Impeachment

The White House Counsel Is Making Political Arguments, Not Legal Ones

In making the case against the House impeachment inquiry, the White House counsel relies upon a repudiated district court opinion that doesn't even support its argument.

|The Volokh Conspiracy |

On Tuesday, the White House Counsel's office released a letter to the leadership of the House of Representatives objecting to the current impeachment inquiry. According to the letter, the House's Democratic leadership has "designed and implemented [its] inquiry in a manner that violates fundamental fairness and constitutionally mandated due process."

Although the letter speaks in legal terms, it is important to recognize that it is not making a legal argument. Impeachment is a political process and, as the Supreme Court has recognized, the selection of rules governing the impeachment process are largely for Congress to make. Accordingly, this letter is making political and prudential arguments about what (in the view of the White House) should be considered to be a fair or reasonable process. Contrary to its many appeals to legal authorities, the letter is not making valid legal or constitutional claims.

This may explain why the letter plays a bit loose with its citation of legal authorities, while largely ignoring the original public meaning of the relevant text or directly applicable legal precedents. As Ilya notes below, political office is not "life, liberty or property" under the Due Process clause—and even if it were, the only process that would be due is that which is prescribed in the relevant constitutional provisions (Article I, Sec 2, Clause 5; Article I, Sec 3, Clauses 6 and Clause 7; Article II, Sec 4).

But let's now dig into a few details. In the course of trying to make a legal argument against the current House proceedings, the letter states that "it has been recognized that the Due Process Clause applies in impeachment proceedings. The citation for this claim is Hastings v. United States, 802 F.Supp. 490, 504 (D.D.C. 1992) vacated on other grounds by Hastings v. United States 988 F.2d 1280 (D.C. Cir. 1993). I was literally floored to see this citation.

The letter is correct that the U.S. District Court in the District of Columbia did conclude the Due Process applies to impeachment, but not about much else. When Judge Alcee Hastings challenged his impeachment and removal from the bench, District Court Judge Stanley Sporkin concluded that the "fundamental constitutional concept of due process" applies to impeachment trials in the Senate. It made no such claim with regard to impeachment inquiries in the House. In any event, the District Court's conclusion about Senate impeachment trials is not good law.

While the letter claims the Hastings decision was "vacated on other grounds," reading the opinion tells a different story. At the time of the Hastings decision, another federal judge (Walter Nixon) was also challenging his impeachment and removal, arguing that the procedure utilized by the Senate did not satisfy the constitutional requirement of a "trial" in the Senate. This was the precise same argument at issue in Hastings. Indeed, as the court itself noted in Hastings, Nixon concerned "the identical issue presented in this case."

Although the D.C. Circuit had rejected Nixon's claims under the Political Question doctrine, Judge Sporkin explained that he could reach the underlying issue because the Supreme Court had accepted certiorari, but not yet issued a decision, on that issue. But as Judge Sporkin's opinion also made clear, the resolution of Nixon's case would undoubtedly control.

In Hastings, Judge Sporkin went on to conclude that courts could impose due process requirements on Senate impeachment trials as the conduct of such trials were not a Political Question. This holding, however, is precisely what was vacated by the D.C. Circuit because this holding is precisely what was repudiated by the Supreme Court in Nixon v. United States.  In Nixon, Chief Justice William Rehnquist (joined by the Court's conservatives)concluded that the content of impeachment proceedings—including the conduct of a trial in the Senate—is wholly in the control of the legislative branch. Several justices concurred in the judgment, concluding Nixon deserved to lose on other grounds, but no justice thought Nixon's claim had merit.

Nixon makes clear that each house of the legislature gets to set the rules for its part of the impeachment process. If there is no judicially enforceable constitutional constraint on the conduct of a Senate impeachment trial, it is particularly hard to argue for the existence of any such constraints on a House impeachment inquiry. After all, a House impeachment inquiry is, at best, analogous to a grand jury indictment, not a trial. So even if we thought more process might be required, it would not be much at all—and certainly would not entail all the rights to which the White House counsel's office tries to argue that the President is entitled as a matter of law, let alone "constitutionally mandated due process."

As a political or prudential matter, the House may decide that affording greater procedural protections to the President and his defenders is a good idea, particularly insofar as it makes impeachment more politically palatable. There are reasonable arguments to be made on these points, but these arguments are, at bottom, political and prudential, not legal or constitutional—and no one should pretend otherwise.

For more on these questions, I also recommend my co-blogger Keith Whittington's Lawfare essay explaining why the House is not required to vote to authorize an impeachment inquiry.

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  1. Impeachment is a political process so the usual legal protections like due process don’t apply.

    Also, we can infer that the law is against Trump because his attorney is making political arguments, not legal ones.

    Not doing everything the political congressional committees want during this political process is also called “obstruction of justice”. Because these distinctions change minute-by-minute, as needed to continue the show.

    1. It’s been suggested impeachment is an impeachment inquiry, and not a justice inquiry, so obstruction of justice would not apply, though other violations of valid subpoenas may.

      Seems an odd argument.

      1. And yet, we see lawmakers claiming that failing to cooperate with the committee is “obstruction of justice”.

        1. Actually, Adam Schiff and others are very careful, and too clever by half, to always call it “obstruction,” without finishing the phrase. I assume “of Congress” and not “of justice,” but he never says either one.

    2. What law exactly should we infer against the President? Shall we make up a new law to apply to Schiff”s made up facts to use in this made up “impeachment” process? I never did quite understand how a national insanity could have affected the French in the 18th century until experiencing first hand this insane resistance.

      1. It’s really not that complicated if you’re willing to open your eyes :

        Using the favor of the United States government in an attempt to extort personal gain is wrong. It’s even worst when that favor is military aid to a country under invasion by a U.S. foe. It’s worst still when that personal gain is fraudulent investigations designed to impact a U.S. presidential election.

        Some additional points :

        (1) Yes, the “reciprocal” “favor” Trump demanded from Zelensky was a fraud, in the form of two faux-investigations of obvious lies. We’re all so accustomed to Trump’s lying it barely even registers now. But this time he was demanding a foreign leader lie for him.

        (2) Yes, the Joe-was-Protecting-Hunter story is a lie. Biden pressured Ukraine by order of the President, per the policy of the State Department, following the stated aims of the European Union, in conjunction with similar pressure from the IMF & World Bank, with support of Republicans in Congress at the time, and to the applause of every reform & anti-corruption group in Ukraine itself.

        (3) The other show-trial-investigation Trump demanded was about CrowdStrike. It’s also a lie – and spittle-spraying bonkers to boot.

        (4) When you demand public “investigations” of charges that can’t stand five minutes of scrutiny, you demand fraud. When you withhold legally appropriated military aid to force fraud for private gain, you commit an impeachable offense.

        (5) Poor Zelensky is desperate to stay out of this mess. But remember : Trump had been at him for weeks before the call – at one point demanding he personally sign a public pledge to do Trump’s bidding. Multiple people were involved in this sleaze; there is a sizable paper trail.

        (6) Every day brings new developments. Yesterday we learned the White House gave a politically appointee the authority to withhold aid to Ukraine after career budget staff members questioned the legality of delaying the funds (per the Wall Street Journal). Today we learned at least four national security officials complained about Trump’s Ukrainian shakedown to a White House lawyer, National Security Adviser John Eisenberg. These complaints were both before and after the infamous call.

        (7) This raises a point with dual significance : It wasn’t just the call. This was a systematic shakedown with 1-2 dozen active participants and countless witnesses. “It’s was all just a handful of misunderstood words” will not fly as a defense. Many witnesses will testify. At least one of the active participants will turn.

        (8) Trump’s bootlicking sycophants need to ask themselves how much sleaze they can stand, humiliation they’re willing to bear…….

        1. Way to dial it to 11, with some added projection/hypocrisy thrown in. As far as allegations of criminal activity in this second act (or maybe remake) of the Russian hoax, I believe it took the DOJ less than one day to conclude that there was no illegality here. There is nothing wrong with asking foreign governments to cooperate with an ongoing AG investigation. There is certainly nothing wrong with investigating potential fraud by actors in the highest levels of government (that would be Biden). The Foreign Corrupt Practices Act? The Hobbs Act? And being a potential candidate doesn’t shield him. If that were an automatic grant of immunity in such cases, maybe the Joker should explore running for office.

          1. If there are any Joker fans out there, please don’t take offense at any implied comparison to Biden.

          2. Really? That’s the best you’ve got defending what Trump did?

            As noted, new developments every day.
            Good luck living with the reek of your own bulls**t………

            1. Yeah, I’m afraid the law and facts are all I’ve got to defend the President. I’ll look out for those new developments though. Like the “whistleblower’s” professional relationship to a political candidate (Biden himself?). His (or her) contacts with Schiff. And why the IC IG decided to retroactively change the standards for accepting complaints (and maybe why the IG could have ever thought this was a legally cognizable complaint in the first place).

  2. Agreed. The White House here appears to be engaging in ceremonial legalism, the use of legal formalities, language, and ceremonies to cloak an essentially political end. Not the first branch of government to do this, as I’ve noted in many previous comments.

    One could even argue that in this respect, the Administration is merely following well-established Supreme Court precedent.

    1. “…the Administration is merely following well-established Supreme Court precedent.”

      I legit laughed out loud at that one. Bravo sir!

      1. Seriously, a House committee abandons all rules and precedent to conduct a “star chamber” impeachment process; a committee chair connives behind to scenes to assist a so-called “whistleblower” (a status legally inapplicable under the circumstances); the same chair fabricates the substance of the President’s communications and, despite all this, Donald Trump is somehow the villain in this twisted democrat created charade. Unreal.

        1. All the presnit’s defenders can do is whine about made up procedural issues.

          Life must be very confusing for the few of them who are sincere.

    2. The House isn’t exactly following precedent itself. Good on the WH for following suit there.

      1. The 4th Amendment is set up for the principle to stop the king from searching through an opponent’s papers to harm them.

        In this thread: individual congressmen can search willy-nilly through an opponent’s papers if they say “impeachmrnt” first.

      2. The House does not need to follow it’s own precedent.

        Maybe it should, but that’s a political argument.

        1. And the problem with Trump’s lawyer making political points is…what?

          Trump should tell them to go fuck themselves.

          1. The thing is, all of the debates about impeachment would work a lot better if everyone stopped making legal arguments. Make a political argument for whatever position one takes.

  3. “Impeachment is a political process and, as the Supreme Court has recognized, the selection of rules governing the impeachment process are largely for Congress to make.”
    The removal of the President is much more than a political move. it will overthrow a legitimate election. As such it should be carried out with the most rigorous due process protections for the impeached.
    There should also be serious consequences for representatives that attempt to circumvent due process.

    1. it will overthrow a legitimate election.

      No.

        1. No matter how much some of the crazypants liberals wish it would, impeachment and removal will not make Hillary Clinton president, undo the laws and regulations that have been either enacted or repealed since January 2017, or un-confirm 25% of the federal judiciary. It would just end the Trump administration slightly sooner than if he gets his ass kicked in the 2020 election.

          1. That’s better than “No”. Elections aren’t strictly either/or, so the fact a specific person wouldn’t become President doesn’t answer it correctly either.

            1. The result of a successful impeachment and removal would be the duly elected vice-president taking office as president. That possibility is baked into the electoral cake, so it would not be overturning any election.

          2. Wow, those crazypants liberals sure sound crazypants. And liberal! Can you name anyone who believes that if the president is removed from office then the loser of the previous election becomes president? I ask because people who think that are people I’d like to avoid.

            1. Hard to tell satire on the internet. Here is the text of a 2017 tweet from CNN liberal commentator Sally Kohn:

              Sally Kohn

              @sallykohn
              Straightforward from here:
              1. Impeach Trump & Pence
              2. Constitutional crisis
              3. Call special election
              4. Ryan v Clinton
              5. President Clinton

              7,760
              9:21 AM – Feb 15, 2017

              1. You’re too absurd to recognize satire anywhere.

                But that is a very stupid tweet by Sally Kohn (assuming it’s a tweet from Sally Kohn).

                1. It’s called Poe’s Law. Look it up.

                  And go to that magical internet searchbox and do a search yourself for that Sally Kohn tweet. I’m not going to do your work for you.

                  1. No I won’t be doing that. I already took your evidence at face value and I see no reason to waste one more moment thinking about a single dumb tweet from 2017 from someone having something to do with CNN that apparently proves the premise that crazypants liberals believe Clinton will be president if Trump is removed from office.

                    I mean, insanity and stupidity are not solely defining characteristics of modern conservatives. It’s just that they’re the only folks who wear theirs as a badge of honor.

              2. After Pence comes Pelosi. There’s no Constitutional crisis in your list because removal of Trump and Pence means Pelosi would be POTUS.

          3. “impeachment and removal will not make Hillary Clinton president”

            Besides the point. Nobody voted for Pence.

            1. Untrue. When we vote, it is for a TEAM. Prez + VP. When we vote, all voters know that there is a non-trivial chance that the VP will become president. So far in our history, that is because of the death of the president. Or (Nixon) via resignation of the president.
              So, yes, voters did actually vote for Pence–albeit indirectly. It is sometimes a major part of a presidential election campaign (see Sarah Palin) . . . “Candidate X’s pick of a VP candidate shows bad judgment [point 1] and we can’t take the risk of this VP person becoming president [point 2].
              In the case of Nixon, I grant your point–but that’s because the eventual Prez (Ford) was not Nixon’s original VP and therefore no one had cast a single vote for Ford.

              1. No one voted for Trump based on Pence being on the ticket.

                Except maybe Mrs. Pence.

                “(see Sarah Palin)”

                An exception, the only one in my lifetime.

            2. Besides the point. Nobody voted for Pence.

              Every single person who voted for Trump — all 304 of them — voted for Pence. (Pence actually picked up one additional vote from someone who didn’t vote for Trump.)

  4. Attempting to steelman the administration’s argument (or at least a part of it):

    When the Constitution says “The House of Representatives … shall have the sole Power of Impeachment.”, exactly who or what is “The House of Representatives”? Can one committee instigate impeachment proceedings? Are they “The House of Representatives”? Could one member of the House declare impeachment proceedings? Or does it require a vote by the whole body to make it “The House of Representatives” that is acting?

    (To be clear, I think Trump probably deserves to be impeached, but I cannot figure out whether the House has *actually begun impeachment proceedings* or not).

    1. Your questions are trick questions: there is really no such formal thing as “impeachment proceedings.” The only official part of the process is a vote to actually impeach. A vote to authorize “impeachment proceedings” may solemnize the situation, but has no particular legal significance. The constitution says nothing at all about the process — only that a majority vote is required to actually impeach. Thus, anything else is a matter of internal House rules.

      So a committee can do anything that existing House rules empower it to do. And conducting investigations and oversight of the executive branch is one of the things that such a committee is already powered to do. And that’s all that “impeachment proceedings” short of an actual impeachment vote amount to.

      They certainly could hold a formal vote, expressly authorize consideration of impeachment, and designate a specific committee to take charge. But in the absence of such a vote, nothing stops any committee from investigating potentially impeachable acts.

      1. If they wanted to make it less nakedly partisan, then yes, they could vote and agree to a process that looks like a fact-finding process.

        1. If impeachment is a political question left to Congress, then surely Congress’ ability to enforce its rules governing impeachment is likewise a political question left to Congress.

          Therefore the whole “legal vs political” argument is moot. The President can’t ask the Court to require specific procedures from the House, nor can the House ask the Court to require specific disclosures from the President.

        2. But they won’t, because they don’t care if it’s nakedly partisan, they can count on 90-95% of media outlets painting it as deadly serious no matter how naked their partisanship is.

          Ultimately, that’s what is making our politics so toxic these days, the fact that almost all media outlets are now aligned with a particular party, which thus doesn’t have to worry any more about appearances.

        3. If they wanted to make it less nakedly partisan, then yes, they could vote

          Well, if Republicans wanted to make it less nakedly partisan, they could support impeachment.

          a process that looks like a fact-finding process.

          You mean, like calling witnesses and subpoenaing documents?

          Remind me which side doesn’t want those things to happen? (I’ll give you a hint: see the letter linked in the top of this post.)

          1. The republican side wants more witnesses and more subpoenas. Trump’s lawyer is withholding his participation to expand the inquiry to both sides.

            Fact finding isn’t “find some info, hide some other info”.

            1. What “sides?”

              Who else is potentially being impeached?

              1. For and against.

                Please be less dumb in future replies. Thanks in advance.

                1. Which witnesses do congressional Republicans want testimony from that congressional Democrats are refusing to hear from?

      2. What you say is true, but the catch-22 is that unless they are doing an impeachment(TM) then they don’t have the same legal authority in the investigation, and moreover, they avoid political accountability but not voting on an impeachment(TM). Anyway, the question been raked over in other threads.

        1. As I have said numerous times to my own side, the Constitution doesn’t give anyone the right to a process that allows political point scoring. (Liberals made this sort of argument when Merrick Garland didn’t get a hearing.)

          David Nieporent is right about what the Constitution says. As long as the Constitution is followed, this is a political argument. The House can adopt any of a number of procedures, legally, ones that allow the minority more or less opportunities to score points. The argument against the current House procedure is a political one- that a proceeding without a vote lacks political legitimacy.

          1. The House has plenary authority to handle impeachments the way they want to. But that’s the House, not the speaker. If the house wants to override the normal legal bounds of what the president has to provide to a congressional inquiry, if the courts do allow it, then I think the house has to vote for that special authority.

            Alternatively, and I think this is the case, the house’s plenary authority doesn’t provide them with any extra authority over the executive than what the courts have already recognized, if the President doesn’t cooperate then they can just add another count for that.

            1. “But that’s the House, not the speaker.”

              No. The House ALREADY made rules that give the Speaker the authority to do what she’s done. There is no requirement that the House hold a fresh new vote when it already voted on applicable rules.

  5. Trump is handling this perfectly. Show it to be the witch hunt it is and, if the Dems blink on this, subpoena the crap out of EVERYTHING that has caused him issues to date and bring everything out in the open.

    The Dems sure as hell cannot handle that. FISA abuses and all would make Obama and the Dems look horrible. And if they won’t follow even the tiniest sliver of precedent of prior impeachments, then Trump should tell them to go fuck themselves.

    1. “Trump is handling this perfectly.”

      Trump is handling the inquiry perfectly.

      That call to Ukraine was perfect (or ABSOLUTELY PERFECT).

      His wisdom is great and unmatched.

      He is a completely stable genius.

      So why is he unraveling with illiterate tweetscreams?

  6. Why not? Impeachment (ESPECIALLY this one) is a political act, not a legal one…

    1. Seems to be a step too far to expect the Dems to actually explain what laws they claim Trump broke. They won’t actually say WHAT he is accused of doing.

      1. Abusing his office.

        That’s precisely what impeachment is for. (See Federalist 65.)

        1. How did he “abuse his office”?

          We’ve seen the transcript. It sure as hell isn’t there. So what is it?

          To call this a witch hunt insults the Salem witch trials which at least had some APPEARANCE of due process.

          1. You haven’t seen a transcript. You’ve seen a partial summary of the call. It certainly is there.

            1. It is there because you’ve seen it? Or because you want it to be true?

              1. The former; thanks for asking.

            2. I’ve seen precisely what you’ve seen.

              And, no, it is not there.

              Only demonstrable fact in all this is that the only provable crime was done by the gossiper who lied on the whistleblower form.

              1. Whether it’s “there” or not is the same as the question in any trial, isn’t it? Did he or dint he? And the finder of fact — here, the Senate — will answer the question. Not damikesc or David Nieporent.

              2. I’m always uncertain what to do when faced with a delusional person. Do I seriously engage with that person? Do I ignore that person? Do I try and find help for that person?
                I’m confident that you are part of that 35% who are now–and forever will be–in the camp of “Trump can do no wrong.” As it’s a fact-free zone, I will do the computer equivalent of gently patting you on the head and slowly backing away . . . in case you’re about to grab for a sharp object.

                1. santa, you aren’t on my level. Go back to the kid’s table.

                  1. That’s about as dumb as tweeting about your “great and unmatched wisdom.”

        2. Impeachment is for “high crimes and misdemeanors”, not for “abuse of office”. The former is defined by law, the latter isn’t.

          Which high crimes and misdemeanors has President Trump committed?

          1. Kevin, where exactly do you think “high crimes and misdemeanors” is “defined by law”? Take your time and please cite the law to which you’re referring.

            Back in the real world, the concept of “abuse of office” goes to the heart of that phrase, just it has ever since our country’s founding. Maybe try googling it and doing a little reading.

  7. “The White House Counsel Is Making Political Arguments, Not Legal Ones”

    DUH!

    impeachment in this case is political.

    FWIW – obama’s known impeachable offenses were much greater, Clinton’s impeachable offenses – had she been elected were also much greater
    Yet the politics of an obama impeachment simply werent there.

    1. “The White House Counsel Is Making Political Arguments, Not Legal Ones”
      DUH!”

      The tut tutting from Resistance!! liberal lawyers and NeverTrump Beltway Conservative lawyers about the letter has been quite amusing.

      1. Yes, I know Adler lives in Cleveland, he is a Beltway lawyer at heart.

        1. To Bob, any lawyer who doesn’t endorse Trumps’ absurd arguments is a “Beltway lawyer at heart.”

          1. To Bob, John Roberts is a “liberal” because he doesn’t make decisions based on “What does the GOP want?”

  8. So Trump has a political response to a political request
    WTF is the point of this article
    Other than the amazing acceptance of double standards in the name of Orange Man Bad

    1. …Or the far-more-astonishing acceptance of double standards for Orange Man Good lickspittles. Your own version of (pro-)Trump Derangement Syndrome indeed.

  9. Trump bad. ‘Nuff said.

    Liberals and Trump hating Reps will argue that anything done by Trump is done for an evil purpose with an malevolent intent. They believe the mere fact that he campaigned to get elected is grounds for impeachment.

    Their overreacting will only serve to make Americans more cynical about the political process.

    1. Quit whining, clinger.

    2. I personally am finding it difficult to believe that I could get more cynical about the political process.

  10. Even if it’s true that an impeachment proceeding requires no due process, it’s also true that Trump is entitled to take the matter to the courts. Furthermore, the public thinks of the rights being insisted on by the President as basic to a fair proceeding of this kind, and certain prior statements by Democrats are probably not helpful to public acceptance of their current position, such as:

    Chairman Nadler of the House Judiciary Committee has expressly acknowledged, at least when the President was a member of his own party, that “[t]he power of impeachment … demands a rigorous level of due process,” and that in this context “due process mean[s] … the right to be informed of the law, of the charges against you, the right to confront the witnesses against you, to call your own witnesses, and to have the assistance of counsel.”

    The author claims that Trump has no legal right to due process, but since an impeachment proceeding is political, Trump has a right to appeal to public opinion. It’s not a straightforward legal question.

    People presume that the reason for the failure to hold a vote to begin the impeachment inquiry is because of doubt that the vote would succeed. But a more potent reason may just be the desire to keep Republicans from being able to call their own witnesses. I suspect also that keeping hidden the relationship between the whistleblower and one particular 2020 Democrat presidential candidate is a significant objective.

    Finally, it has been said that “the Supreme Court has contrasted the broad scope of the inquiry power of the House in impeachment proceedings with its more confined scope in legislative investigations. From the beginning of the Federal Government, presidents have stated that in an impeachment inquiry the Executive Branch could be required to produce papers that it might with‐hold in a legislative investigation.” Are we now entering the era in which a congressional committee can expand the scope of its subpoenas merely by appending the words “impeachment inquiry” to its subpoenas?

    1. Even if it’s true that an impeachment proceeding requires no due process, it’s also true that Trump is entitled to take the matter to the courts.

      True enough. But the duty of the courts is to read the Constitution, and after finding there that the House has the “sole power” on impeachment questions, to tell Trump, “Go away, we have no jurisdiction.”

      1. You mean that the courts should respond that they have no jurisdiction and so they can’t order the President to comply with congressional subpoenas? That was not the approach that was followed by the courts when the Nixon tapes were subpoenaed.

        1. In fact, when the courts upheld a subpoena fro the Nixon tapes, it wasn’t a Congressional subpoena.

          Looking back: The Supreme Court decision that ended Nixon’s presidency

          A grand jury had returned indictments against seven Nixon aides, including former Attorney General John Mitchell, as part of the Watergate investigation. Leon Jaworski, a special prosecutor appointed by President Nixon, and the seven defendants wanted access to audio tapes of conversations recorded by President Nixon in the White House.

          “We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial,” Burger said.

          IOW, the subpoena that was upheld was in a criminal case concerning the Watergate defendants, NOT a congressional subpoena.

          1. In fact, when the courts upheld a subpoena fro the Nixon tapes, it wasn’t a Congressional subpoena.

            On the other hand, in Senate Select Committee on Presidential Campaign Activities v. Richard M. Nixon, when Nixon failed to comply with a Senate committee subpoena the United States Court of Appeals, D.C. Circuit found the matter to be justiciable, though concluding that the Senate committee had failed to demonstrate a present need of sufficient urgency to overcome the presidential privilege.

            1. But this subpoena was not issued pursuant to an impeachment inquiry.

              1. Neither in the case of Nixon, nor now, as Nixon resigned before they could start the impeachment inquiry, and Pelosi has avoided holding a vote to start the inquiry in the case of Trump.

                1. Nixon resigned before they could start the impeachment inquiry

                  On February 6, 1974, the House of Representatives by a vote of 410-4 passed House Resolution 803 to authorize the Judiciary Committee to consider impeachment proceedings against Nixon, but this Senate subpoena was issued before that. Nixon resigned August 9, 1974.

                  I guess we have to wait to hear from the courts as to what the minimum requirements are to constitute House activity pursuant to its impeachment power, thereby giving their subpoenas greater scope. Is it enough that a House committee merely asserts somewhere in the fine print that they are conducting not merely executive oversight but also an impeachment inquiry? If not, does it only require that the Speaker announce that subpoenas pursuant to the impeachment power are now authorized? Would this require a “bona fide” claim against the President or would run-of-the-mill fishing expeditions qualify, and would the courts want to be in the business of making this judgement? In these days of poisoned relations between the parties it’s not difficult to imagine this type of procedure receiving much use, especially if the Speaker announced that the impeachment inquiry is not to be taken as a charge of wrongdoing against the President but it’s possible that impeachable offenses have taken place, and better safe than sorry – in other words, impeachment normalization.

        2. swood, that is exactly what I mean. I also think previous cases where impeachment disputes went to court should have been rejected without being heard.

          I additionally think that if the President takes an impeachment-related case to the courts, that the House should not contest the case, except to assert the court has no jurisdiction. If the court decides in the President’s favor, then the House should just politely point to the “sole power” clause, and ignore the decision, while explaining why to the public. That, of course, would mean the House must figure out how, as a practical matter, to enforce its subpoenas, etc., without resort to the courts, or even in defiance of them.

          There are so many ways to do it that this discussion could barely scratch the surface. There is the power of inherent contempt, of course. Probably more effective and versatile would be all the things the House could do by combining the impeachment power, with the contempt power, with the power of the purse.

          For instance, the House could start policing disbursements, to match them with appropriations, and hold in contempt any officer of the government who disbursed from the treasury any funds for purposes the Congress had not expressly authorized. With that procedure in place, the House could begin to use the appropriations process to starve selected federal accounts, such as the OLC, to force them to cooperate.

          If you think you see practical or legal problems with any of that, check them against the new reality—that the House would be treating all of its related actions as part of an impeachment investigation, that it would ignore the courts, and that it would be actively enforcing its will against even minor bureaucrats who must cooperate or face severe personal penalties.

          Does that sound tyrannical? Maybe. Or, if you are better informed, you might understand it as the exercise of sovereign power, which is inherently unlimited. Impeachment is a sovereign power. The nation will be both safer and better off as soon as President Trump learns to stop scoffing, and fear sovereign power, as the founders intended. There will be no shortage of guidance from the founders, to cite to the public as reassurance, and in defense of such actions.

          Also, any threat of tyranny will prove self-limiting. When the impeachment crisis ends—a condition both unambiguous and easy to discern—the status quo is restored. There will no longer be any impeachment investigation, nor any direct exercise of sovereign power by the House, which the Constitution decrees to enable impeachment, but not the other business of the House.

          1. “There are so many ways to do it that this discussion could barely scratch the surface. There is the power of inherent contempt, of course. Probably more effective and versatile would be all the things the House could do by combining the impeachment power, with the contempt power, with the power of the purse.”

            Call it a hunch, but the next Dem President would be quite unhappy when a Republican House does that t them.

            “If you think you see practical or legal problems with any of that, check them against the new reality—that the House would be treating all of its related actions as part of an impeachment investigation, that it would ignore the courts, and that it would be actively enforcing its will against even minor bureaucrats who must cooperate or face severe personal penalties.”

            Again, Democrats have already learned how unpleasant their rule changes can be to live under.

            “Also, any threat of tyranny will prove self-limiting. When the impeachment crisis ends—a condition both unambiguous and easy to discern—the status quo is restored. ”

            Don’t see why that’d be the case. Or a Republican House could do the same “impeachment inquiry” from Day 1 of the next Dem President and fuck their shit up.

            Just sayin’. Don’t drop the nuke if you don’t like the possible fallout,.

            Mind you, I HOPE they go to this extreme. This could be a hoot. Congress can barely PASS a budget as is with its extremely loose requirements on spending. They are going to be exact now? Yeah, sure.

            1. damikesc, why would I care? If the Republican House does exactly the same thing to a Democratic president, in like circumstances, I would be cheering the Republicans on. That is what should happen. (Although the notion that anyone in either party will ever again deliver circumstances like those we have courtesy of President Trump is a bit hard to grasp.)

              If, on the other hand, you mean to revive the tired old movement conservative argument, “You do it to us, we’ll do it to you,” and do so with the usual disregard of qualifying circumstance, well, that does get tiresome. But I still say, “Go ahead.”

              I dislike movement conservatism, and especially dislike it for its trademark nihilism. I expect revenge-for-nihilism’s sake to wear out its welcome presently, and take with it the advocates who promote it. By whatever route it comes, the opportunity to say, “Good riddance,” is one I would welcome.

          2. It would be absolutely dangerous for Congress to try and “enforce” subpoenas against the Executive extra-judicially. Down that road lies violence

            1. Dilan, why? You think people don’t approve of the powers the Constitution decreed for the House? What makes folks extra-mad, violently mad even, if the division of government most accountable to the people uses legitimate powers to do the self-same thing a division not-at-all accountable to the people might do?

              1. Do they like the idea of a Representative of a district in CA arresting a President who won a national race?

                I would put decent money on “No”

                You’d see bloodshed.

              2. My constitutional answer is because the separation of powers prevents the legislative branch from arresting members of the executive branch.

                But my prudential answer is more important– because we can’t start a little mini-shooting war between the forces of the Speaker of the House and the forces of some executive department! In that direction lies madness and a banana republic.

                There’s two possibilities:

                1. House subpoenas are enforceable in court. The Democrats sue, and they may win their suit, just as Jaworski got an order requiring Presidential compliance.

                2. House subpoenas are enforceable through articles of impeachment. The Democrats convince enough people that the President is hiding something important and amass the necessary political capital, and then the President either backs down or faces an impeachment vote over it.

                But I think plan (3) is absolutely a non-starter.

                1. Dilan, as to 1, it suffers two notable deficiencies. First, it is contrary to the “sole power” clause, which gives the House unfettered agency to manage impeachments. On that basis, your demand, although somewhat supported by precedent, is unconstitutional. Second, during an impeachment process, nobody can reasonably suppose to go to court and get a decision untainted by politics. That is bad in itself. What makes it worse is that the dangers you posit are thereby multiplied, by drawing the courts unnecessarily into whatever maelstrom you predict.

                  You suggest some folks will be moved to violence because they are frustrated by outcomes of practices in conformance with the constitution. What reason is there to suppose those folks, or others, will for some reason be less frustrated, or less violent, or less likely to practice defiance, after being frustrated by outcomes of processes which do not conform to the constitution?

                  Your number 2 can hardly be taken seriously. Why should I even have to say this? Your argument rules out a principal reason for conducting an impeachment investigation using subpoenas—which is to convince the public by a show of evidence that impeachment is warranted, so that a vote in favor of impeachment becomes a political possibility. If a vote has to be taken before the evidence has been discovered, what is the point of the subpoenas? The vote does not make subpoenas enforceable, it makes them irrelevant.

                  As for separation of powers, I concede that arresting the president would seem as illegitimate as arresting a member of congress. Those are the people who embody the powers to be separated, so respecting their liberty seems at least a wise measure.

                  Otherwise, the “sole power” clause rules out a separation of powers argument. Indeed, the purpose of the sole power clause is to decree constitutional authority for a breach of separation of powers, to throw open the archives of the executive—by compulsory process if need be—for examination by the House.

                  An impeachment and removal from office is an exercise of sovereign power, not an exercise of government power. Separation of powers is a doctrine decreed by the sovereign for control of government. The government never controls the sovereign.

                  Thus, separation of powers is not a principle which controls sovereign action, only government action. And the House, during an impeachment investigation, is not acting as it normally does, as a division of government, subject to checks and balances and separation of powers. During an impeachment, under its sole power designation, the House acts with sovereign authority.

          3. I also think previous cases where impeachment disputes went to court should have been rejected without being heard.

            Do you think that the Supreme Court should have refused to order Nixon to release the tapes demanded by the special prosecutor investigating the Watergate break-in?

            There is the power of inherent contempt, of course.

            Currently, the power of contempt relies on the Executive to enforce it. Do you want the Sergeant at Arms to march up Pennsylvania Ave and take the President into custody?

            Probably more effective and versatile would be all the things the House could do by combining the impeachment power, with the contempt power, with the power of the purse.

            The power of the purse is hardly a finely honed instrument. This has always existed but for some reason has not produced the results some might have desired. In the current climate it would lack Senate concurrence.

            Does that sound tyrannical?

            No, but I think it would require greater majorities in Congress than have existed in recent memory, and if such majorities existed then they would probably also have the Presidency. Also it would be disruptive to the operations of the federal government and would bring public relations problems.

            I don’t disagree with you that the courts should generally stay out of interactions of this kind. I’m just saying that if congressional control over the President short of impeachment of the kind you suggested were realistic it would already have been in use.

            1. swood, I don’t think the president can be arrested by the House, anymore than I think members of the House can be arrested by the President. That kind of thing would turn a contest based on legitimate powers, instead into a contest which illegitimately challenged separation of powers.

              And if there is going to be arresting to be done, then I expect it to be done in conformance to the due process expectations which normally apply. Of course, full due process is the normal expectation for administrative arrests, but not much featured in the case of sovereign power arrests (which are governed instead by legitimate constitutional decrees), so there would be that difference. It is a difference which probably puts the administration at a disadvantage. It ought to. That is what the founders intended the impeachment power to do.

            2. swood, in politics, realism is always wise counsel. Seems like where things stand today, all the “realistic” routes for redress would suffer an extreme test, including the ones I have suggested.

              Ask yourself, why is it more realistic to suppose President Trump would accede to a court order, when the court has no power? Why is it less likely that President Trump would accede to a House order, when the House has considerable power? Those questions aside, why are the judicial branch and the congress not on equal footing as adversaries of the executive?

              In answering those questions, please try to remember that President Trump has shown himself to be a president unlike any previous holder of that office. Trump’s disdain for constraint being his signal quality, makes the likelihood of defiance a concern, regardless of which sources of constraint might be chosen. I suggest it is better to choose a source of constraint with actual power to oppose President Trump (the House), than to choose a source of constraint that relies for real power on President Trump himself, and also may be disinclined to restrain him (the Court).

  11. political office is not “life, liberty or property”

    No, but electing people to political office in free and fair elections is a corner stone of liberty. Trying to have every election that doesn’t posit a Democrat into positions of power undone hits at the very foundation of our system.

    1. I think you were on your way to making a perfectly reasonable point. But I think that’s undercut a bit when you made the obviously false (and therefore quite stupid) argument that Democrats try (or have tried) to undo EVERY adverse election result.
      You could make your underlying point without lying about Evil Democrats [Trademark]. And I think it would be a stronger point that way.

    2. “Trying to have every election that doesn’t posit a Democrat into positions of power undone hits at the very foundation of our system.”

      How many elections fit that bill in your judgment, you bigoted rube?

  12. An impeachment proceeding will tear the country apart. Call the vote. Let’s get this over with.

    This assumes that Speaker Pelosi actually has the ovarian fortitude to call the vote.

    1. Sending the disaffected yahoos and vestigial bigots back to the desolate backwaters, and resuming the shaping of American progress against the preferences and works of Republicans and conservatives, will not “tear the country apart.” It might make some clingers cranky, but after a half-century of getting stomped in the culture war there is no way to avoid clinger crankiness. Until each clinger is replaced, of course.

  13. Atlas, no such luck. Trump will slow it down. Any Democrats hoping for quick action will get an unexpected bonus. More and more evidence will fall into place to undermine public support, and to turn the Senate against Trump. I think you know that, actually, which is why you want a quick vote. That would get you points for perspicacity—except that it shows you continuing to back Trump.

    1. More and more evidence will fall into place to undermine public support, and to turn the Senate against Trump. I think you know that, actually, which is why you want a quick vote.

      Um….Ok. I mean, we had an FBI investigation (apparently more than one). Then we had a House investigation. Then we had a Senate investigation. Then we had a special counsel investigation.

      Team D believes they have the votes and the evidence. I am merely calling the bluff. Let’s do this and move on. I mean, Team D wants to brand POTUS Trump with a scarlet I. Do it.

      The country will be torn apart over this. Personally, I think there has been plenty of investigating. The sides are chosen. The first shots were fired long ago on a baseball field in VA, with the attempted assassination of 30+ members of Congress.

      1. The sides are chosen.

        One side: Education, tolerance, science, modernity, reason, freedom, progress, strong universities, modern and successful communities.

        The other side: Ignorance, bigotry, dogma, superstition, insularity, authoritarianism, backwardness, backwater sectarian schooling, can’t-keep-up backwaters, pining for illusory good old days.

        Can anyone predict the outcome?

      2. Atlas, nonsense. Team D wants to have the votes in the Senate, and knows it isn’t yet even close to getting them. You worry that with new whistleblower info, and whatever else is about to show up, that will start to change. Why pretend?

        Oh, wait, the baseball field in VA. Even if it has nothing to do with impeachment, you drag it in. Just out of concern for the country. Why were those the “first” shots? Which shots are yet to come? Let me try to connect the dots from Mr. Cryptic. You’re saying that if things go sour on the impeachment front, and Trump is actually removed from office, that will start a shooting war? And you just want people to keep that in mind, right?

        1. It likely would lead to that and, well, it might be a necessary tonic.

          1. Feel free to go “the full LaVoy” any time you wish, damikesc. Expediting your replacement would be a service to your nation; we never need another obsolete right-wing malcontent.

            1. Swallow a bullet, Artie.

        2. Well, I think your premise is wrong. You assume these people are whistleblowers. I see s/he as a politically motivated bureaucrat who coordinated with staffers of Team D congressmen to file a specious claim. Personally, I think this Ukraine thing is horseshit. But that is moot. What gets lost here is the release of the transcript tells every foreign leader around the world that their conversations might be made public because of domestic political conflict. Try conducting foreign policy with that hurdle. And BTW, that doesn’t magically change when POTUS Trump leaves office. His successors will be dealing with the fallout permanently.

          But hey Stephen, if you want to impeach the POTUS over Ukraine, then my response is: Do it, let’s get it over with. Call the vote. You do not have, and will not have, the 67 votes in the Senate to remove POTUS Trump from office before the election. Or after. You need clear and convincing evidence to persuade the American public that impeachment is warranted, and there is nothing even remotely resembling ‘clear and convincing’.

          Yes, I think we are already in a civil war. Frankly, I am astounded there was not more of a reaction to that [attempted assassination of 30 congressmen]. I am struggling to think of a single instance in American history when something like that happened. When has someone ever taken a shot at killing ~10% of the entire House? It was unprecedented in our history. There are now bi-weekly riots in Portland. Private citizens around the country are literally hounded by mobs of people screaming obscenities at them for the ‘crime’ of donating to, or working for, POTUS Trump. Anti-semitic violence has arrived to America, writ large – just look at Poway and Tree of Life in Pittsburgh. Our Republic is getting torn apart with this culture war that encompassed our politics, and is becoming more violent. I see this impeachment horseshit as a symptom, not a cause. You might think I overstate, but am I?

          Tell you what. You look at the politics during the period 1848-60 and tell me if it isn’t eerily similar to the rhetoric we have today.
          It is only a matter of time before political instability translates to economic instability. Economic instability just creates even more political instability.

          1. To add to that, Trump supporters leaving that rally in Wisconsin that they had tried to stop were being surrounded and assaulted, while police watched. Anti-Trump Protesters Burn Red Trump Hats Outside Rally In Minnesota, Yell “F*ck You” At Police

            You know, Pelosi flew in to Greenville last week, about 500 Trump supporters showed up to protest outside the hotel where she was speaking, and not one person got assaulted. I was there, it was quite the friendly gathering.

            It will really be a civil war when Trump supporters going to his rallies start bringing weapons to defend themselves.

          2. Atlas, if you want to call unresolved (and stubbornly persistent) political disagreements a “culture war,” well, you are in plentiful company. If you want to go the next step, and suggest there is any widespread expectation that a culture war ought to turn into a shooting war, then I think you number yourself among a tiny percentage of self-marginalized cranks. If that is you, then you align yourself more with the VA shooter than with his targets.

            I do agree there is a bit of resemblance between today’s rhetoric and the rhetoric preceding the civil war. I attribute that similarity mainly to the aforementioned cranks. Does it bother you at all to number yourself among a group, which, in your analogy, is associated by history with infamy and defeat?

            By the way, I think comparison to the cataclysm which was the Civil War vastly over-dignifies any reasonable expectation for violent conflict to come from today’s culture war. Something more on the scale and duration of Shay’s rebellion might be conceivable, but not likely.

        3. If the whistleblower content is about the already released transcript I have doubts as to it having any veracity.

          While Atlas wants a vote, what I would like to see is for the House to either follow the procedure set forth in their rules, or change those rules to suit their needs.

          Following the rules would require a vote for the inquiry. Until then, it’s just a Congressional investigation, not an impeachment inquiry.

          Or change the rules to not require a vote. But doing that, they’re setting themselves up to have the R Congressional leader simply state that their investigation is an impeachment inquiry without any vote and backing it with threats of obstruction.

          So far, it seems the D side is all about crying wolf without actually having a wolf available. Do the vote for the inquiry, do the inquiry. Then if they feel articles are valid, write them up and impeach.

          Do it along the rules, or expect that those paying attention will ignore your crying of ‘wolf’.

          1. While Atlas wants a vote, what I would like to see is for the House to either follow the procedure set forth in their rules, or change those rules to suit their needs.

            Following the rules would require a vote for the inquiry.

            Weirdly, you fail to cite to a single such rule.

            Until then, it’s just a Congressional investigation, not an impeachment inquiry.

            There is no difference.

  14. This post was informative. Thanks.

    It seems to me that this only addresses the procedural issues that have been raised, such as cross examinations of witnesses and so on.

    But what about the obligation of the executive to comply and cooperate with these endless “investigations” and “inquiries”? I thought the bigger issue here was whether the executive had to provide the information, witnesses and so on that Congress constantly demands. It makes a lot of sense to me that this would be the bigger issue, and the procedural aspects are something that would simply be agreed upon by the parties as a condition of the executive providing the requested information and witnesses.

  15. “ As Ilya notes below, political office is not ‘life, liberty or property’ under the Due Process clause”

    Is that so? I am aware of countless cases holding that appointed political officers holding terms of appointment of fixed duration have “property rights” in their continued service during their terms. Is there different authority for officers elected for fixed terms (absent express constitutional clauses providing for Mid-term removal or recall)? I have never looked into the issue.

    The Trump argument is not unprecedented. I have encountered many claims from police officers and tenured public employees that they have a “constitutional entitlement” to “due process” and “procedural fairness” not only in their removal hearings but also in the investigations that led to the charges for which removal is being sought. While they do not always succeed, I am aware of at least one precedential New Jersey appellate court decision in which a police officer was reinstated not because the charges against him were not proven, but because of “procedural unfairness” during the investigation that led to the charges. The officer in that case did not even have to show that the “procedural unfairness” prejudiced his ability to present his defense.

    1. You’re deeply confused. Police and other public employees are… wait for it… employees. They are not “political appointees”. And depending on where you live, they may be unionized (the cops most definitely). So federal and state labor law and possibly labor contracts ruled in those “examples” you cite. Please feel free to add a lot more detail to any one of the countless situations those countless folks you refer to were in, and I may be able to clarify further.

      1. Thank you for your concern, but under New Jersey law, police officers are considered “officers,” not “employees.” See, e.g., Springfield Twp. V. Petersen, 73 N.J. 1, 5 (1977); Calabrese v. PBA Local No. 76, 157 N.J. Super. 139, 154 (App. Div. 1978); Trainor v. Newark, 145 N.J. Super. 466, 473 (App. Div. 1976). But feel free to tell me my business anytime.

        1. How about for purposes of respondeat superior? I bet they are employees, even in NJ.

    2. I am aware of countless cases holding that appointed political officers holding terms of appointment of fixed duration have “property rights” in their continued service during their terms.

      No property interest exists where the applicable statutory or contractual terms, either expressly or by implication, do not provide for continued employment absent “cause.” See Board of Regents v. Roth. In any event, the President’s employment would not be ended by a mere impeachment in the House.

      1. I am not speaking of impeachment of the President necessarily. I am asking about the general proposition that an official elected for a fixed term has no property interest in serving out his or her term. I have no vested interest in the answer being one way or the other.

        1. Assuming the existence of a property interest, the process that is due is that specified in the Constitution. Impeachment by the House and a trial by the Senate, subject to certain procedural safeguards — the requirement of oath or affirmation, designation of the Chief Justice to preside, the requirement of a two-thirds vote to remove, and the limitation of punishment in the event of conviction to removal and disqualification from federal office.

  16. Dems have all they need to move forward with this, whether or not the Senate agrees.
    I just want it to be over…

  17. Oops.

    A Ukrainian member of Parliament said former Vice President Joe Biden received $900,000 from Burisma for lobbying activities and called for the U.S. Department of Justice to investigate further, according to Ukrainian news agency Interfax.

    Ukrainian MP Andriy Derkach said he has documentation to back up his claim, which he said he will post on his Facebook page.

    “This was the transfer of Burisma Group’s funds for lobbying activities, as investigators believe, personally to Joe Biden through a lobbying company,” Derkach said. “Funds in the amount of $900,000 were transferred to the U.S.-based company Rosemont Seneca Partners, which according to open sources, in particular, the New York Times, is affiliated with Biden. The payment reference was payment for consultative services.”

    Derkach also alleged that $16.5 million was paid by Burisma to a group of representatives that included Hunter Biden. He said Joe Biden used “political and economic levelers of influencing Ukrainian authorities and manipulating the issue of providing financial aid to Ukraine” to help Burisma by closing investigations into Burisma group’s founder and owner, Mykola Zlochevsky.

    https://www.theblaze.com/news/ukrainian-mp-joe-biden-got-nearly-1m-from-burisma-for-lobbying

    1. Money Laundering? And there’s documentation? Sounds like a problem for Biden…if there’s documentation.

      Considering Biden was part of the firing of the prosecutor that was slow-rolling the investigation of Burisma, I’d want to see the documentation.

      In the meantime, thanks to Trump clearly trying to gin up whatever he can from whomever he can in whatever countries but especially Ukraine, we need to see the receipts.
      Three weeks ago, I’d have said Biden was toast.

      Not that I am not looking forwards to Biden being toast.

      1. I’m trying to find stuff that isn’t Gateway Pundit or the like. (Not to ad hom myself the sources, but I like to see the other side of arguments as well.

        Didn’t turn up anything yet – the story is pretty fresh. But I did find that this guy has some pretty deep RNC ties, trying to gin up a previous scandal that went nowhere:
        Derkach’s accusations center around reports, first published in POLITICO in January, that Ukrainian politicians and diplomats may have cooperated with people connected to the Democratic National Committee to hamper Donald Trump’s candidacy and bolster Hillary Clinton’s presidential bid. The key figure involved has denied any coordination with the DNC.

        Just caveat emptor before you take as gospel because you like the narrative.

        1. There are some Ukrainian news sources that are in english available. It’s where I’ve been trying to get some of my information; such as the fact that Ukraine had already reopened most of the investigations into Burisma before Trump said a word. And that earlier this week they said they’d open a specified number with the new (whatever title they give) government attorney that was appointed recently.

    2. M L, there is also this, from your link:

      UPDATE, 10/10/2019 at 11:55 a.m. EST: John Solomon, an executive vice president at The Hill and contributor to Fox News, reported that no such $900,000 payment was made from Burisma to Biden.

      You seem to have overlooked that.

      1. Should someone ask the Giuliani associates who were arrested as they attempting to depart America on one-way tickets today?

      2. I did miss that, thanks. The “news” is full of headlines and “reports” that aren’t worth the dog feces stuck to your shoe. At least this one, I thought to myself, was attributed to a named public figure rather than anonymous sources. But it’s probably inaccurate after all. (I hear John Solomon is an excellent and accurate journalist with integrity).

        1. “(I hear John Solomon is an excellent and accurate journalist with integrity).”

          You are mistaken. About everything. And that seems destined to continue until you are replaced in our electorate by a better, younger American.

  18. I see the new hotness is to argue that enforcing Congressional subpoenas are a political question just like impeachment procedures are.

    Step back for a moment and think about what that means. Letting the executive choose which subpoenas to obey means Congress can impeach, but cannot effectively investigate, so they cannot effectively use that power.

    Yay, another check on the executive eliminated. How libertarian of you.

    1. “cannot effectively use that power.”

      The House can vote an article of impeachment based on lack of compliance. The senate can decide if that justifies removal.

      Congress [not the House alone] can try to use appropriation riders to get compliance.

      The House can try its hand at “inherent contempt” and arrest people.

      Why does the Judiciary get to break a standoff between one branch and half of another?

    2. The House also currently has a rule that says they’re supposed to vote on an official inquiry. So until then it’s just investigations even if D’s are saying it’s an inquiry. But until at least one committee or the entire house actually votes, it’s not the official rule following of ‘inquiry’.

      But since the D’s control it they can of course change the rules if they like. Make it easier for them to vote for an official inquiry.

      Do one or the other, but don’t act like the speaker can just call it an inquiry without any kind of vote. Which is what she’s doing now, and it’s going to backfire. Just like it always does when one side or the other changes a rule to suit their current want.

      1. The House also currently has a rule that says they’re supposed to vote on an official inquiry.

        [Citation needed.]

    3. That’s not “new hotness”, that’s the practice during previous Democratic administrations.

  19. For one thing, the House can always impeach someone for alleged obstruction of an impeachment investigation. That would cut the Gordian knot and any Senate conviction would be immune from review in the Art. III courts.

    If the question is, instead, when can Congress ask the aid of the courts, or invoke its alleged inherent contempt power, to put noncooperative witnesses in prison for refusing to answer impeachment-related questions, I don’t know if this has been settled.

    The Supreme Court discussed this in the First Amendment context, where it found the importance of avoiding illegal censorship meant that inquiries into, say Communist activity had to be based on specific authorizing resolutions specifying the matter under investigation.

    Maybe separation of powers is an important constitutional principle like the First Amendment and a specific impeachment investigation is needed before uncooperative witnesses can be prosecuted, or arrested by the Sergeant at Arms.

    I mean, who knows, but why not clarify the issues by having the full House vote on an investigation resolution? If it’s all a political issue, what’s the political reason for not having such a vote?

    1. Just to clarify, the House would have to target an actual officeholder to impeach them for obstruction, since the Senate frowns on the impeachment of non-officeholders.

      So, they can subpoena the President, someone in the government, etc. and demand under threat of impeachment that they provide certain information. The Senate to have the final decision of course.

  20. “political office is not “life, liberty or property” under the Due Process clause”

    What about someone receiving government benefits? Doesn’t due process apply before he can be cut off?

    And doesn’t due process apply before a tenured university professor can be fired from a state school? Or a student expelled from a state school?

    Similarly, wouldn’t due process apply before someone can be removed from office for misconduct, much less prohibited from holding office in the future?

  21. Prof Adler : I was literally floored to see this citation.

    No you weren’t. Drama Queen.

    1. Don’t be an ass.

      1. Literally or metaphorically ?

  22. The Left continues to seek impeachment even though all Trump did was make a simple phone call. Absolutely amazing. But these are the same people who tried to the people think he was not legitimately elected because he didn’t get a majority of the popular vote, floated many times to remove him using the 25th Amendment, and ginned up a fake Russia conspiracy. So not surprising at all.

    1. The Left continues to seek impeachment even though all Trump did was make a simple phone call.

      In the same way that all John Wilkes Booth did was move his index finger.

  23. So a politically motivated impeachment using political tools to keep Republicans from subpoenaing witnesses, keeping evidence secret, and using politically motivated charges is A-OK with Mr. Adler.

    But heaven forbid Trump’s attorney make political arguments against a political attack! Oh noes! He should make strictly legal arguments against a process that has legally been off the rails from the start.

    Here, Mr. Adler is the reality of it: Trump can tell Pelosi and Schiff to go suck a lemon. And if they don’t like it, they can add that to their impeachment charges. That is the practical extend of their ability to bring legal considerations to this process. And then the Senate will decide based on the impeachment turd Pelosi leaves on its plate whether to remove Trump from office.

    Hopefully, the Senate will find its spine and use its subpoena power to make the lives of the Democrats behind this charade a living legal and political hell for a while.

    1. What is stopping Senate Republicans from issuing subpoenas to anyone, or questioning friendly witnesses without a subpoena . . . other than their morbid fear of the truth and their cowardly obsequiousness with respect to Pres. Trump?

      Carry on, culture war casualties. So far and so long as your betters permit.

  24. IANAL, but, impeachment isn’t a trial, it’s like a grand jury investigation leading to an indictment. People don’t have the rights that Trump demands (to have their lawyer present, to question witnesses etc) before an indictment happens, correct?

    1. Except that, historically, impeachments HAVE involved those protections. They explicitly gave the minority party some investigative rights, to build the case against impeaching, too.

      This is the precedent that Pelosi is violating, even if the precedent isn’t constitutionally mandated.

  25. The check on the House Impeachment protocols are the voters. A procedure that is perceived as one sided, will be punished at election time. Throwing out past precedent, without an articulable reason, is a risk the dems haven’t factored.
    Nixon and Clinton. the Majority and Ranking chairs had subpoena power, with veto privileges. The President was allowed to have legal representations at hearings, and ask questions.
    The question the Speaker of the House has not been asked, what is wrong with past precedent? Exactly how would those rules hinder fact finding?
    Compare to what is happening now. Secret closed door hearings with information selected bits of testimony picked by the chair to release to the public. Anonymous witnesses, that as of tonight is requesting his/her testimony be done in writing, and not in person questioning.
    Yes this is not a legal proceeding, protections afforded the criminally accused are in place to check a corrupt prosecutor with unlimited power. Again how does due process protections, hinder the fact finding process?
    Recent history has shown President Trump to be the most transparent executive ever to occupy the Oval office. If Dems called for a vote to commence an impeachment inquiry, instituted past procedures, protections and procedures, the executive would honor impeachment inquiry subpoenas.

  26. Political Not Legal

    “But if thought corrupts language, language can also corrupt thought.” -George Orwell (1903-1950)

    Article II, Section 4 of the Constitution:

    The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    Definitions
    How had the Constitution itself defined “high crimes and misdemeanors”? It did not. So, let’s do something few commentators today do; namely define our terms as follows:

    high crime n.: gross violation of the law. -adapted from Webster’s New Collegiate Dictionary

    misdemeanor n.: a crime less serious than a felony. -Webster’s New Collegiate Dictionary

    felony n.: a grave crime declared to be a felony by the common law or by statute regardless of the punishment actually imposed. -Webster’s New Collegiate Dictionary

    Discussion
    Clearly, the Framers rightly gave the Congress broad discretion in employing impeachment. Why rightly? Because Congress is the most direct and clearest voice of the people or should be. From President Trump to the lowest federal judge, operationally Congress holds the power to remove that person from office for the slightest infraction — essentially at will; therefore, impeachment is more a political procedure than a legal one. Words have power. Read the Constitution.

    Impeachment, nevertheless, should be undertaken only under the gravest of circumstances in which the offense is clear and indisputable. Its history does not meet that test; e.g., the first in the series, President Andrew Johnson (1868). Once again we are witnessing a tragic, political farce. What will be the consequences this time if Trump is convicted and removed from office? There is a better way — a scientific way.

    For a discussion from the perspective of the Science of Human Behavior, visit “Impeachment: Fundamentals” at …

    https://www.nationonfire.com/impeachment-fundamentals/ .

  27. I get paid over $123 1 to 2 hours working from home with 2 kids at home.But my best friend earns over $28k a month doing this and she convinced me to try.The potential with this is endless. Here what I’ve been doing……
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  28. It’s just a little quid pro quo and tit for tat.

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