January 28, 2020

"Ann, I need your assessment. I thought Dershowitz was excellent but I’m not a lawyer nor a law professor. You are. Give him a grade, Professor."

Wrote M. Jordan in the comments to my post, "I will now give you a list of presidents who in our history have been accused of abusing their power, who would be subject to impeachment under the House Manager’s view of the Constitution," which quotes from the transcript of Alan Dershowitz speaking to the Senate last night.

That comment thread got off to an acrimonious start, with Annie C. saying: "Rats. When I saw your post in the cafe, I thought you were going to write what you thought about his presentation." In last night's café, people were talking about Dershowitz, and I said I'd watched and "Will write about it in the morning."

Am I writing about it if all I do is choose a passage and boldface 3 sentences of it? My answer to Annie C. — at 6:27 AM — was: "Push me to be useful and I will be even less useful."

I put up 3 more posts and went out for my sunrise run. Sunrise came at 7:18 this morning, and whatever I've said I will do "in the morning," the sunrise time is locked in. Unlike constitutional law interpretation, but sunrise is very precise.

Alan Dershowitz was concerned about precision and vagueness. He said "precisely" 5 times and  "precise" once. ("Another constitutional rule of construction is that when words can be interpreted in an unconstitutionally vague manner or in a constitutionally precise manner, the latter must be chosen.") He said "vague" or "vagueness" 20 times. Example:
Instead of answering my arguments... on their merits and possible demerits, they have simply been rejected with negative epithets. I urge the senators to ignore these epithets and to consider the arguments and counter arguments on their merits, especially those directed against the unconstitutional vagueness of abuse of power and obstruction of Congress. I now offer a criteria for evaluating conflicting arguments. The criteria that I offer, I have long called the shoe on the other foot test...
In the last night's café, rhhardin said "Dershowitz thinks criteria is singular in number."

Out on my run, I thought about what Dershowitz said, and when I got back, I added to this morning's comments thread: "For the record, I was not convinced by D's argument and on reflection, I disagree with him. It would take some trouble to explain why, and I may do that later."

Precisely as I was writing that, M. Jordan was asking his question, the question you see in the post title above. It's easy for me to get started answering that question, hence this new post.

Here's how I graded when I graded students. I gave a question, and I judged them based on how they answered the question asked. I gave zero points for anything not responsive to my question, and then I converted the points to letter grades by following a required curve. So letter grades didn't mean too much to me. It was all comparative. But the points meant a lot, and you only got points for understanding the question and giving me material that got at the question.

I didn't give Dershowitz a question. To think in my lawprofessorly way about grades, I would have to infer a question that I might have asked.

I think that question should be: Restate the constitutional phrase "high crimes and misdemeanors" into a workable standard that the House and the Senate can and should use today and in the future in all cases of presidential impeachment. Explain your choice using all of the methodologies of constitutional interpretation that you deem appropriate (and explain why you are deciding this approach to interpretation is appropriate).

Do you think he did that? Read the transcript.

196 comments:

rhhardin said...

Scalia's remarks cover it.

The late Justice Antonin Scalia gave the following current example. “If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan, and other great competitors, the last noun does not reasonably refer to Sam Walton, who was a great competitor but in business, or to Napoleon, a great competitor on the battlefield.” Applying that rule to the groups of words, treason, bribery, and other high crimes and misdemeanors, the last five words should be interpreted to include only serious criminal behavior akin to treason and bribery.

tcrosse said...

Excellent question.

rhhardin said...

Turn javascript off and you can read the transcript without getting a cookie for whatever the hell he's hawking.

Birkel said...

Some of the best bloggers, including early adopter Steven den Beste (sp?), quit because of the constant calls to cover a topic. Or to cover a topic from a certain POV. It's just as annoying when it comes from a lying racist fopdoodle or a well-intentioned reader.

Althouse, I appreciate what you offer us. Thank you.

rhhardin said...

Seven den Beste decided he liked anime and left what he was good at.

Jake said...

He did not. His text was decently written. His delivery was rushed. I expect his presentation to a jury in a criminal trial would be better.

But let’s be real, this is all play acting anyway. Is there really any doubt the Senate is going to acquit?

hombre said...

Should the burden always be on the defense in this matter? Why is it necessary to go beyond the common usage of the terms “high crimes and misdemeanor” as “offenses defined by law,” other than to disadvantage Trump and to justify the lawlessness of the House Democrats? The appropriate question, addressed by Dershowitz, is: Do “abuse of power” and “obstruction of Congress” fall under the definition of “high crimes and misdemeanors?” Explain.

The term “high crime,” by the way, obviously demands a need for something illegal rather than merely reprehensible or an affront to the sensibilities of Democrats or partisan law profs.

Nonapod said...

I certainly don't find any fault with Dershowitz's discussion about the usage of the term "abuse of power" being too vague and how it should be relegated to political rhetoric. But I assumed that he was going to make an argument that impeachment should require actual crimes?

Dust Bunny Queen said...

Restate the constitutional phrase "high crimes and misdemeanors" into a workable standard that the House and the Senate can and should use today and in the future in all cases of presidential impeachment.

I haven't read the transcript, but did listen closely and recorded his presentation..will listen to the whole thing later.

However, as a layperson not a lawyer, from the parts that I was able to hear, I think he did a rather good job.

Defining crimes as the Founders saw them and made some allusions to what is criminal in code and what is not. Obstruction is not a crime. Asking for the courts to verify the legality of the subpoenas is not obstruction and is the right of the Executive Branch when approached in this manner by the Legislative. Not obstruction as the subpoenas never got that far.

The issue of "Misdemeanors" was interesting too, in that according to Dershowitz, Misdemeanors had a much more serious meaning and consequences (even death) for committing Misdemeanors. Comparing the original old meaning to what we today consider minor things.

The issue of abuse of power and defining it as NOT a crime, was important. Anything you don't like or disagree with can be construed as abuse of power by the opposition. The Framers specifically rejected the term of Mal-Administration (which could be defined as abuse of power) because they felt it was too vague and could be used as a tool by opposing political parties to Impeach for any reason at all.

His point about allowing these Vague and Not Criminal articles to proceed would put all future Presidents in an impossible situation where they are not accountable to the voters, but rather subject to and subordinate to Congress. The Branches are supposed to be separate and equal. If Congress is allowed to micromanage the Executive branch it would destroy the balance of power.

By the House not allowing Trump the legal process of submitting the subpoenas to Judicial review, the House has completely upset the Constitutional balance intended and legally written in the Constitution.

Dave Begley said...

Here's my answer.

The Constitution provides that a President can only be impeached if he commits, "Treason, Bribery, or other high Crimes and Misdemeanors.”

We know what treason and bribery are and they are not even alleged in the Articles. So what are "high crimes and misdemeanors" as those terms are not defined in the Constitution.

The President can only be removed for the specified reasons set forth in the Constitution; not for undefined offenses not set out in the Constitution. If that was not the case, then the President could be removed any time the opposing party decided he needed to go and for any reason they could come up with that was ostensibly palatable with the electorate. We then would not have the strong Executive like the Founding Fathers wanted. We'd degenerate into a parliamentary system as England had where the Prime Minister can be removed on a simple no confidence vote. And bear in mind that the Founders did not want that system of government. No King. No Prime Minister.

The common law has developed - over many years - principles of statutory construction. One of those principles is originalism. In other words, what did the drafters of the impeachment clause know and want at the time the constitution was drafted. Hamilton knew Blackstone's Commentaries. He studied it at Columbia. Hamilton wrote in Federalist 65 that a president could not be removed for "maladministration." It is too vague and too much like the English "no confidence" vote.

Blackstone notes that high crimes and misdemeanors are actual crimes. Believe it or not at that time in England there were capital misdemeanors. A person could suffer the death penalty for stealing a pig and it was called a capital misdemeanor.

As an aside, in "Bride of Frankenstein" (written by David D. Begley) it is noted that in 1795 England it was a capital crime to engage in homosexual conduct as set out in Blackstone.

We value due process in this country. We don't subject people to jail for vague crimes. People need to know what is prohibited. In construing a statute or any legal document the principle of statutory construction known as noscitur a sociis applies. It means to determine the meaning of an unclear word or phrase look to the other words in association with the unclear word or phrase.

This rule of statutory construction has been used by the Nebraska Supreme Court and in a Creighton Law Review article by none other than David D. Begley. The late Justice Scalia has also written about it. If a string of people described as great competitors included only sports figures like Tiger Woods, Kobe Bryant, Doug McDermott, Kyle Korver and Tom Brady one would not add to that list people like General Patton or John Rockefeller. Patton and Rockefeller were great competitors but not in sports.

Applying this rule to this case, "high crimes and misdemeanors" must be actual statutory crimes or something very close to a crime. It cannot be abuse of power or obstruction of Congress. If it did then every president could be removed at the whim of Congress based solely on their opinion and with no standards of what constituted the offense.

Professor Althouse: How did I do?

Dave Begley said...

DBQ

I give you an "A."

Dust Bunny Queen said...

Obstruction is not a crime.....I mean obstruction of Congress is not necessarily a crime. The issue of the subpoenas is that Trump questioned the legality of them, as is his right. That isn't obstruction. It is a process that anyone is entitled to use.

Ann Althouse said...

"I certainly don't find any fault with Dershowitz's discussion about the usage of the term "abuse of power" being too vague and how it should be relegated to political rhetoric. But I assumed that he was going to make an argument that impeachment should require actual crimes?"

Yes! You got right at the problem. Well put. Succinct!

CJinPA said...

That comment thread got off to an acrimonious start, with Annie C. saying: "Rats. When I saw your post in the cafe, I thought you were going to write what you thought about his presentation."

It must say something about the general civility of this blog that the above comment is considered an acrimonious blog comment.

FIDO said...

Why isn't the question: "This is the standard the House is offering as precedent. How will THIS standard which is being discussed and used today, affect future presidents? How many other presidents would run afoul of this standard?"

Like Althouse, I would also give him middling grades. Many of the acts which would be impeachable were widely criticized and in some cases reversed in the examples he gave. I would have stayed far closer and applied this standard to Obama and outlined how he would have also been easily impeachable according to this metric.

He is appealing to hoary authority.

But his task is not to stand like a sad schoolboy, digging his toe into the ground as he recites facts to satisfy some skeptical professor: It is to persuade an audience, if not of Senators, but of the public.

So that is the proper metric on which to grade him.

So that is th

Can Of Cheese for Hunter said...

The president has a right to look into real corruption. He has a right to talk to international leaders and he has a right to ask questions.

Adam Schiitt has a right to concoct fake-quotes.

The democrats have a right to concoct fake-corruption. [see Mueller]

hombre said...

Alternative Althouse: RESTATE the Constitutional phrasing so it means something more closely akin to what the political, judicial and academic elite would like it to mean. You know, emanations from the penumbras and all that jazz.

Dust Bunny Queen said...

But I assumed that he was going to make an argument that impeachment should require actual crimes?"

I believe that he did (from my recollection of his presentation). Detailing that the articles presented were not Crimes in the legal definition of criminal actions. I seemed he went into some depth on why the articles presented by the house were NOT actual crimes.

JackWayne said...

No matter how you slice it, the problem of a vague Constitution designed to grant broad powers to government always results in controversy over the words. Today it is mostly the “Living Document” versus “Original Meaning” argument. It’s all Humpty Dumpty including this post.

Ann Althouse said...

"He did not. His text was decently written. His delivery was rushed. I expect his presentation to a jury in a criminal trial would be better."

Yeah, he was talking too fast. If he was pressured by the time limit, he should have edited the script and made it a lot shorter.

Also, everyone else used a ring binder and quietly turned the pages. He had a sheaf of pages stapled in one corner and he never seemed to figure out how to turn the pages without hitting the microphone. He's been around microphones before! Come on. That was SO annoying.

"But let’s be real, this is all play acting anyway. Is there really any doubt the Senate is going to acquit?"

A serious law professorly presentation would have TALKED ABOUT that. He kind of did a bit. What he failed to do is ever even to mention the main structural safeguard in the Constitution that undercuts his warnings that the Democrats would change the rule to a parliamentarian vote of no confidence: the requirement of a 2/3 majority in the Senate. That's why we're not that involved in the details here. We know Trump won't be removed, so it's not an all-out battle, but wacky sword rattling.

rhhardin said...

Dershowitz wanted more and less than actual crimes. He wanted stuff at the level of bribery and treason. Not necessarily a crime.

Narr said...

This is pretty much why I never considered law school.

Narr
Carry on!

Can Of Cheese for Hunter said...

Obstructing the people attempting to railroad you is also called.... the middle finger.

The middle finger is freedom.

Michael K said...

I watched quite a bit of Dersh as I have great regard for him.

In fact, I ordered a copy of a "Student" version of Blackstone's Commentaries.

When I applied to medical school, I had an application to Law School in my desk. I had been offered a Woodrow Wilson fellowship in English Literature at the time. I could easily have gone to law school.

I have been reading Schweizer's book about corruption and Amity Schlae's book "Great Society. " Both are so depressing, they are heavy going.

Maybe I'll give Blackstone a try,.

narciso said...

he did address Obama's actual actions, but obliquely


https://dailycaller.com/2020/01/27/alan-dershowitz-john-bolton-impeachment/

rhhardin said...

The 2/3 majority as a safeguard assumes that the senators don't respond to the necessity of preventing a parliamentary system from taking over, but act as morons.

A 100-0 vote now is what prevents a parliamentary system from taking over. Messaging.

Dave Begley said...

I thought the stapled sheets was really weird too. Should have used a three ring binder.

Rory said...

"Restate the constitutional phrase "high crimes and misdemeanors" into a workable standard that the House and the Senate can and should use today and in the future in all cases of presidential impeachment."

We can't use a standard that involves offense or outrage, because those can be produced on demand.

Mark O said...

Dershowitz presented a comprehensive and well articulated argument against the Constitutionality of impeachment for anything the House can pass. This may be the Seinfeld impeachment, the impeachment about nothing.

When this began, I felt certain that it would lead to Biden's demise as a candidate. I continue with that belief. If witnesses are called, Hunter, Joe, and the Whistleblower must appear. There may be crimes introduced in this impeachment after all.

Kevin said...

If one can be convicted of actual crimes and not removed from office, how can one be removed from office for not committing actual crimes?

rhhardin said...

2/3 is all of your party and only 1/3 of the other party. Looks like parliament to me. The democrats and the never-trumpers.

Can Of Cheese for Hunter said...

I agree. Shcitt's private whistle-blower must testify.

Sebastian said...

"What he failed to do is ever even to mention the main structural safeguard in the Constitution that undercuts his warnings that the Democrats would change the rule to a parliamentarian vote of no confidence: the requirement of a 2/3 majority in the Senate."

Yes, his point would have been stronger if he had addressed that issue.

But if the Dems change the rule in the way he described, and assuming that they can persuade others that the change is reasonable, the structural safeguard will be no barrier. Therefore, explaining that the change is unwarranted is the critical point.

Dust Bunny Queen said...

A serious law professorly presentation would have TALKED ABOUT that. He kind of did a bit. What he failed to do is ever even to mention the main structural safeguard in the Constitution that undercuts his warnings that the Democrats would change the rule to a parliamentarian vote of no confidence: the requirement of a 2/3 majority in the Senate.

That part is very consequential and as being the presenter of the team to focus on Constitutional issues, it seems he should have discussed this.

However, he had only so much time and at the very beginning of his presentation he alluded to the other presenters, indicating that they would be covering other issues.

Perhaps this was brought up by some of the others?

I actually liked the flipping of the sheave of papers because the depth of the remaining pages gave some hint as to how much he had left to say.

(We were having some house construction going on at the time, so I did miss some of his presentation, due to noise. But did record what I could of it.)

Laslo Spatula said...

Re: "Yeah, he was talking too fast...He had a sheaf of pages stapled in one corner and he never seemed to figure out how to turn the pages without hitting the microphone. He's been around microphones before! Come on. That was SO annoying..."

I think he was nervous.

Yes: nervous.

He has done many high-profile cases where he has been on an unfavored side (OJ as obvious example), but here he is actually going on in support of Trump (not necessarily the man himself, but his position in this situation, which is conflated, anyway).

Which means he knows he is moving in his social circle from nonconformity to Villain.

He was crossing a personal Rubicon, and aware with each sentence that there would be no turning back.

That everything he would say was affixing crosshairs on his standing amongst his peers.

We were watching a man in full awareness that he was throwing it all away.

That makes his Lawyer Cock a lot larger than most.

I am Laslo.

hombre said...

Nice job, Begley.
————-
As for the need for D to argue that impeachment requires actual crimes. How does his argument that the two Articles submitted by the Dems do not satisfy the Constitutional standard for impeachment fail to encompass that argument?

tim maguire said...

I disagree with Dershowitz's point of view. I'm fine with an impeachable offense being whatever congress says it is. The voting public is the limiting factor--if the House overreaches, they will be punished at the ballot box as they were in the Clinton impeachment and as I expect them to be in the Trump impeachment.

I don't see any reason why the Senate has to observe the House's view of what an impeachable offense looks like. To convict, they must judge according to their own sense and they will face the voters just as the House will.

Despite disagreeing with Dershowitz's argument, I think he was effective in showing the dangers of setting the bar as low as the House has. Every president is accused of abusing power from time to time (and every president probably does abuse power). What the Democrats in the House have done is turn the normal push-pull contemplated by the separation of powers into an offense worthy of removing the president. This turns every congressional election into a referendum on the president and ultimately will make us more like the parliamentary system the founders rejected.

Parties will become stronger and local issues will suffer because the national implications of voting for your local rep may swamp your preferences between candidates.

narciso said...

why has it' happened three times in an 45 years cycle, that is probably the question, that needs to be asked, why didn't it happen with fast and furious, or the assault on the tea party, or the willfull neglect that led to Benghazi,

MikeR said...

According to the quote you posted, that was not the question he was answering. He was answering, 'What would happen if the criterion for impeachment is, "The opposing political party considers the President's action to be an abuse of power."'

Ray - SoCal said...

Phrase of the day!

>Althouse
>wacky sword rattling.

narciso said...

yes but they aren't serious, when they are in the executive, it's plebiscitary politics 'pen and a phone' they write the rules for Obamacare, left by the wide grants of authority, a pliant court is hogtied into going along, t

Kevin said...

The voting public is the limiting factor

The voting public put Trump in office.

traditionalguy said...

Dershowitz was magnificent. He used the right argument delivered in the right tone at the correct moment. And his argument was simple enough to be easily understood. In the Impeach Vel Non Olympics that was a perfect 10.

narciso said...

fdr was the model for this type of executive celebrated by Schlesinger, formalized into a guidebook by Neustadt, when center right figures like Nixon, seek to use it now ragnarok,
the court blithely dismissed the precedents of the civil war precedents in the detainee cases, and the legislation based on them,

rehajm said...
This comment has been removed by the author.
Ann Althouse said...

"If one can be convicted of actual crimes and not removed from office, how can one be removed from office for not committing actual crimes?"

Because the question in criminal law is whether you ought to get a criminal penalty and the question in impeachment law is whether you should be taken out of your position of power.

In the first case, you could be anybody and your interest is in continuing to be able to live your life in a free society like anybody else. In the second, you've been elevated to a position of great power over other people, and the question is whether to take you out of it and leave you in the same position as other people.

It's a completely different inquiry! Why should these 2 things be treated alike?!

Dust Bunny Queen said...

Laslo said re Dershowitz

We were watching a man in full awareness that he was throwing it all away.

That makes his Lawyer Cock a lot larger than most.


Excellent! The man has balls too.

Nonapod said...

tim maguire said... I'm fine with an impeachable offense being whatever congress says it is. The voting public is the limiting factor--if the House overreaches, they will be punished at the ballot box as they were in the Clinton impeachment and as I expect them to be in the Trump impeachment.

Personally I'd prefer more clarity. If I was Emperor of the Universe I would say that impeachment should require actual crimes, if for no other reason than to avoid precisely the situation we're currently in. I think the way it is now means this kind of outcome was inevitable.

Howard said...

read the transcript

When I am commanded to do something time-consuming when I expect free ice cream, I do nothing and settle for tap water.

Ann Althouse said...

"According to the quote you posted, that was not the question he was answering. He was answering, 'What would happen if the criterion for impeachment is, "The opposing political party considers the President's action to be an abuse of power."'"

1. I'm not going by just that one quote but the whole presentation.

2. If I judge him by the idea that he's proposing that as the question, I would give him a low grade. The other side isn't arguing that that is the standard, and the failure to acknowledge the safeguard of the supermajority requirement shows to me that he knows he's fighting a straw man.

Ann Althouse said...

"2/3 is all of your party and only 1/3 of the other party. Looks like parliament to me. The democrats and the never-trumpers."

In a parliamentary system, a vote of no confidence requires only a simple majority.

Ann Althouse said...

"I don't see any reason why the Senate has to observe the House's view of what an impeachable offense looks like. To convict, they must judge according to their own sense and they will face the voters just as the House will."

I don't think anyone is arguing that the Senate can't go with its own standard of what is impeachable.

Is anyone saying it's the House's role to define what is impeachable and the Senate can only look at whether the President has done the things he's accused of? That would be like the law/fact distinction when you have a judge and jury. Is anyone seriously arguing that the House determined the law and the Senate is excluded from anything other than the facts? Did Schiff ever say, we, the members of the House have determined the law and you the Senate are bound by our interpretation?

rehajm said...

But I assumed that he was going to make an argument that impeachment should require actual crimes?"

I believe that he did


He made an affirmative statement to Buoy's argument for an actual crime then detailed when a crime wasn't sufficient, then when you wouldn't need a crime.

tcrosse said...

We know Trump won't be removed, so it's not an all-out battle, but wacky sword rattling.

At this point what difference does it make?

Dust Bunny Queen said...

Nanopod Personally I'd prefer more clarity. If I was Emperor of the Universe I would say that impeachment should require actual crimes, if for no other reason than to avoid precisely the situation we're currently in.

The reason that the Framers rejected vagueness and imprecise terms, such as Mal-Administration or Abuse of Power, is that they are not necessarily criminal. They wanted to avoid the ability to have these political power struggles that would abrogate the rights of The People, to chose their representatives. Overturn elections by political machinations from the losing party. (or winning party too for that matter)

Mal-Administration and Abuse of Power are in the eyes of the beholder. Crimes are crimes. Being a dick while in office is not a crime. Disagreeing with someone politically is not a crime. Meaning that if you are politically opposed to the President or head of the local School Board and don't like what they are doing, you can be offended by them and call it abuse of power. Others might love what they are doing and consider it GREAT Administration.

The answer as Dershowitz said is at the Ballot Box. You can create a recall election. The voters put you in and if they don't like your policies....not criminal actions, but policies, the remedy is to vote for someone else.

dbp said...

The weakness I found in Dershowitz' argument is that I think abuse of power can be an impeachable offense but it depends on a couple of factors:

How clear-cut is the offense?

In Trump's case, not very clear cut: He wanted an investigation but did not make any kind of explicit threat in the way the Obama administration did via the agency of Biden. I am not even sure the Biden threat was impeachable, though worse than Trump's. I would argue that Obama's "recess" appointments while the Senate was in session, and executive order to not enforce immigration law were impeachable.

How significant is the issue?

If a president, without Congressional authority gave an enemy of the US 150 Billion Dollars, that they went on to use to fund attacks on US interests throughout the region, that would be significant. A couple months of delay in foreign aid, not significant.

Howard said...

Althouse serving ice cream in the comments. Yum

hombre said...

Lasso makes a great point at 9:58. Dershowitz has done himself damage by taking a principled stand against constitutional abuse by House Democrats. Perhaps the greatest tragedy of this impeachment is the unlikelihood that any Senate Democrats will follow his lead, thus relegating the United States Senate to the same ash heap of corruption occupied by the Democrat Party, the leftmedia, the Clinton’s and most of academia.

Ironically, only the Democrats can prevent that. We know that they know this impeachment is bullshit in so many ways. If they vote to impeach, they confirm their corruption. They also permit the morons in their base to believe that the Republicans voting to acquit are corrupt. The Senate occurs as a cesspit of corruption.

However, if a substantial number of Democrats vote to acquit, they occur as principled public officials. They also raise doubts among their followers, however stupid, about Republican corruption. There might actually be some reason to think the U.S. Senate is actually a “great deliberative body” instead of a bunch of political hacks. Unfortunately, the odds strongly favor the latter. Sad.

Kevin said...

It's a completely different inquiry! Why should these 2 things be treated alike?!

Because the Framers explicitly rejected a Parliamentary System.

Congress was not given the power to nullify a vote of the people except in the most limited of circumstances.

MikeR said...

"the failure to acknowledge the safeguard of the supermajority requirement..." Ann, you've mentioned this several times. It seems to me that you're making too much out of it. That would lead to a system where impeachment is frequent and conviction is rare, and impeachment itself means very little. I don't think that's what Dershowitz imagines, or what most of us imagined until 2019. We thought that the two-thirds requirement was an indicator of how profound the offense must be to lead to impeachment, and that therefore no one would impeach unless they saw a way forward to try for two-thirds.

Yancey Ward said...

I wrote a comment several days ago that the Democrats intentionally refused to fit their allegations into the form of a criminal complaint. I noted that any impeachable form of abuse of power (and obstruction, too) can be fitted inside an actual criminal complaint. We know this because the Democrats did debate impeaching Trump for bribery and extortion.

So, why did the Democrats not follow through and charge Trump with bribery and extortion- why fall back on the vague "abuse of power"? I think they did so because the House Democrats' definitions of bribery and extortion for this matter were so weak that the Senate and House members themselves would be used as examples of criminal behavior under these standards. Tell me which members of Congress haven't withheld meetings until someone has donated campaign money or made public statements supporting something the Congressperson wants? Tell me which members of Congress haven't traded their votes with each other, or their votes for some other consideration outside the halls of Congress?

The Democrats specifically and intentionally chose to avoid alleging an actual crime because the defense against a criminal allegation was too easy and too personally dangerous at the same time. They fell back on "abuse of power" in the belief that the complaint would limit the charge to behavior that only a President could ever commit. Dershowitz demonstrated this when he used only past Presidents as examples. Had the Democrats alleged bribery and extortion, then Dershowitz would have used past Presidents and all Congresspersons as examples. The Democrats were foreclosing that latter argument.

Ralph L said...

Suppose FDR hadn't asked for a declaration of war after Pearl Harbor, and after one was passed, he did nothing. Impeachable offense?

Can Of Cheese for Hunter said...

Pam Bondi lays out Hunter Biden-Barisma time-line. I'm sure his dad knew nothing about it.

rehajm said...

“If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan, and other great competitors, the last noun does not reasonably refer to Sam Walton, who was a great competitor but in business, or to Napoleon, a great competitor on the battlefield.” Applying that rule to the groups of words, treason, bribery, and other high crimes and misdemeanors, the last five words should be interpreted to include only serious criminal behavior akin to treason and bribery.

What if your crime is Mario Mendoza, Justice Scalia?

Yancey Ward said...

hombre at 10:29:

+1

Kevin said...

What if the people prefer divided government?

But divided government only serves to remove the other party’s president?

At that point, the people are no longer sovereign.

Two-eyed Jack said...

There is a tradition of reverence for the founders, but it is an obvious fact that they had no experience with the actual functioning of the mechanism they were creating. They totally missed how enduring political parties would operate in their system and, consequently messed up the idea of a vice presidency. We are in a far better position today to judge what might be a useful and workable set of criteria for impeachment than a group that did not anticipate popular election of either the President or Senators. I believe that they thought that these indirectly elected officers would be sufficiently vetted as to preclude villainy and their main goal was to tamp down partisan scheming.

Browndog said...

Warren on Dershowitz’s presentation: “I truly could not follow it.”

Harvard.

Tommy Duncan said...

INAL, but looking at the concept and structure of our government's check and balances helps me understand what the Democrats are doing and why it is wrong. The Democrats have defined "abuse of power" and "obstruction of justice" in a way that makes the exercise of normal executive power relative to Congress an impeachable offense. Congress clearly has a right to push back on perceived executive branch overreach. But impeachment is not how you do that. You push back through an appeal to the judicial branch. The House expressly avoided an appeal to the courts. That is inappropriate and needs to be squashed.

narciso said...

well they knew about faction, notably tories and whigs in their recent experience, the populares and the optimates back in the far past, there wasn't a provision for successor in the older system,

Breezy said...

Setting a low bar, which could be frequently abused itself, not only disables a presidency, it interrupts the Senate as well. While the 2/3 vote is a significant threshold, there is already significant cost spent in the process up to that point. Personally, I would prefer that these proceedings be very rare for this reason. Anything to curtail or limit the use of this mechanism would be welcome, in my view.

doctrev said...

Restate the constitutional phrase "high crimes and misdemeanors" into a workable standard that the House and the Senate can and should use today and in the future in all cases of presidential impeachment. Explain your choice using all of the methodologies of constitutional interpretation that you deem appropriate (and explain why you are deciding this approach to interpretation is appropriate).


In the early 21st century, impeachment was used as a threat to remove Presidents that retained considerable popularity among the American people. The disconnect between the popularity of a governing agenda and the impeachment stances of the representatives sent to advance that agenda may account for much of the unpleasantness that followed. Nonetheless, to prevent the follies of that era, a list of potential crimes and misdemeanors must be considered against the Constitutional safeguards applied to impeachment:

1) Perjury. Actual perjury against in a court of law must be impeached, owing to the corrosive effect of perjury upon the reliability of the court system. To be clear, this does not apply to government agents who falsify notes and claim perjury after an adversarial interview. It only applies to affidavits and other submissions to legitimate courts of law. If a president cannot file a submission due to secret operations or similar executive functions, he is strongly advised to declare executive privilege. If perjury is about "sex," or similar personal matters instead of state affairs, then punishing the malfeasance becomes more necessary instead of less.

2) Treason and related crimes. To be clear, different American factions may regard different political entities as friends or adversaries at any given time. Criminalizing these policy differences may lead, once more, to a Collapse. As an example, however, entities known to engage in state-sponsored terrorism against American soldiers, particularly when the death toll climbs to the thousands,are enemies to which no aid can be given without that aid being considered a grave crime against the American people. Failure to adhere to this rule would inevitably result in major difficulties in civilian control of the military, as the events of the Collapse have taught us in retrospect.

3) Dereliction of duty. While some events may be considered dereliction of duty, such as failing to reinforce a besieged embassy, the consequences must be stacked against national security interests. If a small number of Americans are killed, even if they occupy important positions such as ambassadorships, this might be weighed against the potential for major conflict and war if harsher measures are taken. In the end, though, the deaths of American servicemembers and citizens must be taken seriously in large numbers, or the legitimacy of the state will be corroded- particularly if their deaths were somehow due to a cynical attempt to cover up major criminal activity. Of course, without solid proof of this activity, prolonged impeachment inquiries are a waste of time that would force otherwise legitimate government activities to a halt.

4) Child sexual exploitation. While the prevalence of sex work may be declared as trafficking, resulting in major charges over relatively minor offenses, sexual trafficking of children is considered especially heinous in the United States. While this standard has not been kept throughout international history, failure to protect children will result in the delegitimization of the state, as was observed during the British Restoration.


Some of the examples cited above did not meet the supermajority required for conviction in the Senate. As the Collapse teaches us, failure to nonetheless do diligence and maintain the very structure of the legal system in general and the Constitution in particular results in mass alienation, and even civil unrest. In such an empire, lawyers go from useful members of society to an arbitrary ruling class that must be exterminated as completely as possible.

Ann Althouse said...

"When I am commanded to do something time-consuming when I expect free ice cream, I do nothing and settle for tap water."

Thanks for imagining me explaining everything as the equivalent of ice cream.

Rory said...

"Perhaps the greatest tragedy of this impeachment is the unlikelihood that any Senate Democrats will follow his lead, thus relegating the United States Senate to the same ash heap of corruption occupied by the Democrat Party, the leftmedia, the Clinton’s and most of academia."

The Dems just appointed John Podesta to the convention rules committee. Party reform has not even begun yet.

Jupiter said...

"High crimes and misdemeanors" is a vague phrase, I suspect intentionally so. The Founders did not intend to create a four-year Kingship. They realized they were creating a very powerful office, and wanted to place a constraint upon it. Not wishing to spell out the precise limits of that constraint, they essentially fell back upon the same "reasonable person" standard that the law uses in situations where judgment is required. It does not seem to have occurred to them that politics creates a zone in which reasonable persons do not act reasonably. If the "Senate jury" were subjected to voir dire, they would all be rejected for profound and obvious prejudice.

tcrosse said...

Thanks for imagining me explaining everything as the equivalent of ice cream.

Make that Babcock Hall ice cream.

Anonymous said...

Acrimonious?

Not seeing the acrimony. At all.

Maillard Reactionary said...

Browndog @10:40 AM: "Harvard."

That's where she was on the faculty, but she got her law degree at Rutgers.

An alumna of mine whom I am not thrilled about acknowledging. (Whenever that thought comes up, I try to think of Milton Friedman instead.)

Jim A said...

Ann, your question was the meaning of "high crimes and misdemeanors" rather than "other high crimes and misdemeanors." Does that mean you do not think the word "other" significant"? Seems like it would be, or would need some analysis why it should not.

rhhardin said...

"The founders" is temporizing the essence. Representing the essence of something by how it begins or how it winds up. Literary device.

The essence is that congress doesn't get to do a vote of confidence to appoint another president.

rhhardin said...

In a parliamentary system, a vote of no confidence requires only a simple majority.

It means serving at the pleasure of the swamp if the party structure naturally gives you 2/3 swamp. All the dems and the never trump republicans.

rhhardin said...

The anti-swamp essence is that the people get a big vote with the vote for president, against congress and the courts.

Known Unknown said...

"Rats"

I'm surprised there isn't a drawing.

cubanbob said...

What's missing here and Dershowitz (and another commenter also mentioned it) mentioned it is that the impeachment itself as presented to the Senate is fatally flawed. The House as a body never voted to give the committees the proper authority to initiate an impeachment proceed. The Democrats know this which is why they never went to the court to enforce the suboneas. The rest is irrelevant. The Senate should reject the impeachment on its face and if the House wants to do a redo, then do it properly. In the meantime the real abuse of power is that of the House Democrats by bringing a knowingly fatally flawed prosecution.

However if for political reasons the Democrats insist on bringing new witnesses that they should have called before filling the impeachment then Trump should call all the witnesses he needs for his defense starting with Barack Obama, the Bidens and John Kerry.
Let's be mindful of the fact that what the Democrats want to be removed for applies even more to Biden and Obama. Let the Democrats imagine the following scenario: Joe Biden is elected president and the Republicans take over the House and the Senate and impeach Biden the first week of February for actually doing what Trump is alleged to have done.

The only good thing about bringing witnesses to the impeachment trial is that doing so is that doing so keeps all the Senate Democrats running for president in the senate and not campaigning and Biden gets exposed as the crook he is and this show trial drags all the way through the campaign season while constantly damaging the Democrats among the voters they need to win over.

rhhardin said...

Acrimony is what you pay after an ugly divorce.

Mr. Majestyk said...

"I think that question should be: Restate the constitutional phrase 'high crimes and misdemeanors' into a workable standard that the House and the Senate can and should use today and in the future in all cases of presidential impeachment."

I disagree with Althouse's framing of the question. Dershowitz's goal was to persuade the senators that "abuse of power" and "obstruction of Congress" are not impeachable offenses. That's it, because if he does that, his client wins (or should win).

Jeff said...

So, Ann, you don't want the President to serve at the pleasure of 51 percent of the Senate, but you're fine if he serves at the pleasure of two-thirds of it? That's your operational definition of the separation of powers?

Dershowitz didn't answer the question you asked because he was answering a much narrower question. He is explaining why this impeachment should fail, not detailing a grand unified theory of impeachment. I always thought narrow and specific legal arguments, when applicable, were to be preferred to more grandiose ones. But then I'm not a liberal.

rhhardin said...

Dershowitz is about preserving the operation of the system set up in the constitution, not in Trump winning, though that would be a side-effect.

rhhardin said...

Before taking down a fence, figure out why the fence is there. Is that Robert Frost?

rhhardin said...

This fence makes it really hard to get rid of Trump.

Ann Althouse said...

"Ann, your question was the meaning of "high crimes and misdemeanors" rather than "other high crimes and misdemeanors." Does that mean you do not think the word "other" significant"? Seems like it would be, or would need some analysis why it should not."

You can include more text in your answer if you want. Part of textual analysis is the rest of the text (including anything else in the Constitution). If you're answering my exam question, inferences about what I think should be part of some methodology of constitutional interpretation. I don't see how that would work!

robother said...

The problem with Ann's hypothetical test question and grade, is, of course, that Dershowitz is not taking a constitutional law school exam. He's representing a real world client before a real world judge/jury.

If he thought Johnny Cochrane's "Glove don't fit, you must acquit" is the strategy best calculated to get the job done, his bounden duty as an advocate is to go there. In reality, his strategy is to trade on his academic reputation as a Constituiotnal scholar, so he won't go there, but consistent with flattering the Senators con law chops, he is simply giving 1/3 plus of them reasons to justify voting "No" publicly and then facing their voters. If his reasoning is rigorous enough to pick up the No vote of a genuinely open-minded Senator ( Collins., Manchin?) that's OK, but again, not strictly necessary to achieving his client's acquittal.

Ann Althouse said...

"So, Ann, you don't want the President to serve at the pleasure of 51 percent of the Senate, but you're fine if he serves at the pleasure of two-thirds of it? That's your operational definition of the separation of powers?"

No, I didn't say that. I said there's a safeguard against raw partisan power, and that should be taken into account as you decide how to balance the various benefits and deficiencies of the different options. But one option really is, the President can be removed whenever there are enough votes to remove him, taking anything into account, including politics. I wouldn't pick that one, but I'm not so afraid of that option that I'll run to the option that he can be removed only for a crime (and not even for any crime). I don't think crime properly gets at why we have an impeachment option in the system of checks and balances.

Iman said...

"Oh, Lord... guard us from those who smile, but plan evil in their hearts."

The Congressional Pastor has just inveighed against the Democrats. I must agree with that prayer.

Iman said...

"Obstructing the people attempting to railroad you is also called.... the middle finger.

The middle finger is freedom."

Indeed. One of my life's objectives was to earn and save enough money to comfortably retire. I, and others, call it "fuck you money".

Ann Althouse said...

"Dershowitz didn't answer the question you asked because he was answering a much narrower question. He is explaining why this impeachment should fail, not detailing a grand unified theory of impeachment. I always thought narrow and specific legal arguments, when applicable, were to be preferred to more grandiose ones. But then I'm not a liberal."

To say that is to lop off one of his biggest points, which is that the standard set here will apply to cases in the future, so you should frame it carefully and with awareness that it will be used against other Presidents and with the parties in different positions. That's the "shoe on the other foot" idea — equal justice under law.

He COULD have said: We don't need to say what the standard is because whatever it is, what we have here is too little, so we can leave the standard-setting for another day.

He didn't.

Can Of Cheese for Hunter said...

No crime but a majority can impeach?
golly - which party would partake in that bad faith at every turn? How is that good for boring normalcy?

Ann Althouse said...

"I always thought narrow and specific legal arguments, when applicable, were to be preferred to more grandiose ones."

That's the idea of "minimalism" that has been associated with Chief Justice Roberts.

Scalia wrote a cool, readable law review article rejecting that — "The Rule of Law as a Law of Rules."

bbkingfish said...

There is no doubt that Alan Dershowitz, deservedly, is one of the world's most famous lawyers.

If I were a rich scumbag like Epstein, von Bulow, Trump, or O.J., and I had killed someone, or been a sex trafficker of underage girls, or had been improperly canoodling with foreign governments. I would consider myself very fortunate to secure Dershowitz's services.

And, by the way, I think the emperor's clothes are lovely; I don't care what the Democrats say.

Ann Althouse said...

"No crime but a majority can impeach?
golly - which party would partake in that bad faith at every turn? How is that good for boring normalcy?"

I think (and hope) the House Democrats will pay a big political price for what they have done and that will deter future House members from perverting the process for political gain. That is, it can all be political if politics are also working as a safeguard.

tim in vermont said...

"Instead of answering my arguments... on their merits and possible demerits, they have simply been rejected with negative epithets”

"Reject first, ask rhetorical questions later!” - Jonathon Haidt on how liberals argue.

rehajm said...

No crime but a majority can impeach?

I thought Dersh did a good job arguing the constraints to non-crime impeachment.

boricuafudd said...

Ann

There is a third option, not talked about. Elections, which are just around the corner. Impeachment should have a higher standards than just politics or super majority in the Senate, unless the charges are so egregious that waiting for the next election is not an option.

But IANAL.

Clark said...

Does impeachment require a crime? D says yes; the standard academic/informed view today says no. The apparent disagreement turns on equivocation involving the word “crime.” Changing the question to “Does impeachment require an actual crime” highlights this. What do you mean by "actual"?

No doubt, a crime in the sense of a violation of a criminal statute is not required. But a “high crime” or a “[high] misdemeanor” is required. The standard response to that is, “No it’s not, the house can impeach for any reason or no reason.” By which is meant that the house has the last word on the question. But that is confusing two different questions. Does the constitution require a high crime and misdemeanor? And Who gets to decide?

(It is a mistake to think there is no limit to the nonjusticiability of this question. Ask yourself whether Congress could get away with impeaching a president while at the same time officially declaring that it was doing so even though it found no high crime or misdemeanor. I think the Supreme Court would take that kind of throwing-down-the-gauntlet case.)

The constitution constrains the House to impeach only if there is a high crime or misdemeanor. The House is bound by that rule, even if they are very very likely to get the last word on whether they have abided by that rule.

So yes, a crime is required (an actual crime is required if you insist), in the sense that there must be a high crime or misdemeanor.

CStanley said...

In making his argument that criminal behavior is a necessary condition for a Constitutional criterion of impeachment, Dershowitz leaned on the idea that this was necessary if impeachment was to be different from a vote of no confidence in a Parliamentary system. I may be wrong but I infer that Prof Althouse thinks Dershowitz’s argument fails because the requirement of a supermajority vote already prevents this.

Even if some or all of the framers thought the supermajority requirement would prevent the subordination of the executive branch to the legislature, it still doesn’t follow that they intended for that to be the sole protection.

And while I think he could have strengthened other parts, I do think he included one other string argument: that the seriousness of the offense shouldn’t just be determined in the “bosom” of each Senator. That argument for some objective predetermined standard seems very important to me, and I agreed that if criminal statutes were not the criteria then SOME other objective standard should be employed.

I’m convinced that Dershowitz’s definition was a good one (but I’m also very open to hearing alternate views, and would like for Althouse to expound on hers if she’s so inclined.) I felt he gave a way forward for an objective set of criteria but without being too constrained by statutory limits.

Kevin said...

I said there's a safeguard against raw partisan power, and that should be taken into account as you decide how to balance the various benefits and deficiencies of the different options.

I don’t think one is sufficient, especially given where we currently stand.

The Dems know they don’t have 67 votes and yet it hasn’t even slowed them down.

In fact it sped them up.

M Jordan said...

Wow, I made the headline but wasn't around to enjoy it (till now). At any rate, I'm in and out today and haven't really had time to digest Ann's answer or the commentary but I will. I too am a retired teacher/prof (many more years in high school than college). I taught English/lit/comp and would tell my students at the semester's commencement, if you want right/wrong answers, math class is down the hall. We deeply nuanced English folk work in the world of grays. So at first blush, I guess I should be happy: it looks like Ann went gray on me.

But, tbh, I almost double-majored in math. I like black and white too. And I was kinda, sorta hoping for an A, B, C, D, or F grade.

An any rate I give Dershowitz an "A" because, 1, he showed how the Dems unfairly buried their argument in the fog of "misdemeanor" and 2) he showed how they did mind-reading to show Trump had evil intent.

Jeff said...
This comment has been removed by the author.
tim in vermont said...

Don’t worry Democrats, it’s going great!

https://twitter.com/helloitsthao/status/1222159782427021314

I say drag it out with more witnesses! And throw in some cowbell!


13 point shift towards Trump vs Biden since last poll

12 point shift towards Trump vs Sanders

15 point shift towards Trump vs Warren

14 point shift towards Trump vs Buttigieg


She’s a great follow: Thao Nguyen@helloitsthao

CStanley said...

I don't think crime properly gets at why we have an impeachment option in the system of checks and balances.
If a student disagreed with this, and supported their response with quotes from the framers and a textual analysis and case examples, would he or she receive a good grade?

I think (and hope) the House Democrats will pay a big political price for what they have done and that will deter future House members from perverting the process for political gain. That is, it can all be political if politics are also working as a safeguard.
But maybe they won’t, and maybe hoping isn’t good enough, particularly when you consider what a massive waste of time and resources this has been.

Jeff said...

No, I didn't say that. I said there's a safeguard against raw partisan power, and that should be taken into account as you decide how to balance the various benefits and deficiencies of the different options.

It's a safeguard only against 51 percent but not against 67 percent. That's not much of a safeguard.

I'm not so afraid of that option that I'll run to the option that he can be removed only for a crime (and not even for any crime).

But by removing the limitation that there has to be a crime, you are in fact endorsing the Gerald Ford option that an impeachable offense is whatever two-thirds of the Senate says it is. Or as Dershowitz quoted Maxine Waters: There is no law.

I don't think crime properly gets at why we have an impeachment option in the system of checks and balances.

Well, you have an opinion about what should be impeachable. Perhaps you might share it. But your opinion is not the law, the Constitution is. And Dershowitz did a fine job of showing that the Founders understood the words "High Crimes and Misdemeanors" to require an actual crime. That's all he needed to do.

And Dershowitz went into some detail about the difference between why an impeachment power is necessary and what are the specific requirements that apply to a particular impeachment. It seems that your comment confuses the two in just the way Dershowitz warned against.

But even if you think Dershowitz blew it, that Trump did everything the House accuses him of, and that what he did is impeachable, you still shouldn't impeach him because there is no emergency and we have an election coming up very soon. If what Trump did is so horrible, you should be able to convince 51 percent of the voters to throw him out. It should be easier to do that than to convince 67 percent of the Senate. Overturning the will of the voters is something that should be reserved only for dire emergencies, and this isn't one.

Yancey Ward said...

As I wrote above- the Democrats could have easily written their impeachment article "abuse of power" in the form of a criminal allegation of bribery and extortion. LeftBank, in the other thread, came up with the humorous notion that it is a trap to get the Senate Republicans on the "pro-abuse-of-power" narrative, but the notion is ridiculous since the Senate will just declare this wasn't abuse of power at all, not that abuse of power is ok.

Again, the Democrats didn't go for an allegation of bribery and extortion because the obvious and easy defense is to hold up the typical behavior of your everyday legislator. It wasn't Joe Biden the Democrats were protecting with this decision- they didn't want any of their own behaviors used by the defense.

gerry said...

it can all be political if politics are also working as a safeguard.

Perhaps you implied it, but politics did offer a safeguard. However, Hillary's incompetent presidential campaign, Trump's masterful election strategies, and the international revolt against elitists drove the radical Democrat base into a frenzy so mad it prevented even the nasty but sly Pelosi from doing anything about it. The warning signals were there but the Democrat base refused to believe them or perhaps, aided by mainstream media, refused even to see them.

Can Of Cheese for Hunter said...

democrats are actively trying to remove the electoral college, make it easy for illegal entrants to vote (via drivers licenses), vote by phone, vote by mail, don't verify the person voting votes once and is who they say they are (that's racist!)
So cheat to win democrats will pay at the ballot box. They own the ballot box.

rehajm said...

I think (and hope) the House Democrats will pay a big political price for what they have done and that will deter future House members from perverting the process for political gain

Free stuff paid for by people you hate! is a strong counter argument. Did the founders consider it?

(I recall kegs of free beer were contemplated a few times...)

Mark said...

I don't know about solidifying "high crimes and misdemeanors" into a hard and fast positive rule, rather than leaving it within a common law / right reason approach, but I should think it would no harder to present a workable abuse of power charge than it would be to allege an abuse of discretion (for which there is plenty of precedent in administrative law).

Jeff said...

That's the idea of "minimalism" that has been associated with Chief Justice Roberts.

Scalia wrote a cool, readable law review article rejecting that — "The Rule of Law as a Law of Rules."


Scalia was talking about the role of an appellate court judge, not the role of an advocate in a particular case. And even there he would have to acknowledge that it's a close call. He confesses that in law school, he held to the minimalist view, and only changed his mind after years of experience. I suspect that if you were to poll practicing lawyers and ask them which kind of argument was most likely to be accepted by the judges in their cases, you'd find that few judges want to hear grand unified legal theories in their courtrooms.

What kind of argument do you suppose is going to appeal to Senators who haven't engaged in this kind of argument since they were in law school decades ago?

readering said...

Impeachment applies under the Constitution to all civil Officers of the United States, so any constitutional interpretation should apply equally for all.

rehajm said...

Sekulow arguing the Steve Irwin defense. Danger! Danger! Danger!

Mark said...

He COULD have said: We don't need to say what the standard is because whatever it is, what we have here is too little, so we can leave the standard-setting for another day.

I agree with that. I don't think that we can automatically rule out a charge of something like "abuse of power" or "obstruction of Congress," but the burden, which is a high burden, is on alleging the specific facts that would amount to such.

Possibly, from an academic perspective, there are some set of actions that an officeholder might take that are so egregious and tyrannical and a threat to the constitutional order that, while not violating any criminal statute, do rise to the level of corrupt "abuse of power" or "obstruction of Congress" -- after all, most dictators and despots in history have actually followed the law -- but, again, the devil is in the details.

Mark said...

On the other hand, I think that there are plenty of criminal laws that an officer/judge/president might violate, including a few felonies, and they would NOT rise to the level of impeachment "high crimes and misdemeanors." Mostly these would fall within the category of malum prohibitum.

It is those acts, on the other hand, which are mala in se or otherwise demonstrate a gross moral turpitude, such that they show a corrupt unfitness for office, which do rise to that level.

Ken B said...

Not remotely what he was trying to do. If I grade this post on the question "explain inheritance in Java" you would get an F.

Mark said...

If an everyday statutory crime is itself grounds for impeachment, then things like removing a tag from a mattress could suddenly become a constitutional crisis.

Ken B said...

Hardin is besting Althouse here. He is being specific. She is waving her hands.

The key issue is not if a crime is required but whether "abuse of power" is impeach able when no crime is involved. Josh Blackman had a strong column showing it is not.

LiftWithTheLeg said...

Even too large for Hercules (Bill Murray, SNL):

https://vimeo.com/286799235

Ken B said...

Ralph L
Good question about FDR. Answer : no Congress can declare war on its own, the president has no veto on it.

Mark said...

There is an historical rule to guide non-criminal impeachment.

Removal upon impeachment should not happen "for light and transient causes . . . But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off" such officer.

rhhardin said...

It's the seller that can't remove a tag from a mattress. The buyer is free to do so.

jimbino said...

"lawprofessorly way about grades" in English would read "law-professorial way about grades." Even your spell-checker agrees"! The 'ly' suffix indicates an adverb, whereas you want an adjective to modify 'way.' Exceptions to the rule include 'lovely' and 'neighborly.'

Hagar said...

Treason, bribery, or other high crimes and misdemeanors.

After John Marshall got a seat at the table for the Supreme Court, what constitutes a "crime" is best left for the Court to decide.

John Adams and Marshall refused to pay a bribe to Talleyrand in the XYZ case, but that might also have been due to the enormous size of the bribe requested. Elbridge Gerry kept intriguing for accepting the necessity of paying it.

Thomas Jefferson sent the U.S. Navy into the Mediterranean Sea to gain the Bashaw of Tripolis' attention by attacking the Bashaw's navy without a Congressional declaration of war on either the Bashaw or the Ottoman Empire that he nominally belonged to.
After that was achieved, they negotiated protection money of, I think, $60,000 in an annual bribe to be paid the Bashaw for leaving U.S. merchant ships alone.
And the U.S. Navy stayed around to see the bargain was kept.

Now, as a hypothetical, if that is turned around and it had came to light that the Bashaw paid Jefferson personally $60,000/year not to send the U.S. Navy to attack him again, then the public outcry would have been such as to force Congress to impeach Jefferson for committing "bribery," no matter what the Supreme Court thought of it.

Mark said...

It's the seller that can't remove a tag from a mattress. The buyer is free to do so.

Not if Trump is the buyer.

Mark said...

What Dershowitz's recitation does is show precedent for what has NOT been considered impeachment removal offenses.

narciso said...

Real acts are doubleun0lusgood



https://www.thegatewaypundit.com/2020/01/lying-adam-schiff-wants-to-control-ai-based-video-analytics-technology-after-gateway-pundit-used-this-technology-to-connect-him-to-a-ukrainian-arms-dealer/

narciso said...

Oh really


https://www.breitbart.com/politics/2020/01/28/joe-bidens-sister-valerie-sent-millions-of-joes-campaign-dollars-to-her-own-consulting-firm/?utm_medium=social&utm_source=facebook&fbclid=IwAR2Bns3sNlRGC1k6AHhYg5dvrZa-3x_0q89dD66PX1khCnrnsdb1tqsa9Q0

mikee said...

The Constitution provides that the President can be removed from office upon conviction in the Senate of Articles of Impeachment sent over by the House.

And that is all that is required. Not a crime, not a high crime, not treason. Just Articles stating that the President is impeached and must be tried in the Senate. The current House basically did the equivalent of a grand jury indicting a ham sandwich here, on the DA Pelosi's forced-hand say-so, and anyone denying that should be checked for brain parasites.

Thankfully, for the lifetime of our republic only a few times has the House risen up and impeached a President, and never has a Senate followed them with conviction and removal from office of a President.

And I hope the Republicans never sink so low that they ignore our history, foundational documents, and common good so strongly as to repeat this shameful episode of Democrat Party mass abuse of the citizenry.

Dust Bunny Queen said...

Ken B said; The key issue is not if a crime is required but whether "abuse of power" is impeach able when no crime is involved. Josh Blackman had a strong column showing it is not.

This is the crux of the issue in that "abuse of power" without a crime is not impeachable. As Dershowitz indicated. Abuse of Power is a political issue, a perception in the minds of the opposition and is something for the VOTERS to decide.

Despite the clear transcript of both phone calls, where in no way did Trump call for an investigation of Biden in particular.....the Democrats want to impeach based on what was "in his mind" at the time of the call.

In other words. Thought crimes!!!Impeach or try someone for what you presume, think, guess, wish was in their secret and innermost thoughts, despite any evidence of such a thought. How dangerous is that.

Let's start arresting people because they look like they might be thinking about committing a crime. Really?

Now the Dems are mind readers! Wow.

Browndog said...

The only reason any republican Senator would vote to call witnesses is if they are, after all they've heard, still open to the idea of removing the President of the United States.

Robert Cook said...

"...then the President could be removed any time the opposing party decided he needed to go and for any reason they could come up with that was ostensibly palatable with the electorate."

Yes. And why not?

Why is the office of the president so venerated? They come and go. Most have been mediocrities, a number of them worse than that, and a few of them have been quite good or excellent. If we get rid of one, there will be another to take his (or, eventually, her) place. Given the co-equal power of the three branches, the occasional unplanned replacement of a president should not be unduly disruptive to the republic.

Robert Cook said...

"The President can only be removed for the specified reasons set forth in the Constitution; not for undefined offenses not set out in the Constitution...."

And yet, the term "High crimes and misdemeanors" is unspecific, and leaves open to Congress at any given time to determine what particular offenses call for impeachment. Given how few times in our history Congress has impeached a President, it's not as if we are likely to be impeaching presidents every other term, or easily, or lightly. Clinton was impeached and found guilty; he remained in office. If Trump is found guilty, he may well also remain in office.

Dust Bunny Queen said...

Cook If WE get rid of one,[President] there will be another to take his (or, eventually, her) place

The WE part is the important part. Other than an instance of Criminality, Treason, Bribery......WE the people are the ones who should decide. Not one butt hurt political party over another.

The voters who voted for and who support a President should not have their votes stolen, abrogated, nullified for frivolous reasons. This is why the Constitution is strict and limited on the means used and reasoning to impeach.

If the President is a mediocre, objectionable or even just incompetent President, that is not a reason to Impeach. Go nuclear on the Office. The Voters can decide to vote someone else in. Vote the bastard out.

That is OUR job.

ColoComment said...

I'll agree with Yancy and Jim(?), that too little attention is given to that small word, "other" in the subject phrase.

I'll suggest that, to the Founders, a contemplated existential threat to the Republic represented by a heinous act of Treason against the Republic, and/or the personally aggrandizing act (at the expense of the continued health of the Republic) of Bribery of a President, were likely the worst possible acts they could contemplate at that time being committed by future Presidents or other officers.

But, since they could not anticipate nor list all possibilities, they used generally accepted and understood legal phrasing to finish the description:

Thus, to those dual examples of the worst-of-the-worst offenses, they added "...and other high crimes and misdemeanors." That little word "other" has the effect of lifting those as-of-then undefined Presidential or other officials' acts of threat to the Republic up onto the same lofty seriousness pedestal as the specific crimes that they did offer.

It seems to me that a President's resistance to an invalid House Committee demand (that was not a subpoena) for arguably privileged testimony and documents (that the House Committee chose not to further pursued in the court system), does not rise to that lofty degree of, yes, criminal seriousness. Nor does, it also seems to me, a slight delay in provision of foreign aid where fully legal & evidenced concerns about state & crony corruption can be and were demonstrated, notwithstanding that there could be inferred some potential indirect and/or unlikely political benefit to the President.

Krumhorn said...

Given how few times in our history Congress has impeached a President, it's not as if we are likely to be impeaching presidents every other term, or easily, or lightly.

Surely, you can't mean this. This current circus is starkly partisan. And it will end on the same basis. If there even a scintilla of validity to the charges or the process in the House, there would some sign of consensus that transcends partisan interests. There has been no other purpose than to brand Trump's forehead with the scarlet "I" as an expression of hatred by the lefties and the LLR Never-Trumpers.

There will certainly be paybacks for this down the road and impeachment proceedings will officially start within the first 2 weeks of the terms of all future presidents who have a House controlled by the other party.

This is a hell of a world the lefties have left us. It's the product of resistance by any means necessary. The haters are dominating everything.

- Krumhorn

Ralph L said...

Good question about FDR. Answer : no Congress can declare war on its own, the president has no veto on it.

But he must wage it. If he doesn't, shouldn't Congress impeach and remove him? Not defending the country isn't a legal crime, but it is a political one.

At the time, I remember some said the diversion of arm sale profits in Iran-Contra may not have been a crime under US Code, but does anyone doubt Reagan would have been impeached if there had been evidence he'd ordered it?

Howard said...

Krumhorn doing his best 1998 Clinton supporter routine. Except Clinton had almost 70% approval ratings, so that was even more desperate to overturn a vote.

ConradBibby said...

By the plain meaning of the words, impeachment requires a crime. A congressional super-majority could vote to impeach and remove a president simply for being left-handed or too tall, but they'd be acting unconstitutionally so long as those attributes are not criminal. Anyone claiming that all that's needed is 2/3 of the votes and the desire to remove the president may be correct as a matter of practical effect, but they're clearly wrong as a matter of constitutional interpretation because the Constitution establishes a standard predicated on criminal misconduct.

Limiting it to cases of criminal misconduct hardly renders the impeachment power unduly narrow. Especially in the modern age, if there's any merit in a given case to the idea of removing the president for cause, it should be plenty easy to identify an actual criminal violation to support the effort's constitutionality. Seriously, if Congress CAN'T identify an applicable criminal statute to cover the situation, it's a safe bet that the country is better off putting up with the guy until the next election.

Which brings up another point worth mentioning: Presidential terms are only four years. Forget impeachment. Forget checks and balances. Forget the electoral college. The four-year term is the most important bulwark of the Constitution against a rogue executive. Understanding that there would always be another presidential election just around the corner, the Framers would have had little concern that limiting impeachment to cases involving criminality would make it unduly restrictive. Their bigger worry was that Congress would use impeachment as a means of undermining the power and authority of the president. They wanted a powerful chief executive, duly elected by the states, who'd have basically free rein to run the government as he saw fit for four years at a time. They were right to trust that removal of a president in the middle of his term would RARELY, if ever be necessary for the security and well-being of the republic. In the few cases of presidential impeachment we've had, none of them really involved conduct that was so antithetical to the interests of the U.S. that the guy HAD to go before the next election. Some people may feel that way about Trump, but it's obviously not for the reason of this episode involving Ukraine. Rather, in this case, it's in the Dems' perceived political interests to remove Trump and take him off the November ballot (or to pretend that this is their realistic objective); or they disagree with his policies; or they simply disapprove of him as a person. But they cannot reasonably claim that his request that Zelensky look into the situation with the Bidens constituted such a violation of his official duties as to require his immediate removal from office for the sake of the republic.

Seeing Red said...

It seems Wildwood NJ is going to be wild in a few hours. 100k requested tickets.

narciso said...

mostly smoke and mirrors, instead of truth,


https://ukrainegate.info/summary-part-2-not-so-dormant-investigations/

narciso said...

realizations come hard sometimes.


https://victorygirlsblog.com/i-was-wrong-they-want-war/

Ken B said...

Ralph L
Now we're talking. Those are cogent objections to Dershowitzs stronger claim.
But it might fall under treason in some cases. Anyway, a specific case to answer.

narciso said...

now arming a drug cartel with automatic weapons which in turn were targeted at civilians both in mexico and the united states, using the irs justice department and even osha to suppress political activity of disfavored groups, that's two that come readily to mind, now preventing weapons to be shipped to an ally regime, when it was under massive attack, by proxy forces, that's the third example,

StephenFearby said...


The wife (a naturalized citizen who has lived in the USA for almost 30 years) is a registered independent who doesn't pay much attention to politics. But she has a keen sniffer that ferrets out hypocrisy. After I invited her to listen to a snippet of what Dershowitz was saying she was sufficiently impressed to listen to the end.

His 1-hour 7-minute presentation on PBS:

https://www.youtube.com/watch?v=mhq0qUOSiQM

We both agreed the Dershowitz master class was a cut above the usual fodder offered by the drones.

walter said...

Tim maguire said...I'm fine with an impeachable offense being whatever congress says it is. The voting public is the limiting factor-
--
Yeah..I'm not good with zero standard, especially with a corrupt/complicit press.
Besides, non-crimes are better addressed through censure.

sean foley said...

The standard is in the constitution: "High crimes and misdemeanors". Has that standard been met? Not even remotely. Dershowitz did not just talk about precision, he also talked out the conduct rising to the level of a crime or something like a crime. What Trump did was foreign policy. And if Trump requested that Ukraine investigate someone, so be it, he's head of the executive branch, which includes foreign policy and law enforcement. Not to mention the Dems spent the last 3 years investigating Trump, so apparently it's not a big deal to be investigating your election opponent.

Ken B said...

I do not think he was rushed. This is not high school. Most of us could follow the arguments.
The strongest part was the argument that vague charges are repugnant to the constitution. The distinction between reasons for having the impeachment power and the criteria for its exercise is crushing. Consider by analogy treason. There are many reasons to prosecute treason but the constitution sets very narrow criteria for doing so.

Robert Cook said...

"The WE part is the important part. Other than an instance of Criminality, Treason, Bribery......WE the people are the ones who should decide."

We do, purportedly, through our representatives in the House and the Senate.

Though, this does require that they actually represent us, rather than the corporate lobbyists who are generous with campaign donations (and sometimes pre-written legislation).

rhhardin said...

Hardin is besting Althouse here. He is being specific. She is waving her hands.

Sex difference. Hardin abstracts details away and winds up at a single thing that matters, Althouse reasons sideways from all the details at once and accommodates them all for the situation at hand.

One suitable for systems, one suitable for running the neighborhood.

Robert Cook said...

"Not defending the country isn't a legal crime, but it is a political one."

For all the wars we've been involved with throughout our nation's history, (and presently) we've almost never fought in defense of the nation.

rhhardin said...

I'm creating a mp3 of yesterday's testimony by playing the youtube of cspan (silently) into TotalRecorder, 8 hours yesterday. Will finish at midnight or so.

I peek in on the audio board. Callers in the break are astounded how miserable the Republicans' arguments all are. Wait,

"Let's go to Chuck Schumer, who is talking to reporters..."

Robert Cook said...

"This current circus is starkly partisan."

As was the impeachment of Bill Clinton for lying about a sexual affair.

"This is a hell of a world the lefties have left us."

And the righties, who are generally more partisan than the lefties.

Gk1 said...

With Krumhorn on this that partisan impeachment is now the new normal. These are the rules going forward. Obama will go down for want of any real accomplishment as the last president not to be impeached. The house democrats would have to lose a blowout of 2012 proportions before anyone would take notice and make impeachment the rarity the founders had in mind. Dersh has hit this point many times the last 2 years.

rehajm said...

As was the impeachment of Bill Clinton for lying about a sexual affair.

Not why he was impeached...and bipartisan, as both Democrats and Republicans voted for it.

Michael K said...

Clinton was impeached and found guilty; he remained in office.

Not true. Not found guilty in Senate. Plus, of course, there were real crimes in his case but the Senate should have chosen censure.

Inga said...

Looks like McConnel doesn’t have enough votes to block witnesses.

Gk1 said...

20 years since the last impeachment. Anyone want to take odds on the next impeachment when Trump is re-elected? How about the odds when the democrats get their president elected? We have crossed the Rubicon. Where does this all wind up?

Matt Sablan said...

How can it be obstruction of no one ever ruled that he had to comply?

Ken B said...

I assume Dershowitz used the folded sheets because of eyesight. He held it close to read it, which is awkward with binders. Seems a petty complaint tbh.

Michael K said...

And the righties, who are generally more partisan than the lefties.

Says the partisan who has been ignoring the craziness since November 2016. Blind does not do your cluelessness justice.

A lot of us thought Obama was an empty suit but there was NOTHING like the craziness . Of course a Bernie Bro like you will ignore Hodgkinson and the latest bros and their concentration camps.

BUMBLE BEE said...

OMG unlike all the other times... The walls are closing in on him!!

narciso said...

there was fraud all the way around,

https://twitter.com/jsolomonReports/status/1222275513923796993

eric said...

Blogger Inga said...
Looks like McConnel doesn’t have enough votes to block witnesses.

1/28/20, 5:04 PM


Prediction: There will be no witnesses.

Michael K said...

First, witnesses are deposed and, as in the Clinton impeachment, clips of video depositions could be shown.

The Ingas and other dopes think they will have another Kavanaugh hearing circus with guys outside paying demonstrators cash.

Avenatti is in prison, folks.

Chance of witnesses at 50% I think. Probably a deal.

narciso said...

well hunter's available, how much he paid to settle the case is an open question, this freak show that's too much for tmz, zylochevsky who is practically a bond villain, none of that interests the press,

Howard said...

No witnesses. The Republicans have stipulated to Bolton's book testimony and have Dershowitz not a crime ass cover. It's all over but the spinning.

narciso said...

reading comprehension is not your strong suit,


https://www.latimes.com/politics/story/2020-01-28/trump-team-wraps-impeachment-defense-with-an-elephant-in-the-senate-john-bolton

HoodlumDoodlum said...

Ann Althouse said...I think that question should be: Restate the constitutional phrase "high crimes and misdemeanors" into a workable standard that the House and the Senate can and should use today and in the future in all cases of presidential impeachment. Explain your choice using all of the methodologies of constitutional interpretation that you deem appropriate (and explain why you are deciding this approach to interpretation is appropriate).

If that is the standard it's probably fair to say that neither side has answered it, Professor. Dershowitz made an attempt and I can understand why you'd conclude he fell short, but I'm not sure the prosecution side even made that attempt (I have not listened to all of the proceedings).
I give Dershowitz a few points for addressing the question at all, insofar as "by what standard" is probably the most important thing that should be decided--affecting, as it does, all future Presidents!
But I grant I am not not, have never been, nor ever will be a professor of law; my scoring may accordingly be poorly calibrated.

narciso said...

it's this kind of a strange strange world,

https://www.counterpunch.org/2020/01/28/truth-a-major-casualty-of-impeachment-hearings/

narciso said...


https://twitter.com/seanmdav/status/1222307248237699073

narciso said...

so even more coverups, apparently, in the horowitz report,

Beloved Commenter AReasonableMan said...

Blogger Inga said...
Looks like McConnell doesn’t have enough votes to block witnesses.

eric said...
Prediction: There will be no witnesses.


This was also my prediction but the WSJ says that currently McConnell doesn't have the votes. Maybe some Republican senators are looking to extract their pound of flesh from Trump for their vote. Given that his word is worthless I cannot see the point of this, but maybe. Alternatively, some of them do not feel they can ignore Bolton. Bolton is arguably the most truly right wing person to ever hold senior office in recent administrations. He bleeds Republican. To ignore him may be a bridge too far.

Surprised it got this far. With a weak hand Pelosi has created more angst for the red team than could have been reasonably expected.

Beasts of England said...

Feinstein signals she may vote for acquittal. I’m thinking of a certain Led Zeppelin song...

rehajm said...

Surprised it got this far. With a weak hand Pelosi has created more angst for the red team than could have been reasonably expected.

Well it wasn't like they were going to be passing any bills or other governing. Gives them all something to keep out of trouble...

Beasts of England said...

Graham and Cornyn today mentioned five witnesses they’ll call if Bolton is voted through: Joe Biden, Hunter Biden, Eric Ciaramella, Alexandra Chalupa, and Adam Schiff.

Beloved Commenter AReasonableMan said...

Feinstein said ...
The LA Times misunderstood what I said today. Before the trial I said I'd keep an open mind. Now that both sides made their cases, it’s clear the president’s actions were wrong. He withheld vital foreign assistance for personal political gain. That can’t be allowed to stand.


Beasts of England said...

That’s good to know, ARM. I’d hate to be misquoted.

readering said...

Why try to call Schiff as a witness when Reps can question him for 8 hours Thursday?

narciso said...



Rocket surgeons at work

https://mobile.twitter.com/RepLeeZeldin/status/1222315561759186945

Beloved Commenter AReasonableMan said...
This comment has been removed by the author.
Equipment Maintenance said...

Go ahead. Have whatever witnesses you want. Bastardize their testimony into something sinister, illegal, unprecedented. Have a somber, sad vote. Escort Trump from the premises. Reap the whirlwind. Just don't say you had no idea.

bagoh20 said...

This mental masturbation of legal minds gets elitist and insulting at a certain point. Is treason excusable based on what the House Managers have presented? To plan and execute a deceptive coordinated overthrow of the democratically elected POTUS from day one after the election seems like a much more serious affront to the Constitution than even the worst accusations against Trump. Stop thinking so much about how to restate the obvious so it's not so obvious. That's not as impressive as you've been taught to believe. Hell, almost every overpaid hack talking head on TV does just that daily. Such thinking and misplaced values could never produce a document as uniquely clear and flexibly durable as the Constitution, although the word count would exceed it by multiples of multiples.

You can't honestly suggest that deciding to impeach a President on election night, and then looking for three years for a justification is anything other than disfranchisement of 63 million American voters plus the ones who voted against him but still believe he won honestly and legally. Do we really think it's intelligent to give any validity to the aspiring idea that no Presidential election is really final, and that it's not an election but legal dispute?

stephen cooper said...

assuming Trump is reelected and that a Democrat wins in 2024 ...
unless that Democrat is (a) independently wealthy and (b) has not communicated with foreign governments ....

those of us still alive in 2025 are going to see that Democratic president impeached, if there is a Republican majority in Congress.

We all know that, it is the new normal.

And yes Dershowitz was a bad hire, so was Bolton. I am assuming Trump hires losers just to show he can, the way the coolest kids at high school used to hang out with social outcasts that the semi-cool kids would never be seen talking to. To show they could.

Beloved Commenter AReasonableMan said...

stephen cooper said...
Dershowitz was a bad hire


Why was Dershowitz a bad hire? He seemed one of their better speakers.

Anonymous said...

"Why try to call Schiff as a witness when Reps can question him for 8 hours Thursday?'

Are the House managers under oath when they are being questioned? Were they under oath when they made their initial presentation?

stephen cooper said...

Dershowitz was a bad hire because everybody knows that if Trump is removed from office by a rogue Senate, Hillary Clinton will be indicted - not in DC, but in Arkansas, where she might very well be convicted, Obama will be indicted in DC (although of course not convicted, because nobody wants him to be convicted, just indicted), and Trump will be reelected with the fullly enthusiastic help of President Pence, who will be the first sitting president ever to run for vice president.

You do not need a second-rate old phony intellectual man like Dershowitz, with his evil connections to the pro-choice cabal, to the murderer Simpson, and to the evil Epstein and his pal the semi-fugitive "Prince Andrew", to make your case when you are as far ahead of the people who hate you as Trump is.

Also, I think you were not saying what you were really thinking when you said you thought he was one of their better speakers.

By the way, please change your avatar. Honesty demands it.

Francisco D said...

Prediction: There will be no witnesses.

In the short term, the very short term, witnesses is an issue. But, it really doesn't matter in the long run.

In the longer term, (if I were McConnell) I would tell the Republican "moderates" to vote their conscience on conviction or acquittal. Then live with your legacy because everyone knows what this shameful exercise is.

Well, most people with an IQ above room temperature get it. Some of our commenters don't, but it is hard to imagine anyone that brain dead. It's an exercise in raw cynical manipulation, just like the Kavanaugh hearings.

They all know it. All of them in the House and the Senate.

gadfly said...

The Daily Show host Trevor Noah took a look at the “insane” legal team that President Trump put together to defend him. Not only does it include Ken Starr, who ran the investigation that led to Bill Clinton’s impeachment but also Alan Dershowitz who famously defended O.J. Simpson. (Both men also defended the late pedophile Jeffrey Epstein.)

“These lawyers are perfect for Trump,” Noah said, “because they have experience with super-guilty people and super-horny presidents.”

Linc said...

I think Dershowitz citing the severity of the treason and bribery criteria is well taken. His alternative for an impeachable offense is, to paraphrase, Justice Potter Stewart in another context:

"I know it when I see it"

He doesn't think Trump's words, whether directly linked to the Bidens or not, meet the Potter test.

LincW