Impeachment

Is Impeachment a "Constitutional Duty"?

Identifying impeachable offenses is only the first step in deciding what should be done to address them.

|The Volokh Conspiracy |

Elizabeth Warren has asserted that the House of Representatives has a "constitutional duty" to impeach President Donald Trump. House members certainly have a constitutional responsibility to take actions to defend American national interests, preserve the American constitutional order, and maintain their own institutional prerogatives. Impeachment might sometimes be the right step to take in order to accomplish those things.

But in the Washington Post, I argue that the decision to impeach is never mandatory. It always requires political judgment, even when House members are convinced that a government officer has committed impeachable offenses. An impeachment vote should not just be an exercise in virtue signalling. It should reflect a considered judgment that impeachment is the right remedy for a particular set of political problems. Making that judgment requires a clear understanding of what the House is trying to accomplish and how it might best accomplish those goals. It is easy to imagine Democrats voting for a long list of complaints about how Donald Trump has conducted himself in the presidency, but the real constitutional duty is not for House members to express their feelings. The real constitutional duty is to do what is necessary, useful and productive for preserving the American republic. Needless to say, the Democratic members of the House are not the only ones who should be taking that duty seriously.

Here's a taste:

The House has a constitutional duty to safeguard the nation's interests against abusive government officials and to protect its own ability to engage in oversight. Impeachment is sometimes the necessary means for fulfilling that duty. But it is not the only way to tie the hands of errant officials, and impeachment of a single president will not, by itself, address the long-term problem of excessive executive power and the potential for abuse. Leaders of both parties should learn some lessons from this presidency, no matter how it ends, and reexamine Congress's capacity to do its job — and the extent to which we have been relying on the good character and judgment of individuals in the White House to keep the government on an even keel.

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  1. Of course it’s a duty if an official does something impeachable and refuses to resign – but that ship seems to have sailed, considering all the impeachable misconduct Congress has winked at over the years (the torture memo people, Clapper, et. al, and that’s just the swamp creatures).

    The only time it seems they get off their butts to impeach anyone is in the case of federal judges when their (the judges’) own colleagues rat them out.

    And Donald Trump.

    1. Its not a duty at all.

      Its a power. Completely optional.

      1. That’s how it’s treated in practice, sure.

        How successful has that interpretation been?

        1. “How successful has that interpretation been?”

          I don’t understand what you mean?

          1. We had the torture-memo authors, Clapper, that federal prosecutor who went after a medical marijuana business in defiance of a Congressional spending rider – none of them got impeached. They could basically go up to Congress and spit in its face and Congress would do nothing.

            Strangely enough, with the absence of accountability, we ended up with a class of entitled “public servants” who consider themselves above the elected branches of government.

            And come to think of it, that’s part of why we get Trump.

            Now these crooked, unaccountable “public servants” – many of whom would be out on their ears if Congress actually thought it had a duty to impeach offenders – are pressuring for Trump to be removed – and we can bet it’s not out of a dedication to the rule of law and the importance of the impeachment mechanism.

            1. “torture-memo authors, Clapper, that federal prosecutor who went after a medical marijuana business in defiance of a Congressional spending rider”

              Only Clapper was arguably someone who deserved impeachment. People writing memos and obscure federal prosecutors are not who impeachment is designed for.

              Routine impeachment would empower idiot congress critters too much as well as undermine the executive too greatly. Impeachment was rare in England too and abused by Parliament, Warren Hastings was impeached by Whigs [to attack Pitt the Younger] and it lasted for 7 years.

              Now, impeachment of Supreme Court justices should be routine but alas after Chase, we gave up. Pity.

              1. “obscure federal prosecutors are not who impeachment is designed for”

                What about obscure district court judges? They seem fair game. Is rank relevant only in the executive branch?

                These U. S. attorneys are appointed with Senate consent. Shouldn’t the Senate be interested in knowing whether the trust they put in an appointee the confirmed, was misplaced?

                In Federalist 66, the distinguished authors suggested that the Senate would be willing to impartially consider evidence against appointees it confirmed. Now, the *federalist* authors are often a tad too optimistic (they were writing campaign literature, recall), but they never suggested that an appointee confirmed by the Senate would get sheltered by the Senate in its capacity as trier of impeachments.

                https://avalon.law.yale.edu/18th_century/fed66.asp

              2. “People writing memos”

                As I understand it, these memos were meant as cover for intelligence operatives who did things which might (to an outsider) look like torture – the memos explained how it wasn’t really torture if the President signed off on it, subject to various conditions etc.

                Either they advised the intelligence operatives correctly, or not. If not, they were giving cover for crimes forbidden by Congress.

                1. They were only giving legal advice to executive branch officials. Not a “high crime or misdemeanor”.

                  1. If they gave legal cover to illegal torture, then I’d call it impeachable. Though impeachment would be a non-starter (“helping terrorists!”).

                    1. I don’t agree. The memo writer didn’t decide the policy. They provided their view on it. But, for example, John Yoo lacked the power to input any kind of “enhanced interrogation” protocols into action.

                      And, in the end, I’d rather have all views expressed then to have them needlessly limited by possible punishment for people making an argument.

                    2. My strong suspicion is that these memos were for the protection of operatives who commit acts which, if unauthorized by the Pres, would be deemed torture.

                      In other words, this wasn’t some seminar debate, but an attempt to give legal cover to torturers – they would be able to defend themselves by saying, “look, we got a legal opinion that it was OK!”

                      That, I think, was the whole point of the exercise.

                      So if the memo-writers are immune because they were just expressing opinions, and the torturers are immune because they were just following legal advice, then nobody’s accountable.

                    3. In any case, impeachment at worst only would have removed the memo-writers from federal employment, it wouldn’t have taken away their liberty or stopped them from going into private practice or consulting, etc.

          2. Bob I think Eddy is being sarcastic.

            1. Ok, he seems serious to me.

        2. I don’t thinkt it’s just how it is treated in practice. That’s what the Constitution calls for.

          The courts have no jurisdiction over impeachments. The Congress does. What does that tell you? It tells you it’s a political process, not a legal one.

          Indeed, one thing I got mighty sick of 20 years ago was all the legalistic arguments on the Clinton impeachment. It’s not a legal process, so why is everyone arguing about BS such as whether it should be a preponderance of the evidence or beyond a reasonable doubt? Guess what- the Senate can convict on no evidence at all, or acquit on evidence beyond a reasonable doubt of the most heinous crimes. It’s completely within the control of the political branches.

          1. Sure, there’s no judicial review of impeachment in the Art. III courts – just as there’s no judicial review of U. S. Supreme Court decisions.

            But if the Supreme Court is shielded from judicial review, does that mean it’s free to make whatever rulings it wants? Or do we cast off the shackles of fashionable legal positivism, and go back to what the Founders believed – that there is an actual law “out there” by which judges – and everyone else – are governed?

            As for the Senate, you can call their role judicial, or merely quasi-judicial. But the Founders would still say there’s a law “out there” independent of the whims of Senators, which governs the behavior of the Senate.

            And if there’s no judicial review, all the more reason for Senators to make sure they get it right the first time, since there’s no appellate tribunal to reverse and revise any bad decision they might make.

            1. 1. The Supreme Court is, indeed, free to make whatever ruling it wants. There have been numerous examples of this. 🙂

              2. The founders definitely believed in positive law. (Indeed, don’t get me started on the folks who think “natural law” is a real thing.) And they expected the courts to follow it. But they didn’t REQUIRE the courts to follow it.

              3. There’s zero law that governs impeachment, other than the voting margins. It’s whatever the two houses of Congress want. That’s the law.

              4. Whatever the House and Senate do is, by definition, “right”. And that’s as it should be. I don’t want them debating the legalities of high crimes and misdemeanors rather than just deciding whether whatever the President did merits removal based on political considerations, and my position comports fully with the framers’ intent. If they had wanted a criminal standard, they would have put it in court instead of in the hands of politicians.

              1. Here’s excerpts from Federalist 66 on why the Senate, not the Supreme Court, should be the “court for the trial of impeachments” –

                tl;dr – an impeachment court isn’t bound by such “strict rules” as a normal court, and it wields an “awful discretion” (I think in the sense of “awe-ful,” but I don’t read this to indicate that they can make stuff up as they go – especially as they defend the Senate as less subject to improper bias or pressure than the Supreme Court in such cases:

                “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

                “Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

                “These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?”

                https://avalon.law.yale.edu/18th_century/fed65.asp

                1. And before running with the “awful discretion” line, bear in mind that this source also refers to the Senate as a *court* for the trial of impeachments.

                2. The federalist papers are not law. They are propaganda written by people trying to get the Constitution adopted. There are plenty of lies in the federalist papers.

                  The position that Congress would apply a legal standard assumes the framers were complete imbeciles. They weren’t. They were slaveholding liars, but other than Madison (who really was pretty dumb) they were all brilliant as political theorists.

                  They knew that anything they kicked to Congress would be decided based on politics. That was clearly what they wanted. If they didn’t want that, this would mean that they were complete idiots.

                  1. Well, wait a minute – lots of the *Federalist* was over-optimistic (“least dangerous branch,” etc.), but as far as I know the authors were sincere. If not, their private papers and letters would probably contain indications that they were proud of being able to put things over on the gullible voters.

                    And as political philosophy written, not by academics, but by people who had actually helped put a Constitution together, I think the Federalist papers have important insights.

                    And I hope I haven’t suggested some kind of either/or division between judging and politics. I think one thing they got right was that the Supreme Court would be more vulnerable than the Senate in facing impeachment pressure.

              2. “The founders definitely believed in positive law.”

                Obviously. I claim they didn’t believe in legal *positivism,* the doctrine of Austin and Holmes, not of the founding generation.

                The Founders spoke of “the laws of nature and of nature’s God,” and broke off from George III for violating those laws.

                (Even Austin said there was such a thing as a law of God – which he defined as things God inflicted punishment for – Austin simply thought that this had nothing intrinsically to do with human law)

                1. The founders did not actually believe that law was God given. They said that to justify revolution. God talk sold well with the rubes, as it does now.

                  When it came to governing documents, they separated church and state and enacted a purely positivist vision.

                  1. That’s an interesting view – of course, the “original public meaning” of the documents they issued remains the same even if they *privately* snickered behind their sleeves.

                    Amongst the general public, the level of piety was…variable…and I don’t even know if we can automatically assume the voters were more “superstitious” than the politicians.

                    David Holmes has studied the religious beliefs of the Founders,

                    https://amzn.to/2lZK0Do

                    …and found a diversity of views from pious Presbyterianism (and even a couple Catholics) at one end to Deism on the other end.

                    All of these flavors of religion acknowledged a God – the Deists and unitarians may have been called “infidels” by the standards of the day, but they seem downright fundamentalist by the standards of our day. The existence of a God, God’s creation of nature and the human race, these were common elements of their belief.

                    Again, if they were cynically scheming to gull the religious, you’d think they would have mentioned this in their correspondence. (“Heh heh, I fure put one over on ye Christianf again”)

      2. IDK. The Congress also has a duty/power to pass a budget…they’re pretty remiss in that..

        The Senate has a duty to vote on Presidential appointments: They are remiss in that as well.

        1. No, they do not.

          They are to give advice, and consent to the appointee when they agree.

          If they do not consent, there is no reason to hold a vote.

          1. Not consenting requires a vote, does it not?

          2. The question is whether they consent. Not holding a vote only demonstrates that one of them doesn’t consent.

            1. It takes a majority to vote no, not just one person…

            2. Yes, that one being the majority leader.

              We are seriously in need of legislative reform, to scale back the power of Congressional leadership to run roughshod over the individual members.

      1. Both lying scumbags who deserve to be in prison, but there wasn’t a duty to impeach Bill, just a general principle of the rule of law.

        1. “Both lying scumbags who deserve to be in prison”

          We don’t have nearly enough prisons for all the “lying scumbags” in politics.

        2. Whatever, m_k.

          I was just pointing out a serious omission in Eddy’s comment.

          He seems to overlook a lot of facts these days.

          1. That’s not what yo momma said.

            1. As I pointed out to your mother before making sweet love to her, “it seems curious that you son would accuse me of covering up a well-known historical event from two decades ago – could you talk to him and ask him to be more charitable in evaluating posts about current events, rather than assuming there’s some sinister reason to leave out historical events from the age of the dot-com boom?”

              Then I gave her the fucking your daddy never gave her.

      2. Yeah, Clinton lied under oath to a grand jury investigating his criminal conduct. He was impeached, over strong Democratic objections, but not removed.

        1. The word you’re looking for is “acquitted”.

          1. Yeah, we’ll have to keep that in mind, won’t we?

      3. At least they tried with Clinton, but it seems that obstructing justice in a situation where you would have advocated punishing a “little person” who offended, is not impeachable.

        OK, then, obstructing justice isn’t impeachable in itself, you need a bit more.

        How about covering up massive spying on the American people? But Clapper walked away after basically pissing on Congress and telling them it was raining. No impeachment.

        The U. S. attorney who prosecuted the Kettle Falls Five ignored a specific Congressional spending restraint on prosecutorial authority, illegally putting people in jail. No impeachment.

        Justice Department lawyers explained how the anti-torture laws didn’t mean what they said, because if they meant what they said the laws would be invalid. Congress didn’t vindicate their own laws but let those lawyers get away with it.

        And really, those are only the three examples I can think of, I’ve probably ignored others.

        You can lie to Congress’ face, you can take money out of the Treasury in violation of Congressional spending riders, you can make mincemeat of Congressional statutes – and you won’t get impeached.

        What *does* it take to get impeached and convicted, if you’re in the executive branch?

        1. “The U. S. attorney who prosecuted the Kettle Falls Five ignored a specific Congressional spending restraint on prosecutorial authority”

          Totally appropriate. If Congress does not want laws enforced, repeal them.

          1. It’s not the prosecutor’s job to ignore the laws until they’re more reasonable.

            Nor are they allowed to dip into the treasury unless Congress says OK: “No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.” Constitution, Art. I, Clause 7.

            1. Section 9 – the Internet told me it was Clause 7.

            2. Congress can’t limit executive discretion in a backdoor way by bogus spending riders.

              Once Congress passes a statute, its completely up to the executiuve to prosecute or not.

              Such riders are unconstitutional [though common].

              1. The executive admitted error in that case.

    2. It is reasonable for Congress to be much more aggressive with impeaching federal judges than elected officials or their appointees who serve at their pleasure.

      The ballot box is the best remedy for an elected official or one who keeps on an appointee that should be dismissed. However, the ballot box is not an available remedy for federal judges so Congress is the only option.

      1. To begin with, I don’t see how the voters can monitor every undersecretary and administrator.

        In any case, the voters ought not to have the option of installing (say) a Clapper who sets up a spy operation and lies to Congress about it, or a U. S. Attorney who defies Congress to go after citizens in some state where most of the voters don’t live anyway.

        1. And since Presidential impeachment is only going to kick in in very rare situations, but misbehaving officials are a constant, Congress should be able to go after the President’s subordinates if they do bad things, without having to use the “nuclear option” of targeting the Pres himself.

  2. There is not one definition of the “public good” there are many. What’s in the public’s best interests depends on who is in the ruling coalition at the moment. Likewise, there is not one vision of how to safeguard the nation’s interests. Therefore, making it a “duty” to impeach assumes that there is a shared national interest to with a “duty” to defend, which there isn’t.

  3. NY Times report the whistle blower was a CIA officer posted to the White House. Hmmmm…second Republican president in a row to get burned by the Agency.
    It may not be good at spying on foreign powers, but the Agency excels in DC politics. But we can’t have the government’s intelligence service becoming the kingmaker.

    1. After the FBI hit failed, its the CIA’s turn to try to remove a duly elected president.

      Recall that “Deep Throat” was just a corrupt FBI senior official looking for personal revenge.

      1. Probably not the example you want to use…

        1. lol. Right?

          “The Trump situation is just like the Nixon situation!”

          Exactly, Bob. Exactly. Run with that.

        2. Nixon did nothing wrong.

          1. Wow. You’re a bit of a fucking moron, eh?

          2. For someone who cares only about political outcomes rather than norms or principles, Nixon would seem to have screwed the pooch, eh?

            1. You’re quite ignorant of history if you think Nixon’s behavior violated political or presidential norms.

              1. Nixon’s behavior violated political and presidential norms. That’s why he resigned. Even in your nihilistic world view he violated the norm of not getting caught.

                But Sarcastro was telling you that Nixon fucked up political outcomes, too. So tell yourself that the President was behaving normally, except for the part where he mishandled “normal” so bad that the country finally turned on him.

                1. LBJ wiretapped MLK and others [like JFK], got some of Hoover’s files to strong arm legislators, lied the US into the Vietnam war and did most of the things Nixon did.

                  He was a Democrat however in a Democratic era so immune from scrutiny.

                  1. Hoover wiretapped MLK beginning before the LBJ administration. I don’t know what you are talking about re: “Hoover’s files to strong arm legislators”. LBJ was dishonest about the Vietnam war but reasonable minds can disagree as to whether they were lies of omission or commission (and whether that matters), and the extent to which he knew things were untrue. This broad statement that LBJ “did most of the things Nixon did” is too vague to respond to.

                    The issue is whether LBJ or his top assistants burgled the RNC headquarters to install listening devices, and then got caught on tape trying to cover it up by paying the conspirators. I don’t recall that happening.

            2. “Nixon would seem to have screwed the pooch, eh?”

              Yes, he should have burned the tapes.

              So I guess he did do something wrong.

              1. Do you think maybe the thing he shouldn’t have done was be involved in the burglary in the first place?

    2. Like Chuck Schumer said, and I paraphrase, don’t piss off the spy agencies as they have a thousand ways from Sunday to get back at you.

      1. Security agency coups are ok with Chuck as long as GOPer is the victim.

        1. Bob, an impeachment is not a coup. It doesn’t even remove the target from office. And the victims choose themselves, by their conduct. Even Clinton did.

  4. “An impeachment vote should not just be an exercise in virtue signalling. ”

    A reflexive refusal to consider an impeachment inquiry should not just be an exercise in bigotry signalling, but that is most of what we see from Republicans (including conservative law professors) these days.

    1. Yawn. Show us evidence instead of another trumped up charge from 3rd hand reports and dubious interpretations of the law that have never ever been used for any sort of criminal proceedings in the past.

      Next up. Trump was speeding 5 mph over the limit, according to a source who heard it from another source, who heard it from a third. Impeach him! He’s broken the law!

      1. You say “3rd hand reports” as if the White House didn’t itself release the summary of Trump’s call with Zelensky or had so much as bothered to deny either the allegations in the whistleblower memo or that Trump had ordered a stop on military aid to Ukraine a week before that call.

        1. Armchair, I’m guessing when the investigation is complete, the “hearsay,” account of what happened will turn out to be perfect. Magically accurate, in fact. Every single detail will check out.

          I think that because I think the whistle blower is lying. I think he was one of the people in the room during the call, and saw or heard almost everything. What he did not catch first-hand, he was able to get from others who knew he was there, who saw what the whistle blower and the others saw and did, and decided to cooperate. Maybe, this is going to turn out to be more of a whistle blower conspiracy.

          Think about it. Why would anyone who was actually present say so in a whistle blower complaint with an uncertain future? If the complaint failed in its purpose, and Trump’s misbehavior remained secret, that would target a small group of suspects for investigation, and simplify things for would-be retaliators. Very little anonymity in that. By saying instead that he got the account second-hand, the whistle blower enormously expanded the number of targets administration investigators would have to check out.

          Probably, that does not matter much now, because the complaint did not misfire. The House is going to be doing the investigating now, and it would take a maniac with a yen for incarceration to do what Trump wants, and try to punish the spy.

          I could be wrong, of course. But if it turns out like Watergate, and the identity of the big witness remains secret for a long time, then a super-accurate account which checks out in every way will point to one of the people in the room as a good guess. Good enough, anyway, along with extensively proven corroborative evidence, to discount the hearsay defense nearly to zero.

          1. “I’m guessing”…

            So, you’re guessing that the whistleblower report will turn out to be perfectly accurate because.,…the whistleblower was lying in his report? You don’t see any logical problem there? No?

            Yeah, you probably guessed the “Steele Dossier” was perfect too.

        2. Yes, in response to this uproar, Trump released the transcript. That’s called “Transparency”. We could only hope other politicians are as transparent in their dealings as Trump is.

          Now, you read the transcript? Or perhaps not…just the summary. Could you tell me what Crowdstrike is, and why it’s important to Trump?

          Could you perhaps put this in the context of election security, and the major thrust the Democrats supposedly care about election security?

          Can you tell me the one example of laws that were broken in Ukraine in election meddling in the US, and what the situation was? Were there any prosecutions in the US over this election meddling?

          1. Yeah, about that “transcript” proving “transparency” you’re so impressed by:

            As has been known since its release by all except the most willfully blind, the “transcript” was a summary of 12 minutes out of a 30 minute call.

            1. Now I strongly suspect you’re just making shit up. Major media sources are not reporting that.

          2. Why yes, I read the transcript, in which the President of the United States, days after ordering a hold on military aid to Ukraine, and immediately after the president of Ukraine says that they’re ready to acquire American missiles that were part of that aid, asks that president for a “favor” of working with his personal attorney and the US Attorney General to dig up dirt on his likely opponent in the next election. That’s the point – none of this is “3rd hand,” it’s already in evidence.

            And Crowdstrike is important to Trump because he gobbles up every wackadoodle fever dream from the tinfoil hat brigade that he can find in his morning twitter sessions. He’s Tony Montana getting sky high on his own supply. Next week he’ll probably ask the Kenyan government for help tracking down Obama’s real birth certificate.

            1. Next week? That has to have been at least two years ago.

          3. “Now, you read the transcript? Or perhaps not…just the summary. ”

            If you have a transcript (or, better, a reliable recording), would you share it? Prudent people might wish to compare it to the self-described paraphrased memorandum that has been circulating.

    2. A reflexive refusal to consider an impeachment inquiry is in keeping with not abusing the power to attack political enemies.

      Things are still under way. Let’s see what further comes out.

  5. Perhaps in the academic or fantasy world of ponies and unicorns, “It should reflect a considered judgment”

    In the real world, at least these days, all politics is virtue signalling, and all political judgement is about how best to microtarget your base on social media so that they tune in to your signal.

  6. The President can’t be indicted, or even investigated for crimes, as separation of powers dictates that the remedy for such is impeachment.

    But impeachment isn’t a duty, it’s a political act.

    Congrats on absolving the President of all criminal liability. It’s all politics, now!

    1. After impeachment, conviction, and removal, the President is no longer the President, and can be indicted.

    2. “It’s all politics, now!”

      It always was. Except there is no absolving a President of criminal liability. Instead, there is a vote of the House to choose whether to prosecute such alleged crimes or any other offense. This has similar elements to prosecutorial discretion or a grand jury, but impeachment is far more political in that is the republican representation of the People. It seems to me that culpability of a specific criminal offense is not even a necessary condition for impeachment. But if alleged criminal liability is the basis of impeachment, then you need to be specific.

      1. The quite long article at the Washington Post reads like Whittington is tediously trying to talk fellow Democrats off the ledge.

      2. We’re talking about whether there’s a duty.

        A subset of impeachable offenses are criminal activities. To say that there is no level at which there arises a duty to impeach the President is saying the President is above the law, though not above politics.

  7. Doesn’t matter what the House does. As noted in other articles, no one is sure if the Senate even needs to take up articles of impeachment the House develops. Even if they do, getting a 2/3 majority of the Senate to vote guilty is pretty unlikely.

    1. I’m not so sure. Would the R’s in the Senate prefer to back President Pence for re-election? Would the D’s prefer to run against President Pence? It’s possible the answer to both questions is “yes”. (Of the two, I think the latter is actually the less likely).

      1. Trump would run again and unless the Senate voted separately to ban him from future office, he wins the GOP nomination.

        Or he runs his son and campaigns for him.

        Pence is a solid conservative but the voters in the important states are working and lower middle class and want Trumpism.

    2. Jerry, yeah. That’s why I’m guessing the 25th amendment route: “Who knew! Can you believe the guy turned out to be crazy? Had to get him out of office, so he could get treatment.”

      That way, GOP Senators won’t have to be seen voting against Trump. They can be voting for Trump . . . in a humane way. Give him a big, grateful send-off. “We love you! You made America Great Again! Get well soon!”

  8. ” I argue that the decision to impeach is never mandatory. It always requires political judgment”

    Some offenses might be considered so obvious and so terrible as to require action. Alas, the decision is left to partisans, who (surprise!) are likely to apply partisanship to the calculations.

  9. There’s an enormous misconception that the zest and desire for impeachment is based upon facts, logic, consistency, duty, or law. The decision for seeking impeachment is solely based upon emotion and brute politics. No documentation of inconsistencies, lack of credible evidence, or law makes any difference or causes pause. Innuendo and clickbait headlines is all that matters. When the chairman of the House committee is caught and has to admit he created a “parody ” in the form of quoting from a transcript, there’s no hope for facts or logic. I’m not the greatest fan of Trump but the rantings and hyperbole of the Dem’s is incomprehensible.

  10. If it is a duty then there must be some consequence for violating the duty.

    Is a representative who fails to exercise this duty ineligible for office? Will they be imprisoned, fined, or otherwise penalized? Can the court order impeachment hearings be held?

    Of course not. To the extent there is a “duty” it is a moral duty and the only penalty a Representative pays for violating this duty is political.

    IMO any representatives claiming there is a constitutional duty to impeach are trying to avoid taking responsibility for their actions.

  11. Will the grounds for impeachment be related to the Russia investigation or the Ukraine phone call, or both?

    Seems like Justin Amash had the most cogent exposition of an impeachment theory on his Twitter feed.

    1. I meant to say “obstruction theory”

  12. Can someone fact check this for me? It’s from one of those unreliable sites.

    Dossier 2.0: ‘Whistleblower’ Complaint Relies on Soros-Funded ‘Investigative Reporting’ Group that Partnered with BuzzFeed

    Sections of a so-called whistleblower’s complaint alleging President Donald Trump was “using the power of his office to solicit interference from a foreign country” in the 2020 presidential race relies upon a self-described investigative journalism organization bankrolled massively by billionaire activist George Soros.

  13. Getting rid of liberals is our Constitutional duty.

    1. And one that you are spectacularly are failing at.

      1. Leave him to his fantasies.

  14. Impeachment always has been and will remain a political tool. That is why no impeached President has ever been convicted.

    1. Nixon was convicted in the court of public opinion, and effectively removed from office. In its effects, moral, practical, and political, that result was indistinguishable from an impeachment conviction.

    2. Nixon fled the scene before he could be impeached and removed.

  15. …the decision to impeach is never mandatory. It always requires political judgment, even when House members are convinced that a government officer has committed impeachable offenses.

    Precisely. It is the political calculus that is most relevant. It did not work out politically 140 years ago, or 20 years ago for the impeachers. Because the final check against a House that unwisely impeaches a POTUS or a Senate that removes him from office is the ballot box.

  16. 5 USC 3331 requires the following oath on joining the House: “I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; ….”

    May not the duties of members of Congress arise from statutory oaths as well as the Constitution?

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