tomkaz

Are Democrats building a collapsible impeachment?

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I have mentioned this article by Turley but originally did not share it. However, after yesterday and Pelosi’s comment today, I thought it worth sharing now. 

 

From The Hill:

Are Democrats building a collapsible impeachment?

As impeachment hearings begin, some have raised dubious objections to the process from a constitutional basis. Former acting Attorney General Matthew Whitaker suggested there can be no impeachment since “abuse of power” is not a crime. Northwestern University Law Professor Steven Calabresi argued that President Trump was denied the Sixth Amendment right to counsel in the closed hearings held by House Democrats.

 

Neither argument is compelling. The fact is that, if proven, a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet the more immediate problem for House Democrats may not be constitutional but architectural in nature. If they want to move forward primarily or exclusively with the Ukraine controversy, it would be the narrowest impeachment in history. Such a slender foundation is a red flag for architects who operate on the accepted 1:10 ratio between the width and height of a structure.

 

The physics is simple. The higher the building, the wider the foundation. There is no higher constitutional structure than the impeachment of a sitting president and, for that reason, an impeachment must have a wide foundation in order to be successful. The Ukraine controversy is not such a foundation, and Democrats continue to build a structurally unsound case that will be lucky to make it to the Senate before collapsing.

 

For three years, Democrats in Congress have insisted that a variety of criminal and impeachable acts were established as part of the Russia investigation. Even today, critics of Trump insist that, at a minimum, special counsel Robert Mueller found as many as ten acts of criminal obstruction of justice. That is not true as he investigated those acts of obstruction but found evidence of noncriminal motivations that would have made any criminal case highly unlikely to succeed. For that reason, Attorney General William Barr and then Deputy Attorney General Rod Rosenstein agreed there was no case for criminal obstruction.

 

Putting aside that legal judgment, the glaring absence of any articles of impeachment related to Russia would raise a rather obvious problem. If these criminal or impeachable acts are so clear, why would Democrats not include them in the actual impeachment? There are only two possible reasons why these “clearly established” crimes would not be included. Either they are not established, as some of us have argued, or Democratic leaders do not actually want to remove Trump from office.

 

For three years, some of us have warned that Democratic leaders clearly were running out the clock on impeachment and doing little in terms of building a case against Trump. House Speaker Nancy Pelosi has been openly hostile to impeachment. Now, after moving at a glacial pace, Democratic leaders are insisting on an impeachment vote on the basis of a presidential phone call made this summer. They are in such a hurry that they have said they will not even seek to compel the testimony of key witnesses like former national security adviser John Bolton.

 

Ironically, the strongest impeachment was the one that never happened with President Nixon. It was so strong that he resigned shortly before a vote. The contrast with the Nixon impeachment is so concerning in the current context. In the Nixon impeachment, public opinion shifted after months of public hearings and testimony. The evidentiary record showed that Nixon knew of criminal acts and sought to conceal them.

 

The result was a deeply developed evidentiary record. A presidential impeachment requires this period of maturation of allegations to swing public opinion. In contrast, after years of discussing Russia allegations, Democrats want to move forward on a barely developed evidentiary record and cursory public hearings on this single Ukraine allegation. Democrats also are moving forward on a strictly partisan vote.

 

That brings us back to architecture. Bad buildings often are built in slapdash fashion. The infamous Fidenae Stadium in Rome was built in a rush to restart the gladiator games, an atmosphere not unlike the current bread and circus frenzy in Washington. It eventually collapsed, killing or injuring 20,000 spectators. The two prior impeachments show the perils of building slender and tall. Take, for instance, the foundation of the Clinton impeachment. I testified during those hearings, as one of the constitutional experts, that President Clinton could be impeached for lying under oath, regardless of the subject matter. Democratic witnesses and members insisted that such perjury is not an impeachable offense when it concerned an affair with a White House intern.

 

The Clinton impeachment was broader than the one being discussed against Trump but it still was quite narrow. It did involve an alleged knowingly criminal act committed by Clinton. A federal judge later found that Clinton committed perjury, a crime for which he was never charged, despite thousands of Americans who have faced such charges and jail. Yet Clinton was impeached on lying to the grand jury and obstruction of the Monica Lewinsky investigation. Notably, he was not indicted on other allegations, like abuse of power in giving pardons to his own brother or Democratic donor Marc Rich. The result was an acquittal in the Senate by a largely partisan vote. The articles discussed against Trump would be even narrower and rest primarily on an abuse of power theory.

 

Then there is the impeachment of President Johnson, which also failed in the Senate. While encompassing nearly a dozen articles, it was narrowly grounded in an alleged violation of the Tenure of Office Act. Johnson removed War Secretary Edwin Stanton in defiance of Congress and that law. The impeachment was indeed weak and narrow, and it failed, with the help of senators from the opposing party who would not stand for such a flawed removal, even of Johnson, who was widely despised.

 

The Leaning Tower of Pisa is a reminder of those who strive for great heights without worrying about their foundations. If Democrats seek to remove a sitting president, they are laying a foundation that would barely support a bungalow, let alone a constitutional tower. Such a slender impeachment would collapse in a two mile headwind in the Senate. This certainly may not be designed to last. Much like the Burning Man structure raised each year in the Nevada desert, this impeachment may well be intended to last only as long as it takes to burn it to the ground.

 

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings.

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21 mins ago, tomkaz said:

I have mentioned this article by Turley but originally did not share it. However, after yesterday and Pelosi’s comment today, I thought it worth sharing now. 

 

From The Hill:

Are Democrats building a collapsible impeachment?

As impeachment hearings begin, some have raised dubious objections to the process from a constitutional basis. Former acting Attorney General Matthew Whitaker suggested there can be no impeachment since “abuse of power” is not a crime. Northwestern University Law Professor Steven Calabresi argued that President Trump was denied the Sixth Amendment right to counsel in the closed hearings held by House Democrats.

 

Neither argument is compelling. The fact is that, if proven, a quid pro quo to force the investigation of a political rival in exchange for military aid can be impeachable, if proven. Yet the more immediate problem for House Democrats may not be constitutional but architectural in nature. If they want to move forward primarily or exclusively with the Ukraine controversy, it would be the narrowest impeachment in history. Such a slender foundation is a red flag for architects who operate on the accepted 1:10 ratio between the width and height of a structure.

 

The physics is simple. The higher the building, the wider the foundation. There is no higher constitutional structure than the impeachment of a sitting president and, for that reason, an impeachment must have a wide foundation in order to be successful. The Ukraine controversy is not such a foundation, and Democrats continue to build a structurally unsound case that will be lucky to make it to the Senate before collapsing.

 

For three years, Democrats in Congress have insisted that a variety of criminal and impeachable acts were established as part of the Russia investigation. Even today, critics of Trump insist that, at a minimum, special counsel Robert Mueller found as many as ten acts of criminal obstruction of justice. That is not true as he investigated those acts of obstruction but found evidence of noncriminal motivations that would have made any criminal case highly unlikely to succeed. For that reason, Attorney General William Barr and then Deputy Attorney General Rod Rosenstein agreed there was no case for criminal obstruction.

 

Putting aside that legal judgment, the glaring absence of any articles of impeachment related to Russia would raise a rather obvious problem. If these criminal or impeachable acts are so clear, why would Democrats not include them in the actual impeachment? There are only two possible reasons why these “clearly established” crimes would not be included. Either they are not established, as some of us have argued, or Democratic leaders do not actually want to remove Trump from office.

 

For three years, some of us have warned that Democratic leaders clearly were running out the clock on impeachment and doing little in terms of building a case against Trump. House Speaker Nancy Pelosi has been openly hostile to impeachment. Now, after moving at a glacial pace, Democratic leaders are insisting on an impeachment vote on the basis of a presidential phone call made this summer. They are in such a hurry that they have said they will not even seek to compel the testimony of key witnesses like former national security adviser John Bolton.

 

Ironically, the strongest impeachment was the one that never happened with President Nixon. It was so strong that he resigned shortly before a vote. The contrast with the Nixon impeachment is so concerning in the current context. In the Nixon impeachment, public opinion shifted after months of public hearings and testimony. The evidentiary record showed that Nixon knew of criminal acts and sought to conceal them.

 

The result was a deeply developed evidentiary record. A presidential impeachment requires this period of maturation of allegations to swing public opinion. In contrast, after years of discussing Russia allegations, Democrats want to move forward on a barely developed evidentiary record and cursory public hearings on this single Ukraine allegation. Democrats also are moving forward on a strictly partisan vote.

 

That brings us back to architecture. Bad buildings often are built in slapdash fashion. The infamous Fidenae Stadium in Rome was built in a rush to restart the gladiator games, an atmosphere not unlike the current bread and circus frenzy in Washington. It eventually collapsed, killing or injuring 20,000 spectators. The two prior impeachments show the perils of building slender and tall. Take, for instance, the foundation of the Clinton impeachment. I testified during those hearings, as one of the constitutional experts, that President Clinton could be impeached for lying under oath, regardless of the subject matter. Democratic witnesses and members insisted that such perjury is not an impeachable offense when it concerned an affair with a White House intern.

 

The Clinton impeachment was broader than the one being discussed against Trump but it still was quite narrow. It did involve an alleged knowingly criminal act committed by Clinton. A federal judge later found that Clinton committed perjury, a crime for which he was never charged, despite thousands of Americans who have faced such charges and jail. Yet Clinton was impeached on lying to the grand jury and obstruction of the Monica Lewinsky investigation. Notably, he was not indicted on other allegations, like abuse of power in giving pardons to his own brother or Democratic donor Marc Rich. The result was an acquittal in the Senate by a largely partisan vote. The articles discussed against Trump would be even narrower and rest primarily on an abuse of power theory.

 

Then there is the impeachment of President Johnson, which also failed in the Senate. While encompassing nearly a dozen articles, it was narrowly grounded in an alleged violation of the Tenure of Office Act. Johnson removed War Secretary Edwin Stanton in defiance of Congress and that law. The impeachment was indeed weak and narrow, and it failed, with the help of senators from the opposing party who would not stand for such a flawed removal, even of Johnson, who was widely despised.

 

The Leaning Tower of Pisa is a reminder of those who strive for great heights without worrying about their foundations. If Democrats seek to remove a sitting president, they are laying a foundation that would barely support a bungalow, let alone a constitutional tower. Such a slender impeachment would collapse in a two mile headwind in the Senate. This certainly may not be designed to last. Much like the Burning Man structure raised each year in the Nevada desert, this impeachment may well be intended to last only as long as it takes to burn it to the ground.

 

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He served as the last lead counsel in a Senate impeachment trial and testified as a constitutional expert in the Clinton impeachment hearings.

 

Our pro-impeachment friends here in the PG don't read C&P's 

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18 mins ago, RiverRaider said:

 

Our pro-impeachment friends here in the PG don't read C&P's 

That’s fine, it was not meant for them, it was meant for those with a genuine interest in what is happening in DC these days. Turley can speak with authority given his prior experience in the Clinton years. 

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Just now, tomkaz said:

That’s fine, it was not meant for them, it was meant for those with a genuine interest in what is happening in DC these days. Turley can speak with authority given his prior experience in the Clinton years. 

 

It was a pretty good piece I thought 

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If this moves to the Senate, I believe they have to meet for six consecutive days at a time during the trial (I might be off, but it's at least 5) until it's over.  Going at the snails pace these things go at, imagine all the time on the campaign trail Biden, Sanders, Warren et al will lose sitting in the impeachment trial!   They can't very well blow off the impeachment to go to Iowa or someplace can they? Shooting themselves in the foot again?  

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3 mins ago, MikeM58 said:

If this moves to the Senate, I believe they have to meet for six consecutive days at a time during the trial (I might be off, but it's at least 5) until it's over.  Going at the snails pace these things go at, imagine all the time on the campaign trail Biden, Sanders, Warren et al will lose sitting in the impeachment trial!   They can't very well blow off the impeachment to go to Iowa or someplace can they? Shooting themselves in the foot again?  

I would think that being on the jury that would judge Trump would be about the best campaign fodder you could come up with. 

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1 min ago, The Dude said:

I would think that being on the jury that would judge Trump would be about the best campaign fodder you could come up with. 

It would if he were impeached, but otherwise they run the risk of looking complicit in a witch hunt.  It's interesting you aren't hearing much from Sanders or Warren on the matter, unless I'm missing it.

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Just now, MikeM58 said:

It would if he were impeached, but otherwise they run the risk of looking complicit in a witch hunt.  It's interesting you aren't hearing much from Sanders or Warren on the matter, unless I'm missing it.

Makes sense for them to remain mum at this point. What's the upside that the investigations aren't already providing?

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5 mins ago, RiverRaider said:

Serious question... after yesterday do you think the Dem's are well on their way to regretting this? 

Like everything else, including GOP in the Senate about Trump, there are those who may harbor opinions that are not “safe” to articulate aloud. 

 

I still think Pelosi would do well with a BI-partisan censure vote, both as a saving grace but also for the politics of it going into 2020

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9 mins ago, The Dude said:

Makes sense for them to remain mum at this point. What's the upside that the investigations aren't already providing?

I would think someone would ask them.  Maybe they will shortly.  The smart answer would be, "I have been too busy getting my message out to the American people to invest much time watching the investigation", but these are politicians, a group not always known for giving the smart answer.

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25 mins ago, tomkaz said:

I still think Pelosi would do well with a BI-partisan censure vote

What good would that do???

Seriously Trump believes his will is law.... do you think a censure is going to get him to modify his behavior?

it will just embolden him,

 

the ONLY thing it will do is allow Republicans some pretense of claiming they stood up to him when history judges them harshly,

and it will.

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38 mins ago, RiverRaider said:

Serious question... after yesterday do you think the Dem's are well on their way to regretting this? 

Nancy Pelosi is going to get up the next time the caucus meets in private and read them the Riot Act...somehow, I think "I told you so!" just doesn't do it justice. This was destined to fail as everyone knows and if God forbid, it ever made it to the Senate, the trial would have continued until the Democrats begged for mercy.

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