could be trusted to uphold precedent - they would get rid of Trump - by any means necessary.
rcocean said...
We can count on the SCOTUS following SCOTUS precedent. We CANNOT count on liberal district court judges or liberal Appeals court judges doing so. They PROBABLY will not intervene THIS TIME, but only because it will hurt the D's, and everyone knows this is going nowhere.
*******************
Baloney. If Nixon v. US held that Senate impeachment issues were beyond judicial review, that's it. Lower courts cannot ignore SCOTUS precedents.
There can be no "intervening", as they lack the constitutional power to do so.
I am out in the world today, meeting people, discussing possible business arrangements, the usual stuff. I've not encountered a single person mentioning today's impeachment, um, thing that is going on in the House. Heading to an evening function with customers and colleagues. Food, beverages and casual conversation. Will be interesting to see if impeachment is broached. I won't bring it up.
eric said...
This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures. The case is Nixon v. United States (about an impeached judge named Nixon).
This is a bit naive isn't it?
The executive branch should also be the,b"last word on its own procedures."
But the courts have refused this president the ability to reverse DACA.
Which was a memo.
**********************
Had you spent a day in law school you would understand that you are talking trash.
Different case, different issues, different precedents.
The "naive" law professor is right.
You are a complete buffoon.
It's a judicial proceeding...It's a dessert topping...
AA: "This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures. The case is Nixon v. United States (about an impeached judge named Nixon)."
With respect, I believe that your reasoning is faulty. The fundamental issue in this case is not "abuse of power" by the President but rather an audacious encroachment on Executive power by the Legislative branch. The House asserts the authority to regulate the minutiae of foreign policy, which is facially unconstitutional. Further, it is executing a Coup de Main by attempting to exclude the Judicial branch from exercising its authority to mediate the dispute by means of a sham impeachment.
It is the responsibility of both the Executive and the Judiciary to defeat these encroachments by any and all means and to ensure that this cannot happen again.
Drago said...
Left Bank: "Another way I can imagine that the President might appeal his impeachment conviction....."
LOLOLOL
There will be no impeachment conviction.
And the real "appeal" would just be the decoration of lamp posts.
Help me on this analogy being used :
If House is Grand Jury and bring forth Indictment after examining witnesses does prosecutor get to use additional witnesses in court? or only defendant?
Are Senators like en banc panel of judges who can ask questions but not jury who have to sits there and lump it!
what's the skinny on this?
Supreme Court Can Extend Trump’s Term By Up To 3 Years If He’s Acquitted In The Senate
https://apkdownloading.com/2019/12/13/supreme-court-can-extend-trumps-term-by-up-to-3-years-if-hes-acquitted-in-the-senate/
I'm giving impeachment equal weight as amendment of Constitution. So
Election 2016 Trump carried 30 States.?!
Election 2020 if Trump carries 38 or more I would say 3/4 of 50 have nullified impeachment/conviction
Different super majority rules.
What say MeadeHous
https://www.dailywire.com/news/eric-swalwell-an-attorney-claims-innocent-men-are-forthcoming-and-cooperative
just another methane emission, from marmalard,
but of course,
https://twitter.com/BreitbartNews/status/1207406939925286913
Ingachuck'stoothlessARM said...
what's the skinny on this?
Supreme Court Can Extend Trump’s Term By Up To 3 Years If He’s Acquitted In The Senate
https://apkdownloading.com/2019/12/13/supreme-court-can-extend-trumps-term-by-up-to-3-years-if-hes-acquitted-in-the-senate/
***********************
It's bullshit, all the way down.
How about a citation to this purported law?
Baloney. If Nixon v. US held that Senate impeachment issues were beyond judicial review, that's it. Lower courts cannot ignore SCOTUS precedents.
_______________________________________________________________________
And what happens if they ignore SCOTUS precedents? Do they get executed?
Lets see how literal minded you are.
Why not get rid of the Senators altogether and have this thing tried in front of a jury of randomly selected individuals?
Roy Lofquist said...
AA: "This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures. The case is Nixon v. United States (about an impeached judge named Nixon)."
With respect, I believe that your reasoning is faulty. The fundamental issue in this case is not "abuse of power" by the President but rather an audacious encroachment on Executive power by the Legislative branch. The House asserts the authority to regulate the minutiae of foreign policy, which is facially unconstitutional. Further, it is executing a Coup de Main by attempting to exclude the Judicial branch from exercising its authority to mediate the dispute by means of a sham impeachment.
It is the responsibility of both the Executive and the Judiciary to defeat these encroachments by any and all means and to ensure that this cannot happen again.
****************
Are you unfamiliar, sirrah, of the term "political thicket"?
It's not that the Legislative branch is excluding the Judicial branch (which they could only do by limiting the jurisdiction of the lower courts), it's the SCOTUS saying they have no constitutional role to play in purely political matters.
Spiros said...
Why not get rid of the Senators altogether and have this thing tried in front of a jury of randomly selected individuals?
****************
Yeah, that's it! That's the ticket!
Instead of acting according to the Constitution and the precepts of a constitutional republic, we pick a bunch of random-selected individuals!!
S N O R T !!!!!!!!!!!!!!!!!!!!!!
It's only loosely a "trial." It's inconsistent to say impeachment is a political process and then suddenly demand it adhere to judicial norms once it hits the Senate. The Senate can conduct the trial any damn way it pleases.
"Do not try to turn the Senate into a circus."
Isn't it a little late to worry about that?
I mean, the saying isn't "The most dangerous place in DC is getting between Representative Schumer and a camera", you know.
"This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures."
Sure, the precedent says a lower court can't do shit in this regard, but that wouldn't be a barrier to making a ruling. The lower courts are making a habit of issuing rulings that violate SCOTUS rulings in this age of Trump.
Yancey Ward said...
"This will not happen. The Supreme Court precedent is clear that the courts don't have a role and the Senate is the last word on its own procedures."
Sure, the precedent says a lower court can't do shit in this regard, but that wouldn't be a barrier to making a ruling. The lower courts are making a habit of issuing rulings that violate SCOTUS rulings in this age of Trump.
***************
A "ruling" that everyone in the judicial world understands is meaningless, binding NO ONE,
is a nullity. NO ONE would pay any attention to it.
Or maybe you can tell us, Yancey, WHO would comply and HOW they would stop/change anything.
Give it a shot!
Cite precedent!!
Gabbard voted present.
Looks like there is bipartisan agreement against impeachment, but it is a party line vote to approve it. Think that will be the take away that the media goes with?
narciso said...
Gabbard voted present.
Coward.
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