Steve Calabresi Responds and Updates His Arguments on Impeachment Hearings

Are the Procedures Fundamentally Unfair?

|The Volokh Conspiracy |

Last week, my colleague Northwestern Professor Steve Calabresi published an op-ed raising issues about the procedural fairness of the impeachment hearings.  He met with strong attacks, including by my Volokh colleague, Professor David Post.

At the Daily Caller, Calabresi has now updated his original arguments on the issue:

Numerous critics have contacted me arguing that Sixth Amendment rights would apply to President Trump in a Senate trial, but not in a House proceeding.

But why were Presidents Nixon and Clinton given Sixth Amendment rights in their House impeachment proceedings which President Trump is being refused?

The House of Representatives may function only as a grand jury in impeachment proceedings, in which case House Democrats may have been violating Trump's Fifth Amendment Due Process Clause rights by leaking damaging information about him as the result of a secret investigation in which the charges have not been revealed. He has not been able to confront the witnesses against him, and he has not been able to call witnesses in his own defense.

I say the House of Representatives may function as a grand jury in cases of impeachment because in some respects the impeachment process is sui generis.

In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights. The House did not in those proceedings leak damaging information to the press obtained in a secret proceeding. Nixon and Clinton were informed of the charges against them, they were able to confront witnesses against them, and they were able to call witnesses in their own defense.

There is quite simply no question, at all, that impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence. Article III, section 2, paragraph 3 explicitly states: "The Trial of all Crimes, except in cases of Impeachment, shall be by jury." Sixth Amendment rights, in turn, attach "In all criminal proceedings" and Fifth Amendment Due Process Clause rights apply to grand jury proceedings in which it is illegal to secretly leak grand jury information to the press.

The framers of our Constitution limited the Senate's power to punish impeached officials to removal from office and disqualification from holding office in the future. That does not change the criminal nature of an impeachment case, which the Senate hears as a Court of Impeachment. Removal from office can only happen if the Senate finds that President Trump has committed "Treason, Bribery, or other high Crimes and Misdemeanors."

I haven't gone through the arguments pro and con with care, but the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required.

We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today.  Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal.  One should also remember that grand juries are often criticized as being fundamentally unfair (e.g., "ham sandwich")–and with grand juries, proceedings are secret and leaking testimony is a crime.

Here having public hearings, while allowing only one side of the story and prohibiting the Republicans from calling their own witnesses, makes the hearings less like a trial or a grand jury and more like a show trial.

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  1. I think the main difference in the Nixon and Clinton cases is that the representatives conducting the impeachment were at least nominally serious people, trying to conduct a nominally serious proceeding. They wanted to at least appear to be doing their duty in some way.

    We have Adam Schiff and some others throwing a tantrum. It’s been on-and-off tantrums since the 2000 election. I think most people can’t even really remember when politicians and the news media sometimes acted like adults.

    1. Wait, what? You see Schiff as the one throwing a tantrum and the Republicans as being the sober, deliberate, adults in the room???

      Astounding. I guess we all see what we want (expect??) to see.

      1. Those aren’t mutually exclusive – Adam Schiff is the one with institutional power throwing a tantrum. The minority without that institutional power can also be throwing a fit.

        Of course, at the Senate, the roles will be reversed, but I don’t expect anyone to remember that.

        1. Shows how bad the House Judiciary chair is, they let a character like Schiff be the lead.

          Trump remains blessed with his enemies.

          1. Schiff has never been the House Judiciary Chairman. He was briefly the chair on a task force on judicial impeachment years ago.

            What’s the specific criticism of Schiff?

            1. I didn’t say he was, I said that because Jerry Nadler is so bad, they had to turn to Schiff.

      2. There aren’t any adults in that room.

      3. re: “I guess we all see what we want (expect??) to see.”

        Given your own apparent (in)ability to read the actual comment that Ben_ wrote, that is self-evidently true.

      4. I never said any current politicians were “sober, deliberate, adults”. There’s not much market for that in the US any more. TV comedians
        and obvious, transparent liars are US thought leaders.

    2. You must be unfamiliar with Ken Starr.

      1. What we learned with Ken Starr was the wisdom of the Founding Fathers in not letting the powerful filch at will through an opponent’s papers looking for anything to hit them with.

        Yet it happened anyway. The Republicans were ready to get rid of him for what they would later decry as a minor, manufactured crime — a process crime.

        Now the shoe is on the other foot and everyone’s flip flopped like good little situational ethicists, touting principles they downplayed and downplaying principles they screamed from the mountain tops.

        It was wrong then and it is wrong now and it was wrong when Trump said, “Lock her up!”

        No one will learn. And the downstream blowback the next time in 20 years or more will be even worse.

        1. Hillary Clinton clearly should be locked up.

        2. If Clinton had withheld $400 million in appropriated funds to extort a bj from the leader of a foreign government, I’d agree with you.

      2. Ken Starr impeached no one.

    3. I’ve read the House impeachment procedure resolutions for Trump, Clinton and Nixon. When it comes to calling witnesses or subpoenaing witness they come down to the same point. The minority party cannot call or subpoena witnesses against the wishes of the majority party. Even the GOP are saying that.

      In a process where the majority party and the minority party are operating in the same universe, there will be no problem with the witnesses the minority wants. The parties were in the same universe with Clinton and Nixon. But the resolution allowed the majority the final say.

      Here the majority says the story is what happened in Ukraine and Washington DC in 2019. The minority story is a mish mash of conspiracy theories and any thing else they can find. Under these circumstances, the majority will follow the rule of every committee of the House and Senate and every previous impeachment.

      To the extent that the GOP want witnesses that are relevant to the impeachment, there should be no problem having them appear.

      The procedure is as fair as it can be when one party is in the real universe and the other is not.

      Everyone should realize that the fairness of the GOP if they had been in charge of the House now would be zero hearings on this. That’s fairness for the GOP. That’s the way the US Congress works. Elections have consequences. Get over it.

      1. And yet, last time when the GOP did this, the procedures were called very fair

      2. To the extent that the GOP want witnesses that are relevant to the impeachment, there should be no problem having them appear.

        You’re under the assumption that the Democrats will let the Republicans call witnesses as long as those witnesses are “relevant” (as defined by the Democrats).

        Giving the majority the power to summarily reject any witnesses from the minority party is in no way “fair.”

        1. Who are the Republicans attempting to call, who are not being called, but whose testimony is relevant, in your view?

          1. Isn’t it relevant if there was real corruption with Burisma and Hunter to investigate it?

            1. We have lots of investigatory folks back here.

              Using foreign aid to strong arm another country into announcing they’ve opened an investigation into your political opponent isn’t absolved by the opponent having done something wrong.

            2. Nope. The question answers itself. Otherwise, the sentence would have been that “the investigations are relevant because a, b, c…” But there is nothing beyond the unanswered question, and the mere assertion that they are relevant.

            3. Sam Gompers : “Isn’t it relevant if there was real corruption with Burisma and Hunter to investigate it?”

              (1) Is it relevant Trump is the last man on earth who would show the slightest concern over the issue of corruption? If his defenders insist we must know his mental state to judge his actions, then why isn’t it germane that Donald Trump – Crusader Against Corruption is stone-cold laugh-out-loud ludicrous.

              (2) Is it relevant that the two faux-investigations Trump demanded in the transcript were obvious frauds? Both CrowdStrike (with the hidden server) and Joe-Pressured-Ukraine-Over-Hunter are easily discredited nonsense. Should that matter?

              (3) Is it relevant that these “investigations” were to be managed by Trump’s sleazy lawyer and two low-grade crooks? That the DOJ washed it’s hands of them with blazing speed right after the transcript release?

              (4) Is it relevant that these “investigation” had to be publicly announced, even to the extent Sondland demanded President Zelensky sign a paper committing to a public show?

              That said, I’ll give my non-lawyer’s understanding of the law, derived from many a potboiler movie or book: I think Trump should be permitted to call witnesses attesting to this alleged “corruption”, but only after laying the foundation with testimony on the care & professionalism of his anti-Ukrainian-corruption campaign. A few days on the stand by Barr, Giuliani, Lev Parnas and Igor Fruman should do’t. (and what a spectacle that would be…)

      3. “To the extent that the GOP want witnesses that are relevant to the impeachment, there should be no problem having them appear.”

        It’s a serious problem because the Democratic interpretation of “relevant”, functionally, has been “favorable to the goal of impeaching”. If a witness or question doesn’t advance that goal, they’re treating it as irrelevant.

        1. Who would be “[un]favorable to the goal of impeaching” in your view? President Trump? Rudy Guiliani? Bolton?

          1. “Who would be “[un]favorable to the goal of impeaching” in your view? President Trump? Rudy Guiliani? Bolton?”

            Hunter Biden

              1. I presume that his bumbling testimony would provide strong evidence of an appearance of corruption on behalf of the family. This would like be strong enough that the few people who actually can be swayed would start to think to themselves, “well I totally would have demanded an investigation as well.”

        2. No; it’s “relevant to the potential misconduct.”

          Whether Schiff met with the whistleblower has exactly 100% of zilch to do with whether Trump committed impeachable conduct.

          What Hunter Biden did while on the board of Burisma has nothing to do with whether Trump committed impeachable conduct. Even if Hunter Biden did break Ukrainian law, that doesn’t justify Trump withholding military aid or other assistance until the Ukrainian president announced on tv that he was investigating him.

          1. How so?

            I understand from talking heads that there’s a federal law that requires that foreign aid not be given to corrupt regimes (I’m summarizing various summaries, so if you know the details please add them, otherwise accept this as broadly true).

            If Trump saw apparent corruption being coordinated by the prior regimes in the US and Ukraine, and that Hunter Biden was the surreptitious middleman in $15B aid dollars vanishing through a corrupt bank that somehow still kept being assigned to transfer US aid money, the Trump would have been acting as he was required to do, albeit in his own poorly executed way. Indeed, if that’s what prompted the President in the first place, then I’m sure he also got a chuckle out of being able to return the favor for the “witch hunt” about Russia.

            So the question is: why did the president act in whatever manner he did? He’s already answered that explicitly, but many don’t believe him. So we can see if his stated beliefs is a plausible one – does the claimed corruption of the Bidens and Burisma actually exist? To what end? And to answer that we’d question Hunter, among others.

            How is it not germane to the question of what Trump did?

            1. If Trump saw apparent corruption being coordinated by the prior regimes in the US and Ukraine

              Which is why Trump didn’t really talk about corruption in any other context than Hunter Biden.

              No one believes Trump because he lies all the time and is here contradicted by multiple witnesses.
              Holmes’ testimony also backs up Taylor’s testimony about Trump’s personal views on Ukraine. “Holmes said he asked Sondland “if it was true that the president did not ‘give a shit’ about Ukraine.” According to Holmes, Sondland agreed, and said Trump only cares about “‘big stuff’ that benefits the president, like the ‘Biden investigation’ that [Rudy] Giuliani was pushing.”

        3. Do you seriously think that the Republicans are eager for Giuliani and Mulvaney to testify, and that the Democrats are blocking that out of fear they won’t advance the case?

          That’s delusional. Utterly delusional.

        4. Still waiting for an articulated legal reason why these witnesses are relevant.

      4. “The minority story is a mish mash of conspiracy theories and any thing else they can find. ”

        The corruption of Barisma and the Biden’s is clearly germaine to this issue, yet the Democrats are blocking any witnesses regarding that.

        1. Why would corruption of Burisma be germane to this issue?

        2. Still waiting for the sentence from anybody that the Biden’s conduct is “clearly germane, because…” When I read an opposing brief, I always look for “clearly” because it tends to signify my opponent can muster neither reasoning nor authority for the point.

          1. Whether the Biden’s are corrupt is clearly germane because if there was corruption or a strong appearance of corruption it is the President’s duty to use all available resources to investigate it. Doubly so because Biden might be the next President, and if he’s corrupt the Ukrainians will have blackmail to use against him!

            **Note this is an exaggerated version of what I actually believe, which is that it looks bad and we should investigate, but there’s no need to put all the President’s men on it. Instead what I wrote is intended to mirror the rhetoric used to justify the Carter Page wiretaps and the Mueller investigation.

            1. if there was corruption or a strong appearance of corruption it is the President’s duty to use all available resources to investigate it.

              Do you think this Biden thing was in the top 10 corruption issues in the Ukraine?

              1. No, but he is probably top 10 corruption issues in Ukraine that could negatively effect US interests, probably #1 if he gets the Dem nomination. It would be best to indict or clear him before then no? The US FP community is already really soft on Ukraine, if they had leverage over the president the country would be in a sad state in this part.

                Like I said, I was merely mirroring over the top rhetoric (although the evidence we have now is worse than what ended up coming out after then entire Mueller report, so maybe its justified?).

  2. Testimony, inscrutable witnesses, evidence. These things weigh nothing against the heft of the unfairness of it all.

    Seriously though, you think the Clinton impeachment was “fair”?

    1. In this case the testimony is they heard it from a friend who, heard it from a friend, who heard it from an aide that Trump was messing around. Why, exactly, is the aide not the one testifying?

      1. Because he was told not to by the White House?

        The people with first-hand knowledge appear to be Sondland, Mulvaney, Bolton and Giuliani. The latter three have refused to testify.

        1. Sondland does not have any first hand knowledge.

        2. Sondland’s testimony to the committee was that not only did he not have first-hand knowledge of why the aid was held up, he didn’t even have second-hand information. This statement about the cause of the hold-up to some Ukraine officials was based on pure speculation.

          1. In his written revision to his testimony, Sondland said:

            I told Mr. Morrison in early September 2019 that the resumption of U.S. aid to Ukraine had become tied a to a public statement issued by Ukraine agreeing to investigate Burisma,” “I told Mr. Morrison that I had conveyed this message to [Ukrainian presidential aide] Mr. Yermak on Sept. 1, 2019, in connection with Vice President Pence’s visit to Warsaw and a meeting with [Ukranian President Volodymyr] Zelensky . . . I said to him in early September that resumption of U.S. aid to Ukraine might be conditioned on a public statement reopening the Burisma investigation

          2. Apparently Sondland spoke directly with Trump about the matter.

            He also told Taylor explicitly that the aid was being held up pending the announcement of an investigation. Do you think he was acting on his own, or was so instructed by someone?

      2. He is now scheduled to give a deposition and will shortly go for a public hearing.

        This was new information, that an inquiry is supposed to uncover and give more avenues for fact finding.

    2. The Clinton procedures were fair. I skimmed the Clinton Articles of Impeachment a couple of days ago. He was charged with 2 counts of perjury, 1 count of (in effect) suborning perjury, and a procedural trivial makeweight count. Further, the House report showed that perjury was sufficient grounds for impeachment & removal in several judicial impeachments in the 1980s. Clinton was allowed to call witnesses and didn’t really contest the perjury counts. About half the Senate voted him guilty on two charges, but that was far from enough. In effect, the Senate concluded that perjury in a civil rights suit and encouraging people to lie was not serious enough to be an impeachable offense.

      1. Guess who wrote the rules for impeachment? They are almost royalty taken from the procedures that Republicans put in place when they anticipated their witch hunt of President Hillary Clinton. They wrote the rules they should live with them. Elections have consequences.

  3. As far as constitutional requirements, impeachment is solely up to the house. The rules are whatever the majority of the house says.

    1. Congress has the POWER to impeach for whatever reasons it wants to, but it breaches its DUTY to uphold the constitution if it does so for reasons other than a high crime or misdemeanor.

      1. Guess who makes that determination? The power is solely vested in the House.

        Using the power of the presidency for personal political gain is pretty much the definition of high crime anyway.

        1. Perhaps Gerald Ford went too far when he said that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” But the definition is vague enough that each member has to decide what it means to him or her — as long as the allegations involve actual, non-trivial misconduct and not merely policy disagreements.

        2. Every president ever has used their power exclusively for the purpose of personal political gain, in that they effect policies and dole out favors they believe will aid their reelection, or the election of their political allies, or the fortunes of their friends or future business associates. If that’s definitionally a “high crime”, we’ll have quite a backlog to work through. Funny how the status quo is suddenly a problem when the bad orange man is holding office, but was fine when contributions were flowing into the Clinton foundation….. hmmmm.

          1. Because orange man good.

          2. How then to explain Lyndon “We’ve Lost the South for Generation” Johnson? Do presidents generally have mixed motives when they exercise their power? Sure. But claiming that self-interest always trumps public interest whenever the two conflict is cynical AF and unsupported by history.

            1. Making history politically useful has always been an activity practiced by folks who know little about the content of history, and nothing at all about the methods of history.

        3. Guess who makes that determination? The power is solely vested in the House.

          The power to impeach the President is vested in the House, but the power to judge the appropriateness of that action is vested in the voters.

          1. The voters installed a Democratic majority in the House. I believe they have spoken on the issue.

  4. impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence.

    Which completely refutes the argument.

    Here there is no question of any penalty beyond removal from office., and possibly disqualification from holding office in the future. No death penalty, no imprisonment.

    And tell us, Lindgren, in what criminal proceedings does the putative defendant have the power to prevent important witnesses from testifying?

    1. In most jurisdictions, any proceeding in which the State wants the defendants spouse to testify. Or priest (though that’s more malleable).

      Come on, that wasn’t even hard, and the House can always hold people in contempt who refuse to testify and send their Master at Arms to fetch them.

      But our House has become feckless, just like the Senate did a decade ago when they stopped the filibuster from actually meaning anything. If a Senator believes firmly enough to stand up and speak continuously then maybe we should seriously address their concerns, but merely claiming that you will filibuster something? That defeats the point of it being a self sacrifice and robs it of meaning.

      1. Spouse and priest? OK.

        Let’s not force Melania, or whoever is the closest to being Trump’s priest, testify.

        But Mulvaney, Giuliani, McGahn, Bolton are neither spouse nor priest, and whether they can even be held in contempt seems to be an open question.

        I’m confident Blackman will be issuing an amicus brief in their favor soon.

        1. Climbers gonna climb. Clingers gonna cling. Climbing clingers . . .

          1. . . . are tree frogs?

      2. The marital privilege not to testify belongs to the witness spouse, not the defendant spouse.

        1. Two types of spousal privilege.

          Communications privilege made by a spouse to the other are protected and the privilege can be asserted by either.

          Testimonial depends on the jurisdiction. I think the majority gives the defendant spouse the privilege.

          1. Two types of spousal privilege.

            Only one of which can be used to “prevent [a] witness[] from testifying” (as opposed to precluding aspects of their testimony).

            I think the majority gives the defendant spouse the privilege.

            That’s certainly not the majority rule, and I don’t think I’ve ever heard of any jurisdiction that assigns the privilege that way. If you have examples, I’d be fascinated to see them.

            1. Bob’s utterly odious, but I think he’s right on the privilege. A client can never prohibit hIs attorney from testifying against him, so if he were to say, “I’m not allowing my lawyer to testify,” what he actually means is “I’m not going to waive privilege, and my attorney has no relevant, nonpriviledged informant, but if you want to call her to testify about what she had for dinner last night, fine, have at it.” IOW, read charitably, the White House is claiming privilege, not immunity.

              He’s wrong on the testimonial privilege, though. That it’s a minority rule was acknowledged in Trammel v. United States, 445 U.S. 40 (1980.

  5. “We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today.”

    That’s cute. Suddenly two prior instances of modern practice establish constitutional norms and traditions that ought to be followed by subsequent officeholders. This is rich coming from an ideology that claims the original public meaning of the Constitution triumphs over past legal interpretations. What happened to originalism and the use of historical evidence as the method of interpreting constitutional provisions? All of these “new” legal arguments about the unfairness of the process look a lot like living constitutionalism; an attempt to update the language of the document to confront contemporary needs. Today the need is defending a fellow partisan (especially when that partisan holds the key to reshaping the federal courts) and constitutional clauses must be given novel interpretations to meet that need.

    1. Are there any serious people who argue the House can’t do these? Not even Calabresi is arguing they can’t, just that they shouldn’t.

      An argument about norms is just that – it’s a social equilibrium that was reached for good reason and you should be wary of changing it, not that you can’t change it. That would be like someone arguing that because the filibuster was a norm that means it’s Constitutionally mandated, and I’ve never even heard that argument, merely that it’s a good idea (and that Harry Reid would regret ditching it).

      1. Uh, no, dude’s arguing the Constitution applies. That’s not a shouldn’t argument, it’s a can’t argument.

        That’s why he’s supremely out there.

        Arguing norms via ‘established tradition’ of two disparate incidents is not a very strong norms argument. Which makes carping that Congress is failing it’s duty more sophistry then righteousness.

        1. “the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required. We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today. Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal. “

          1. Yeah, I’m talking about Clabrisi, as is the guy I’m replying to.

          2. Armchair, impeachment is a two step process. Whether a particular impeachment is fair or not depends on completing both steps, and doing so with good faith.

            Step 1 — Get the evidence. The Constitution authorizes sweeping powers. Indeed, it essentially suspends separation of powers, to knock down the door of resistance. Good faith in Step 1 consists of using that power to the full, in a conscientious attempt to demonstrate whether or not evidence for an impeachable charge exists.

            Step 2 — Prove or disprove the evidence dispositively. The Constitution separates the power to do that from the power to gather the evidence—a vital safeguard. To that was added a super-majority requirement, as a second safeguard. Good faith, of course, consists of examining the evidence dispassionately. But, notably, those who structured the process relied also on an expectation that not much dispassionate examination would be available. They expected passionate resistance to the evidence, from partisans supporting the impeachment target. That expectation became, willy-nilly, a sort of third expected safeguard.

            Thus, the test of good faith in the constitutional process must be reliance on the full process. As to the operation of the parts of the process, good faith consists in supporting using the parts as designed. Folks who want to claim good faith during the impeachment phase need to get behind knocking down all the barriers to discovering relevant evidence—while holding in abeyance their passionate resistance for use during the trial process.

            Not seeing much of that kind of good faith from Republicans so far.

            1. ” Indeed, it essentially suspends separation of powers, to knock down the door of resistance.” ” Folks who want to claim good faith during the impeachment phase need to get behind knocking down all the barriers to discovering relevant evidence”

              Hmm. Forth Amendment much? Unreasonable search and seizure? Nah. I suppose that doesn’t apply in impeachment either.

        2. dude’s arguing the Constitution applies

          Of course the Constitution applies. The Constitution in fact governs the process of impeachment. The House didn’t just make this up.

          I’d recommend at least a cursory course in Constitutional Law.

          1. And you know what I meant, making your pedantry just an excuse for low-grade insults.

            1. “You’re technically correct; the best kind of correct.”

  6. One critical difference here is that members of the House are not limited to considering evidence and testimony that comes out in the House hearings when voting on articles of impeachment. Because of this, the President has a significant ability to make his case to the members wholly apart from the hearing.

    In addition, in determining whether a process is fundamentally fair, we have to consider what the point of the additional process is. The Senate, which has full power to try impeachments (and whose judgment on how to do so constitutes an unreviewable political question), can reject the articles in short order if it believes they are unfounded. On the flipside, drawn-out impeachment hearings on top of a full Senate trial risk leaving a president who has committed offenses warranting removal in office for too long. (Not opining on this president in particular.) Process has its costs, and to me, some increased risk of an erroneous impeachment (which is largely correctable by a Senate acquittal) is an acceptable risk when compared to the risk of excessive delay.

  7. If you are giving a legal argument, shouldn’t you research the law?

    Please read the 1992 Judge Walter Nixon decision. That was a case where the trial in the Senate was unfair if due process applied. The evidence was heard by a committee of the Senate which made a report to the Senate and then the Senate voted. The Supreme Court did what courts do — they first looked at jurisdiction. They said that they had no jurisdiction over the procedure of the Senate and dismissed the case. This would equally apply to the House.

    If there were any merit it the Calabersi argument then the President’s lawyers would have been in court weeks ago.

    The President is getting a process that is much better than the Starr chamber or the Watergate committee. It has come out that in addition, the witnesses were prepped in secret by the majority. There is not even that complaint from the GOP.

    1. I think Prof. Calabresi is off base here, but I’m not sure how relevant this point is. The fact that a court can’t review the congressional impeachment proceedings for constitutional violations doesn’t mean that the constitution doesn’t impose restrictions.

      1. A somewhat pedantic point, but it seems obvious that the notion that courts never intervene in impeachment proceedings is incorrect, at least to narrow extent that it would violate an express and unambiguous Constitutional command (think impeaching a President for refusing to acknowledge Jesus Christ as his Lord and Savior, in violation of the test clause, or being the descendant of slaves, in violation of the badges or incidences clause)

  8. So Calebresi is continuing his legal self-immolation by trying to argue impeachment in the House is (not is like but IS) a criminal trial.

    This gives Prof. Lindgren a chance to come out and argue that it’s fundamentally unfair that the GOP can’t call witnesses based on the precedent of two disparate examples where precedent has no bearing.

    He’s condemning the rules the GOP set up during Benghazi as fundamentally unfair, but that’s neither here nor there at the moment. Because it’s time for procedural objections, even outlandish ones, because the substance is not looking great.

    1. I didn’t recall the Benghazi hearings were impeachment hearings, thanks for refreshing my memory with alternative facts.

      1. And yet they set the rules for where we are now.

        1. I’m not sure I follow.

          The Benghazi hearings weren’t impeachment proceedings, so if the constitution actually requires extra procedural protections for impeachment proceedings, the fact that those protections weren’t available at the Benghazi hearings doesn’t seem to mean a whole lot.

          Again, I’m dubious about Prof. Calabresi’s claim that the constitution does in fact require these protections, but I’m not sure this argument does much to refute it.

          1. Why are impeachment hearings more due-processee than any other investigation of a government official?

            The GOP made some rules that they liked. Now they should abide by them.

            1. Sarcast0, impeachment (and the removal power) are sui generis and intended to be so. Due process requirements, and separation of powers standards, apply to normal court proceedings, or to everyday government operations. They apply either not at all, or in modified form (with the modifications relying mostly on thin and questionable precedents) during impeachments.

              Without insight into the founders’ views on the operations of sovereign power, it is especially difficult for folks accustomed to the rules and norms of legal practice to grasp why such unfamiliar differences exist. A short explanation is that the founders thought every government had to operate under a sovereign endowed with unlimited power, which could rule at pleasure.

              A sovereign of that sort was thought necessary to limit government, keep it within its constitutional bounds, and to decree and protect the rights of the sovereign’s subjects. Crucially, sovereign power operates continuously, however much in the background it normally seems.

              The impeachment power an instance in the Constitution (there are others) where the founders created occasions for sovereign intervention, for the correction or prevention of governmental mishaps of kinds the founders especially feared. Some of those constitutionally prescribed occasions are marked out by the “sole power” clauses. Those note the divisions of government to which special sovereign power is decreed under particular limited and defined circumstances.

              Whenever those kinds of powers operate, much of the rest of accustomed government structure and limitations on power (due process, separation of powers, checks and balances) are in suspension. The power available to designated government divisions on such occasions, and in such limited and prescribed circumstances, is of the sovereign kind—which is to say power to be used at pleasure, and not subject to constraint by any process except the political process available to the sovereign People themselves.

    2. “because the substance is not looking great”

      Only Trump opponents care. He ain’t getting removed over a country most Americans couldn’t find on a map if they were given a map only showing Ukraine.

      1. Your nihilism gets increasingly unbecoming, as you admit Trump’s corruption but just can’t be moved to care so long as you think he’ll get away with it.

        1. I admit nothing. My point stands, there are no GOP votes to convict over something involving an obscure country like Ukraine. Its not part of NATO, we have no treaty with them.

          Even if true, its not a “high crime or misdemeanor”. Your mileage may vary.

          1. Actually Ukraine is not that relevant. The question is whether the president abused his power by soliciting a personal benefit at the cost of US security thus violating the oath he took when he was sworn in and pledged to defend the Constitution against all enemies foreign and domestic.

          2. Actually, I believe we DO have a treaty with them. Ironically, it’s the treaty that made Trump’s request perfectly legitimate.

            1. Brett, you’re not a lawyer, and you should stop pretending to be one. You’re terrible at it. No, the MLAT did not make Trump’s request perfectly legitimate. It actually had no applicability at all.

              The MLAT — as do ones we have with other countries — allows country A to ask country B for help with evidence gathering in support of an investigation that country A is conducting. It does not relate to country A asking country B to start investigating¹ one of country A’s citizens. And it specifies a procedure for asking for such assistance — the Attorney General must send a written request to his counterpart in the other country — that the careful reader will realize does not include the involvement of the president’s personal lawyer.

              ¹Though, as always, I’m being charitable, since the evidence is that Trump didn’t want an investigation at all; just an announcement that Biden was being investigated.

  9. It’s moot anyway. It’s clear after today’s opening hearing with their star witness Ambassador Taylor that they don’t have anything close to the goods on Trump.

    They might barely get a majority of the Democratic caucus to impeach, but they won’t get a majority of the House.

    I predict Pelosi and Hoyer as both no votes on impeachment.

    1. You mean the part where Taylor said there was a quid pro quo for corrupt reasons?

      Were you too busy to follow along yesterday? I get the talking point on the right for months has been that the Dems have nothing and are desperate, but it’s getting increasingly ridiculous to anyone who is actually paying attention to what’s happening.

      At least you didn’t use the ‘it’s too boring to matter’ play.

      1. Yes, the part where Amb. Taylor stated he never talked to the POTUS, and his thoughts on quid pro quo were total speculation. There is nothing clear and unequivocal here. It looks and sounds like bureaucratic sour grapes. The American people won’t go for that.

        In fact, I’d be willing to wager the majority of people listen/read/hear about the testimony and think to themselves, “These state department assholes are arrogant AF. They need to be fired. The POTUS decides foreign policy, period”

        1. Ah. So second hand knowledge isn’t good enough, but all first hand knowledge is privileged.

          Come on, man.

          Your wager is in the ‘no one I know voted for Nixon’ level of nigh-solipsism.

      2. They could as easily have had Cher get up there and say that. She at least has met Trump.

      3. “You mean the part where Taylor said there was a quid pro quo for corrupt reasons?”

        Where did Taylor get his insights into those reasons? From a New York Times article after the fact.

        Good grief.

        1. Indeed, I found that kind of shocking: They had the guy testifying, essentially, as to what he’d read in a newspaper.

          That sort of thing makes hearsay look solid.

          1. The NYT article was quoting what Trump said, so…

      4. The part where Taylor said he has never talked to Trump.

    2. They might barely get a majority of the Democratic caucus to impeach, but they won’t get a majority of the House.

      I’ll take that bet.

      1. I predict Pelosi and Hoyer as both no votes on impeachment.

        I’ll take those also. Give you 6-5.

    3. Nah, they’ll get a majority of the House. The Democrats have a terrifying level of party cohesion on anything they consider important. Have had it for as long as I can remember. I’ve seen them get votes out of members that everybody knew were political suicide, but they got them anyway.

      1. How many Republicans voted to advance the investigation the other day? Even a bigoted birther must recognize that the ‘Democrats are bad because they stick together’ argument is lame in this context.

        Or, considering the conclusions most right-wingers have reached about our world and society, maybe not.

        Carry on, clingers. So far and so long as better Americans permit, that is.

      2. Pelosi is smart enough to think about one comes next after they vote for impeachment. Here is the nightmare scenario for her of what a Senate trial could look like:
        1) The Senate votes rules that disallow any hearsay evidence. That disallows just about every prosecution witness except perhaps Sondland.
        2) They allow Trump to put on a full throated defense on why he would think there should be an investigation of Biden firing the prosecutor and reopening am investigation into Burisma’s payments to Hunter.

        And don’t think Lindsey Gramm and McConnell wouldn’t threaten to do exactly that one they are in charge. The Democrats have got to realize that as much as they and Schiff are in charge now, Gramm and the GOP can take charge in the Senate.

        1. Kazinski : “The Senate votes rules that disallow any hearsay evidence”

          We’re listening to so much hearsay evidence because the White House is blocking testimony from Rudy Giuliani, Mike Esper, Rick Perry, Mike Pompeo, Mick Mulvaney, John Bolton, Charles Kupperman, John A. Eisenberg, Pat Cipollone, and a score more critical witnesses.

          What happens when the “judge” issuing those subpoenas is Chief Justice Roberts, presiding over a Senate trial? Will stonewalling get more complicated then? I admit not knowing….

          Kazinski : “They allow Trump to put on a full-throated defense on why he would think there should be an investigation of Biden firing the prosecutor and reopening am investigation into Burisma’s payments to Hunter”

          Biden pressured Ukraine on orders of the President, following the directive of the State Department, for policy aims of the United States government, at the request of the European Union, in conjunction with similar pressure from the World Bank, and along with parallel action by the IMF and European Bank for Reconstruction and Development. Biden’s pressure was applauded by every reform group in Ukraine, who then cheered when it proved successful. No “investigation” of Biden’s pressure over Shokin will ever find any fault, because that’s contradicted by every single fact.

          Also : Investigating what about Burisma’s payments to Hunter? At the exact same time the company rented a “Biden” for their corporate board letterhead, they also purchased an ex-Polish president, Aleksander Kwaśniewski. If I had to guess, I bet Kwaśniewski knew no more about energy commodity trading than Hunter. He was just another “name” added for surface prestige.

          And that wasn’t all : The company also tapped Alan Apter, an well-respected investment banker as its board chairman, brought in a entirely new executive team and hired established international firms to audit its reserves and financial results

          Now was that all cosmetic? Almost surely, but that’s the point. Hiring little Hunter was part of a package, something akin to Extreme Corporate Makeover – The Realty TV Show. Tell us : What do you think this investigation of corporate PR will expose?

          1. Kool Aide drinker knows that when the truth comes out, everyone will also be down with the Kool Aide.

          2. “Giuliani pressured Ukraine on orders of the President, following the directive of the Executive Branch, for policy aims of the United States government….”

            See the problem?

            1. Giulliani works for the US government? The policy aims of the US government are to announce investigations of Trump’s political opponents?

            2. Trump created a secret “foreign policy” for his own private benefit alone. It was run by his personal attorney Giuliani, along with two low grade crooks as Rudy’s legmen. The other main players were Rick Perry, who was on board to deliver a Ukrainian natural gas contract to a long-time supporter (which he did) and Gordon Sondland. As Ambassador to the European Union this wasn’t even Sondland’s remit, but he was chosen for being such an eager lapdog.

              Trump involved State Department mechanisms when they helped, but when United States policy goals interfered with Trump private gain, the latter always took precedent.

              The contrast with Biden’s pressure on Ukraine couldn’t be more stark. That was backed by the President, United States policy goals, our European allies, Ukrainian reformists and bipartisan support in Congress.

      3. The Republican level of cohesion doesn’t terrify you?

        I guess not, but only because you tend to like their positions. Gee, Brett, can you see anything objectively?

        1. To be fair, it’s not Brett alone. Go on any site which offers comments from the Hard Right or Hard Left and you always see the same ritualistic opinion:

          (1) The Other Side is always fused into a horrific cohesion, willing to ignore any doubt or ambiguity in their ruthless quest for world domination.

          (2) Their Side is always timid & divided, weakened by second guessing and namby-pamby ethical doubt.

          Ya gotta think most of the people doing this tribal song&dance have been exposed to their opposites playing the same tune. You have to wonder how they don’t get the absurdity of it……

    4. They might barely get a majority of the Democratic caucus to impeach, but they won’t get a majority of the House.

      I predict Pelosi and Hoyer as both no votes on impeachment.

      If this is laughably wrong, will you make one final post, “I am a partisan idiot” and then stop commenting in shame?

  10. Judge Alcee Hastings was impeached and removed from office after he had been acquitted in a criminal trial of the same conduct. In any other context, that would be double jeopardy. Acquitted attorneys have been disbarred under similar circumstances.

    And I think the answer in all cases is the same: Just as with bar discipline, impeachment serves a different function than a criminal proceeding, so the rules are different. In an actual criminal proceeding, where life and liberty are at stake, the stakes are high enough to give someone far more rights. The purpose of impeachment, and bar discipline, is to protect the public. So you focus primarily on protecting the public. That doesn’t mean the accused has no rights at all; it means they are significantly less than they would be if the accused were facing a jail sentence.

    Whatever one thinks of Trump’s policies, I don’t think there’s a reasonable argument to be made that the abuse of power he demonstrated by withholding aid from a foreign government unless they investigated his political rival doesn’t render him unfit for office and a danger to the republic. If he’s willing to abuse power in that fashion, God only knows what he’ll do next. And that, for me, settles the question.

    1. It surely can’t be an abuse of power if there is a reasonable predicate.

      Do you believe there was no reason to look into Hunter and Barisma?

      1. I can think of lots of examples in which it would be an abuse of power even with a reasonable predicate, including this one. I don’t know if there was reason to look into Hunter and Barisma or not, but even if there was, there’s a long list of reasons you don’t ask foreign governments — much less extort them — to go after your political enemies. The power of the presidency is to be exercised for the benefit of the American people, not for one’s own political gain, a concept this president seems not to understand.

        Should a police officer, who has access to police files and DMV records, use that information to check out people he’s interested in dating? It’s the same principle.

        1. So you seem to think you and your family becomes immune from investigation if your running for president or a member of the opposite political party from the administration.

          Did you think Trump was immune from investigation when he was running in 2016?

          1. Sam, what I think is that you’re conflating multiple issues.

            Neither Trump nor the Bidens are immune from investigations by anyone who wants to investigate them. If the Ukraine wants to investigate the Bidens, that’s their business.

            But when the President ties delivery of foreign aid to having a foreign country investigate one of his rivals for political purposes, that’s an abuse of power. If I have a friend who is an FBI agent, and I call him and tell him I’ll pay him to investigate one of my business rivals, that’s illegal, even if my business rival really is guilty of whatever I’m trying to have investigated.

            If you honestly can’t tell the difference, I’m not sure I can explain it to you.

          2. “I bribed the judge to rule for me, but it is okay because my position was legally correct” is not a defense, nor need the merits of the “legally correct” position be litigated in the criminal trial because the issue is irrelevant to whether the crime was committed.

      2. Another question is why you would ask the President of Ukraine to get involved and make the announcement Trump was looking for.

        Suppose, hypothetically, Biden was doing some sort of favor for Ukraine in exchange for his son’s deal. Wouldn’t that be a violation of US law? Shouldn’t the FBI be the ones to investigate that? Sure, they might end up asking for some cooperation from Ukraine, but it should all star with “We think Biden did this to get his son his job.” And that ought to start here in the US.

        Of course that wasn’t Trump’s concern. He just wanted the smear, without having his hand or Barr’s on it. So he does what he plainly did.

        1. Is there any evidence that a public announcement of an investigation was tied to aid?

          Any direct evidence that is.

          1. Put Mick Mulvaney, John Bolton, Mike Pence, Mike Pompeo, etc., on the stand, and there will be. No one who has thought about this for more than five seconds is impressed by this “secondhand” argument.

    2. I don’t think that’s true. I think Alcee Hastings was acquiitted of a substantive crime (Bribery or something similar); his co-conspirator was convicted on essentially the same evidence. Then Hastings was impeached for lying or misleading, not for the bribery-type offense.

  11. Basically, yes.

    Legally speaking Congress can impeach anyone for any reason it sees fit, regardless of just about any procedure. The Democrats in the House can say “we don’t like person X” for whatever reason (maybe they have a funny accent) and as long as they have a majority, they can vote on it and say “Impeached!” and the person is impeached, and to the Senate for a trial. They need call no witnesses, they can do everything in secret, etc. The Senate just then needs to convict with a 2/3rds majority. No real reasons needed. A quick mock trial, with procedures up to the Senate, and done. (Fun quick fact, with a bare majority in the House and 2/3rds of the Senators, a party can take over the government, and probably change the rules so they do it forever. Impeach whoever they want, kick out all the senators they don’t like, etc).

    Of course, if you want to look like you’re not an abusive authortarian government, you do this according to norms and procedures. You hold a fair trial. You follow previous precedent. You allow common due process that is often used in simular types of trials around the world and within the common legal tradition. “Legally speaking” none of that is actually required. Until someone abuses it totally and the law is changed.

    1. No, you do all that stuff if you want to not BE an abusive authoritarian government.

      If you just want to “look” like you’re not an abusive, authoritarian government, you put on a show trial and pretend you’re following norms and procedures, while actually running roughshod all over them.

  12. It’s “interesting” that any lawyer can argue on behalf of Donald Trump, whose whole being is the antithesis of the rule of law. Trump recognizes no law but his own appetite. On a (relatively) minor point, Trump, as commander in chief of the armed forces, routinely tweets his opinions on criminal cases, a grotesque example of “unlawful command influence”. The New York Times recently ran an article “The Navy Wants to Push Out Problem SEALs. But Trump May Get in the Way.” that contained the following paragraph:

    The president has previously made it clear that he believes the country should tread carefully when calling American troops to account for acts of war. Only last week, he announced on Twitter that the White House was reviewing the case of Maj. Mathew L. Golsteyn, a former Army Special Forces soldier charged with murder in the death of a Taliban bomb maker in Afghanistan. “We train our boys to be killing machines, then prosecute them when they kill!” Mr. Trump wrote.

    Yes, this is the man lawyers should want in the White House. (Unlike Donald Trump, I served in the army in Vietnam. I was not trained to be a “killing machine”, but a soldier who was expected to believe in “Duty, Honor, Country”, at least in theory.)

    1. That’s just prosecutorial discretion like DACA.

      Right?

      The Commander of the Navy should set the standards of the Navy.

      1. Something can be formally legal but lawless.

        But what do you care about law, don’t you advocate killing liberals? That’s not super legal either.

        1. You keep smearing me with that claim. Are you confused?


          1. Sam Gompers
            November.9.2019 at 12:46 pm
            It’s too bad we didnt get rid of the communists and socialists in America.

  13. I’m in Asia seeing things from afar, so maybe I’m not getting the whole scoop, but Taylor saying he’s not a star witness for anything and admitting that he had no conversations with Trump, and never discussed any quid pro quo with Zelensky didn’t make compelling testimony.

    And really the thing that really clinched it for me that there is nothing there is the BBC’s breathless take was that Taylor said his aide told him that he overhead half a conversation with Sondland on July 26th, and Sondland said Trump cared more about the investigation than about Ukraine.

    Wow. Some smoking gun. We already know there couldn’t have been any quid pro quo in July, and there was no investigation then.

    But the biggest reason we know the impeachment is going nowhere is because Biden is still ahead in the polls.

    There is no way Trump is going on trial in the Senate without making Biden’s firing of the Ukrainian prosecutor the lynchpin of his defense, and of course Hunters taking hundreds of thousands from a corrupt oligarch. That’s obvious now, and Pelosi and the the moderate Dems won’t allow that. Especially since Trump won’t get convicted anyway. They aren’t going to sacrifice Biden unless they are sure of removing Trump.

    1. It’s not just distance. I had an interesting conversation with my wife last night; She’s a naturalized citizen, originally from the Philippines. We don’t usually discuss politics, because we’ve got too much to discuss that isn’t politics. (Menu for the coming week, magnet school applications for our kid. Normal family stuff; Who discusses politics inside their family? Crazy people, I guess.)

      But she had a day off, and left the TV news on while lazing around the house with a cold. (For filipina housewife values of lazing around, of course, which is actually pretty busy.) And it was nothing but impeachment. So she wanted my take on what was going on, because she couldn’t for the life of her figure out why he was being impeached. Even the regular network coverage, not FOX news (Which we don’t watch in our house, shocking as some people will find that.) left her puzzled about what he was supposed to have done that was actually bad enough to justify removing him.

      I’ve made this observation before: The Democrats case against Trump doesn’t persuade anybody who didn’t already want him gone. It’s just a complete nothing burger so far as anybody who didn’t already hate him is concerned.

      That may be enough to get him impeached by a House that has a Democratic majority, but it isn’t remotely enough to get him convicted in the Senate. And, as you say, the most obvious defense for him to mount is proving Biden corrupt. So, why would they want that trial?

      I think maybe they’ve got themselves into a corner: They’ve been telling their activist base that Trump is a monster for so long, they’d have no way of explaining a decision to NOT impeach him.

      1. I’m sure you gave her a fully objective account.

        The Democrats case against Trump doesn’t persuade anybody who didn’t already want him gone.

        The Republican defense doesn’t persuade anyone who is not a Trump idolator.

        1. That’s a bit tendentious but seems to be basically accurate: as with the Mueller report, the people who already disliked Trump have decided this is disqualifying, while the people who liked him think it’s not a big deal. And I don’t see any developments in these hearings changing anyone’s mind over the next few weeks.

          1. Even if that’s what you think, it’s the usual “my side is standing firm on principle, your side is conspiring against the common good” crap from Brett.

    2. Sorry, but I don’t see the relevance of anything the Bidens may have done. The Bidens aren’t on trial. I’m not even sure they’re witnesses. The issue is whether Trump abused power, not whether someone else may also have acted improperly.

      1. “The Bidens aren’t on trial.”

        Legally, no. Politically, yes.

        1. Bob, for once I actually agree with you. If Biden is the Democratic nominee, the voters can decide in November if whatever his son may or may not have done should disqualify him from the White House. Congress, on the other hand, is concerned with whether, legally, the President abused his power. So you’re right; that’s two separate questions. And “but what about the Bidens” is not a legal defense.

          1. Here is the thing, it’s all political.

            So when the Democrats are running the agenda it’s all about Trump corruptly trying to railroad St. Joe.

            When the GOP is running the agenda you will hear almost nothing but how Biden and his family were running the Vice Presidency as a racket and why Trump felt the need to save the US’s reputation from the Biden/Obama corruption machine.

            You don’t have to think Trump is innocent to think Biden and family were milking what they thought was their last opportunity to get rich 2012-16 for all the cash they could get.

            1. Hunter Biden was surely milking his last name.

              Whether Joe Biden did anything in exchange is a different matter, and we have zero evidence that he did. Trump didn’t need Ukraine to investigate. He has plenty of investigative resources right here in the US.

              And don’t repeat that crap about the firing of the prosecutor.

            2. The question is not whether Trump was “corruptly trying to railroad St. Joe.” Rather, the question is whether he abused his power by inviting a foreign power to influence our election, which is quite a different question altogether.

              Anyone who tries to make this about the Bidens is simply creating a distraction, and “but what about” is not a legal defense.

              1. No it’s not a “whatabout”.

                Trump asked Ukraine to investigate the Bidens. Stipulated.

                The Democrats claim he had a corrupt motive. Are you saying Trump shouldn’t have any opportunity to present a defense of having a legitimate motive? If there was any corruption involved in either Hunter getting a big payday when his father was the Ukrainian point man for Obama, or Joe knew or should have known than the prosecutor he got fired was a problem for his son’s employer then that provides a legitimate non-corrupt motive. That would be a legitimate defense in court, it should be a legitimate in the House, and if need be it would be a legitimate defense in the Senate.

                1. Let’s further stipulate that there is enough uncertainty to justify a legitimate investigation of the Bidens that is not based on a corrupt motive. Can we then drop Hunter Biden from the witness list?

                  The question then becomes was Trump motivated by this uncertainty and legitimately concerned about Ukrainian corruption? If he was, perhaps he should have requested the DoJ to launch an investigation a couple years ago instead of turning it over to Giuliani. Perhaps he should be interested in investigating other aspects of corruption as well (see Mitt Romney’s tweet). Perhaps yesterday’s revelation that Sondland first-hand heard Trump say he was more interested in the Bidens than Ukraine is important.

                2. Kazinski, legitimate motive has nothing to do with it. If I rob a bank to feed the homeless, I am still guilty of a crime and going to prison, no matter how laudable my motive may be.

                  Assume the Bidens are the most corrupt people who’ve ever existed. Assume Hunter was robbing the Ukraine blind. Even assuming all of that to be true, the problem is the method by which Trump went about it. His method was an impeachable abuse of power. Which is why the Bidens are largely irrelevant to this conversation.

                  1. Is that really correct? I agree with you that even if the Bidens were the most corrupt persons who ever existed, the President would not have the right to hold up foreign aid to Ukraine that had been authorized by Congress in an attempt to get Ukraine to investigate them. But if they truly were that corrupt, that would surely be a mitigating circumstance that might support an argument that Trump should be censured but not impeached. I don’t believe they were that corrupt, particularly Joe, but I’m not sure I buy your argument about the probative value of their testimony.

                3. No, actually, he pressured Ukraine to ANNOUNCE that it was investigating the Bidens. Conducting a quiet investigation would not have served his purposes.

                  As for whether his motive was corrupt, the witnesses yesterday testified that Trump had no interest in “corruption” unless it involved the Bidens, even though there’s plenty of corruption in Ukraine and elsewhere. That’s pretty dispositive right there. But if the White House wants to authorize Pompeo, etc. to testify to Trump’s pure motives, it can certainly do so. It isn’t. Why oh why could that be?

                4. Trump asked Ukraine to investigate the Bidens. Stipulated.

                  No. He asked Ukraine to announce an investigation of the Bidens.

                5. Are you saying Trump shouldn’t have any opportunity to present a defense of having a legitimate motive?

                  Let’s hear from his buddies in the whole plot. You can’t claim he’s being denied the chance to present a defense when he prevents those who could testify in his defense from appearing.

                  What I see right now is GOP’ers in the hearings making zero case, presenting no exculpatory facts, and generally acting like jackasses.

          2. “not a legal defense”

            Its not a legal proceeding, its a political one. Anything can be a “defense” of sorts, meaning sufficient to maintain GOP support.

              1. “Nihilism.”

                No, politics.

                Were the 1997 Democrats “nihilists”? They defended Clinton to the last.

                How often has “substance” or “legal” ever been the deciding factor in politics?

                The GOP may or may not suffer at the polls if they defend Trump to the last but they will certainly suffer if they don’t. Primary challenges, Trumpists staying home etc.

                1. Caring only about what the immediate outcome will be to the point of ignoring the truth? Not drinking the kool aide and going for the tin foil, but just full-on not even mentioning evidence and events as anything other than political risks and benefits? Nihilism.

                  I still defend Clinton for the impeachment being ridiculous for what he did. Dems in 1997 defended Clinton for more. They were at least true believers. You’re just calculating. Trump will get away with it, so why does anyone care? That’s chilling, actually.

                  Say what you will about the tenets of National Socialism (or tribal Democratism, but at least it’s an ethos!

                  1. “They were at least true believers. ”

                    No political calculation. Nope. Only republicans act politically. Pull the other one.

                    “That’s chilling, actually.”

                    What is chilling is a conspiracy of bureaucrats at CIA, State and even the Army to undermine the elected president. Aided and abetted by a corrupt mass media and a morrally bankrupt left wing baby killing party.

                    This whole effort is just a continuation of the unhinged, hysterical reaction to Trump beating Clinton that literally started the morning he won.

                    1. Yeah, maybe some Dems in the 90s were as venal as you are today, Bob. Congrats.

    3. You may not have considered that there are probably upwards of 90 people in the senate who have family members exploiting their own respective relationships to U.S. senators for career advancement purposes. I don’t know that the senate is going to be quite as eager to make that simple fact seem criminal as you think.

      1. Don’t overlook Ivanka and the boys.

      2. “I don’t know that the senate is going to be quite as eager to make that simple fact seem criminal as you think.”

        Maybe not but we are still getting an acquittal. Corrupt or not, the GOP isn’t setting itself on fire to appease the Resistance!!!!

        Biden is still going to be tried by GOPers, in or out of the Senate.

  14. Rather embarrassingly for Prof. Calabresi, the Sixth Amendment does not apply in “all criminal proceedings” – it applies in “all criminal prosecutions.

    I would not have thought that either the House to Senate impeachment proceedings would be accurately characterized as a criminal prosecution. On the other hand, I also wouldn’t have thought they could be characterized as a “judicial proceeding”, and yet the consensus seems to be that they are, for purposes of disclosure of the Mueller grand jury material.

  15. There’s a big difference between “this is unconstitutional” and “this isn’t fair.”

    Constitutionally, the House of Representatives doesn’t have to hold any hearings at all before voting on articles of impeachment. They are within their rights to do what they are doing now.

    1. True. It’s clearly constitutional. But what goes around comes around, and next time it may well be that a Republican-dominated House is investigating a Democratic President. In that situation, will the Democrats want the Republicans to use the same procedures that they are using now? It’s something they need to think about.

  16. Of course it’s a show trial. That’s been clear from the beginning. The House was going to impeach, no matter what, and the Senate is going to refuse to remove from office. Everything else is just grandstanding with an election coming up.

    1. If they were going to impeach, no matter what, they would have done it about 8 months ago.

  17. It is important, instructive, and delightful that the founder and chairman of the Federalist Society is, after decades of careful and strenuous work to try to make movement conservatism respectable in our society, unwinding his partisan polemics at the Daily Caller.

    The Daily Caller. Publisher of white supremacists, nonsense, and more white supremacists.

    Movement conservatives attempting to operate in the American mainstream are a paltry bunch, and increasingly so. The culture war is becoming a rout.

    1. I always knew the Federalist Society were ideologues as much as idealists. But now they’re joining much of their partisan brethren in divesting of all beliefs other than owning the libs.

      1. “Ed Whelan@EdWhelanEPPC
        Today’s confirmation of Menashi will flip CA2 to a majority of Republican appointees.
        Next week’s confirmations of Lagoa and Luck will flip CA11 to a majority of Republican appointees.”
        11:26 AM – 14 Nov 2019

        1. The degradation of the judiciary continues apace.

        2. Don’t worry too much about that. The composition of those circuits will change again when the Democrat is elected in a year.

          1. “when the Democrat is elected in a year”

            Better get the Senate too

        3. Oh and an addendum to my previous comment. The poorly qualified appointees will probably quit in short order because the don’t have the chops to handle the job they have been handed. You know all the negative reinforcement they will receive because they are unable to perform their duties effectively will make going to work a daily trial.

          1. Don’t get your news from bad sources. They are all qualified.

            Being a judge is far easier than being a lawyer.

        4. Yeah, not doing your ‘I have morals’ argument any favors there, Bob.

          And now you’re dragging the Federalist Society down with you.

          1. Oh noes, I have made you sad.

            1. Don’t worry about me, I’m a pretty happy dude. I’m just pointing out how your position makes you look like a moral void.

  18. “In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights.”

    No, they didn’t, because there are no sixth amendments rights to give.
    They may have given Nixon and Clinton opportunities that Trump isn’t getting… but the source of these opportunities is the House, not the sixth (or any other) amendments.

  19. Republicans complaining about tradition in government operations is laugh out loud funny.

  20. Actually I’m more concerned Biden will “get away with it” more than Trump.

    It seems to me that Biden threatening to withhold 1b of aide in order to protect his son’s illegitimate payments from a corrupt oligarch is much more concerning than Trump wanting the investigation restarted, per our treaty obligations by the way.

    If Trump believes Biden had a corrupt intent when he got the prosecutor fired, I think he had an affirmative obligation to get the investigation restarted. Or do you think once Biden got the prosecutor fired he has blanket immunity, or did he become immune when he declared his cadidacy? That’s an interesting standard.

    1. Good lord, man, there are loads of places on the Internet to read that show that the actual timeline doesn’t comport with your Biden scenario.
      There are also contemporaneous accounts of why the aid was withheld, and it wasn’t by Biden nor was it to protect Biden’s son.

      As to Trump having an obligation to get a foreign investigation of his rival restarted…I begin to see why you’re so into facts that aren’t.

      1. I’ll stipulate that everything Joe says needs to be fact checked, and not necessarily because he is lying.

        But there is evidence that Burisma was working on the state department to reign in the investigation before Joe got the prosecutor fired. You can also read the emails John Solomon got from the State Department showing Archer using Bidens name:
        “Recently obtained State Department emails, made public through a FOIA request, indicate Burisma’s consulting firm noted “two high profile U.S. citizens (including Hunter Biden as a board member) affiliated with the company” when requesting a meeting with State Department officials to discuss the validity of the U.S. government’s classification that their client, Burisma, was corrupt.”

        1. Once again, it is quite clear from contemporary reports across the anti-corruption diplomatic world that Burisma was under no danger so long as that prosecutor was kept in his position.

          And wow. Using Biden’s name? Extremely small potatoes compared to the clearly and extremely wrong scenario you posted above.

          And, of course, none of it is actually relevant to Trump’s wrongdoing.

          Trump has an affirmative obligation to use foreign aid to pressure other countries to do his investigating for him. Actually never mind, an announce of the investigation is all that really matters.

          Come on, man. Next you’ll be posting Sandy Hook truther BS.

        2. Seriously, Kazinski, find a reliable news source. Your predicates are so counter-factual you’re embarrassing yourself.

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