When is Impeachment a "Vain Exercise"?

Does it ever make sense to impeach in the House if conviction in the Senate is unlikely?

|The Volokh Conspiracy |

Since we seem to be talking about whether the Democrats in the House should just do it and be legends, I have a new post over at Lawfare on the purposes of the impeachment power and how those purposes relate to the prospects of winning a guilty verdict in a Senate trial. I take no position on whether or not the House should impeach President Trump, but if the Democrats are going to do it they should at least think through what they hope to accomplish, besides pleasing Tom Steyer.

From the piece:

On the other hand, if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, then the ultimate fate of the impeached officer is of less importance than the message sent by the impeachment. Impeachments can be, and have been, a vehicle for constructing, consolidating and reinforcing an important set of constitutional norms. They are a means for asserting that some behavior is beyond the pale. An impeachment can send the strongest possible message that some behavior is to be condemned and should not be imitated by others—that even though a high government official has engaged in some behavior, this behavior should be understood as disgraceful rather than exemplary.

Read the whole thing here.

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  1. A prosecutor in a normal criminal proceeding is ethically bound to only bring indictments when he believes he can get a conviction (of course, many act unethically). Should the House be similarly constrained?

    1. What if a prosecutor is certain he can establish every element of a crime with strong evidence, yet knows a jury might not convict because many the judgment of many members of the community is diminished by irrational bias against certain groups of people?

      1. So, you agree Obama obstructed Justice? Interesting.

        1. Is your law degree from Liberty, Ave Maria, Regent, or Cooley? My guesses are Liberty and Cooley.

          1. I’m sure you’re the one with the degree from a TTT. Mine is from Chicago.

      2. What elements to what crime you dufus?

        1. I was not referring to a particular situation.

          I recommend you stop with the coarse language. I have been informed by a reliable source that the proprietor does not condone such content in comments. I would hate to see the the Volokh Conspiracy Board of Censorship ban you.

          1. Dufus: “a stupid, incompetent, or foolish person.” What’s the problem?

            1. You did not use his word, “goober”

      3. In RAK’s hypothetical as worded where the jury “might not convict”, the ethical prosecutor brings the case anyway because the jury also might convict – which is true of every case ever. Speculation about bias is still nothing more than speculation.

        In a more strongly worded hypothetical where the prosecutor knows the jury would not convict because of bias, the ethical prosecutor has a number of option including moving the trial to a different venue with an unbiased jury pool, taking action against the provable bias of the existing jury members, or, far more likely, simply conducting effective voir dire to find the unbiased members of the jury pool.

    2. I’m not convinced the two situations are as analogous as they may seem.

      A suspect, as an individual, has a full set of rights protecting her from the government. Conviction, even a wrong headed one, can come with severe and sometimes life ending consequences. The criminal process for a specific individual should never be politically motivated (unfortunately, can be – at times being more harsh and at other times more lenient for political reasons).

      On the other hand, impeachment and conviction has much more limited scope: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”. It doesn’t have dire consequences such as imprisonment – just the loss of an office that a specific individual doesn’t have a specific right to occupy without the approval of the voters (directly or indirectly). And, the impeachment process is inherently a political process. One being tried after impeachment doesn’t have the right to a fair and impartial trial in front of a jury of their peers for example.

    3. First, impeachment isn’t’ a criminal proceedings. But you’re not even right about a prosecutors ethical considerations.

      Reasonable doubt is all that’s called for, not thinking the jury is on your side.

      1. I don’t see how that contradicts what I said.

        1. ‘A prosecutor in a normal criminal proceeding is ethically bound to only bring indictments when he believes he can get a conviction.’

          Having reasonable doubt != being able to get a conviction.
          That depends on the jury. And there is no cannon saying if a prosecutor believes their jury won’t convict that they have to give up with the trial.

          And, of course, the standard in impeachment isn’t and shouldn’t be reasonable doubt – no criminal penalties attach.

  2. If Democrats can vote for contempt of an AG for refusing to violate grand jury disclosure laws…. then impeachment is whatever you want it to be. to Democrats it is merely political messaging.

    1. Jesse, No one on the planet (other than you) thinks the Dems are asking Barr to violate grand jury disclosure rules. What no one has yet explained to you is that there are things called exceptions, and when you rely on these exceptions, disclosure changes from illegal to perfectly legal. You are not a lawyer, so you might not be expected to understand this. But it’s a pretty commonly-understood point.

      Example: You are, generally speaking, not allowed to shoot Bob in the head. But if Bob is running at you with a large knife, or if you come upon Bob while it is raping your sister/daughter/whomever, then suddenly, you ARE legally allowed to shoot Bob in the head. See? It is what is known as a legal exception.

      A subtle point, perhaps. But an important one nonetheless.

      1. Perhaps, instead of a politically-inspired stretch of an analogy, you could actually explain what exceptions apply in this instant case. If you actually wanted to enlighten us poor slobs, instead of just staring down your nose at us. Sort of like if the Dems actually wanted to do something other than throw babies and bath water all over the place.

      2. santamonica811, you are wrong about this, and your example is trite and snarky. There is a way to allow disclosure of grand jury information, but no one seems to be pursuing it, neither the DoJ nor the House. For Barr to disclose this now, on his own authority, would be to break the law. Simple.

        1. Yes, my example was a bit snarky, but that’s because the exceptions have been SO well publicized recently. Barr can go to court to ask for a disclosure exception. This are asked for, and granted routinely. Barr is not doing this because, frankly, he does not want us to be able to see this evidence.

          Now, for all I know; Barr is making a good call here. I tend to like more transparency, but if others disagree with me on this issue; I will not accuse them of bad faith. But we should not explicitly or implicitly lie and say that Barr is not doing it because doing so would be illegal. No. He is not going to court to get judicial approval because he wants to keep the information from the media and the American public. I think it’s because he has whored his integrity to protect President Trump. You or others may think he’s done this because releasing grand jury evidence would be a bad idea in this case. I have no problem with this sort of disagreement.

          1. Democrats can go to court, just as easily. They chose not to. Instead, they held Barr in contempt because he wouldn’t break the law.

          2. Attorney General Barr is a dutiful partisan. Has been for most or all of his professional life. This isn’t the first time he issued a “summary” of an important legal document that turned out to be misleading in a conveniently partisan direction — he broke his cherry in that context decades ago.

            He is doing the political work for which he was selected and for which he auditioned. His credibility and reputation have been squandered, but he obviously was prepared for that when he accepted the position as Jeff Sessions’ successor. He appears to have figured that he would not get another chance to carry Republican water pails, for several reasons, and therefore was willing to work for Trump to get some last right-wing licks in.

            Better elements of Washington should shun him for life.

            1. What crap. The summary inaccurately related the findings? Even that jackass Mueller doesn’t think so. Point to one thing the summary misrepresented. I’m willing to bet you never even read it.

              1. We have yet to hear from Mr. Mueller. Do you have inside information that corroborates the claim that he considered the Barr characterization accurate, or that indicates his letter reflected a ‘no big deal’ opinion?

                1. Inside info? How about reading the damn report? How are the findings misrepresented? And, if you really think Barr would, under oath, misrepresent the substance of his phone call with that sleaze Mueller about that summary, a call with other parties listening and taking notes, then you’re more of a dufus than I thought.

                  1. Inside info? How about reading the damn report? How are the findings misrepresented?

                    Well, for one example, Barr said (many times) that the report found that there was no collusion, but in fact the report expressly declined to make any findings with respect to collusion.

                    1. That’s because Mueller is not permitted to make any findings of that nature. Prosecutors don’t exonerate people. You are presumed innocent until proven guilty. It isn’t his job, or any prosecutor’s job, to prove that a crime didn’t occur.

                    2. No findings on “collusion”? “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Ironically, the only parties who “colluded” with Russians, directly and indirectly were the Clinton campaign, the DNC, and various Obama officials who used the fruits of opposition research to spy on political opponents, but that’s another story.

                      Where the Special Counsel refused to make any findings (in other words where the sleaze was most derelict in his duties) was on the silly obstruction claims, where he could not “conclusively determine that no criminal conduct occurred, notwithstanding that it is never the role of a prosecutor in our system (presumption of innocence stuff) to conclusively determine someone’s innocence, but the role a special counsel was to issue a confidential report explaining his prosecution or declination decisions. Truly a complete and utter disgrace.

                    3. MKE, absence of establishment is not establishment of absence. Mueller knows that, and so do you.

                      Funny how you keep insisting Mueller is scum and made a bad report, and yet you keep having to lie about what it says.

                      Because the full quote is “Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts …”

                      When you need to lie to make a quote less damming, and it still doesn’t prove what you claim it does.

                    4. So, it becomes more “damning” because Barr decides to act like a professional prosecutor and ignores the childishly irrelevant editorializing by the biased sleazes on the special counsel team? How does ignoring that blatantly irrelevant bs alter the findings? It doesn’t.

                      Not even sure I know what you are otherwise trying to say, other than maybe that you seem to think that people are somehow required to prove conclusively their own innocence. Good start for a banana republic.

                    5. Mueller saying in his report about Russian election interference what he has established about Russian interference and the winner of that election is editorializing?

                      You’re talking out of both sides of your mouth – Mueller is a sleaze and his conclusions should be ignored, but also that his conclusions were no collusion.
                      The lack of a coherent narrative isn’t just you; it’s all over these threads. Shows how purely reactionary many Trump folks have become.

                    6. Don’t try to be clever. It doesn’t suit you. To point out that Barr did not misrepresent anything and that he accurately summarized the findings of this Mueller farce is in no way validating the appointment of the Special Counsel or the manner in which he conducted his “investigation” or in the political statements masquerading as legal argument in that joke of a report.

                    7. So don’t trust the Mueller report, but also it agrees with you and Barr.

                      See the issue here?

                    8. The issue was Barr’s letter and the idiotic claim that he misrepresented the crap report’s findings. If you want to talk about the report and the bs political crap therein, that’s a different issue. That the report did not find “collusion” is no great accomplishment given that the whole nonsense was a concocted set up from the start. That that clown waited 2 years to report the obvious is scandalous, as is the political garbage permeating that nonsense of a report (or is it another “dossier”?)

                    9. No findings on “collusion”? “


                      “In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of ‘collusion.'”

                    10. Prosecutors don’t exonerate people. You are presumed innocent until proven guilty. It isn’t his job, or any prosecutor’s job, to prove that a crime didn’t occur.


                      “All sexual assault, kidnapping and other charges have been dropped against the three Duke University lacrosse players indicted for raping an exotic dancer, North Carolina Attorney General Roy Cooper announced Wednesday.

                      “The result of our review and investigation shows clearly that there is insufficient evidence to proceed on any of the charges,” Cooper said. “Today we are filing notices of dismissal for all charges.”

                      He added: “We believe these cases were a result of a tragic rush to accuse and failure to verify serious allegations. Based on these significant inconsistencies of evidence and the various accounts given by the accusing witness, we believe these three individuals are innocent of these charges.”

                      Cooper said not only are the players innocent of the charges they faced, but there is “no credible evidence that an attack occurred at that house on that night.”

                      (Emphasis added.)

                    11. Wow. I can see we’ve long since past the point of reasoned debate. But I do feel a little better if this is the caliber of argument in favor of Mueller. So, you and your little buddies enjoy yourselves with your tin foil p***y hats (is there pink tin toil) and debate your collision theories until 2020.

                    12. Nieporent : Well, for one example, Barr said (many times) that the report found that there was no collusion, but in fact the report expressly declined to make any findings with respect to collusion.

                      And in his letter of 24 March summarising the conclusions of the report, Barr uses the term “conspiring or co-ordinating” and quotes the Mueller report using those terms. The words “colluded” and “colluding” do not appear in the letter at all.

              2. Mueller thought the summary was technically correct but deceitful.

                And Barr used an out of context quote that was immediately identifiable as tantamount to a lie the moment the report came out.

                1. technically correct is the best kind of correct

                  1. Maybe the best quote out there, on any subject.

                2. “technically correct but deceitful” This is your standard? Did you get this from an AOC tweet?

                  1. MKE says: ‘technically…deceitful.’

                    A damming indictment of Trump.

                    1. I have no idea what you mean. I wonder if you really think this makes any sense or are just playing the fool?

                  2. My quote of your words was technically correct, but deceitful.

                    1. WTF are you talking about? Did you even read your own bs comments?

          3. Yes, my example was a bit snarky, but that’s because the exceptions have been SO well publicized recently. Barr can go to court to ask for a disclosure exception. This are asked for, and granted routinely. Barr is not doing this because, frankly, he does not want us to be able to see this evidence.

            I mean, this is literally true; Barr can go to court to ask for a disclosure exception. He can also go to court and ask to be appointed Duchess of Sussex. But a court is not empowered to grant either request, so it seems kind of ridiculous to make that argument.

            What was publicized recently is that the DC Circuit just ruled that courts _cannot_ “grant exceptions.”

            1. It’s also a silly argument from a political point of view :

              Barr is not doing this because, frankly, he does not want us to be able to see this evidence.

              All the juicy witnesses, who could say politically damaging things about Trump gave evidence voluntarily, not via the grand jury. The grand jury was just used for those peripheral folk who weren’t swept up by Trump’s general instruction to co-operate with the SC. So there’ll be no juicy political stuff in the grand jury material anyway.

              It’s simply about trying to drum up a political storm over “Barr trying to conceal dirt about Trump”, when the Ds know perfectly well that Barr doesn’t have the legal power to release it and there’s no Trump dirt in the 6e stuff anyway.

      3. Aww. How cute. Santa Monica thinks he knows what everyone else on the planet thinks. Hes even absolute wrong in his assumption. I’m sorry for your idiocy.

        1. Meanwhile, the House requested Trump’s tax returns under a law which lists no exceptions and requires no preconditions. Trump refused, via one of his sycophants holding public office. There is nothing close to an excuse here; it’s simply a violation of the law.

          The House Intelligence Committee requested counterintelligence information not disclosed in Barr’s redacted Mueller report. The committee has every right to see that info by both tradition and law. The Justice Department – now headed by another toady – has refused. Apparently that’s even too far for a bootlicker like Nunes, so another subpoena is underway, this time with bipartisan support.

          But Trump has promised to defy all subpoenas, not even pretending there’s principle or legality behind his obstruction. The White House threatens to block Mueller from publicly testifying; they told Don McGahn to ignore a summons; Bar refused to be questioned in the House.

          One wonders if even a full-time lickspittle like our own JesseAz can keep the excuses coming for all this. And there’s so much more stonewalling yet to come……

          1. One wonders if even a full-time lickspittle like our own JesseAz can keep the excuses coming for all this.

            I don’t wonder. I’m confident that the many lickspittles here will find excuses for anything Trump does.

          2. What is the legitimate legislative purpose of reviewing Trump’s tax returns? Everyone knows there isn’t one. It’s just a really sad three-year-old effort to find a political talking point about Trump not paying enough taxes. Even sadder still, millions of delusional democrats actually think that the tax returns would or even could contain evidence of their fantastical Russian collusion conspiracy theory, which has been an obvious hoax from the start.

            1. They asked for pre-2016 returns and returns from non-government family members too.

            2. Legitimate legislative purpose? Oversight is a legitimate legislative purposes. So is checking for conflicts of interest. And gathering evidence for impeachment.

              The GOP diminishes Congressional power at the peril of the republic.

              Trump’s tweeted about his tax evasion practices, that’s a pretty good predicate in and of itself.

              1. Conflating avoidance with evasion? Seriously?

                1. Well, we’d better find out, no?

                  1. You are aware that the IRS has been auditing Trump for years, right?

                    But yes, it’s critical that we get the tax returns to Sarcastro so that he can do the IRS’ job just by reviewing the tax returns.

                    1. Weird you think I personally want the returns, ML.

                      Both Congress and the IRS have aligned interest in figuring out what Trump’s taxes say…does that mean Congress can’t ask for them?

                    2. Maybe Congress can, I don’t know. Maybe they can only ask for 2016-2018 for Trump personally, not all of his extended family and all prior years.

                      What I do know is that they are only doing this for a political talking point about Trump not paying enough taxes. Just like the Romney campaign. There’s no “legislative purpose” here.

                      It’s also ridiculous to imagine that tax returns would show more information about Trump’s ties to foreign interests than the voluminous financial disclosures he has already made. But even if they did, this is still a matter of political talking points.

                    3. What you do know is just partisan speculation.

                      And if you can’t imagine that Trump’s returns won’t show any additional foreign ties, you haven’t read the Mueller report where he discusses areas he was unable to investigate.

                    4. Sarcastro, what legislation is Trump’s tax returns relevant to?

                    5. Congress has oversight responsibilities in addition to it’s legislative ones, ML.


              2. “The GOP diminishes Congressional power at the peril of the republic.”

                Too late!

                Where these defenders of congressional power when Eric Holder was found in contempt and NOTHING HAPPENED?

                Now its PERIL!!!!!!!.

                Its laughable.

                1. Yeah, it’s been going on for a while in both parties’s administrations.

                  But your example sucks. No one challenged Congress’ power to hold Holder in contempt, nor to do more if they wanted to. The only issue was the wisdom of the action.
                  Use Syria next time.

            3. Millennial Lawyer : “What is the legitimate legislative purpose of reviewing Trump’s tax returns?”

              Are you serious? We’ll start with the general : We have a businessman with interests around the world whose entire career has been careening from one catastrophe to the next. Several times he has been on the point of total financial collapse – rescued only because he was too big to fail even as he failed over and over. Major avenues of financing are closed to him because of his record of poor judgement and reneging on obligations. This is also a man so desperate to maintain the appearance of success he’d call Fortune magazine using the name “John Baron” to puff up his “success”

              Now we’ll move to something more specific and troubling : All during the presidential campaign Trump was negotiating a secret business deal in Moscow with the Kremlin, right up to the eve of the election. His agents discussed offering Putin a free penthouse suite to grease the deal. Meanwhile, Trump showed all the backbone of a well-beaten dog whenever Putin’s name came up. And he bald-faced lied to the American people about this somewhere between two&three dozen times.

              So : A businessman with a long record of failure – sometimes desperate for cash – and willing to repeatedly lie to everyone about his overseas dealings? That man controls foreign policy?

              In what universe is that not grounds for oversight?

              1. These are fair issues for Trump’s political opponents to bring up. They can argue he’s not a good businessman, not smart, wants to build towers in foreign countries and therefore might not be putting AMERICA FIRST, etc.

                That all just seems like political campaigning to me, not a legislative purpose.

                1. OK; I admit to not following your reasoning. You concede Trump is in a position where conflict of interest could be a problem and his business history increases that possibility. You ignore the fact that he lied over & over about just such business dealing during the presidential election campaign. Gee, I wonder why there’s no comment from you on that?

                  But then you say there’s no “legislative purpose” in investigating a possible conflict of interest. Exactly how do you define legislative oversight anyway? If it helps you frame a coherent answer, you can divide the definition into (1) legislative oversight with a Democratic president, and (2) legislative oversight with a Republican president.

                  I suspect you have two separate definitions and want you to be precise…….

                  1. I don’t think Trump lied about that. He said that he didn’t have any business in Russia. And he didn’t. He wanted it, but didn’t have it. For years he wanted a tower in Moscow. Never got it. And if you want to argue that he was running for President in an effort to get it, well that seems like a ridiculous way to go about getting a building permit.

                    Let me just say that as a policy matter, I think it’s a good thing if there is going to be increased political scrutiny of a politician’s or candidate’s financial, ideological, political or other ties to or interests in foreign persons and entities. However, it is doubtful that tax returns would contain information necessary or useful to that end. Instead, we have all kinds of transparency laws about financial disclosures, political contributions, and so on, and I’m sure we could do even more.

                    Now as a legal matter, does Congress have the right to demand Trump’s tax returns and other materials, say from 1990? And those of his extended family too? Or any private citizen, just to publicize them for political purposes? I’m honestly not sure. But I would think there would be some limitations there. As I understand it, Congress has never done this before. This is new. And at least for some reasonable scopes of “legislative purpose,” this would seem to be outside of it. How is this helping them draft legislation? If they wanted data on the effective rates that billionaires are paying, or something like that, I could understand. But this is just political haymaking and politics of personal destruction. Maybe that’s included in legislative purposes, though.

                    1. Active negotiations are not business. ML, what are you doing to yourself.

                    2. As far as I can tell it’s an arguable point at best. I would have to go back and see what Trump said exactly, but as I recall he said he had buildings, no deals, loans, partnerships with anyone in Russia, something to that effect. And he didn’t have a deal.

                      His main point was that Russia did not have leverage over him, and that he wasn’t putting some personal pecuniary interest above the interests of the United States. That’s what the entire media was accusing him of with one voice.

                      The fact that he wanted to build a tower in Moscow was also public knowledge going back years. He tweeted about in 2013 and talked about it often.

                    3. If you are a lawyer, Millenial Lawyer, I pity your clients. A credulous lawyer might be worse than no lawyer.

                    4. Credulous is believing Michael Cohen. Or Washington Post opinion pieces.

                      A good lawyer will parse language in the client’s favor. 🙂

                    5. Can we at least all agree that our government officials should put AMERICA FIRST? Just as any other country should. That seems like a big step here.

                      AMERICA FIRST!

                    6. Yeah, we all like America here.

                      But your slogan comes with quite a bit of baggage there, chief.

            4. Millennial Lawyer : “fantastical Russian collusion conspiracy theory, which has been an obvious hoax from the start”

              Of course we begin with a systematic campaign by the Russian government to make Donald John Trump president. Then let’s add some other facts :

              (1) A campaign aide brags to a foreign diplomat the Russians have dirt on Clinton – well before this becomes public knowledge.

              (2)Trump’s NSA pick lies to the Vice President about his Russian contacts

              (3) Trump’s son-in-law asks the Russians if he can use their secure communications equipment for secret messages to the Kremlin

              (4) Trump’s campaign head privately briefs someone considered a Russian spy by the CIA

              (5) Told the Russian government wanted to provide covert assistance to help Trump’s election, his son responds with glee.

              (6) Trump’s fixer is in secret negotiations with the Russian government on a massive business deal right up to the election. Trump lies about this over and over.

              Mueller found no evidence of collusion, and we are all thankful our president isn’t compromised by a foreign enemy. But the issues with DJT and Russia were NEVER an “obvious hoax”. The sleaze and bungling of Trump and his associates demanded investigation. And that was before Trump bragged to Russia Foreign Minister Lavrov and Ambassador Kislyak about firing Comey, saying : “I faced great pressure because of Russia. That’s taken off.”

              In the Oval Office, no less…..

              1. Can anyone see my reply to this post above or is it hidden?

          3. “under a law which lists no exceptions and requires no preconditions”

            Every law includes unstated limitation, that is what courts do, interpret laws.

            There are separation of powers issues but fundamentally the law as applied violates his right to privacy under the concept of ordered liberty found in the 14th amendment to the Constitution.

            Can Congress request your returns?

            1. Suddenly, Trumpists find that courts can ignore the plain text of laws and read their own restrictions into them.


              1. Just answer the question bernard. Is it OK for Congress to demand the tax returns of any private party they wish? And then publicize it for political purposes? No constitutional concern there?

                1. The relationship between Congress and the President is different than that between Congress and a random person.

                  1. *squinches face, raises hand*

                    But wwwherre do we draw the lliiiinnne?

                    1. This is not some novel issue never before encountered.

                      How have lines been drawn about proper discovery around a central person ever been drawn?

                2. The law makes it quite clear that they CAN request tax returns, and the law also makes clear that it must be in closed session if the taxpayer could be identified.

                  The law also states that they SHALL FURNISH those tax records.

                  Your entire question is premised on bullshit and partisan stupidity, just like the rest of your posts.

            2. There are separation of powers issues but fundamentally the law as applied violates his right to privacy under the concept of ordered liberty found in the 14th amendment to the Constitution.

              The 14th amendment does not apply to Congress.

              1. It didn’t apply to gays or pregnant women either until it did.

                Fine, the concept of ordered liberty obviously exists elsewhere.

      4. I agree with Jesse. Democrats are asking Barr to violate Grand Jury exemption laws, and holding him in contempt for not doing so.

      5. By the way, your lack of exceptions proves you are wrong. I do love your ignorant “you are not a lawyer” schtick by the way. Let me go ask what people like Avenetti think. We never have judicial disagreements ever worher because all lawyers think alike. You’re a dumb ass =).

      6. No, your example is not a legal exception. You can point at the statute that allows you to shoot Bob in the head if he’s running at you with a large knife (assuming, of course, that Bob’s actions meet all the criteria and you meet all the criteria, if any, with respect to a duty to retreat, that justifies your use of lethal force to protect yourself).

        Where is the similar “exception” in the law for grand jury testimony that would allow Barr to release it w/o a court order?

        1. Bad,
          As I was clear earlier, Barr would generally need a court order.

          I think…in looking at Fed Rules of Crim Proc; both 6(e)(3)(a)(ii), and 6(e)(3)(D) seem to apply, and I’m not seeing any requirement of court approval for that. Seems like, in cases of foreign intelligence and counter intelligence, there is no problem with release of grand jury testimony without court approval. 6(e)(3)(E) seems to be the judicial exception, where it seems that a court can order release of this type of evidence if the court finds that to be appropriate. The Rules seem to state that the moving party must be either a defendant or the government…I do not see an opening for, say, the media to have standing to ask for release.

          I have *NO IDEA* why Dems in the House have not gone to court to get the stuff released. Maybe because comity requires that they first give the administration plenty of chances to do it voluntarily? Some other reason? I dunno.

          1. Comity and the Dems? Now you’re really reaching. They are disgraceful, anything but courteous and considerate.

            1. Great point. We Republicans have been totally fair and ethical. It’s those damn Democrats who have done everything wrong, and unethically, and improper.

              I guess that’s how you genuinely see things. Okay.

              1. Our HEROIC AND NOBLE PRESIDENT DONALD J. TRUMP has completely cooperated with the soft coup attempt; testimony, documents, nothing germane has been withheld.
                So, yes, the dems’ actions have been wrong, unethical, and improper.

          2. And the next step up from “giving the administration plenty of chances to do it voluntarily” is to threaten to hold the AG in contempt? And more, that counts as “comity”?

            I appreciate your legal research but it’s really not working as a defense of the Democrats’ strategy here. By your own description, it’s not an action that Barr is obligated to take but it is an action that the House Dems could take themselves with equal ease. How do you jump from there to defense of a contempt vote against Barr?

          3. My other comment on this is still in moderation.

            But the DC Circuit’s recent opinion in McKeever v. Barr sharply limits Rule 6(e) to the specific cases mentioned there. The current subpoena does not qualify.
            You can get the opinion here:

            1. So the reason the Dems have not gone to court is simple: they would lose. At least until McKeever is overruled by SCOTUS or an en banc court.

          4. “6(e)(3)(a)(ii)…that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law;”

            “6(e)(3)(D)…to any federal law enforcement, intelligence, protective, immigration, national defense, or national security official”

            Again, huh? Not gonna bother to check any other cites.

          5. I think…in looking at Fed Rules of Crim Proc; both 6(e)(3)(a)(ii), and 6(e)(3)(D) seem to apply, and I’m not seeing any requirement of court approval for that.

            You are mistaken. Those provisions do of course allow for the release of grand jury information, but only to specific people for specific purposes. “Random member of Congress wants to see it” is not one of those purposes.

      7. santamonica: “No one on the planet (other than you) thinks the Dems are asking Barr to violate grand jury disclosure rules.”


        Well, also the Department of Justice thinks that. And Republicans in Congress. Oops. From ABC News:

        “Republicans on Wednesday argued that providing access to the full report, including sensitive grand jury information, would break the law.

        A Justice Department statement, issued just after committee vote, echoed that argument.

        “It is deeply disappointing that elected representatives of the American people have chosen to engage in such inappropriate political theatrics,” DOJ spokesperson Kerri Kupic said. “Regrettably, Chairman Nadler’s actions have prematurely terminated the accommodation process and forced the President to assert executive privilege to preserve the status quo. No one, including Chairman Nadler and his Committee, will force the Department of Justice to break the law.””

        1. By the way SM read to the end. No impeachment proceedings yet si no judicial action to trigger the exception. How are you always so wrong in legal analysis with you being a lawyer?

          1. It’s almost like lawyers are people too and can be partisan hacks who ignore their own experience and training to get what they want.

      8. A subtle point, perhaps. But an important one nonetheless.

        Less Subtle and an important point – is the criteria for the applicable exceptions have not been met.

  3. For the House to impeach Barr, to do so rationally, they would have to charge him with something serious, no? Is contempt of congress serious enough? Especially when they subpoenaed a document that Barr can’t legally release in fully un-redacted form, and which he now doesn’t have to, because of POTUS asserting executive privilege.

    For failing to appear? I wasn’t aware that he was subpoenaed, I thought it was a voluntary appearance that he decided to cancel.

    1. I think you make a good and fair point. I think an impeachment at this stage would be nakedly political. And it’s not gonna happen. I would expect that House Democrats would go through a few steps first. Issue a subpoena (for his appearance? for only the documents?), and let him violate the subpoena. Maybe do a vote in the House for contempt. At that point, a move to impeach for something like obstruction of justice might be feasible (not sure if he committed actual perjury…but he sure bent over backwards to deceive and mislead the House while under oath, and that might be enough to try and impeach).

      1. He didnt mislead shit while under oath. You’re not an English major so you dont understand English. Did I do that right? That seems to be your go to idiotic comment.

      2. Deceive and mislead on what exactly?

      3. Did you read the transcript? Obviously not. Barr was asked about whether anyone on Mueller’s team questioned the accuracy of his summary of the FINDINGS. He answered the question truthfully and even went beyond the scope of the actual question asked to relate the whiny complaints of team Mueller.

      4. “I think an impeachment at this stage would be nakedly political”

        If not for the political office Trump holds he’d already be charged with crimes. Last time I checked, the count was up to almost seven hundred former federal prosecutors making that very obvious point.

        Quote : “Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

        Quote : “All of this conduct — trying to control and impede the investigation against the President by leveraging his authority over others — is similar to conduct we have seen charged against other public officials and people in powerful positions,”

        It’s kinda ironic that his political position shields Trump from facing legal repercussions from his actions, leaving only a political process as alternative, which we shouldn’t pursue because it’s political.

        I guess irony is to be expected with a reality TV star huckster in the Oval Office………

        1. “If not for the political office Trump holds he’d already be charged with crimes.”

          Well, that depends. It’s true that federal prosecutors sometimes nail regular people on seemingly minor or nebulous charges, and really anyone could be charged, if you’re unlucky enough to find yourself in a zealot’s cross-hairs. In fact, some say the average person commits three federal felonies per day.

          But, it all depends. In this counterfactual universe, if Trump is like Hillary Clinton or any other politically connected individual, then he’s not anywhere close to being indicted! That’s the plain truth, and the appropriate frame of reference here.

          1. Ya know, the “counterfactual universe” seems to be the “appropriate frame of reference” for most Trump supporters I know……..

            1. By frame of reference I am referring to the fact that the standards under which Hillary Clinton’s conduct was evaluated represent an established legal norm that has relevance here. Such norms are the only source of consistency in the application of federal law and equality in the administration of justice.

              1. The standards under which you believe Hillary Clinton’s conduct was evaluated are indeed a counterfactual universe.

                We’ve been over this many times; not need to rehash the facts or the law.
                In the end it’s the usual of your legal judgement and surprising factual insights that line up super well with your previous thoughts about Hillary versus the government (which seems to have continued in the Trump admin thus far)

                And your complete ignoring of the Trump admin and family getting away with vastly worse classification fails than Hillary.

                1. No, the counterfactual universe is the one grb postulated wherein Trump is not President.

                  On the issue of double standards more broadly, let me just get your honest thoughts on this. Do you think it would be a big deal if:

                  1) The Trump campaign received and exploited “dirt” on Hillary Clinton from Russia, paying a British spy to obtain it.

                  2) The Trump foundation raked in a quarter billion dollars from interested foreign governments and parties.

                  3) Trump got paid $500k for giving a speech to a Kremlin-linked Russian bank. (Among many other such speeches to other foreign parties).

                  4) For bonus points, let’s say that 3) happened while Russia was getting a uranium deal approved by the U.S., a deal which was questioned by some Congressmen at the time. Oh, and let’s also say that the bulk of 2) came from the very parties in that deal. (Of course, this doesn’t prove that there was any quid pro quo or that Trump exerted any improper influence on the deal approval, the question is simply what would people think about it, what would Democrats say and what would we read in the Washington Post).

                  1. I’m not going to bother demolishing even your limited account of the Uranium One garbage; life’s too short. Instead, let’s focus on one incredibly clownish error : Your “bulk came from the very parties in that deal” refers to massive donations Frank Giustra made to the Clinton Foundation.

                    Here’s the problem : FG made those donations, then about 18 months later sold all stake in the company to a Canadian firm, then about 18 months came the proposed Russian sale. Your “bribe” occurred years before the proposed “subject” of the bribe, and from a person who had zero stake in the company when that “subject” occurred.

                    Is it really possible you didn’t know that ?!? Two points :

                    First, the person who sold you this Uranium One story treated you like a chump. Doesn’t that bother you?

                    Two, it’s morally offensive to conflate the Trump Foundation with the Clinton Foundation. The latter got AIDS medicine to eleven million people in African, malaria medicine to scores of thousands in the Philippines, and opened health care clinics in India. The former paid for oversize oil paintings of Trump in his golf resorts, took care of zoning fines from local municipalities and – in 1989 – paid Don Jrs $7 fee for joining the Boy Scouts.

                    Just think of the uproar if the Clinton’s had done something like that? It would have rocked the heavens……

                    1. The only person who “sold” me the Uranium One story was the New York Times, in its famous article “Cash Flowed to Clinton Foundation Amid Russian Uranium Deal”.

                      “As the Russians gradually assumed control of Uranium One in three separate transactions from 2009 to 2013, Canadian records show, a flow of cash made its way to the Clinton Foundation. Uranium One’s chairman used his family foundation to make four donations totaling $2.35 million. Those contributions were not publicly disclosed by the Clintons, despite an agreement Mrs. Clinton had struck with the Obama White House to publicly identify all donors. Other people with ties to the company made donations as well.

                      And shortly after the Russians announced their intention to acquire a majority stake in Uranium One, Mr. Clinton received $500,000 for a Moscow speech from a Russian investment bank with links to the Kremlin that was promoting Uranium One stock..

                      Whether the donations played any role in the approval of the uranium deal is unknown. But the episode underscores the special ethical challenges presented by the Clinton Foundation, headed by a former president who relied heavily on foreign cash to accumulate $250 million in assets even as his wife helped steer American foreign policy as secretary of state, presiding over decisions with the potential to benefit the foundation’s donors..

                      The path to a Russian acquisition of American uranium deposits began in 2005 in Kazakhstan, where the Canadian mining financier Frank Giustra orchestrated his first big uranium deal, with Mr. Clinton at his side.

                      The two men had flown aboard Mr. Giustra’s private jet to Almaty, Kazakhstan, where they dined with the authoritarian president, Nursultan A. Nazarbayev. Mr. Clinton handed the Kazakh president a propaganda coup when he expressed support for Mr. Nazarbayev’s bid to head an international elections monitoring group, undercutting American foreign policy and criticism of Kazakhstan’s poor human rights record by, among others, his wife, then a senator.

                      Within days of the visit, Mr. Giustra’s fledgling company, UrAsia Energy Ltd., signed a preliminary deal giving it stakes in three uranium mines controlled by the state-run uranium agency Kazatomprom..

                      …several months later, Mr. Giustra had donated $31.3 million to Mr. Clinton’s foundation.

                      (In a statement issued after this article appeared online, Mr. Giustra said he was “extremely proud” of his charitable work with Mr. Clinton, and he urged the media to focus on poverty, health care and “the real challenges of the world.”)

                      Though the 2008 article quoted the former head of Kazatomprom, Moukhtar Dzhakishev, as saying that the deal required government approval and was discussed at a dinner with the president, Mr. Giustra insisted that it was a private transaction, with no need for Mr. Clinton’s influence with Kazakh officials. He described his relationship with Mr. Clinton as motivated solely by a shared interest in philanthropy.

                      As if to underscore the point, five months later Mr. Giustra held a fund-raiser for the Clinton Giustra Sustainable Growth Initiative, a project aimed at fostering progressive environmental and labor practices in the natural resources industry, to which he had pledged $100 million…

                      By June 2009, a little over a year after the star-studded evening in Toronto, Uranium One’s stock was in free-fall, down 40 percent. Mr. Dzhakishev, the head of Kazatomprom, had just been arrested on charges that he illegally sold uranium deposits to foreign companies, including at least some of those won by Mr. Giustra’s UrAsia and now owned by Uranium One.

                      Publicly, the company tried to reassure shareholders. Its chief executive, Jean Nortier, issued a confident statement calling the situation a “complete misunderstanding.” He also contradicted Mr. Giustra’s contention that the uranium deal had not required government blessing. “When you do a transaction in Kazakhstan, you need the government’s approval,” he said, adding that UrAsia had indeed received that approval..

                      At the time, Russia was already eying a stake in Uranium One, Rosatom company documents show..

                      Before Mrs. Clinton could assume her post as secretary of state, the White House demanded that she sign a memorandum of understanding placing limits on the activities of her husband’s foundation. To avoid the perception of conflicts of interest, beyond the ban on foreign government donations, the foundation was required to publicly disclose all contributors.

                      To judge from those disclosures — which list the contributions in ranges rather than precise amounts — the only Uranium One official to give to the Clinton Foundation was Mr. Telfer, the chairman, and the amount was relatively small: no more than $250,000, and that was in 2007, before talk of a Rosatom deal began percolating.

                      But a review of tax records in Canada, where Mr. Telfer has a family charity called the Fernwood Foundation, shows that he donated millions of dollars more, during and after the critical time when the foreign investment committee was reviewing his deal with the Russians. With the Russians offering a special dividend, shareholders like Mr. Telfer stood to profit.

                      His donations through the Fernwood Foundation included $1 million reported in 2009, the year his company appealed to the American Embassy to help it keep its mines in Kazakhstan; $250,000 in 2010, the year the Russians sought majority control; as well as $600,000 in 2011 and $500,000 in 2012. Mr. Telfer said that his donations had nothing to do with his business dealings, and that he had never discussed Uranium One with Mr. or Mrs. Clinton. He said he had given the money because he wanted to support Mr. Giustra’s charitable endeavors with Mr. Clinton. “Frank and I have been friends and business partners for almost 20 years,” he said.

                      The Clinton campaign left it to the foundation to reply to questions about the Fernwood donations; the foundation did not provide a response.

                      Mr. Telfer’s undisclosed donations came in addition to between $1.3 million and $5.6 million in contributions, which were reported, from a constellation of people with ties to Uranium One or UrAsia, the company that originally acquired Uranium One’s most valuable asset: the Kazakh mines. Without those assets, the Russians would have had no interest in the deal: “It wasn’t the goal to buy the Wyoming mines. The goal was to acquire the Kazakh assets, which are very good,” Mr. Novikov, the Rosatom spokesman, said in an interview.

                      Amid this influx of Uranium One-connected money, Mr. Clinton was invited to speak in Moscow in June 2010, the same month Rosatom struck its deal for a majority stake in Uranium One.

                      The $500,000 fee — among Mr. Clinton’s highest — was paid by Renaissance Capital, a Russian investment bank with ties to the Kremlin that has invited world leaders, including Tony Blair, the former British prime minister, to speak at its investor conferences.

                      Renaissance Capital analysts talked up Uranium One’s stock, assigning it a “buy” rating and saying in a July 2010 research report that it was “the best play” in the uranium markets. In addition, Renaissance Capital turned up that same year as a major donor, along with Mr. Giustra and several companies linked to Uranium One or UrAsia, to a small medical charity in Colorado run by a friend of Mr. Giustra’s. In a newsletter to supporters, the friend credited Mr. Giustra with helping get donations from “businesses around the world.”

                    2. Damn, Millennial Lawyer, but haven’t you tied yourself up in a knot with this nonsense? First, let me help you out with a very basic timeline :

                      2005 : Frank Giustra donates $31.3 million to the Clinton Foundation, to be followed in 2007 with a pledge of at least $100 million. These amounts constituted the bulk of the $145 million in supposed bribes paid to the Clinton Foundation

                      2007 : On 20 April 2007, Uranium One acquired UrAsia Energy, a Canadian firm with headquarters in Vancouver, from Frank Giustra, who then resigned from the UrAsia Energy Board of Directors. From that point on, Giustra had no beneficial interest in the firm or its subsequent sale.

                      2010 : The firm is sold to Russian company Rosatom

                      So just as I noted, 99.96897% of your “bribes” came years before the supposed bribe’s purpose, and from a man who had zero financial stake in the company when the bribe’s supposed purpose became an issue.

                      Do I have to explain this to you a third time, or do you get it this go-round?

                      If it’s any consolation, PolitiFact identified about $4 million in donations to the Clinton Foundation from various Uranium One investors in the years before and after the Russian deal, and there’s always the speaking fee to fall back on. Still, 99.96897% of your story just fell apart. Embarrassing, huh?

                      In fact, if you listed your entire Uranium One fantasy in full lurid detail, I doubt you’d get a single fact right. Let’s try a preemptive strike :

                      (1) The mine has 20% of U.S. capacity? No; the actual number is 10% and only 2% of actual production.

                      (2) But it’s critical to U.S. security? No; the mines ore is very poor grade and not used for military applications.

                      (3) But the Russians want it? No; the Russians don’t give the slightest damn about the U.S. mine. They sought to buy the Canadian company because of its European holdings

                      (4) But the Russians get the U.S. uranium? No; they would still have to get a separate permit to export an ounce.

                      (5) But the U.S. had to approve the sale to Russia? No; by law the U.S. could only certify whether the tiny U.S. component of the sale harmed American national security – which it didn’t by a long shot.

                      (6) But Clinton’s State Department still had to approve that? No: the sale was vetted by the Committee on Foreign Investment in the United States (CFIUS), comprised of nine government cabinet departments and agencies.

                      (7) But Clinton’s State Department still had a major say? No; the main actors were Commerce and DOD. State was a very minor player in the decision.

                      (8) But Clinton still cast a vote? No; State was represented by Jose Fernandez, the Assistant Secretary of State for Economic, Energy and Business Affairs. He has testified Clinton had no involvement in the Uranium One decision whatsoever.

                      Lastly, a reminder : You’re still peddling donations to the Clinton Foundation as bribes, even though the Clintons receive zero personal benefit from their foundation. You’re also ignoring the fact that the Clinton Foundation has (literally) saved millions of lives. This is unlike – say – conman Trump’s foundation, which was pretty much a scam from day-one.

                      Any questions?

                    3. Also, CFIUS requires multiple agencies to coordinate down to the SME level, and the Secretary of State getting personally involved would be pretty weird.
                      Indeed, there are no indications the regular and long-standing process was not followed as it usually is.

                    4. grb,

                      You are so, so deeply confused.

                      First, go back to my post with the 4 points. Read it again. You’ll see that not one word of my analogies to Clinton is inaccurate.

                      Then, if you’re able to read, maybe you’ll be able to identify the question I was asking and the point I was making.

                      You’ll see that I wasn’t asking whether you can be a zealous advocate for Ms. Clinton and make arguments about why the evidence doesn’t prove that her conduct was corrupt. In fact, I tried to preempt that up front in my post, but it didn’t work.

                      Instead, I was asking whether it would be big deal if the Trump foundation pulled in a quarter billion from foreign governments. Would you be suspicious of that? Would it be a Dem talking point and a huge deal in the Washington Post? What about if he actually used “dirt” from the Russians obtained by a hired British spy? Instead of Don Jr. merely expressing interest in it in what was a false flag operation by Clinton’s Fusion GPS? Etc. etc.

                      So, anyway. Guistra’s 31 million dollar donation DID come simultaneously with HIS Kazakhstan uranium deal. The 500k speech did come at the same time as the other uranium deal, along will numerous other millions from directly interested parties!!! Yes, Guistra’s other 100 million came a short time later, “as if to underscore the point”, in NYT’s words, that he was totally pure hearted! (Surely, the argument does hold some weight, that since the money came a few years later it’s less likely to be pay for play, although business deals routinely have much longer payment horizons so it’s nothing at all like an absolute defense, especially if there was any other evidence, which we wouldn’t know because all of this WASNT. EVEN. INVESTIGATED. AT. ALL.)

                      So, I get that you are arguing like Clinton’s defense lawyer here but that’s really irrelevant to my point which was just about the known facts and about how those would play if they applied to Trump.

                      For some reason I don’t think you’re going to give a straight answer to my question though about whether those 4 examples would be a huge scandal for Trump.

                      So let’s try another question. One simple question. Why do you think that the Clinton Foundation’s revenue fell of a cliff suddenly in 2017 after a good 15 year run? Just looking for your best guess here.

        2. “seven hundred former federal prosecutors”

          Come on, surely you can do better than that. There are millions of angry Democrats out there. Tens of millions might even vote against him in 2020, but it won’t be enough.

          1. They’re not all Dems, ML.

            1. There are lots of Republicans who loathe Trump, so pointing out that there are Reps who oppose him means little

              1. There’s not proof they all loath Trump either; they’re claiming to be making a professional judgement.

                Deciding bad faith based on your disagreeing with them is less about them and more about you…

    2. “Barr’s comments to Crist were certainly misleading. Under Bronston, however, it’s hard to see how they constitute perjury.”

      From Lawfare, and I’ve already lost the browser tab where I could have given you a link to it.

      Reasoned argument on the point is possible but it seems plausible that non-perjurious but misleading testimony to Congress is impeachable.

      1. Technically, tying your shoelaces the wrong way is impeachable. “High crimes and misdemeanors” is an undefined term. It includes whatever the House says it does.

        The House usually defers to historical precedent (which does set a higher bar than tying your shoelaces) but there is no constitutional obligation that they do so.

      2. Barr’s comments to Crist were certainly misleading

        Except they weren’t.

        This is not a bad summary of the Crist matter :

        You can only conclude, IMHO, that Barr’s resonse was misleading, if you ignore both the details of Crist’s question :

        1. that Crist invites Barr to comment on reported frustrations of members of Mueller’s team (ie not Mueller personally)
        2. that the frustrations are about Barr’s letter not adequately portraying the report’s findings


        3. the fact that Barr even volunteers an answer to a wider, unasked, question (what, aside from the accuracy of the letter’s statement of findings might be bugging Mueller’s subordinates) – he offers his suspicion that these frustrated Mueller subordinates “wanted to put more out.”

        Barr had – we now know – immediately followed up Mueller’s letter by talking to him and confirming that Mueller has no problem with the accuracy of the letter’s statement of the findings.

        And since he has not spoken to Mueller’s subordinates he can do no more than “suspect” that their frustrations are similar to Mueller’s – they probably want “more put out” , as Bob does. Barr has no knowledge of which Mueller subordinates have been speaking to the press, nor what they have actually said to the press by way of complaint.

        Imagine if Barr had been asked – is Wilbur Ross under investigation for child molesting ? And knowing that the FBI has recently closed an investigation of Wilbur Ross’s son for hitting his wife, Barr just says “No.” That’s not misleading. No doubt the questioner would be fascinated by the answer to a different question that he didn’t ask, but Barr is under no conceivable obligation to revise the question enough so that he can give an interesting answer.

        But in this case he does go beyond the precise question and notes what he suspects may be behind the frustrations of Mueller’s subordinates.

        This isn’t even a dead horse. It’s a dead beetle. Quit flogging it.

        1. 1. that Crist invites Barr to comment on reported frustrations of members of Mueller’s team (ie not Mueller personally)

          Mueller wasn’t a member of his own team? That sounds pretty weird. Is this like a Groucho Marx thing of not being willing to join any club that will admit him as a member?

          1. Mueller wasn’t a member of his own team?

            I’d say not. If you heard “a member of Tiger Woods team criticised the set up of the greens at the Masters” you wouldn’t think of Tiger himself. You’d think of his support team. Here we have in Mueller a head honcho, occupying an office, in whose name all official acts are done, with a bunch of support staff, who are his team. He’s not the quarterback of an NFL team. He’s an officeholder. You wouldn’t say “a member of the Treasury secretary’s team” to refer to Mnuchin. You’d be referring to the people who work for him.

            This applies just the same to Barr’s aside that Mueller’s “snitty” letter was “probably written by one of his staff.” This would have made no sense if Barr thought Mueller was on his own staff.

            But feel free to read Mueller into his team if you wish.

            But one thing is undeniable. even if Mueller is a member of Mueller’s team, he’s definitely not members of Mueller’s team.

            And finally, whatever Barr thought of Mueller’s report, he would certainly not attribute “reports”, ie leaks to the press, to Mueller himself.

  4. Go for it.. Democrats should absolutely impeach Trump. And Barr. And Pence too, just because. Just to make it clear to everyone what they want.

  5. The benefits I see include creating a record that interested voters (they might exist) could use to inform their choices next election, and forcing the Senate to go on record in favor of acquittal.

    The belief that the Senate would be certain to acquit is a condemnation of the organization formerly known as the Republican Party. Everyone’s taking it for granted but it is not something to take for granted. Notice they lose nothing in terms of power by a conviction vote, in fact just the opposite. President Pence would be more effective at carrying out a conservative agenda.

    1. Or the reverse. See those Senators who are so nakedly political they throw away fairness for partisan gain.

      I’d love to see how the Senators who were around in 1998 vote this time. Hiding evidence, and trying to get a witness to lie on the stand? Not obstruction of justice. Publically supporting a member of your campaign under investigation? Obstruction of Justice.

      It’s be laughable.

  6. “some behavior is beyond the pale”

    Yes indeed. Let us list the horrible offenses Trump committed which resulted in this 2.5 year circus.

    Number 1: Embarrassing the bipartisan political establishment, calling them out on their failures, and defeating them in a revolutionary Presidential election as a total outsider.

    . . . . and that’s all.

  7. Let’s add onto this.

    Trump should immediately open an investigation into Feinstein for possible Chinese collusion. (There’s clearly enough potential evidence there).

    Also, investigate Sanders for Russian collusion (There’s lot of potential evidence there).

    Then, they should be indicted soon after for Obstruction of Justice, based on the same standard they’re trying to indict Trump on. Because if you try to impeach Trump, you’re trying to influence the investigation into your own potential crimes.

    1. The Trump administration should be spying on, sorry, investigating the Biden campaign. There is plenty of evidence and allegations of ties and collusion with China in Ukraine. James Comey just said about the Russia investigation that the FBI should be fired if it DIDNT investigate “these allegations”

      1. Absolutely. And any efforts to remove Trump from office would be obstruction of justice. According to the rationale used by Democrats.

  8. What if the purpose of the impeachment is to show that the party that controls the House is run by feckless partisans who want to put 20 or so “centrist” Democrats from red and purple districts in the bad position of either voting to impeach and losing their seats in the next general election, or not voting to impeach and losing their donors, their influence, and perhaps a primary election.

  9. “On the other hand, if the point of an impeachment effort is less to remove a particular individual from office than to establish or reinforce the proper expectations of officeholding, ”

    How about if it’s neither of those, but just to delegitimize somebody of the opposing party because they had the nerve to win the election, or look like they might end up exposing your own party’s wrongdoing?

    1. There’s a bunch of reasons given that are not just that Trump won the election. You may not agree with them, but…oh, right, to you that means bad faith automatically.

      1. A ton of reasons actually being just one reason, which is that you believe a procedural crime occurred based on Trump’s response to illegal, state sanctioned surveillance of a private citizen that was justified with a joint Democrat Party-British-Russian disinformation campaign.

        1. You think that’s the only criteria the Dems are viewing for impeachment?

          illegal, state sanctioned
          …um…neato oxy moron you got there.

          1. 44*’s regime, while perhaps facially legitimate, was anything but legal. None of its acts were made in good faith or for the benefit of America.

  10. Trump needs to give a full explanation as to why he tried to obstruct the investigation. If he won’t – and he won’t – then he needs to be impeached and forced to defend his actions to the country.
    His actions were simply indefensible. Perhaps not worthy of removal; but certainly serious enough to warrant an explanation.
    Yes, much of the opposition to Trump has been hysterical, overwrought and reckless. And we do have a corrupt media that is fueling that hysteria. But that’s not an excuse for his actions.

    1. Clearly, those Senators trying to impeach Trump are obstructing current investigations by attempting to remove the head of the executive branch, who is ultimately in charge of all executive actions (including investigative actions).

      The Senators need to be impeached for obstructing justice.

      1. The Senators need to be impeached for obstructing justice.

        Did you learn that in the Armchair School of Law?

        Impeachment does not apply to members of Congress.

        1. Tell that to Senator William Blount, who was…impeached.

          1. “The House of Representatives impeached Senator William Blount in 1798, resulting in his expulsion. However, after initially hearing his impeachment, charges were dismissed for lack of jurisdiction.

            Left unsettled was the question whether members of Congress were civil officers of the United States. The House has not impeached a Member of Congress since Blount. As each House has the authority to expel its own members without involving the other chamber, expulsion has been the method used for removing Members of Congress.”

            Lord, you’re bad at this.

            1. The Armchair School Of Law must be near the Millenial School Of Law, the Man Of Many Names School Of Law, and the Bob From Ohio School of Law in the rankings. I apparently never reached that low when checking the lists.

            2. Let’s review.

              1. David “impeachment does not apply to members of Congress”
              2. Me: Senator William Blount was impeached.
              3. Sarcastro: ohhoho, I got you. Look at my quote! “The House of Representatives impeached Senator William Blount in 1798”

              Yeah…you got me with that quote. Real good.

              We’re done here.

              1. You’ve been done for decades. The culture war is over. Right-wingers will experience at least another half-century of American progress shaped by their liberal-libertarian betters. Bigotry and backwardness are never coming back in style, especially in successful communities and strong institutions. Conservatives will retreat to desolate backwaters and separatist organizations such as the ersatz AARP, the fake ACLU, etc.

    2. How dense can you be, really? Trump has stated all along, ad nauseam, that he believes this investigation is a political witch hunt and a fishing expedition, premised on a false conspiracy theory hoax ginned up by his opponents, which served as a pretext to spy on the Trump campaign and then to hamper his Presidency. That’s your answer, you just don’t like it.

      1. ML, you know believing you’re innocent doesn’t get rid of the mens rea for obstruction.

        And Trump’s belief isn’t even proven – saying you’re guilty over and over does not make you not guilty.

        1. What’s your point?

          SteveMG said that Trump needs “give a full explanation” when Trump has been giving that explanation for years now. That’s my point.

          You can say he’s lying, that he’s actually guilty, whatever. It’s a really dumb look though, after we just had the most intensive investigation EVER with surveillance going back years, the FBI raiding his personal attorney’s office, special counsel locking up Trump’s associates for process crimes in an effort to leverage them into giving up any and all incriminating or merely unflattering or politically damaging information about Trump, etc.

          1. ML, you’re being pedantic. SteveMG is talking about a satisfactory explanation. ‘Dems hate me and are being unfair’ isn’t that.

            The most intensive investigation EVER?? You beclown yourself.

            1. Oh, so the explanation has to be satisfactory to you. No, it really doesn’t.

          2. This whole “Trump is allowed to break the law because he believed he did nothing wrong” shtick has three big problems:

            (1) Obstruction of justice remains a crime nonetheless.

            (2) Mueller’s remit also included a counterintelligence investigation of foreign intervention in a U.S. election. Now it’s been repeatedly reported DJT does everything except stick his fingers in his ears & make bilabial trills (like a child) whenever Russian interference is mentioned. And he famously took Putin’s word on this over every U.S. intelligence source. And some of his crudest lying has been in denial of Russia’s actions in the election. But the fact remains : Trump sought to sabotage an investigation into this national security issue. Because he found the investigation a personal inconvenience. What does that say about him?

            (3) Trump seems to be perfectly satisfied with his own conduct, though given his elastic ethics and liar’s contempt for what’s true, that’s not persuasive. But Mueller’s investigation covered an entire campaign organization and DJT couldn’t know everyone’s conduct was clean. For instance, take Paul Manafort. He was deeply in debt to Ukrainian oligarchs closely tied to the Kremlin. Despite real financial desperation, he agreed to head Trump’s campaign free of charge. But the time Manafort was forced out of the position, Trump knew PM had a long trail of ethical issues which raised questions about his conduct & character. But many obstruction issues raised in Mueller’s report were specific attempts by Trump to sabotage the investigation into Manafort. DJT couldn’t know the extent of Manafort’s crimes, but he just didn’t care.

            I’m not sure how Trump supporters excuse his attempts to derail an investigation into matters well beyond Trump’s person……

            1. Allowed to break the law? What are you talking about man?

              SteveMG’s comment is straight up hysterical. It’s delusional schizophrenic. He says that we need an explanation for why Trump “obstructed justice.” Or why he opposed the investigation, or took steps to wield executive power to limit it, or whatever.

              Seriously? He’s not going to change his story. It’s been the same all along. Some folks just hate his explanation so much that they pretend it doesn’t exist, and demand some new story.

    3. “forced to defend his actions to the country”

      The Senate will acquit in a day. They don’t have to have a full trial, Senators can move to an immediate vote.

      Keep hope alive though.

      1. I’m wondering about that Bob. Do you suppose Mitch McConnell is going to preside? I thought it would be the Chief Justice. Do you think Roberts would preside over an impeachment trial where Democrats didn’t get to examine evidence and question witnesses?

        Not saying I know the answers, by the way. But what makes you think it’s even possible to do a summary non-trial on impeachment?

        1. Roberts is constitutionally obliged to preside over whatever trial the Senate chooses to put on, and SCOTUS has already decided in Nixon that the judiciary has no role at all in determining the shape of an impeachment trial. That’s solely a matter for the Senate.

          I cant see McConnell wanting to spend days of valuable judge-confirmin’ Senate floor time indulging a Democratic Party pantomime.

          1. Not sure I follow that, Lee. I was talking about Roberts, not SCOTUS. But assuming there is something to your SCOTUS remark, or you wouldn’t have mentioned it, does whatever you are referring to say it’s okay if there *isn’t* a trial? That seems to be what Bob thinks lies ahead. How would refusing to hold a trial after the impeachment of the President differ from overthrow of the Constitution?

            1. I’m talking about :


              (No, not that Nixon)

              in which SCOTUS unanimously concludes that complaints about the form of the impeachment trial are not justiciable. Here’s a relevant extract :

              ….we cannot say that the Framers used the word “try” as an implied limitation on the method by which the Senate might proceed in trying impeachments. “As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require . . . .” Dillon v. Gloss, 256 U.S. 368, 376 (1921).
              The conclusion that the use of the word “try” in the first sentence of the Impeachment Trial Clause lacks sufficient precision to afford any judicially manageable standard of review of the Senate’s actions is fortified by the existence of the three very specific requirements that the Constitution does impose on the Senate when trying impeachments: The Members must be under oath, a two-thirds vote is required to convict, and the Chief Justice presides when the President is tried. These limitations are quite precise, and their nature suggests that the Framers did not intend to impose additional limitations on the form of the Senate proceedings by the use of the word “try” in the first sentence.

              And arguing that this is so not like the trial you’d like to see that the Senate has failed to “try” the impeachment, is liable to run up against the same brick wall. The Senate tries the impeachment as it pleases, subject to the express constitutional limitations – members on oath, a two-thirds majority to convict and the CJ presiding. Other than that, it could be a trial by ducking if that’s what the Senate wants. Which, to be fair, would be quite a lot of fun.

              Unfrtunately though, trial by ducking is unlikley. Nixon does point out that the Senate does have its own rules for conducting impeachments, and it seems to me that Cocaine Mitch is very unlikely to go nuclear to change them, so any impeachment trial would follow those existing rules.

              Unless the Ds impeached 17 administration officials in an attempt to clog up the Senate timetable, of course.

              1. As to the possibility simply taking no action at all, a la Garland, it seems to me thatthey could do that too :

                “The Senate shall have the sole power to try all impeachments.”

                is an exclusive grant of power to the Senate, not a command to the Senate. If you wanted to make it a constitutional command, you’d need to insert :

                “, and shall try, ”

                before “all impeachments.”

                1. On that basis, Lee, do you agree that the sole power to impeach vested in the House puts out of the question any judicial review of House subpoenas, witness demands, or contempt citations?

                  Does it work alike for both House and Senate? Are both House and Senate free to do any outlandish thing they please? And is the only power to discipline the process the power of the voters to punish what they don’t approve of?

                  1. I was kidding about the trial by ducking, honest 🙂

                    I don’t think we can read into either the House’s power to impeach, or the Senate’s power to try an impeachment, powers to do anything at all that each body claims is a part of impeachment or trying the impeachment.

                    Thus, if the House decided that it would like to rack the witnesses in order to encourage them to testify, I doubt that the courts would accept that the House’s power to impeach extended to infringing other constitutional rights (or even other legal rights, unless Congress had carved out exceptions to such legal rights, within the law.)

                    But the Necessary and Proper Clause would seem to allow Congress to make such laws as it felt were necessary and proper for carrying into Execution its impeachment, and trial, powers. No doubt this would be judicially reviewable – ie the courts would have to agree that these laws were indeed necessary and proper. (And there’s no good reason to believe that what is necessary and proper for the House to exercise its impeachment power, will be coextensive with what is necessary and proper for the Senate to exercise its power to try impeachments. So there may be asymmetry between the maximum permissible extent of impeachment related powers across the two bodies.)

                    So I have little doubt that laws permitting the House to issue subpoenas to pursue an impeachment would be OK with the courts, as a valid use of the N&P clause. Likewise laws permitting the House access to grand jury material to pursue an impeachment. But the rack ? Probably not.

                    Note though that such laws would be an exercise of Congress’s powers to make law, not an exercise of the House’s impeachment powers directly. Consequently, unless you already have the N&P powers you want on the books, you’re going to need to pass new ones over the President’s veto.

                    1. So you suppose the Necessary and Proper Clause applies only to laws, and not to powers? Not being a lawyer, I ask, on what basis?

      2. Bob, upon further reflection, I suppose if acquittal without evidence is okay, you would likewise back conviction without evidence? For instance, the impeachment and conviction of all the right wingers on SCOTUS by summary process, with no occasion to present evidence would be fine with you?

        1. It would clearly be constitutional.

          The Nixon opinion recounts the petitioner’s plea :

          Petitioner argues that the word “try” in the first sentence imposes by implication an additional requirement on the Senate in that the proceedings must be in the nature of a judicial trial. From there petitioner goes on to argue that this limitation precludes the Senate from delegating to a select committee the task of hearing the testimony of witnesses, as was done pursuant to Senate Rule XI. “`[T]ry’ means more than simply `vote on’ or `review’ or `judge.’ In 1787 and today, trying a case means hearing the evidence, not scanning a cold record.” Brief for Petitioner 25. Petitioner concludes from this that courts may review whether or not the Senate “tried” him before convicting him.</i.

          SCOTUS then proceeds to nuke this argument from orbit.

  11. So, I guess whether the conduct actually rises to the level of a high crime or misdemeanor is not even relevant?

    1. He robbed her of #herturn. Thats good enough for the Dems and apparently most of the VC and some so called libertarians who are just establishment and status quo toadies in disguise.

      1. What is good enough for Democrats is crushing the political aspirations of conservatives, which are based on bigotry and backwardness. This is what American moderates, liberals, libertarians, and Democrats have been doing throughout our lifetimes, effecting progress against right-wing wishes and efforts.

        Winning the culture war has consequences. So does losing that culture war. Thank goodness.

    2. MKE, if the evidence and witnesses aren’t examined, how would you know?

  12. If they find some actual impeachable conduct, and they think there’s enough evidence to convince an impartial body, then fire away.

    In practice, this doesn’t mean excluding people with biases, but making sure the evidence is strong enough to get a solid conviction vote from your own party’s Senators and enough of the other party’s Senators to get 2/3.

    Nixon quit after he realized Senate Republicans were turning against him.

    1. There were actually some honest Republicans in the Senate then.

      1. The only good Republican is a dead or retired Republican, right?

        You must be pining for the days of Jesse Helms, Strom Thurmond, and Bob Packwood.

        1. I love this notion that has arisen in the past 10 years or so that the republicans have somehow never been more conservative than they are now with half of them marching with rainbow flags and trying to compromise on transgender bathrooms.

        2. No. Howard Baker. (Who I actually voted for, believe it or not.)

          But I’m glad to know you regard those three as jerks.

          1. I don’t know if I’m being fair or not, but your remark reminded me of the “strange new respect” which Republicans get from the media if they’re dead or retired, or if they criticize fellow-Republicans from the left.

            It’s a common refrain – Republicans used to be honest and principled, not like these Republicans today.

            While actually in office, or running for office, people like Goldwater, Reagan, and George W. are basically Hitler clones. Later, when their careers are over, they are respectable elder statesmen who would never do the awful things the Republicans are doing today.

            I’ve said a couple times, I’d like the people who practice this sort of nostalgia to start rehearsing the nice things they’ll be saying about Trump, McConnell, and other Republican politicians once they (the politicians) have retired and there’s a new generation of Republican politicians to criticize.

  13. I hope they do impeach trump, hopefully right during the election with the reasons they have now. Come on Dems, you know you want to.

  14. re: “An impeachment can send the strongest possible message that some behavior is to be condemned and should not be imitated by others”

    That’s plausible if and only if the impeachment vote is bi-partisan. If, on the other hand, the vote comes out along party lines, the impeachment will send only the signal that partisanship has increased again.

  15. “message sent by the impeachment”

    Democrats are impotent?

  16. One reason to impeach Trump is to put the charges against him into less equivocal language than Mueller chose, and to state those charges in a forum sufficiently imposing to command more public attention than ordinary competing media reports have done.

    A second reason to impeach Trump is to put his Senate supporters before the public, where they can be shown defending the indefensible, and turning their backs on principles many of them enunciated during the impeachment of President Clinton.

    A third reason to impeach Trump is to avoid the political hazards which will befall the nation if Trump goes unimpeached into the next election, and wins. That would turn the election result itself into an endorsement of conduct by the President which has already been shown by the Mueller Report to be criminal conduct.

    If Trump must win, it will be better for the nation if he does so in defiance of energetic attempts to stop him. That way, history can dismiss the Trump episode as an aberration from which the nation may yet recover. If instead Trump wins with what looks like the nation’s acquiescence, the dignity and legitimacy of the presidential office will thereafter, and for a long interval, be compromised in the public mind, and in the eye of history—with what costs to the nation no one can predict.

    A fourth reason to impeach Trump is to reassert for Congress a place of equality with the President, as a coequal branch, and as a check on the executive. The Constitution vests in the House of Representatives the sole power of impeachment—with no share of that power in either the executive or the judicial branches. To that end, the House should already be acting unilaterally, on its own authority, to enforce its subpoenas, and to punish contempt.

    1. “the dignity and legitimacy of the presidential office will thereafter, and for a long interval, be compromised”


      1. Yeah. In similar vein :

        the ultimate fate of the impeached officer is of less importance than the message sent by the impeachment. Impeachments can be, and have been, a vehicle for constructing, consolidating and reinforcing an important set of constitutional norms. They are a means for asserting that some behavior is beyond the pale.

        made me smile.

        If you’re going to try this approach, you’re going to need the charges to be brought by some pretty fine, upstanding examples of sober, normy, constitutional behavior. Good luck with that.

        1. Lee Moore, that’s not a point to be ignored. In response, one suggestion I offer to the Ds would be to give Senator Chris Coons of Delaware as prominent a role as possible in trying the impeachment. If you don’t happen to remember his performance during Barr’s Senate testimony, it’s probably because he was so sober, normy and constitutional. He’s always like that. Coons has the politics, background, and gravitas to be this case’s Sam Ervin.

          Everyone should check out on You Tube what Coons did to Barr, and how he did it. Certainly compared to the other Senate questioners, Coons ended with Barr more embarrassed and flustered. As Coon’s questioning drew to a close, Barr was blushing so furiously you could see it on TV, and couldn’t bear to look at Coons. I was surprised and disappointed that the media didn’t pick up on that moment, and give it prominent coverage.

          Another suggestion I offer would be to keep the Senatorial presidential candidates out of it altogether. Let them vote, or comment campaign style if they can’t be stopped (I would urge them to stop), but no prominent formal role for any of them. Except for voting, just declare their candidacies a formal conflict of interest, and keep them away from the trial process and out of the limelight. Maybe have Coons explain it to them, so none of them defaults.

      2. LOL, no doubt. Because LOL is all reflexive Trump defenders can think to do in the face of outrageous conduct, dereliction of duty, criminal offenses, and encouragement of mob violence on Trump’s behalf. LOL is high on the list of the many reasons why the nation needs Trump’s case to go to impeachment.

        1. Sorry, Lee, the comment above is a reply to Eddy, but doesn’t seem to have landed right in the nesting.

  17. To my 4 reasons to impeach Trump above, I add this caveat. The House needs to act now to appoint a select committee on impeachment, and make that the conduit for all its document requests, witness invitations, subpoenas, and contempt proceedings.

    Only under the impeachment power will the House be able to establish legitimacy for demanding much of what they must have to move forward. If the House does act under the impeachment power, and Trump goes to court to block them, the House should just politely tell the Court to bug out, because the Constitution vests the impeachment power solely in the House of Representatives.

    To explain that to the Court, and to the public, the House can suggest the Justices consider the incongruity which would arise if the House had to answer to the Court on impeachments. Were the House exercising its undoubted power to impeach a member of the Supreme Court, and the Court asserted power to intervene in the case, the unconstitutionality of that would be obvious to everyone.

  18. “Leave a message,” Yes that can be argued. But it can also backfire. Imagine the scenario where Trump is impeached and convicted. Then some voters are so outraged that they immediately elect Trump again in 2020 to send the message to the Washington elite that “We don’t like you.”

    Would that be good for the country?

    Would it be good for the country to suppress such powerful ill will between the two sides?

    I can’t help but think that Trump, Congress, the media, all of these things are mere proxies (i.e. strawmen) for the cultural divide in this country. Until we address the divide directly instead of via proxy issues, we will never make progress.

    1. “then some voters are so outraged that they immediately elect Trump again in 2020”

      Pretty sure that if he was convicted the Senate would make “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” part of their judgment.

      1. Very possibly, but it is not certain that the Presidency is such an Office.

        see this article and the reply to it :

      2. The Constitution is explicit on the qualifications for the President. I don’t think Congress or the Courts can alter or override that without a constitutional amendment. Not even “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”.

        If Congress had that power, they would use it every election to get rid of the opposition party candidate. Congress can not be held to any “reasonableness” standard.

        There are lots of lawyers here. What do they say? Can Congress disqualify Presidential candidates who meet the constitutional requirements?

  19. One of my comments above has a “Your comment is awaiting moderation” warning above it which appeared immediately upon posting. That’s a new one! I assume nobody can see it yet. I wonder what triggered it.

    1. I told you guys to beware the Volokh Conspiracy Board of Censorship. Having attempted to warn you, I am content.

      1. You were right all along, Arthur.

    2. Most likely someone hit the flag icon by mistake trying to close one of those dreadful popup ads.

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