Impeachment

Impeachment and the Sixth Amendment

No, President Trump cannot invoke his Sixth Amendment rights in connection with House impeachment proceedings

|The Volokh Conspiracy |

Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society.  In a recent essay, "House Democrats Violate The 6th Amendment By Denying Trump A Public Trial," available here, he makes an argument that the House impeachment inquiry is violating President Trump's Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

Here's the basic gist of what he wrote:

"The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden's son. What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president's constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to "a speedy and public trial." House Democrats are trying Trump in secret and are denying him the right to a public proceeding….

The Sixth Amendment also guarantees criminal defendants the right to be "informed" of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press.  This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right "to confront the witnesses against him," which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right…."

Perhaps "no one is focusing on this" because it is utter nonsense, completely devoid of any apparent constitutional logic.  Yes, impeachment is a "legal proceeding"—but it is not a criminal proceeding to which the 6th Amendment applies; yes, "criminal defendants" are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr. Trump is not a "criminal defendant" in the impeachment proceedings, so Prof. Calabresi's claim makes no sense whatsoever.

To review, here's the text of the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to "the accused" in a "criminal prosecution." There is more than a century's worth of precedent construing that critical limitation on the Amendment's scope.  A "criminal prosecution" begins, and the 6th Amendment attaches, at the "initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable." Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of "actual imprisonment"—a substantial "deprivation of liberty." Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).

Thus, 6th Amendment protections do not apply to:

  • proceedings involving "petty" (as opposed to "serious") crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
  • to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
  • prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
  • parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
  • juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
  • probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
  • summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
  • asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
  • civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)

because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of "actual imprisonment" on the litigant.

The notion that the House's impeachment inquiry is, constitutionally-speaking, an "adversary judicial criminal proceeding" to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a "judicial" proceeding nor a "criminal" proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump's imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]

Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his "6th Amendment rights" (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.

This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is. What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president. And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense. We are in a portentous moment in the history of this country; it is likely that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of "high crimes and misdemeanors." Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.

NEXT: A Georgia Death Row Inmate Will Be Executed Tomorrow. New Evidence Says a Different Man Was the Shooter.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. The right to confront witnesses against you is “deeply rooted in this Nation’s history and traditions”. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) at 2618.

    The house is violating the President’s fundamental rights.

    1. Does all pre-indictment activity by investigators (let alone actual prosecutors) violate fundamental rights, you bigoted right-wing rube?

    2. Bob, go take a nap.

      What does same sex marriage have to do with confronting witnesses?

      1. For a certain class of clinger, it’s guns, god, and especially gays all the way down.

      2. “What does same sex marriage have to do with confronting witnesses?”

        Just using existing precedent to support my thesis. Was Kennedy saying that marriage, and only marriage is “deeply rooted in this Nation’s history and traditions”?

        1. Are you sure it’s not because you’ve adopted some sort of nihilist approach to the law because the Supreme Court found a right to same sex marriage, and therefore you think nothing matters anymore? And this decision in particular triggered the nihilism because of your not-so-secret antipathy towards gay people? And that you brought it up in this context to specifically to remind people of your not-so-secret antipathy towards gay people?

    3. No, the right to confront witnesses against you in a criminal proceeding is deeply rooted in this Nation’s history and traditions. You don’t have such a right in all contexts and all types of proceedings, and the 6th Amendment doesn’t give you that right outside of a criminal proceeding. If the prosecutor’s office is investigating me at this moment for, say, tax fraud, it can hear from witnesses without giving me the right to confront them; if that proceeding moves to an indictment, then I have the right to do that – but not before.
      Which is not to say that at the appropriate stage of these proceedings — the trial in the Senate – Trump shouldn’t have the right to confront witnesses against him. He should, as a matter of elemental fairness. And, I’m sure, he will. But at this stage of the proceeding? Nope.

      1. “No, the right to confront witnesses against you in a criminal proceeding is deeply rooted in this Nation’s history and traditions.”

        Really?

        We don’t give compulsory process to defendants in civil proceedings?

        You are fixated on the 6A, I am talking about something more “deeply rooted in this Nation’s history and traditions” than that.

        Fundamental fairness. Justice. The American Way.

        Its not just confined to the Senate, the House has to honor it as well.

        1. I should add that:

          “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

          1. Yes! The Constitution doesn’t *give* us our rights and liberties. It merely states in what ways the government cannot infringe them. Just as there is no provision that says that the government cannot infringe on a woman’s right to abortion, the SCOTUS found that right anyway. It might in this situation, as well. Nothing ventured, nothing gained.

            1. All these “living constitutionalists” suddenly getting all textual.

        2. No, the confrontation clause doesn’t apply in civil proceedings, not that a House impeachment inquiry is analogous. The most direct analogy is a grand jury proceeding, and the defendant has no confrontation right there.

        3. Process counts as confrontation now?

          As to your pivot away from the Sixth, you’ve also pivoted away from the OP.

        4. Even if we assume you are correct, an analogy here would be helpful. The inquiry stage of an impeachment is akin to the investigatory stage of a criminal proceeding. A criminal does not have the opportunity to cross-examine a grand jury witness. A criminal does not take part in the crafting of the charges against him. Trump’s lawyers will be able to cross-examine witnesses at the trial, if it comes to that.

          1. If we are talking grand jury process, not only does the defendant not have the right to confront(cross examine) prosecution witnesses, the defendant doesn’t even have the right to present witnesses of his own.

            1. A typical grand jury does not also result in strategic leaking of cherrypicked morsels to a compliant press.

              1. The transcripts have been released, you moron.

              2. Trump supporters demand that the “grand jury” be public or else it’s not fair.
                House releases transcripts in response.
                Trump supporters claim release of transcripts is unfair.

                .whatever.

                1. Precedent from previous impeachments are not being followed. Why is that?

                  1. Two things jump to mind:
                    1) I don’t think we want to hold up Clinton’s impeachment as an aspirational precedent. No one should want that.
                    2) I was under the impression that the current rules governing the impeachment hearings were passed by the GOP majority House during Obama’s administration. Wouldn’t GOP rules being applied to a member of the GOP be considered automatically “fair” here?

                  2. 1) Not true.
                    2) Why does it need to be? Who says that previous impeachments set the “correct” approach? It’s not like we’re talking about firmly established historical practices; we’re talking about an n of 2.

                    1. On 2, the strong argument to me is that more protections to protect against abuses are a good thing.

                      Assume that Putin has coordinated the buying of the 2018 election with President Obama, and that they’re using Burisma as an intermediary, so that when Joe Biden got the Ukrainian prosecutors fired it was as he claimed at the direction of the president, but for corrupt purposes to get a one world government under the Clintons. When the American people foiled that plan in 2016 they had to switch to 2018 where through mass voter abuse they gained control of the House to carry out their nefarious plans. Since they still have to win the 2020 election to be able to end all future US elections they need at least a passable reason to impeach the savior of America. I hope I’ve made that sufficiently hyperbolic to get a few laughs.

                      Now with that as the background facts, would we expect to see more or fewer procedural protections than last time? Remember the situation is that it’s a scam, so we’d expect to see fewer protections against scams – which is what we’re seeing.

                      If the point of the “investigation” was to get the right answer they’d have everyone questioned by all parties, as the only reason to not want information to come out is if you don’t think that the truth is useful to you. So, for example, if Trump really was concerned about Biden bribing Ukraine he’d have acted in just the way he did, and to determine if he just believed a conspiracy theory or whether there was a legitimate problem they’d need to investigate the Bidens. But they’re not, which is itself evidence that they don’t care about abuse by their allies.

                      Sadly this shouldn’t surprise anyone, since most people are fine with their friends doing exactly what they condemn their enemies for doing.

          2. If an impeachment textually isn’t a criminal proceeding or even by deduction how can it be a grand jury proceeding by deduction? If it isn’t one on textual grounds it can’t be the other.
            We are forced to look to official house rules for the process.
            I’m also guessing that the phrase high crimes and misdemeanors has no bearing on the subject.
            https://budgetcounsel.files.wordpress.com/2016/11/deschlers-v4-ch-15-ch-17.pdf
            Ref. ch 15, sec. 12, ppg. 2366-68. HOUSE RULES FOR IMPEACHMENT: “Because the language of the
            sixth amendment stipulates its
            application ‘‘In all criminal prosecutions,’’ the amendment does
            not apply directly to congressional
            investigations. Consequently, a
            witness is not entitled to confront
            or cross-examine witnesses.(6) But the rules of the House take cognizance of rights included in the
            sixth amendment, including right
            to counsel and compulsory process. Thus, a witness may be accompanied by his own counsel for
            the purpose of advising him of his
            constitutional rights.(7) Furthermore, if a committee determines
            that evidence or testimony at an
            investigative hearing may tend to
            defame, degrade, or incriminate
            any person, such person is entitled to request that additional witnesses be subpenaed.(8) Where the
            committee does not determine
            that evidence or testimony may
            defame, degrade, or incriminate
            any person, the chairman receives
            and the committee disposes of requests to subpena additional witnesses.(9)”

        5. When the government is investigating a civil violation, no, the potential target does not have the right to compulsory process or to examine witnesses. The AG can issue Civil investigative Demands, and there is no right to cross-ex, issue their own process or participate in the investigation and it is not public.See, e,g, 15 USC §1312: or 31 U.S.C. § 3733. I represent whistle-blowers in False Claims Act actions. We go to the feds in secret, and show our evidence. Then the feds can and do issue CIDs (civil investigative demands) for documents or testimony. Sometimes the investigations can last years, and it is all done to investigate the whistle-blower’s complaint. (The False Claims Act is a special interest of Sen. Grassley’s, which is one of the reasons, I presume, why he has come out in favor of protecting the whistle-blower here.) The information obtained by CID can be used to commence either civil or criminal public proceedings. Once the public proceedings begin, the defendant’s rights attach.

      2. Which is not to say that at the appropriate stage of these proceedings — the trial in the Senate – Trump shouldn’t have the right to confront witnesses against him. He should, as a matter of elemental fairness.

        That is an interesting point, Professor Post. What distinction do you make from impeachment versus the Senate trial? In other words, why is one political and the other legal, and why would POTUS Trump not have the same rights in both proceedings?

        Not being obtuse, but am genuinely curious on your take.

        1. To compare against criminal justice process, the House impeachment proceedings would be the equivalent of a grand jury proceeding, where the defense has no right/opportunity to participate in any form.

          1. Ok, I get that. In a grand jury proceeding, there is a judge to mediate the worst/wrong aspects of a prosecutor’s argument/behavior. Where is the mediating agent in impeachment?

            1. The votes of the House of Representatives, which includes elected officials from both main parties as well as others. If the “prosecutor,” which is the entire House, is out of bounds, the voting process will presumably handle that. Assuming, that is, one believes that elections have consequences. Given that the current set of rules governing this process were enacted by a GOP majority House, one would think the GOP would feel the rules were adequate.

              #IronyIsDead

              1. Meh, we’ll see how it all plays out, shawn. Some think Team D will chicken out and not impeach. Others (myself included) think Team D will absolutely impeach. There is a lot of arm waving about process. This has happened twice before: Johnson, Clinton. I was around for Clinton’s impeachment and what I am hearing now sounds a lot like what I heard then. I bet what they said in 1868 is not terribly different than what we hear now.

                Personally, I think ‘We the People’ are the ultimate check against impeachment via the ballot box. If the People have the view that the process was illegitimate, and impeachment wrong; they will unceremoniously dump those responsible.

                Although I do live in the People’s Republic of NJ, I live in a competitive Congressional district. So I wrote my congressman and told him what I thought. And mentioned I’ll be voting in November 2020.

                1. Based on what I’ve been hearing, as someone who also recalls Clinton’s impeachment, I also think the House will vote to impeach and likely do so for good reasons regardless of the role partisanship played.

                  I recall a very long and tedious Whitewater investigation that turned up very little that could be used to impeach Clinton, which is why it boiled down to impeaching him for lying about cheating on his wife. The Democrat-led Senate didn’t vote to remove him and the public voted to re-elect him. That pretty much told the GOP what everyone else thought of their methods.

                  Fast forward to today and we have a significant amount of evidence that this president used his office to extort an allied government into making false charges against an opponent.

                  Lying about cheating on your wife versus withholding money from a country being invaded by Russia in order to manufacture a charge against your potential opponent… not very different?

                  1. The Democrat-led Senate didn’t vote to remove him and the public voted to re-elect him.

                    You remember the 2000 election very differently than I do.

                  2. The Senate that acquitted Clinton was led by Republicans.

                  3. Ukraine itself is not currently being invaded, rather fighting to put down a rebellion in Donetsk. According to libertarian philosophy, it is not the purpose of the U.S. government to give aid of any kind to foreign governments. If Trump held up aid, regardless of the reason, from a libertarian standpoint, it’s irrelevant.

          2. That is not how it has worked in the past. What changed?

        2. The distinction is not between political and legal. The difference is between the investigatory stage and the trial stage. Investigations, whether civil or criminal are rarely public. Even when investigating a civil violation the AG can issue Civil Investigative Demands (CIDs) which have the force of a subpoena, in order to obtain documents or depositions. This process was more open than either a civil or criminal investigation because there were GOP members who could cross-examine and leak to press the same as the Dem counterparts. Really, the whole argument is be-clowning the GOP. The Benghazi hearings conducted the investigation the same way–in secret–which by extension of the present GOP argument means the entire rap on Hillary was fundamentally flawed, unfair, unconstitutional and un-American. Abjectly apologize to her and her supporters now, exonerate her of all crimes and misconduct or your position is merely intellectual dishonesty. Me, I’m not ready to do that, but you’ve put yourself in the box of being unconstitutionally unfair to Clinton. Own it.

          Not only that, but the rules allowing such hearings were invented by the GOP House which makes the entire problem and unfair process a GOP invention. If you are having a sudden revelation, apply it across the board.

      3. As I understand the argument. ==> Impeachment is political. There is no need to be fair.

        That is not the kind of country I want to live in. We should bend over backwards to be fair. It minimizes injustice. You get enough injustice and rebellion follows. And rebellion is bad for business. Besides the innocent and guilty getting killed.

        1. I don’t think that’s “the argument” as much as “the strawman.”

          The “argument” appears to be the current president used his position to deny military aid apportioned by Congress to an important national ally in order to get the ally to falsely implicate his chief political rival in a crime as means to help him get re-elected in 2020.

          Do you think we should only bend over backwards to be fair when it’s a Republican in trouble? Or, if fairness applies to Democrats too, what did you think about the treatment of Bill Clinton during his impeachment and Hillary Clinton during the Benghazi fiasco? While I don’t subscribe to fairness in the form of tit-for-tat, that is certainly one definition of it.

          1. Important ally? To do what? Fight a war with Russia? Last I remember, libertarians opposed foreign aid and entanglements.

            Falsely implicate? No one knows what is true or false about the matter or wjhether it matters at all.

            1. Fucking Reason comments don’t allow editing. “whether” not “wjhether”.

              If Trump suspects corruption, it is within his rightful power to inform foreign governments about it, even if it regards a political opponent. If the political opponent is innocent, he or she has nothing to fear.

              From the transcript of the tape I read, it did not appear that he demanded a prosecution.

        2. “We should bend over backwards to be fair.”

          Moral and evidentiary pointers from the birthers are always special.

      4. Mr. Post, I think you may be playing grammatical games.
        Let us take your claim that this impeachment inquiry is a “congressional” proceeding.

        To what end? To remove a sitting president from office for high crimes and misdemeanors. So, the inquiry may technically not be a criminal proceeding now but once impeachment articles are passed, Does that not, retroactively, make the congressional proceeding, de facto, a criminal proceeding?

        1. Does that not, retroactively, make the congressional proceeding, de facto, a criminal proceeding?

          No.

          While I would not be sad if Donald Trump were indeed locked up, that is not actually a potential outcome of this congressional proceeding, either in the House or Senate.

        2. A judgment of conviction and removal from office does not preclude subsequent criminal proceedings, to which the full panoply of Sixth Amendment rights would apply. A separate matter.

    4. One point : The House is deciding whether Trump should be charged and put on trial, and there is no right to confront witnesses in analogous criminal proceedings, as seen with grand juries and their ceaseless determination to charge ham sandwiches.

      One question : That said, I’d like people who actually understand the law to answer this : Trump is stonewalling the house proceedings, forbidding testimony from White House officials. In the event of a Senate trial presided by Chief Justice Roberts, could testimony by those officials be compelled in any legal and constitutional way?

      1. There are a few cases in the courts now deciding the question as to whether an executive branch employee must answer a duly issued Congressional subpoena in the context of an impeachment inquiry. Although it is true that the president can assert executive privilege to cause employees to withhold conversations an employee had with the president concerning “military, diplomatic, or sensitive national security secrets,” the privilege generally does not extend beyond conversations not involving the president or actions other than conversations.

        Further, the privilege is not absolute (see United States v. Nixon, 418 U.S. 683 (1974), which held (among other things) that the president cannot use executive privilege to withhold evidence that is demonstrably relevant in a criminal trial). Whether the reasoning from US v. Nixon is applicable to an impeachment trial is TBD, but I think the answer is that the employees will be ordered by court to testify and, absent a particularized showing that the information sought by Congress relates to conversations with the president regarding “military, diplomatic, or sensitive national security secrets” , they won’t be able to rely on executive privilege.

    5. I had to create an account to reply to your comment to point out that your reasoning is deeply flawed, and entirely ironic. The test you quote is commonly used to determine whether the Constitution protects certain rights that are not explicitly set forth therein (aka implied fundamental rights). The Supreme Court has historically found such implied fundamental rights existing only to the extent they are “deeply rooted in this Nation’s history and traditions.” The most famous of these rights is the “right of privacy”–the Constitution does not explicitly grant a right of privacy, yet the Supreme Court has held that such right is deeply rooted in this Nation’s history and traditions, and therefore the Constitution protects it.

      The passage you quote is a recitation of this test, and it is being discussed in Obergefell in the context of whether the right to marry is an implied fundamental right. The right to confront witnesses against you, by contrast, is not an “implied” fundamental right, but rather an express right found in the 6th Amendment. That’s your first mistake. The next, more important mistake, is that you’ve failed to note that the rights enshrined in the 6th Amendment, particularly the right to confront witnesses against you, is limited to criminal cases. And an impeachment is decidedly not a criminal case. In fact, the Constitution is clear that the only consequence of being impeached and convicted is the removal from office (and, sometimes, the inability to hold office in the future). In other words, the effect of impeachment cannot be imprisonment or fine (or anything other than removal from office), and, as such, it is not a criminal proceeding.

      Finally, a note on the irony of quoting this passage. There is an argument by many on the right that the Constitution protects only those rights explicitly mentioned in the Constitution, and that only “activist judges” could find that the Constitution protects things not mentioned in the Constitution. Although I don’t know your political leaning or your jurisprudence on implied fundamental rights, my guess is that you’re against activist judges who make up the law as they go along. I therefore delight in the fact that you have relied on an argument commonly used by such “activist judges” to make a point that is demonstrably false.

    6. I knew something dumb like that would be the very first comment (and many of the succeeding ones) I just wasn’t certain which dingbat would make it.

    7. Bob’s cynicism is correct. If SCOTUS can say someone’s 14th Amendment rights are violated by continual recounts of state elections, then it can say a president’s 6th Amendment rights are violated.

      This post by Post also semi-eloquently illustrates the famous joke about 4 lawyers in the room and 5 opinions.

    8. Oh Bob, why do you quote just part of a sentence from a case, out of context, that does not apply to the confrontation right in criminal cases, when trying to oppose an argument that is about the confrontation right in criminal cases?
      What kind of an argument is that?

    9. Agreed – but in the end, I think Trump wins more than he loses.
      When Trump released the call transcript, my first thought was, “He’s hooked the Dims – and now he’s going to play them like a fish!”
      And play them he has. After Schiff lied about his association with the “whistle-blower” and read the FAKE transcript in Congress. Pelosi went nuts thinking the FAKE transcript was the real thing. When she started screaming “IMPEACHMENT!” it was really Trump setting the hook.

      Now Trump’s playing them. The Dims know they have nothing. They can’t back out because they’ll look like fools. They can’t present their case, because there IS no case – and they’ll look like vindictive fools. So they try to hold secret meetings and refuse any witness who might disrupt their narrative – and all of America can see this and understand that it’s what the Dims do when they get caught in a big lie. Look at Schiff – the ass clown who for 3 years swore that HE had evidence of Trump’s Russia Collusion. But where is it? Never existed.

      The real beauty of the impeachment circus is that Dims in Red States will have to go on record against Trump (sacrificing themselves and the House majority) or go on record against the party – splintering a mess that is already divided between morons and super-left ultra-morons. When the impeachment vote comes, that’s when Trump delivers the gaff and it’s all over.

      As for when the matter gets to the senate – I’m favoring the idea that the Senate simply ignore it – never giving it any recognition at all. The Senate can do this. There’s no requirement they hold a trial.

      1. I know that responding to someone who thinks that using the term “Dims” is the height of wit is a waste of time, but

        1) Schiff did not lie, and did not read a fake transcript.
        2) Pelosi didn’t scream anything.
        3) The Democrats have already presented that case, and it takes someone is both morally and intellectually challenged not to see it.
        4) The Senate isn’t going to do that.

  2. Trump Derangement Syndrome is an example of the modern Political Derangement Syndrome that affects seemingly everyone today. What we need is a good war to focus us on an external enemy rather than hunting for the enemy within. If only Hillary had won. /s

    1. ‘s not everyone, just everyone online.

    2. I’d be okay with the war – but can we please just hunt down the libtards and shoot them instead? They’re the greatest threat to America – and it’s time they were destroyed.

      I’m hoping some day I’ll read about the president crowing that we got “Shitty” Schiff and “Nervous” Nancy Pelosi and they’ll never bother us again.

      1. The modern right, folks.

      2. “I’d be okay with the war – but can we please just hunt down the libtards and shoot them instead?”

        How is your Volokh Conspiracy civility standards project progressing, Prof. Volokh?

        Perhaps your responsibilities with respect to the Volokh Conspiracy Board of Censors are interfering with the civility work?

  3. “House Democrats Violate The 6th Amendment By Denying Trump A Public Trial”

    House Democrats are not denying Trump a public trial; they may be arranging something similar to one for him, however.

    Is this the same partisan hack who claimed the Mueller investigation was unlawful?

  4. […] that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

    “One” can trivially see he’s a partisan defending a politician he likes.

    It’s really that simple.

  5. IMO the parties on both sides are being disingenuous. It is a contest for public opinion. The Senate is not the jury, the public is. The public will not only judge Trump’s actions, but they will also judge the fairness of the process. The public’s conclusions and their methods can be as extra-legal as they wish.

    1. While I get what you’re saying, I think you yourself are being disingenuous. The public’s conclusions have only an indirect effect on what the Senate might vote for. If over half of the public find the House’s case against the President valid but the Senate votes to acquit out of partisan loyalty, the President is acquitted. The public majority’s opinion has no impact there. This would mirror the 2016 election where the majority of citizens voted for a different candidate than the one that won the contest. Senators might be worried about how that might impact them in future elections, but that fear is tempered by gerrymandering, voter purges, and other techniques they might use to ensure reelection regardless of the public’s conclusions.

      1. You are mostly right, but of course gerrymandering does not apply to senators.

  6. The Constitution is all over the map, so let’s just say impeachment is at least a *quasi*-criminal proceeding, complete with accuser (the House), defendant (in this case the Pres), and (since it’s the Pres being impeached) the Chief Justice as presiding officer.

    As for what procedures the House follows, I’d say that’s up to them, they’re the accusing body and should have some flexibility – though they should *choose* to observe fundamental fairness.

    And I’m aware of the grand jury analogy – that’s a warning to be avoided, not an example to follow – prosecutors have worked hard to make grand juries into rubber stamps and deny fairness to the suspect – is that worth imitating?

    If the case gets to the Senate, then I’d say the Pres is entitled to due process up the wazoo, including the right to bring in evidence relevant to the accusation against him. So if the accusation is that he wanted to investigate poor Joe Biden from improper motives, then the Pres would be able to counter that narrative by showing that there was actually stuff Biden did which was worth investigating.

    1. But the House inquiry is actually much fairer to Trump than a grand jury proceeding is to the potential defendant.

      There are close to 50 Republicans on the relevant committees with the right to question witnesses, among other things.

      And of course if Trump wants Mulvaney, for example, to appear and testify about the matter he only has to tell him to go.

      1. “But the House inquiry is actually much fairer to Trump than a grand jury proceeding is to the potential defendant.”

        Far too many grand juries observe such rock-bottom standards that saying “it’s better than a grand jury” prompts the response “so was the Star Chamber.”

        1. But isn’t the House acting in the role of the grand jury?

          I don’t think the Star Chamber had a subsequent Senate trial component.

          1. If the House *is* acting in the grand jury role, they should at least have the hardihood not to be browbeaten by some official(s) into using unfair procedures, as many grand juries have been.

            The buck-passing attitude of “if I’m wrong someone else can sort it out” is probably what led too many modern grand juries into being such pushovers to indict. Surely the House of Representatives of the United States would be above such unworthy motives!

            1. I know a few defense attorneys. Grand jury abuse of process is not one of their many, many complaints about the system.

              1. Have I been misinformed?

                I have heard of one case where a grand jury voted to indict and one of the jurors, uncertain of the defendant’s guilt but voting to indict anyway, said “I hope he has a good lawyer.”

                1. “Q: Are the rights of the accused protected?

                  “ANSWER ↕

                  “A: Grand juries are constitutional, so in the broadest sense, yes. But in effect, the rules of grand juries are clearly for the benefit of the prosecution and encourage law enforcement to use unconstitutional means to get an indictment.

                  “The grand jury process does not encourage constitutional police practices. Information obtained by illegal police investigation, unconstitutional surveillance, or by unreliable means, can be heard and relied upon by grand jurors, even though that information would not be admissible if the case proceeded to trial.

                  “Additionally, even if a prosecutor knows of information that would help show that the accused person is innocent, she is not required to present it to the grand jury. So, while two sides are presented in a trial, only one side will be presented in a grand jury proceeding.”

                  https://www.acluohio.org/ohio-grand-juries-faq

                  1. Sure, it’s a lever one could use to reform things like the above evils. But it’s never been used as such.

                    Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world.

                    1. And you know my discovery is sudden because…

                    2. I’ve never heard you talk about grand jury reforms in the past, and you’re not one to hold back on your comments.

                      Perhaps this convenient outlier position is just a coincidence. Though it is mighty convenient.

                    3. I’m not in the mood to link to my three-part discussion of grand-jury reforms, preceding the Ukraine/Trump affair by quite some time.

                      That’s because I want to leave you to your preconceptions and not keep prodding you to change your views, which would simply annoy you.

                    4. I don’t see how the comment you posted is anything like this ACLU argument or the not to be browbeaten by some official(s) into using unfair procedures, as many grand juries have been argument.

                      Still, I’ll cede to your vehemence that you want grand juries to do better, and are applying this to the House. No need to assume bad faith.

                    5. “No need to assume bad faith.”

                      Which makes it all the more interesting that you did so.

                      If you’re going to double down on your assertion, I’d love to see what you do with these posts of mine:

                      https://reason.com/2018/09/24/arizona-leos-arrest-the-wrong-tim-diaz/#comment-7480043

            2. Let everyone who gives an official decision about someone else’s guilt or innocence take their decision as seriously as if they were making the final decision. The House (or grand jury) should be able to say to itself “we’re convinced this guy is guilty and we’ve done what we could to hasten them along the road to conviction. If other people in the system reject our accusation, that’s on them, we at least have done our duty” (stirring music begins)

              1. That you’ve decided this is an important principle when it happens to help you argue online about Trump…

                1. …and you know this because…

                  1. Since I don’t want Trump to be convicted, I might potentially be harming my own case by saying impeachment is a quasi-criminal proceeding governed by at least some of the norms of a fair trial.

                    That opens up the possibility that new evidence against Trump could turn up which shows he committed impeachable offenses (presumably of a worse character than what Congress chose to let slide in the past).

                    If I simply said impeachment was purely political and that the political interests of the U. S. require that Trump be retained as President for fear of handing the country bound hand and foot over to the Democrats, then I could say “acquit Trump” and leave it at that. Not that there aren’t plenty of people here who would be willing at least to agree with my premise.

                    1. Pull the other one.

                      The argument isn’t with yourself, it’s with the public. As such, procedural arguments are a useful tactic to muddy the water and draw the eye from the substance and evidence.

                    2. Simply as a matter of curiosity, I’m interested in when (if ever) you will acknowledge that your “never interested in the grand jury before” talking point will last before you’re too embarrassed to continue with it.

                    3. I wasn’t convinced by your link, but I’m willing to take your word for it since you’re being so insistence, and all I have is circumstantial convenient timing.

                      I try to revert to an assumption of good faith, though sometimes it can strain credulity.

                    4. No, not good enough – see my other link above.

                      And a passive-aggressive stance of “I choose to believe you out of the goodness of my heart” isn’t going to work.

                      No, you are simply wrong.

                    5. “If I simply said impeachment was purely political and that the political interests of the U. S. require that Trump be retained as President for fear of handing the country bound hand and foot over to the Democrats,”

                      You know Pence is a Republican, right?

                    6. Good to see you have the interests of the Republican Party at heart.

              2. The claims you made – and which I refuted – are these:

                “Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world….

                “I’ve never heard you talk about grand jury reforms in the past…”

                Again, it’s not just that you failed to prove your assertion, I *disproved* it. There’s no room for you to say you’ll be charitable and assume I’m telling the truth. You stepped in it, and I’m reminding you of that fact.

                1. You deny I never heard you talk about grand jury reforms in the past?
                  Good luck proving that one!!

                  I’ve said I only had a circumstantial case. If you’re going to take it to the mattresses, I can’t really gainsay you. But I’m not uncomfortable with having put you to the question about the convenience of your grand jury due process requirements.

                  1. You were just asking questions!

                    No, not really, you said this: ““Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world.”

                    And what I said about reforming grand juries was this:

                    Eddy
                    September.24.2018 at 3:19 pm
                    So long as grand juries hear only what the prosecution tells them, this crap [false accusation covered in a Reason article] will happen.

                    There seems to be some confusion that because they operate informally, grand juries should operate unfairly.

                    How can the constitutional right to a grand jury have any meaning if their only source of information (apart from their personal knowledge) is some hack prosecutor?

                    Go back to the old days, let anyone share information with the grand jury.

                    Eddy
                    September.24.2018 at 3:37 pm
                    Another reform – let the grand jury hire special prosecutor if it looks like the regular prosecutor, or his witnesses, have been lying, targeting innocent people, etc.

                    Eddy
                    September.24.2018 at 3:39 pm
                    In particular, let them hire special prosecutors to investigate prosecutors who withhold information from the grand jury.

                    If prosecutors are going to pretend to be impartial legal advisors to the grand jury, let them be held to that standard.

                    1. I mean, fine. I guess I wasn’t following Eddie super carefully in September 24th.

                      Still fine with pointing out how convenient your outlier legal view is when I didn’t have that info. You must admit, it’s pretty convenient!

                      As I said multiple times, I’m willing to rely on your good faith. But glad you’re taking the time to demonstrate your consistency. Shows it matters to you.

                    2. “glad you’re taking the time to demonstrate your consistency. Shows it matters to you.”

                      Technically, I’m not defending myself, I’m attacking you.

                    3. Would it matter to you to demonstrate that you’re not a Democratic Party apologist?

                      What proof do you have?

                      I’m just asking questions!

                  2. “You deny I never heard you talk about grand jury reforms in the past?
                    Good luck proving that one!!”

                    Heh, heh, you got me there, I can’t really rebut your “I was ignorant and didn’t know it” defense.

                    1. In fact, far from wanting to challenge your concession that you were ignorant and unaware of the extent of your own ignorance, I will cheerfully accept that concession.

                    2. Not reading every comment on the VC isn’t really ignorance.

                    3. No, but concluding from your cursory reading that I hadn’t commented on grand juries *is* fairly ignorant.

                    4. In short, you made a major misstatement about what I said (or what I *didn’t* say) and you backed up that misstatement with what you now admit was a highly unreliable factoid – namely that you yourself, in your cursory examination, had not seen me say certain things.

                      Now you think you can turn the weakness of your own argument against me.

                    5. “concluding from your cursory reading that I hadn’t commented on grand juries *is* fairly ignorant.”

                      Now establish that ignoring you generally isn’t the best path.

                    6. Ignore away, don’t let me stop you.

            3. What are these unfair procedures, Eddy?

              As I pointed out, there are plenty of Republicans in the hearings, and they are not all as stupid as Jim Jordan, so the witnesses are subject to some amount of cross-examination. Possible defense witnesses like Mulvaney and Giuliani are being prevented from appearing by Trump himself.

              Transcripts of witness testimony has been released, contrary to Brett’s imaginings, and there will be public hearings starting tomorrow.

              This “star chamber” crap is a tiresome and inaccurate talking point, with no substance, even if Fox keeps repeating it.

              1. Looks like Eddy wants full trial due process at grand juries – defense attorneys, full disclosure of all evidence. And has for a while.

                Seems pretty unworkable to me, but at least he’s consistent!

                1. Sure it’s unworkable, but then again, I didn’t say it.

                  I’ll have to apply my own remark to you: “There seems to be some confusion that because they operate informally, grand juries should operate unfairly.”

                  1. The one thing you have right is, sure, I think grand juries should have access to the same evidence the prosecutor has. On the other hand, since grand juries can consider hearsay and the like, they wouldn’t have to examine the witnesses in person.

                    And I said outsiders should be able to submit information – not that defense attorneys should have the right to an evidentiary hearing.

                    1. Eddy,

                      I’m sympathetic to calls for grand jury reform.

                      But complaining about grand jury abuse does not answer the question as to what is so unfair about these hearings. Again, there are an awful lot of Republicans in the room, with the opportunity to ask questions. And regardless of how close it is or isn’t to a grand jury, it remains a process designed only to see whether an accusation is sufficiently well-grounded to merit moving on to adjudication in another forum – the Senate.

                    2. I’m still interested in the way you

                      -first referred to my alleged “sudden discovery of the need for institutional criminal justice reform” – then failing to graciously withdraw the charge once I pointed out it was false.

                      Instead, you declared that “I’ve said I only had a circumstantial case,” which is not in fact what you said – you said I’d had a “sudden discovery,” not that “it looks to me like a sudden discovery,” which in any case would have also been false.

                      Confronted with the falsity of your claims, you still said “I’m not uncomfortable with having put you to the question about the convenience of your grand jury due process requirements.” So you’re quite comfortable making a demonstrably false statement.

                      You also said “I try to revert to an assumption of good faith, though sometimes it can strain credulity.” In fact, it’s your accusation which strains credulity.

                      Then the very fact that, by your admission, the evidence backing up your charge was near-worthless, you tried to turn against me. To support your claim of my “sudden discovery” of grand jury fairness, you cited the fact that you couldn’t find me commenting in favor of it. That was your evidence. Strangely, you then cite the inadequacy of your own evidence as if it counted against me, not against you. “I mean, fine. I guess I wasn’t following Eddie super carefully in September 24th.” (That’s September 24, 2018, by the way). No, I didn’t expect you to research all my posts, nor did I expect you to accuse me of “sudden discovery” based on that shoddy “research.”

                      Then when forced to the wall, you made another misstatement, saying I wanted some kind of full-blown hearing in the grand jury, when I simply suggested they should have access to the prosecutor’s evidence and have the power to appoint a special prosecutor to investigate shenanigans by the regular prosecutor.

                      I’m citing all this as an example of bad Internet behavior, not because I live or die on your good opinion.

                    3. Correction, replace

                      “you said I’d had a “sudden discovery,” not that “it looks to me like a sudden discovery,” which in any case would have also been false.”

                      With

                      “you said I’d had a “sudden discovery,” not that “I have circumstantial evidence of a sudden discovery,” which in any case would have also been false.”

                    4. “I’m sympathetic to calls for grand jury reform.”

                      What assurance do I have that this isn’t some “sudden discovery of the need for reform” on your part? Can you prove to me that you are *sincere* in your claims to support reform?

                    5. “The one thing you have right is, sure, I think grand juries should have access to the same evidence the prosecutor has.”

                      Grand juries don’t have the same job that petit juries do, so they don’t have the same rules for what gets presented to them. This isn’t a great scandal to those who understand this fundamental fact.

                    6. Are you quite sure you want to use the term “presented” about a grand jury when it hasn’t made a presentment? Makes you look fairly ignorant.

                    7. Also, if you wanted to seem more honest, you should have included the sentence which followed what I quoted: “On the other hand, since grand juries can consider hearsay and the like, they wouldn’t have to examine the witnesses in person.”

                      Otherwise, readers might think you’re trying to trick them into thinking I advocated the same evidentiary standards for grand and petit juries.

                    8. “followed what *you* quoted”

    2. Even if the impeachment process were like a criminal trial, the House’s part of this process is NOT a trial. That part is up to the Senate.

      Man there’s a lot of freaked out idiots posting here.

      1. Once more, and let me know if you disagree,

        “As for what procedures the House follows, I’d say that’s up to them, they’re the accusing body and should have some flexibility – though they should *choose* to observe fundamental fairness.”

        1. “fundamental fairness” in a fundamentally political process? You gotta be kidding me.

          At any rate, my comment was meant to be standalone, not a reply.

          One of the dumb things about the Constitution is having nothing less than impeachment, and having no way for anyone but the House to indict a President. No one job should be so important that it requires all sorts of special exceptions to legal proceedings to make it “fair” without disrupting government.

          1. “At any rate, my comment was meant to be standalone, not a reply.”

            I’m afraid I may have misunderstood that point.

            1. My fault. Clicked a Reply by mistake, clicked fresh comment, and it did not forget I had clicked Reply. TIL.

          2. “One of the dumb things about the Constitution is having nothing less than impeachment, and having no way for anyone but the House to indict a President. No one job should be so important that it requires all sorts of special exceptions to legal proceedings to make it “fair” without disrupting government.”

            Why should there be any penalty for the President other than removal from the Presidency? He’s either fit to serve, or he isn’t. If he is, let him serve, and if he isn’t, get him out of there ASAP. There isn’t any third position.

      2. “the House’s part of this process is NOT a trial”

        Its akin to a “preliminary hearing”

        Have you never watched Perry Mason re-runs?

        1. Perry solves murders. Nobody has accused Trump of killing anyone, so how is Perry relevant?

    3. “Grand jury” is simply the most analogous process to the House proceedings and is generally used solely to help people understand why the endless squealing From conservatives about the president’s rights is so much bollocks. Nobody is saying the House inquiry is a grand jury and nobody has proposed turning it into one.

      1. So it’s Schrödinger’s analogy – applicable and not applicable at the same time.

        1. Pretty much, yeah. No analogue is 1:1, they all have portions that are analogous and parts that aren’t.

    4. If the case gets to the Senate, then I’d say the Pres is entitled to due process up the wazoo, including the right to bring in evidence relevant to the accusation against him. So if the accusation is that he wanted to investigate poor Joe Biden from improper motives, then the Pres would be able to counter that narrative by showing that there was actually stuff Biden did which was worth investigating.

      It is firmly established that (at least as a matter of law) the president is not “entitled to” any particular process in the senate. The senate could vote to remove him without holding a single hearing if it felt like it. But as a practical matter, he will be allowed to present a case.

      And given that Republicans control the senate, it is likely he will be able to bring in all sorts of smokescreens if he wishes. But showing that Biden did something wrong is not actually relevant to the accusation against him. (I suspect my business partner is stealing from me, and I hire a hitman to get the guy. At my subsequent homicide trial, I will not be allowed to bring in evidence that my now-dead partner really was stealing from me.)

      1. If the President wishes to use the federal government to investigate the Misters Biden, he has a whole gamut of agencies to deploy. (Of course, using the federal government to “get” your political rivals doesn’t poll well.)
        If he’d like to use his own resources to investigate either or both Bidens, he’s free to do so.
        He’s even free to request an investigation from a foreign party.

        Where he got into trouble is that A) he tried to strongarm the foreigners to do his bidding using the resources of the United States, and B) it looked like he wanted them to find something even if there was nothing factual to find.

  7. the Co-founder and Board Chairman of the Federalist Society

    This seems like the answer to the non-mystery of why Calabresi wrote the article – for the Daily Caller of all publications. He’s a partisan currying favor with Trump, hoping for a judgeship maybe.

    1. Or, alternately, he could believe it. Occam’s Razor and all that.

      1. He could.

        Doesn’t say much for Northwestern.

      2. How often are important, substantive, professional legal arguments (distinguishable from half-baked partisan rants with a scant legal veneer) unspooled at the Daily Caller?

      3. “Or, alternately, he could believe it. Occam’s Razor and all that.”

        True, he could just be amazingly stupid.
        Often, assuming abject incompetence rather than malevolence is safe. I don’t think this is one of those times. But yes, it is at least possible.

    2. He’s a partisan currying favor with Trump, hoping for a judgeship maybe.

      No. He’s 70 years old; nobody is appointing him to the bench even if he wanted it, which there’s no reason to think he does.

      Nor does he actually need to curry favor with Trump. Partisanship may explain it, though.

  8. I hoped someonen would touch on this shameful/hilarious issue.

    Props to Prof. Bernstein for being sufficiently clear-eyed. I’ve dinged him before, and will again, but this speaks well of him.

    1. This is Professor Post.

      1. Awww. Dunno how I got that wrong. Well, Post is more expected.

        I’ll keep my props for the next time, then.

        1. One day, Professor Bernstein will write something about evidence. I’m sure of it.

          1. He used to write about Daubert gatekeeping a good amount.

            But I prefer his new posts. I get meaty substantive policy questions at work all the time now.
            This blog, with it’s heat/light ratio in the comments, is how I unwind.

        2. Well, SarCastr0, I appreciate the compliment – even if you confused me with that other David …

          1. Well, YOU know who you are, and that’s what’s important.

  9. What should appear obvious to everyone is that President Trump’s defenders do not want to address the accusations made. The defense seem to rest exclusively on procedural grounds or character assassinations. Is there a point at which the focus is on the accusation that the President was trying to strongarm political help from a foreign power. President Trump says he was not, his defenders seem reluctant to take up this argument. An acquittal on procedural grounds will get the President off but leave us knowing he is guilty.

    1. Guilty of what, exactly? 🙂

        1. Beating Hillary Clinton

        2. So Moderation….what did Ukraine actually do against their will that benefited POTUS Trump? Don’t you need that for extortion?

          1. Not being a lawyer myself, is a failed extortion attempt not a crime because the extortionist bungled it? Or is extortion a crime regardless of success?

            1. Agree here. Failed extortion is still extortion.

              1. Extortion is not the problem. We routinely demand that foreign countries do things we want as a quid pro quo for getting foreign aid. The problem is that Trump has pretty obviously violated 52 US Code 30121, Subsection (a) Subparagraph 2.

                And speaking of quid pro quo, have you ever wondered what Mozart would say about this issue? Most likely, he’d say this:

                https://www.youtube.com/watch?v=fV4IKJHyZ1E&t=2m29s

                1. Extortion is about getting people to do things against their own best interest. A lot of the “quid pro quos” we’ve heard Trump fans shrieking about lately, like Biden pressuring them to sack an inept prosecutor, were for their own good. Similarly, hostage negotiators are not guilty of extortion. Over-generalising can sometimes obscure significant differences of fact.

                2. “We routinely demand that foreign countries do things we want as a quid pro quo for getting foreign aid.”

                  We routinely leave most aspects of foreign policy to the Executive. But this was a case that involved appropriations, a Congressional power. The problem here was the Trump wasn’t representing “we”, he was representing only himself and his interests.

          2. Just finished researching it. Extortion is a crime, whether the pressure works or not. It was a common law crime in England and has been codified more broadly here. See, e.g., Evans v. U.S., 504 U.S. 256, 269-270. (1992). At common law, extortion could only be committed by public officials who withheld or threatened official acts to obtain favors…oh-oh. So, for originalists, it is definitively within the meaning of “high crimes and misdemeanors.”
            In some states it is called “intimidation.” It is not a tort in most states or under the Restatement, but equity will return the money if the victim pays, and that is simply because the payment is considered involuntary and under coercion/duress. Unsuccessful extortionate conduct could be a tort if it is outrageous enough to constitute intentional infliction of emotional distress. Otherwise, it is just a crime.

          3. So Moderation….what did Ukraine actually do against their will that benefited POTUS Trump? Don’t you need that for extortion?

            No. Trumpkins really need to stop relying on the Sideshow Bob defense.

          4. “what did Ukraine actually do against their will that benefited POTUS Trump?”

            They waited for their military aid while undergoing an active invasion. Pretty significant to me, if not to you.

      1. TO: Atlas_Shrugged

        RE: “Guilty of what, exactly?”

        Well, for starters, of violating 52 US Code 30121, Subsection (a) Subparagraph 2.

        (At least, that’s how I understand what I have been reading.)

    2. Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent, Donald Trump and to then pass this bogus report into the highest levels of the US government to provoke a fake investigation.

      If it were not for double standards, the Left would have no standards at all.

      1. Donald Trump could have paid for an investigation of Hunter Biden connections in Ukraine. But he didn’t, he tried to strongarm Ukraine to help him. One standard here.

        1. Besides the fact that it appears he was suggesting that they find some evidence of corruption regarding Biden, whether or not there was any actual evidence of corruption regarding Biden.

      2. Hillary Clinton was not the president, and she most definitely did not try to extort Ukraine by holding back millions of dollars in exchange for dirt. See the difference?

        1. Ya know, that part about trading United States government favor for private gain is kinda relevant too…..

      3. Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent, Donald Trump and to then pass this bogus report into the highest levels of the US government to provoke a fake investigation.

        Hillary Clinton paid Fusion GPS, an American company, to dig up dirt on her political opponent. This is not scandalous; every politician in a competitive race ever has paid an opposition research firm to dig up dirt on his/her political opponent.

        This is also utterly unlike abusing the office of the presidency by extorting a foreign country using taxpayer money to help one’s campaign.

      4. “Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent”

        Hillary used her own money for this. Trump tried to use OUR money to buy help from Ukraine.

  10. For all the arguments here, no one is arguing that Steven Calabresi’s argument holds any water, right?

    Argue moral principle all you want, but this conservative jurist, for all his respect and intelligence, posted something immediately and ridiculously legally incorrect. Whether he was in good faith or bad I cannot say (I’d tend towards Post’s good faith interpretation over Bernard’s bad faith myself), but that’s a helluva thing.

    It fits into my general narrative about the right leaving facts behind, but this is such a departure that I’m tempted to view this more as an outlier than anything else.

    1. His argument is absolutely right. And right for the reasons I state below. I am sorry but we have due process and the right to confront witnesses every time the government is going to take away a right. It isn’t just if they are going to send you to jail. Due process is bigger than that. The founders understood that the world is filled with fanatical, vicious half wits like yourself and took that into account in drafting the document.

      1. The Sixth has never applied to noncriminal trials. You’re going well beyond the Founders here, no?

        1. Yes it does. It does so in the form of due process being required. The 6th Amendment and specifically the right to confront your accuser is one of the basis for all due process. So every time due process applies, the concepts found in the 6th Amendment apply as well, though in the form of due process.

          1. “concepts found in the 6th Amendment ”

            Exactly.

            1. “concepts found in the 6th Amendment” sounds like a Kennedy opinion Bob. You should be ashamed.

              But regardless, concepts found is not the argument that Steven Calabresi is making.

              1. “sounds like a Kennedy opinion ”

                So? Such opinions used to be ok with you.

                “concepts found is not the argument that Steven Calabresi is making”

                We are fleshing it out for him.

                1. I’ve alway been quite outspoken that I have never liked Kennedy’s opinions. Muddy jurisprudence doesn’t help even when the findings come out I my side.

          2. You don’t break the 6th whenever you don’t apply proper due process, you break the 5th.

            1. Not to mention that due process applies only to deprivations of life, liberty, or property. If impeached and convicted, Trump won’t be executed or imprisoned. He will lose his job, and he has no property interest in it.

              1. We are not giving the person 63 million Americans voting for due process.

                Please go with that.

                1. Give it up. Due process is satisfied by an opportunity to be heard prior to any deprivation. There has been no deprivation, so coming public hearings easily satisfy that. The transcripts are available, relevant witnesses may be called, and witnesses cross-examined. Sometimes even post-deprivation hearings are sufficient. Either you don’t understand due process jurisprudence, or you don’t care to. Calabresi has lost any credibility as a legal analyst, and from now on he will only be correct by fortuity. A shame that he has decided to trash his reputation in service to partisanship or ambition for a judicial appointment.

                2. Bob, you can’t just make s**t up. What am I saying? Of course you can, and so can Prof. Calabresi. But it’s still making s**t up.

              2. Is emoluments a “property interest?”

              3. The president has a four year term of office, and removal mid-term can be only for cause. Sounds like a property interest to me. OTOH, what process is due (over and above oath or affirmation, a trial presided over by the Chief Justice, and a two-thirds threshold for conviction) is largely up to the House at the charging stage and the Senate at trial.

              4. RE: “If impeached and convicted, Trump won’t be executed or imprisoned.”

                He won’t? Not even if I smile when I ask, and say “pretty please”?

          3. “The 6th Amendment and specifically the right to confront your accuser is one of the basis for all due process.”

            This is a stupid thing to claim.

            The sixth amendment is expressly limited to criminal proceedings. It (by its own text) does not apply to all process.

            This is a laughable argument.

      2. John, there is no right to be president, not even after you have been elected. The president serves at the pleasure of the People, who can remove the president from office at any time. That is what the impeachment power is about.

        The People are sovereign. Which means, they rule at pleasure, their power is boundless, and it applies continuously. It also means that the Constitution, which is their creation, constrains the government, but not the sovereign People themselves, not even a little.

        1. I see what you did there. Nice.

      3. “we have due process and the right to confront witnesses every time the government is going to take away a right.”

        The thing about due process is that the accused doesn’t get to decide what process is actually due. The xixth amendment is clearly limited by its text to criminal proceedings, which impeachment inquiry is categorically not. Letting aside the laughable notion that being President is a right.

    2. For all the arguments here, no one is arguing that Steven Calabresi’s argument holds any water, right?

      It’s so embarrassingly incompetent, both as a matter of writing and as a matter of legal argument, that there is a lot of speculation that he didn’t write it at all.

      It is, after all, common practice nowadays for lobbyists for interest groups to ghostwrite op/eds, get someone prestigious to sign their name, and then plant those pieces in various outlets.

    3. “It fits into my general narrative about the right leaving facts behind”

      Partisans of both stripes have been burned by believing in “facts” not because they were true, but because they desperately WANTED them to be true. The big one for the R’s was the belief that we could conquer Iraq in a couple of weeks, and would be right to do so because Saddam had and wanted to use weapons of mass destruction against us. They WANTED these to be true, so they willfully ignored anything and anyone who suggested that they weren’t true.
      The wishful thinking on the D side tends to be that a wide majority of Americans agrees with them about major issues. (Not the R’s are immune to this one).

      But “leaving facts behind” is not confined to one partisan side.

  11. Unfortunately, Mr. Post’s general ignorance of the legal system is lacking.

    First, there is no case on point that the President lacks a 6th Amendment right to confront his accusers in the context of an impeachment investigation. Therefore, it is wrong to say the President definitely lacks such a right (it would also be wrong to say that the President definitely has such a right).

    Second, Mr. Post does not appear to understand that there are different clauses in the 6th amendment. The 6th amendment includes, for example, the right to a speedy trial, the right to an impartial jury, certain jurisdictional rules, the right to counsel, etc. Mr. Post has not shown that the standard for a “criminal offense” is consistent across all of these clauses (because they’re not). For his various “exceptions” to the 6th Amendment he cites to cases touching on various different clauses.

    Third, and perhaps most importantly, Mr. Post does not understand that impeachment is a political – as opposed to a judicial – remedy. The judiciary does not have plenary authority to decide whether actions are consistent with the U.S. Constitution.

    Mr. Post may be given for the final belief as it is unfortunately common among those with a legal education.

    1. He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen.

      You can’t even fire someone from a government job or take their welfare benefits without giving them due process. You sure as hell can’t take away their elected office and ban them from holding office without some measure of due process. Moreover, the Impeachment clause use of the term “trial” and the requirement that the President only be removed from office for “high crimes and misdemeanors” necessarily implies some level of due process. Otherwise, why would the drafters use the term trial? And only allowed removal for the commission of a crime?

      So the question is what level of due process is owed? The right to confront one’s accusers is about as basic and long standing a right in the Anglo American system as their is. If there is a more basic right of due process than to be able to confront your accusers I am at a loss to think of what it would be.

      Yes, the Senate and the House get to define what due process that President gets. And if they fail to provide him with any, it is difficult to see what redress he would have. The fact that the Congress can get away with something doesn’t mean they have the legal right to do it. Clearly, the Congress owes the President basic due process in this and that necessarily includes the right to confront the witnesses against him.

      It is pathetic that so many people who claim to be legal scholars need to be reminded of this. And Mr. Post has proven himself a first class hack for being in that group.

      1. He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen. . . . It is pathetic that so many people who claim to be legal scholars need to be reminded of this.”

        Greetings, newcomer (and ostensible legal scholar) from a world in which impeachment and conviction are indistinguishable.

        1. That is a completely nonsensical response. A criminal trial and conviction are in one sense two different things. That, however, says nothing about the need to respect due process in conducting that trial and the process that leads up to any conviction.

          Please do me a favor and only comment when you understand what is going on. People are trying to have a serious discussion here and your oddball injections into them makes that more difficult.

          1. “He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen.”

            Impeachment does not effect removal from office. Nor does it effect a ban. Nor does it constitute deprivation of a right.

            Other than that, though, great comment!

            (Do you claim to be a law school graduate?)

      2. Jubulent: More nonsense. I did NOT say that Trump can be denied due process in this proceeding – he can’t. But Calabresi’s post made a very specific claim: that Trump’s rights under the 6th Amendment have been violated. That is, quite simply, wrong as a matter of constitutional law. What due process might entail is another question entirely.
        And you write: “Second, Mr. Post does not appear to understand that there are different clauses in the 6th amendment. The 6th amendment includes, for example, the right to a speedy trial, the right to an impartial jury, certain jurisdictional rules, the right to counsel, etc. Mr. Post has not shown that the standard for a “criminal offense” is consistent across all of these clauses (because they’re not).”
        Please read the text of the 6th Amendment. It begins: “In all criminal prosecutions, the accused shall enjoy the right to …” and then it lists the various rights. But this can only be read in one way: ALL OF THE ENUMERATED RIGHTS apply in “criminal prosecutions” to “the accused.” If you have something (like impeachment) that is NOT a criminal prosecution, the Amendment is silent. Full stop, period.
        As for who is demonstrating “general ignorance of the legal system,” I’ll leave that to others to decide.

        1. If you admit that Trump has due process rights, from where would those rights come if not the Bill of Rights? If your argument is that Trump has the right to confront witnesses but that it doesn’t come from the 6th Amendment, that would seem to me to be an argument without any real force or effect and just be about mere semantics.

          1. Due process comes from the 14th and 5th. Not the 6th.

          2. “from where would those rights come if not the Bill of Rights”

            From God.

            Or from Nature if you are Jeffersonian.

            1. And when government violates those rights, you look to God or Nature to vindicate them for you, right?

        2. Why isn’t the House following precedent? You know Nixon, Clinton.

          1. Did Clinton follow Nixon?
            Is the House bound by last precedent?

            But the real answer is as the House said: to keep witnesses from lying convincingly, since they can’t see if others have contradicted them.

            Trumps people are expected lie more than Nixon or Clinton’s. Even under oath.

            One guy had to refresh his memory and do a humiliating 180 already.

            1. “Is the House bound by last precedent?”

              Maybe not, but by deviating they gave Trump supporters another good argument.

              1. “Another argument” should not be confused with “another good argument.” Those are two different things, Bob.

          2. They followed the Benghazi precedent written into the rules for investigations by the GOP. So why wasn’t the chant “leave her alone” instead of “lock her up”? You can arrest a person, search them, and seize their possessions on probable cause which may be established in a proper case by an anonymous tip and certainly one from a CI found to be credible. Investigating on that basis is not a due process violation. Due process is only required at some time prior to the deprivation. The defendant gets to cross-examine the witness at trial, not when the investigator takes a sworn statement from the witness. When you report a crime, the cops should say “wait here until we find the alleged perp and let him cross-examine you–its his due process right”? How ridiculous do you want to look?

      3. One wonders if the Senate could decide that it would not begin an impeachment trial unless the impeachment proceedings in the House gave the President all of the rights he would have had in a criminal trial.

        1. I would say they absolutely could. The Senate has the power to try whatever Articles of Impeachment the House votes out. As the trier of fact, the Senate necessarily has final say on the sufficiency of any Impeachment allegations against the President. They could just declare the Articles defective and send them back to the House in the same way a trial judge declares an indictment defective before trial.

          1. John,
            Sure. The Senate could say, “We won’t have a trial unless Nancy resigns as Speaker of the House.” Or, “No trial unless the House votes to fully fund the Wall.” I think the House and the Senate have pretty much full control over what rules they want and do not want to have for these proceedings. (Not including, of course, rules that would otherwise violate other parts of the Constitution. “We will not accept evidence in the impeachment hearing from Blacks and Jews.” etc etc.)

      4. John, impeachment is not removal. It does not “remove[] someone from office they lawfully hold”

      5. You can’t even fire someone from a government job or take their welfare benefits without giving them due process.

        False. When Trump fired Rex Tillerson, or Jeff Sessions, or John Bolton, or John Kelly, or Jim Comey, or Michael Flynn, or Anthony Scaramucci, or any one of scores of other people from their government jobs because Trump is too incompetent to run an administration, what due process did they get?

      6. Article 1 of the Constitution: “Each House may determine the Rules of its Proceedings”. Nothing about having to observe certain rules in serving articles of impeachment. This is basic constitutional law.

      7. “He also fails to understand that impeachment is the deprivation of a right.”

        This is also a laughable argument. impeachment is in no way the deprivation of a right.
        Conviction in the Senate would be deprivation of a right, IF being President were a right, which is is not. But if you are of the opinion that being formally accused of a crime is a deprivation of a right, it is clear that your opinion is utterly without value.

    2. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

      FFS it’s in the text.

    3. First, there is no case on point that the President lacks a 6th Amendment right to confront his accusers in the context of an impeachment investigation. Therefore, it is wrong to say the President definitely lacks such a right

      My flippant response is to say that this is the equivalent of arguing that there is no case on point that the president lacks a 3rd amendment right to free sushi in the context of an impeachment investigation, so therefore it is wrong to say that the president definitively lacks such a right.

      My serious response is to say that jubulent is simply ignorant of the caselaw.

  12. So. Could some one tell me why the House is not following precedent where 6th Amendment issues were controlling (or at least important) at this stage.

    1. I’m quite sure the Sixth was not cited as controlling either of those past impeachments.

      1. The 6th was not cited. If you look at the way things were done, it was in effect.

    2. Sure: you’re mistaken. You’ve been misled by talk radio or MAGA twitter. That didn’t happen.

  13. Trump is being charged with a high crime, today Democrats are suggesting Ukrainian bribery. That sounds like a criminal trial to me.

    1. Jesus, where did this get linked?

      Criminal or not is not defined by magic words.

      1. It is a good thing bribery is not a criminal act then.

        1. MSimon,

          WTF are you trying to say?

          Bribery is a crime.

          The fact that Trump has been alleged to have attempted to bribe/extort Ukraine and will likely be impeached on those grounds, does not make anything currently happening a criminal trial. The trial in the Senate will also not be a criminal trial as, among other things, there is no danger of imprisonment. Imprisonment would require an actual criminal trial after Trump’s removal from office. That the articles of impeachment may include allegations of a crime does not make this a criminal trial. If Trump did shoot someone on 5th Avenue and was impeached for murder, the Senate trial to remove him from office would still not be a criminal trial.

          1. Yes. It doesn’t have to be a fair trial.

            Is that good for the country?

            Is it good for the Democrats?

            My answer to both questions is “No”.

    2. The impeachment is the charge. Trump hasn’t yet been charged. If and when the House formally charges the President via impeachment, then the trial will be held in the Senate.

      This really isn’t that hard to understand.

      1. “This really isn’t that hard to understand.”

        It is if your source(s) of information are badly distorted, if not active misinformation.

  14. I find it disappointing how quickly the discussion in this forum dissolves into politics and irrelevancy. The question at hand is whether the process the House is now engaged in is in violation of the 6th Amendment, not whether Trump is guilty of whatever. Post contends that the 6th does not apply because it concerns only criminal proceedings. This seems incorrect to me. Surely, however, he is correct that the House impeachment inquiry, if that is what it is, is not a criminal procedure as commonly defined. Nevertheless, the Constitution says that impeachment should be undertaken when the President has committed high crimes and misdemeanors — which are criminal terms, am I right? But the House is not the judge or the jury, only a form of prosecutor. It’s silly to suggest that it is a grand jury, because the members of the committee involved in the investigation will vote on the floor, so they are not empaneled impartial jurors. It’s political committee, performing a mix of judicial and political functions. What rules should apply? One can say, as the Democrats do today, whatever rules we can get away with. But that flies in the face of tradition and, I think, law. The House is also bound by the Constitution, and the members have sworn an oath to uphold the Constitution. So, back to the point, does the 6th apply? If it’s not high crimes and misdemeanors, i.e., criminal, is it then a civil violation? Well, an accused has rights under civil procedures too, non-judicial or judicial, including Notice, Hearing, Impartial Tribunal, Confrontation and Cross-examination, Discovery, Decision on the Record, and Counsel (copied from the Legal Information Institute). The rights awarded under a civil procedure seem awfully close to what is granted under a criminal procedure, guaranteed by the 6th Amendment. And, further, the language of the Fourteenth Amendment requires the provision of due process when an interest in one’s “life, liberty or property” is threatened. It would be difficult to state that the current House proceedings do not threaten the President’s interests, broadly understood as liberty and property. In fact, it would be offensive to state that he has no interest in the proceedings. So, it would seem that the 14th Amendment provides protection for him — and the 14th, as we know, incorporates the entire Bill of Rights, at least against the States. But does it also bind the House? Well, back to the oath they take when they become members — to uphold the Constitution etc. etc. Does that mean that they are bound by the 14th and the 6th Amendments? I find that a very convincing argument. They are not free to make up their own wholly political, quasi-judicial process. They are bound by the same rules that apply to all defendants, in criminal as well as civil procedures. What they are doing today is unconstitutional and shameful — and I take absolutely no stance on whether the President was wrong in his conversation with the Ukrainian folks. That should be totally beside the point for the current issue of whether the 6th applies or not.

    1. The precedents which Professor Post cites disagree with you.

    2. Maximus,

      “Post contends that the 6th does not apply because it concerns only criminal proceedings. This seems incorrect to me.”

      Read it. The 6th Amendment expressly applies to: “In all criminal prosecutions.” Not all proceedings, not all legal proceedings, not all quasi-criminal proceedings. Just criminal prosecutions.

      “If it’s not high crimes and misdemeanors, i.e., criminal, is it then a civil violation?”

      This is kind of nonsensical. That the conduct warranting removal may include crimes does not transform the proceedings into a criminal prosecution, for all the reasons Post states. It is an impeachment and trial in the Senate for removal. It is not a criminal prosecution or a civil proceeding. It is a something else specified in the Constitution.

      “Notice, Hearing, Impartial Tribunal, Confrontation and Cross-examination, Discovery, Decision on the Record, and Counsel (copied from the Legal Information Institute).” Yeah, that’s once formal charges (or a civil lawsuit) have been filed. The House is currently conducting an investigation, not a trial. They will eventually vote on whether to impeach (presumably) and then the President will be formally charged. He will receive notice, a hearing, a tribunal (composed of Senators, so cannot possibly be impartial but that is expressly contemplated by the Constitution), there will be confrontation and cross-examination of witnesses, a decision on the record, and counsel. I doubt there is formal discovery, but Trump will know the identity of all the witnesses and have access to all of the documents used in the Senate trial. What is your process objection? That we should treat this as two trials, one in the House and one in the Senate? But that just isn’t what the Constitution says. E.g., “The Senate shall have the sole Power to try all Impeachments.”

      In short, you seem to misunderstand what is happening. The House is currently investigating. They may eventually charge. The Senate will conduct the trial where the issue of the protections you discuss would be relevant. In the House, while there undoubtedly are some due process concerns, they don’t involve cross-examining witnesses during an investigation. Criminals don’t have that right nor do civil litigants. It is only once official charges are lodged or, in the civil context, an actual lawsuit is initiated that the accused begin to have the rights you are arguing apply here. The articles of impeachment are the charges. Until that happens, this isn’t a trial. It is an investigation and grand jury-like proceeding.

    3. You say: “they are not free to make up their wholly political, quasi-judicial process”. The Constitution says: “Each House may determine the Rules of its Proceedings”. Checkmate!

      1. Utter BS. Obviously, the House is bound by the Constitution. It does not have the power to set aside constitutional requirements regarding due process. The 14th, 6th, and 5th Amendments cannot become inoperative because a majority of House decides to set them aside. Sot, try again, will you?

    4. PS the word “interest” does not appear in the 14th amendment. So your rhetorical footwork about him having an “interest in the proceedings” is completely irrelevant. You also make a false dichotomy of assuming that all proceedings are either civil or criminal, when the whole point of impeachment is due to the fact that the President is in a highly anomalous position as head of the DoJ, and (as others have pointed out) he can’t be fined, executed or imprisoned as a result of impeachment.

      1. Good quibble, conhgratulations. Here’s the relevant text: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” I think that encompasses “interest”, thank you. And I have not asserted that impeachment is a purely criminal/civil procedure, but have stated that it’s clearly also a political process. The issue is whether the political element supersedes constitutionally guaranteed procedural rights, as commonly offered in both civil and criminal cases. I don’t think it does.

  15. Former copy-editor and proofreader suggests:

    In the phrase: “…but Mr. Trump is not a “criminal defendant” in the impeachment proceedings,… “, strike “in the impeachment proceedings” and replace with “yet”.

    Brevity is the soul of wit, you know.

  16. Good lord, people are defending the op-ed.

    I don’t know what I was expecting.

    At least it seems to largely be new people who have wandered in from somewhere.

    And Bob.

    1. Well, there are so many old farts just passing gas on this blog that a small breeze of fresh air might be welcome.

  17. Symbolism

    Biologically, cerebral-environmental dynamics largely work off patterns. Patterns can become symbolselciting emotions and occasioning behaviors; e.g., national flags. Together, President Trump’s likely impeachment and possible conviction represent a symbol — a symbol of the state of the Union.

    Admittedly, the entire procedure is political not legal. “Due process” is not mandatory; nevertheless, the case of “abuse of power” against him falls far short of “beyond a reasonable doubt” or even “preponderance of evidence”. The alleged victim denies being a victim. No, this tragic, political farce symbolizes a fragmenting, declining nation on fire — a nation committing suicide.

    “An autopsy of history would show that all great nations commit suicide.” -Arnold Toynbee (1889-1975)

    For further discussion, visit “Trump The Symbol” at …
    https://www.nationonfire.com/trump-impeachment/ .

    1. “No, this tragic, political farce symbolizes a fragmenting, declining nation on fire — a nation committing suicide.”

      Agreed. We pretty much all agree on that. I just think there is a significant dispute about which part is the tragedy.

      It is either:

      1. Trump turned out to be even more incompetent and corrupt than even the most paranoid among us imagined and Trump has been caught obstructing justice AND he has been caught abusing the office of the President for his personal gain, but about 40% of the electorate is mostly outraged that Trump has to rely on Rep. Jordan and Nunes to blow smoke up the nation’s ass rather than having his own attorney do it for him; or

      2. Trump turned out to be more incompetent and corrupt than even the most misguided of us hoped, but about 60% of the electorate still wants him out of office before he can finish destroying all of the institutions on which the continued functioning of our nation depends.

      True fact – Prior to 2016, one of his now-supporters actually said to me about the nation: Burn it all down.

      1. Did you miss this little kink in your estimating base?

        Ukraine MPs demand Zelensky, Trump investigate suspicion of U.S.-Ukraine corruption involving $7.4 bln
        https://en.interfax.com.ua/news/press-conference/625831.html

  18. How does the assertion that “it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary” square with the existence of an inherent contempt power on the part of Congress? As the Court noted in Jurney v. MacCracken, 294 U.S. 125 (1935), the use of that power to punish a completed act goes back to at least 1795.

    I agree that impeachment is not a criminal proceeding, but this argument goes a little too far for me.

Please to post comments