Impeachment Based on Improper Motives

|The Volokh Conspiracy |

The House Judiciary Committee released a report titled "Constitutional grounds for presidential impeachment." The report conceives of two ways that an "impeachable abuse of power" could constitute "high Crimes and Misdemeanors." First, "the exercise of official power in a way that, on its very face, grossly exceeds the President's constitutional authority or violates legal limits on that authority." Second, where "the exercise of official power to obtain an improper personal benefit, while ignoring or injuring the national interest." That is, where the official "engag[es] in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit)."

The latter concept describes the legal theories behind many prominent challenges to President Trump's exercises of authority. In case after case, both sides agreed that the President has the authority to take some action, but this President could not take those actions because of an improper motive: the travel ban, the citizenship question on the census, the DACA rescission, etc. Now, this well-worn argument will likely serve as the basis for an article of impeachment: the President can ask foreign governments to investigate possible corruption, but this President cannot make such a request because doing so could harm his political rival.

I've questioned whether this sort of framework is appropriate for the courts, but I do not have the same reservations for the impeachment process. Members of the House can certainly question the President's motives when deciding whether to approve articles of impeachment. And Senators likewise can consider presidential intent when deciding whether to acquit or convict. Indeed, this type of argument makes some sense to many constituents: why should the President be able to take public actions that privately benefit him.

My focus, as always, concerns the precedent this proceeding will establish. Yes, I am far less concerned about what happens to President Trump then I am concerned about what happens to the next President, whoever he or she will be.

Impeachment premised on some express violation of law will always be controversial. But at least proponents can point to some clear standard that justifies removal. Bribery has elements. Treason has elements. Violation of a statute (like obstruction of justice) has elements. Even impeachment based on the refusal to comply with congressional subpoena is premised on a discrete act. Every White House can know ex ante that failing to respond to a subpoena could give rise to impeachment. Presidents have some notice of what is expected of them, and can accordingly mount a defense during the trial.

However, impeachment for an "abuse of power" based solely on "corrupt" intent gives Presidents no notice, whatsoever, of what is expected of them. There is a nearly infinite range of conduct that can fall within this category. The House report explains, "[t]here are at least as many ways to abuse power as there are powers vested in the President." Virtually anything the President does can give rise to impeachment if a majority of Congress thinks he had an improper intent.

The decision not to include an article based on bribery because it has "technical statutory requirements" evidences how malleable these proceedings are. The House didn't want to risk making the charges too precise to satisfy an enumerated standard, so they reverted to an unenumerated standard.

This choice echoes an important debate from the Constitutional Convention. On September 8, 1787–nine days before the conclusion of the convention–George Mason offered a proposal to expand the list of impeachable offenses. He would have added "maladministration," in addition to treason and bribery. Mason reasoned:

Why is the provision restrained to Treason & bribery only? Treason as defined in the Constitution will not reach many great and dangerous offences. Hastings is not guilty of Treason. Attempts to subvert the Constitution may not be Treason as above defined. As bills of attainder which have saved the British Constitution are forbidden, it is the more necessary to extend: the power of impeachments. He movd. to add after "bribery" "or maladministration."

James Madison disagreed. He said, "So vague a term will be equivalent to a tenure during pleasure of the Senate." Masons's proposal was rejected.

I see little difference between "maladministration" and the allegations here: President Trump engaged in an "abuse of power" based on a "corrupt" intent, where there is no clearly identified offense. Such a capacious standard fails to accord with any notions of fairness for the accused, and risks transforming impeachment into an inescapable feature of our political order.

Jonathan Turley's much-derided, and quite misunderstood testimony, ably captured this concern. He wrote:

In this age of rage, many are appealing for us to simply put the law aside and "just do it" like this is some impulse-buy Nike sneaker. You can certainly do that. You can declare the definitions of crimes alleged are immaterial and this is an exercise of politics, not law. However, the legal definitions and standards that I have addressed in my testimony are the very thing dividing rage from reason. Listening to these calls to dispense with such legal niceties, brings to mind a famous scene with Sir Thomas More in "A Man For All Seasons." In a critical exchange, More is accused by his son-in-law William Roper of putting the law before morality and that More would "give the Devil the benefit of law!" When More asks if Roper would instead "cut a great road through the law to get after the Devil?," Roper proudly declares "Yes, I'd cut down every law in England to do that!" More responds by saying "And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!"

Both sides in this controversy have demonized the other to justify any measure in defense much like Roper. Perhaps that is the saddest part of all of this. We have forgotten the common article of faith that binds each of us to each other in our Constitution. However, before we cut down the trees so carefully planted by the Framers, I hope you consider what you will do when the wind blows again . . . perhaps for a Democratic president. Where will you stand then "the laws all being flat?"

The analogy to A Man for All Seasons is apt. For many people, Trump is the embodiment of the devil. Evil incarnate. And resisting him, at all costs, has preoccupied much of the last three years of our polity. Impeaching the President for an "abuse of power" premised on a "corrupt" intent will serve that present purposes. It will make some people feel like they've served a bigger historical purpose, and stopped a corrupt, tyrannical president. But this process–already a foregone conclusion at this point–will trigger consequences far worse during the next battle over improper motives. And at that point, alas, "the laws [will be] flat." We should "give the Devil benefit of law, for [our] own safety's sake."

NEXT: Will Chief Justice Roberts miss any Court time during a Senate impeachment trial?

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  1. It’s my reading as well, and one of the biggest reasons why, even though I don’t support Trump, I do oppose these impeachment proceedings on these grounds.

    “Corrupt intent” is in the eye of the beholder, and is infinitely morph-able. It makes just about every action a President makes potentially impeachable.

    And while Congress has the right to decide the grounds for impeachment, however they want, a just Congress wouldn’t such a massively vague standard.

    1. It would be very difficult to tell from the substance of your comments that you don’t support Trump.

      1. It would be very difficult to tell from the substance of your comment that you understand the difference between not supporting Democrat Socialists and supporting Trump. The world is not black and white.

        1. Unlike race and sexuality?

      2. Bernard,

        When Trump won the GOP nomination for presidency, I wasn’t happy. I would’ve preferred almost any other candidate. I thought about contested conventions, and other ways to change things. But then I thought deep into the nature of the situation. Trump, however much I believed he would make a poor president, was the choice of the people in the GOP primary. And what right did I have to overturn the will of the lawful democratic process that gave him the nomination? Wasn’t the system of government more important than a poor candidate? The system could control a poor President, but the damage done to the system trying to overturn the rule of law would be far worse, in my opinion.

        When it came to the general election I voted 3rd party. Trump was (and still is) a poor president. But Hillary represented a continuing corruption of the system of government. That corruption, is in many ways worse than just a bad president. And it presents itself in a multitude of ways, whether it be friendly “charities” to be donated to or family members who strangely get very lucrative jobs with foreign corporations, or dozens of other issues that neatly skirt the edge of the law. And I’m sure lawyers can find a way for them all to be completely “legal”…but there’s a difference between legal and the right way to do things.

        And that’s really what I oppose. Not doing things the right, ethical way, the way they were meant to be done. And yes, Trump’s a bad president, loud-mouthed, arrogant, who is impossible to work for, and not the brightest bulb. But bending and breaking the system to get rid of him isn’t right. And it does more damage to the system than its really worth.

        1. Bernard is the volokh idiot. Dont bother with him. He is a pure partisan that simply uses less vulgar phrasing than Kirkland.

          1. Who do you perceive or assert to be the nonpartisans or other-than-pure partisans at the Volokh Conspiracy?

            1. Because of people like me, an anti-partisan.

              I’d be quite happy (philosophically) if mass lightning strikes wiped out anyone attending a Republican or Democrat convention – and would even generally take it as a fair deal to include Green and Libertarian conventions.

              Of course I don’t want the loss of lives, but if anyone who attends such things became an apathetic non-voter overnight we’d all live in a better world almost immediately.

              1. Dude, you’ve said you’re voting for Trump over all the Dem candidates. I don’t know why you’re pretending otherwise now.

                Well, I do, but it’s pretty disingenuous.

                1. You mean you don’t understand why one would vote for a sleazeball who doesn’t say he plans to overthrow the economic (Medicare for all, free everything for all) and social (abolish the electoral college) order, instead of one who’s explicitly stated that intent?

                  This presidency has broken you Sarcastro, and I hope you get it fixed. You now seem to think that voting for the lessor evil is somehow partisanship, and I think that says a lot about how you think about the world now.

                  We may both prefer an effective government that seeks the ends we want, but I’d prefer an ineffectual government that seeks bad ends over an effectual one who does the same.

                  Caveat: if Tulsi won the nomination I’d vote for her. I disagree with lots of her policies, but she’s not crazy.

                  1. You very clearly have a rooting interest, and to deny it is silly.

                    1. Yes, it’s a pretty clear anti-partisan interest, but for anti-Trump partisans that’s indistinguishable from partisanship favoring the other guy. That is after all how partisans work.

                      You know some of us actually have consistent standards, and while the old adage that “ if (your opponent) didn’t have double standards they have no standards at all” was proven to apply to the Republican starting around 11 years ago the Democrats proved it applied to them 3 years ago. You may be enough older than I to have come to that conclusion in a prior cycle, but if so you didn’t learn the lesson

                    2. You have done nothing but defend Trump in the month or so since I got here. I don’t know if you’re lying to yourself, or just to us, but not many are buying it.

                    3. He’s getting a head start on disavowing support of Trump . . . in a few years, very few people will be willing to admit publicly that they supported Trump.

                      It will be similar to trying to find someone who acknowledges being a vicious racist in the 1950s or 1960s, even in Alabama or Mississippi. Those blacks were beating themselves, and those Freedom Riders not only committed suicide but also buried themselves . . . if you are credulous enough believe the current alibis among southern bigots.

                    4. You’re dancing around the problem, and as usual Kirkland (I’ll not do you the disservice to lump you in together) nails it on the head, likely unwittingly.

                      Kirkland things I support Trump. You think I defend Trump. But the point made in every comment is that I find the anti-Trumpian actions abhorrent, so if AG Barr had not already quoted A Man for All Seasons I’d be doing so now, but it’s just those niceties of not always attacking people who disagree with you as bad faith actors (as Nieporent does below) that we’re losing.

                      Maybe we never had it, and I just had rose colored glasses on, but if not that’s a real problem for a nation.

                      I mentioned it elsewhere (maybe even on this very thread) that where this leads was fictionally explored in Tom Kratman’s A State of Disobedience (which you can read for free from Baens free library online), and that terrifies me.

          2. No, Bernard is honest. He has firm views, no doubt, but he is honest, in my experience.

            1. Agreed. Wrong, but honestly wrong 🙂

              Something many other commenters here have a problem with, assuming that someone with differing views could only hold them in bad faith.

        2. I consoled several co-workers by pointing out to them that if the electoral college couldn’t come to an agreement, and the Congress couldn’t either (and if the first happened the second was likely) then we’d end up with a President Ryan – and that would have been better than either alternative. Some of each party even suggested that a brokered deal would be worth it – Ryan plus a Democrat VP and not risk Trump/Clinton.

        3. Thanks, A.L.

          But Hillary represented a continuing corruption of the system of government. That corruption, is in many ways worse than just a bad president. And it presents itself in a multitude of ways, whether it be friendly “charities” to be donated to or family members who strangely get very lucrative jobs with foreign corporations, or dozens of other issues that neatly skirt the edge of the law.

          Without getting into the particulars of this, I’ll just note for the record that Trump is no Boy Scout when it comes to corruption at the edge of legality or beyond.

          1. No, Trump’s not a boy scout. But remember, the system of Government can keep a lousy President in line, if so motivated (and it is). Any hint of corruption or unethical behavior can be quickly jumped on by the system and a properly investigative media.

            The real problem happens when the government system and media are compliant with and accepting of the corruption and unethical behavior. Then, you don’t hear about it, or only too late. And when you do, it’s swept onto page 6 quickly. And that’s really the problem. Hillary had a private e-mail server for years. Everyone knew. The reasons for it were clear…to avoid FOIA requests and personally control the e-mail. There may have been borderline legality, but it wasn’t “right”. But everyone went along, and nothing was said. Why? This system of non-compliance permeated through the government. A majority of the inspector generals in 2014 had to send a letter to congress noting the systematic blocking of information. That’s the problem

            1. Reinforcing that – it was a problem that Congress in its oversight role, and with an opposition party in control, chose to do nothing about. It’s the systemic passivity to malfeasance that’s the bigger problem.

  2. but this President cannot make such a request because doing so could harm his political rival

    Aye, there’s the rub: this President. Everything a President does is likely to harm some political rival; is this some open-ended gotcha law like loitering with intent, written only so anybody can be arrested at any time?

    The idea that a known corrupt political rival cannot be investigated is preposterous. If this weak tea is the best the Democrats can come up with after three years, the only thing good to come out of this will be making it easier to impeach every following President.

    1. That is exactly what will happen: when we have a Democrat president and a GOP House, we’ll simply have another impeachment. (A president who is fortunate to have a House of his same party will be blissfully free of this concern.) The currency of impeachment is being debased, soon it will be worthless or near-worthless. It will just be a permanent feature of partisan party politics.

      1. Quit whining, clinger.

        1. Dear Rev.:

          Your use of pejoratives against me, someone you don’t know and never will meet, is quite sad. You need help. Serious help. You’re a risible, pathetic soul.

        2. You misspelled ‘winning’

          1. You should write a book about that winning:

            “How Conservatives Turned The Culture War Tide After A Half-Century Of Getting Stomped; Took Over America’s Strongest Universities, Mainstream Media, And Successful And Modern Communities; And Made America Great Again By Bringing Back School Prayer, Statist Womb Management, Creationism, Voter Suppression, Gay-Bashing, And Fair Treatment Of White Males.”

      2. We’ll see.
        The GOP did not do great from impeaching Clinton, and became pretty gunshy about BS impeachments (though not about BS investigations – they really tried to get juice from the Benghazi stone well beyond what was sane).

        But declaring that the problem with this impeachment is that the next one will be dumb isn’t a great argument about this one. It’s telling, in fact, that you need to move on to a hypothetical abuse of the process to argue against this process.

        1. The chief reason the GOP did not do great from impeaching Clinton, is that the media were largely in the tank for the Democrats even then, reporting Democratic party talking points as straight news.

          Today they’re even deeper in the tank, and there are fewer Republican news outlets. The media headwind has become a media hurricane. Only now, as then, it’s blowing in a direction favorable to the Democrats.

          So I would not assume that impeaching Trump will blow up in their faces. The media will be working overtime to make sure that doesn’t happen.

          1. So I would not assume that impeaching Trump will blow up in their faces. The media will be working overtime to make sure that doesn’t happen.

            The Fourth Estate has done themselves no favors.

            1. They think they are. They’re auditioning for state subsidized media, like the BBC. If they do a good enough job throwing elections to the Democrats, they expect to be rewarded handsomely.

          2. While I agree with your assessment of the current situation I don’t think it will continue indefinitely. Given the old joke “there’s no truth in Pravda and no news in Izvestia,” I’d say that for a very long time the average Soviet citizen knew that he was getting pure propaganda and not a drop of news or truth.

            We were heavily propagandized during the Cronkite era but it was more difficult to see through it then because it wasn’t so obviously partisan. Once propaganda loses its veneer of truth or news it loses its effectiveness.

          3. And Trump would have a 95% approval rating were it not for the media.
            Your counterfactual world is a great refuge for you, I’m sure. And is a great way to convince yourself of you’re own oppression without needing any info but your own imagination.

            But we live in the real world, so it doesn’t say much useful to the rest of us.

            1. 95%? No, probably not. Given our high degree of polarization, probably not 75%, even. But given the lack of new wars of choice, and excellent economic numbers, he certainly wouldn’t be underwater if we didn’t have a media that were functioning as an unpaid PR firm for the Democrats.

              Note that I mostly blame this on the GOP: It’s perfectly understandable that the Democrats would want to control the media, what’s inexplicable is the Republicans letting them.

              1. Or maybe the GOP is just fine with media outlets that, oh, say, report on page A1 days before an election that the FBI’s investigation of Trump “saw no clear ties to Russia.”

                Some unpaid PR firm.

                1. So, your argument is that 95% bias isn’t bias, it has to reach 100% before it can be deemed bias?

                  1. The media operates with all kinds of flaws, biases and preconceptions. Some of them favor the GOP; in this instance, some reporters’ overly credulous reliance on highly motivated sources within in the FBI had a massive pro-Trump effect. The tendency to cover even moderately ambitious progressive tax legislation like it’s the Reign of Terror, and its uncritical reporting about the need for deficit reduction when deficit-scold groups start making noise (which, amazingly, happens only during Democratic administrations), are other examples.

                    Do those flaws, biases and preconceptions, taken as a whole, favor one party or another? I don’t know. Neither do you. But don’t pretend this was the only time Trump/the GOP have benefited from flawed media coverage.

                    1. And of course this leaves out Fox News and the many other influential outlets who *obviously* put their thumbs on the scale, as if they’re not part of the “media.”

                    2. No, you need FOX to reach only 95% hostile.

                2. I’d also note the almost maniacal coverage of the Clinton email business by the New York Times.

                  How much reporting has Fox done on Trump’s rather cavalier use of cell phones?

                  1. I think there a difference there, even if maybe it shouldn’t be different.

                    Clinton was hiding what she was doing (that was the point of using her own server, after all, even according to her explanation), while Trump is open about what he uses his phones for (Twitter…..).

                    So one might be more suspicious of Clinton’s greater improprieties (which we know are hidden) than Trump merely facial obnoxiousness that in any other individual would be exclusively a matter of amusement and ridicule. Hiding it makes people suspicious about what else is being hidden, even if the real reason was that Hillary saw what happened to her family 18 years before and wanted to head it off.

              2. “But given the lack of new wars of choice, and excellent economic numbers, he certainly wouldn’t be underwater if we didn’t have a media that were functioning as an unpaid PR firm for the Democrats.”

                You underestimate the importance of issues related to bigotry, boorishness, and backwardness to voters . . . educated, accomplished, reasoning, modern voters. Trump is underwater with voters because he embodies the wrong side of American history and modern Americans recognize it, and object.

    2. The flip side of this – that a President can’t do something to benefit them personally is just as bad. I can only think of one instance, ever, when a President hasn’t done something they thought would benefit them. Indeed even good governance would benefit the President, because presumably the people want to President to be effective, so governing effectively will benefit the President by re-election, or through post service speeches, endowments, etc.

      The one exception, of course, is Bush the Elder raising taxes. He thought it would hurt his re-election (and he was right!) but thought it necessary to curb our growing debt. I wonder what he thought about that, at the end.

      1. I follow your argument, but is it really “okay” for a president to, say, tell a foreign government to arrest a political rival on false charges, or send a list to the IRS of people he wants audited, or replace the Joint Chiefs of Staff with college age volunteers from his campaign. Would it be fine if the next president, who really, really believes that Trump is a Russian asset, legitimize the takeover of Crimea in exchange for Putin announcing that Trump took his orders from the Kremlin and prominent members of the GOP are paid Russian agents? Somewhere, there’s gotta be a line.

        1. “I follow your argument, but is it really “okay” for a president to, say, tell a foreign government to arrest a political rival on false charges,”

          Well, obviously not if they’re false charges. But what if they’re NOT false?

          1. Telling a foreign government to arrest a political rival on *any* charges is an obvious abuse of power. If a political rival commits crimes, the Justice Department should be handling it, not a foreign country’s (notoriously corrupt) justice system. No one should have any faith in a small foreign country’s ability to say “well, I’d love to help you out, Mr. Superpower, but I’ve got principles, you know.”

            1. “If a political rival commits crimes, the Justice Department should be handling it, ”

              Ha, ha. Like the Justice Department is apolitical. Trump came into DC like the head of an invading army, and has faced nothing but resistance from the bureaucracy he’s supposed to govern through. He’s only now starting to get the degree of control most Presidents expect to have within a week.

              Yes, the DOJ should have been handling it. It’s an indictment of them that they weren’t.

              1. Or maybe neither Biden committed any crime? No, no, impossible, Dear Leader never errs.

                1. How would they know whether a crime was committed or not, without investigating. Had an investigation by the DOJ occurred I think we’d have heard about it, so why wasn’t there an investigation?

                  It looks corrupt as hell, and the very fact of it not being investigated is even more suspicious. Though I lean towards a theory of Biden Sr was merely passively corrupt (in other words, he’s a politician) while is son is actively corrupt, using his family connections for purely private gain and selling that access. I see the same risk with the Kushners – not the excursions the President sends them on, but ones they do only because of their special access.

              2. Why is it an indictment of them? And who appointed the AG in 2017 anyway?

                While we’re at it, if there is something there why didn’t the GOP-controlled House investigate the Hunter Biden business in 2014, when Biden got his sinecure? It’s not as if they were shy of conducting investigations.

                1. The sort of corruption represented by the Biden Burisma connection is bipartisan, Bernard. Both party’s establishments are dirty, and reluctant to expose that sort of thing. Because, once it got started, who knows where it would stop? It’s not a safe way for one party to gain advantage over the other.

                  Jeb might have come into DC with the whole hearted backing of the Republican establishment, but Trump came in over their scarcely concealed opposition, and they’ve been not so subtly sabotaging his administration from the start. One of the ways they did that was by feeding him nominees who wouldn’t be working in his interest.

                  A form of attack he was particularly vulnerable to, coming into politics from the outside as he did, and being dependent on the swamp for staffing recommendations.

        2. Agreeing with Brett on the false charges bit, but on the other actions that should have been in the Idiocracy script – the Crimea example probably actually qualifies as treason, the IRS thing essentially happened under the last Presidency with insufficient fanfare, and the Joint Chiefs are confirmed by the Senate (I believe), so those are either impossible, already covered by existing law, or demonstrably something the electorate isn’t outraged about.

          But to your general point: we have the 25th amendment for literal craziness, and at some point the purely political side of the impeachment clause would come into effect.

          The point is that the line isn’t at “benefits the President personally.”

          Without having tried to break my own position (so take this as readily sway-able) I think the line is somewhere around “benefits the a President personally without a legitimate governmental purpose.”

          So framing an opponent is never a legitimate governmental purpose, nor is assassinating a US Citizen without trial (for which I think Obama should have been impeached, even though I voted for him both times).

          But that’s where the current case falls down – uprooting corruption within and between governments is an inherently legitimate governmental interest (I’d love to see the counter argument to that), so unless Trump was seeking the literal fabrication of evidence (which would indeed be without a legitimate interest) the current accusations fail (unless you give them a lot of assumptions).

          Then the question is: what’s a legitimate governmental interest, to which I don’t have a complete answer. But part of it is: would any party do this to another (both at the individual level – you to me – and at the group level – Greens to Democrats).

          1. “…at some point the purely political side of the impeachment clause would come into effect.”

            This is what bugs me about Turley’s argument (thus also Blackman’s): The Devil references are a slick rhetorical flourish, but they fail to draw (or even acknowledge) a line that must be drawn lest the election in some scenarios become a suicide pact (the Presidency is powerful, no fixed set of laws can anticipate everything, and 4 years is a long time).

            Kudos to you for having drawn such a line (at “benefits the a President personally without a legitimate governmental purpose.”). So I take it that if it were established that Trump was demanding only the announcement of investigations but not their execution, that you’d be all in?

            1. Well, sure, if you can find a recording of a phone conversation with the Ukrainian President, where he says, “I want that announcement ASAP, but, please, don’t conduct an actual investigation; That risks clearing Biden, and I certainly don’t want THAT.” it would be a real smoking gun.

              The problem is that you’re likely to “establish” this by inference, not evidence.

              1. Trump can also currently claim that his focus on *announcement* was just a means to an end (the end being execution). It would be interesting to see if that holds up in light of key participants’ testimony and relevant documents/communications, if those can be obtained.

              2. The problem is that you’re likely to “establish” this by inference, not evidence.

                I totally missed the “no inferences” part of the impeachment clause!

                At any rate, the distinction between “an investigation whose results I have foreordained by my overwhelming leverage over a small country with a corrupt justice system” and “a mere announcement of an investigation with no actual investigation” is not as sharp as you seem to think it is.

                1. There’s no “No randomly picking charges” clause, either, but I wouldn’t approve of them making up a numbered list, and choosing the impeachment charges with a 20 sided die.

                  1. Good thing they’re not doing that! Back in this world, people draw inferences all the time, so I don’t see why the House of Representatives can’t.

            2. I see that on rereading I fell into a rhetorical-flourish trap myself: Replacing “suicide pact” with “recipe for imminent disaster” in my previous comment makes it more relevant to the current situation (and I think no less true).

            3. “ So I take it that if it were established that Trump was demanding only the announcement of investigations but not their execution, that you’d be all in?”

              Yes. Easily yes, not even a close one.

              I can conceive of some quadruple sting operation where that would still be in the public service, but I think politicians play checkers, never mind 4D chess. So call it yes, but otherwise convincible with overwhelming evidence (which would require far more than just more-registering his plan, but that would be a necessary component).

              1. Yet that seems to be an obvious and easy inference to draw.

                If Trump has cause to believe the Bidens were doing something illegal then he could easily have referred the matter to DOJ. Isn’t that the appropriate way to investigate possible breaking of US law by a US citizen?

                1. Again, he’d be referring the matter to the same DOJ that had spied on his campaign. He has no reason to have much trust in the DOJ.

                  1. Brett:

                    The DOJ run by Bill Barr? As if Bill Barr couldn’t find a John Durham or someone like him to investigate the Burisma matter if there was any predicate, at all, to believe either Biden violated any U.S. or international law? Be serious, please. And, note, things Trump said in the call that are demonstrably untrue:

                    “I heard you had a prosecutor who was very good and he was shut down.” It is well known that Shokin was and is very corrupt. The investigation into Burisma was dormant, so it wasn’t “shut down.”

                    “The former ambassador from the United States, the woman, was bad news.” Everyone on the House committee as well as everyone outside of Trump, seems to agree she was a highly capable professional who was actually fighting corruption in Ukraine.

                    “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution.” Hunter Biden was never under investigation and certainly never prosecuted by anyone (Shokin included) in Ukraine.

                    “Biden went around bragging that he stopped the prosecution” Again, there was no prosecution to stop. Biden definitely did not brag that he stopped a non-existent prosecution. He bragged that he got a corrupt prosecutor sacked, which he did, was actually a positive development in the actual fight against Ukrainian corruption. Britain, the EU, the IMF, the World Bank, and various international and Ukrainian anti-corruption groups all agree.

                    The only plausible defense is that Trump is so steeped in easily disprovable conspiracy theories that he actually believed these lies. That isn’t much of a defense.

                    And the bigger point, it would be an extremely rare circumstance where it would ever be appropriate for the United States to request that a foreign country investigate and prosecute U.S. citizens for alleged violation of that country’s laws. It would be even more unlikely to be kosher where the criminal justice system of the foreign country is notoriously corrupt and the mere ask implies an expected outcome. Furthermore, the innuendo of wrongdoing in this matter would all implicate U.S. law and so a U.S. investigation (with proper coordination once necessary) is the only appropriate route for dealing with any properly predicated investigation into “the Bidens.”

                    Trump’s request was terribly inappropriate. Your mileage may vary on whether it is impeachable, but it seems a stretch to suggest it isn’t.

                2. What happened bernard didn’t you get the weekly pink sheet detailing all the DOJ investigations? If not it’s right there on the website under “Hit List.”

                3. You’re also assuming that Trump is competent in the workings of the government, an assumption I’m not willing to make.

                  There’s a strange pattern I can’t quite work out where Trump is simultaneously cognizant of DC proprieties while also unqualified to be President.

                  1. Ignorance is definitely not a defense for impeachable conduct.

                    “I just wasn’t sophisticated enough to know that I shouldn’t ask a foreign head of state to ‘look into’ the business dealings of the son of my political rival.” If you have backed into this as your defense, you have essentially conceded the Democrats case against Trump.

                    Impeachable conduct is impeachable conduct. If you insulate every inappropriate action from correction by saying “well Trump really believed Biden stopped a prosecution into his son”, “Trump really believed the Bidens were involved in corruption in Ukraine”, “Trump really believed he can ask for the prosecution of whoever he wants because Article 2”, then stupid Presidents have more latitude than smart ones. That just doesn’t make any sense from a good governance standpoint.

                    That Trump thought it was appropriate for him to select one instance of non-corruption that he believed was corruption and put his thumb on the scales of justice in favor of a foreign investigation into U.S. citizens is an indictment of him, not a defense. A President should be especially reluctant to become personally involved in criminal investigations of their rivals, infinitely more so where the country he wants to “investigate” has a notoriously corrupt criminal justice system. Only a moron could think that is the way to achieve actual justice. Claiming to be a moron is, again, not a defense.

          2. Wow. Treason?

            The Crimea issue is fast turning into another Cuba or Taiwan, where we will go on for decades refusing to “recognize” a geopolitical reality, looking like a country full of whining egotistical idiots who think that whatever we says goes.

            We are never reversing the Crimea invasion, nor can we. So we should, indeed, “legitimize” it. Just as we would have saved ourselves a lot of trouble by not spending decades denying who was in control of China and sanctioning Cuba.

            That’s not treason. That’s correct foreign policy.

            1. Yes, treason.

              Here’s the hypothetical, “ legitimize the takeover of Crimea in exchange for Putin announcing that Trump took his orders from the Kremlin and prominent members of the GOP are paid Russian agents”, and Treason includes “…adhering to their enemies, giving them aid and comfort.”

              A plan to legitimize an enemy (assumes: Russia is an enemy) and trading aid for no legitimate governmental purpose I think counts as treason. It’s one that would be hard for any but a governmental official to do, but still sufficient. Alternatively it’s assuredly enough for an impeachment under my rubric, or almost any other.

              Merely acknowledging the reality on the ground, however, would not. It’s not giving the enemy side to recognize reality, but it is to trade value for value. Maybe this is a nuanced view the founders considered and rejected, but it’s my view today.

              1. “Enemy” has an actual meaning in law, and no, Russia is not one.

                (An enemy is a state or group that the United States is in a state of war with. It’s interesting that you don’t know this. A lot of people don’t, because the word is so casually thrown around. But yes, that’s what it means. It doesn’t mean everyone who the US has a bad relationship with.)

                Russia is a nuclear armed state whom the United States should pursue a peaceful relationship with. Because we have been trying to check its power, we have gotten into a more adversarial relationship with it than we should have.

                Horse trading something that we should do anyway (recognize Crimea is part of Russia) is not treasonous by any definition, let alone the strict constitutional definition (levying war against the United States, or adhering to an enemy of the United States). It might be improper, depending on the horse trade.

                1. My knowledge of these sorts of things tends to come from either a broad liberal education or from time in service or off the ranch, so an “enemy” was whoever we were going after, and included far more nationalities than one might expect.

                  It’s good to know that we have a narrow statutory definition though, as that suggests that at least whoever wrote that thought about how a broader definition would be abused.

                  1. The framers were very concerned about the overuse of the term “treason”, which was common in politics then as now.

              2. Putting aside the Biden issue, it seems to me pushing an announcement of an investigation into the wacky Crowdstrike theory comes quite close to the Crimea example. It exonerates Russia of wrongdoing (having been “framed” by Ukraine) and implicates the Democratic party. It is a theory that folks in his administration told him was baseless and any reasonable inquiry would have revealed same. It seems to me that if Trump requested the announcement/investigation anyway in what at best can only be described as “reckless disregard for the truth or falsity” or “intentional ignorance” of the charge, it leaves the only possible motive as one of personal political gain through bolstering a useful political falsehood. Add in the intelligence briefing that it comes from a Russian security disinformation campaign, and the case gets even stronger. I understand that the Dems want to keep it simple, but I think not focusing more on the Crowdstrike “favor” was a mistake. Even Guiliani’s sources for dirt on the Bidens don’t seem to go there. This aspect should not be allowed a free ride on the more ambiguous Biden stuff.

                1. I’m honestly not following this. I can see how someone might make the argument that if Ukraine meddled then Russia necessarily didn’t, but one doesn’t follow from the other at all.

                  Even during the campaign the media’s coverage was about implicit Russian meddling but explicit Ukrainian meddling – such as their Ambassador writing an editorial against Trump. Add in that Ukraine has already prosecuted and convicted people for meddling in the 2016 US election and it seems nonsensical that anyone would argue IF Ukraine Then Not Russia, when it’s both clear that Russia meddled and what any reasonable person would expect (just as they should expect that we meddle too).

                  *intentionally using “meddle” to include both minor things and up to direct alternation (which hasn’t occurred, to my knowledge).

                  1. Either you haven’t read this stuff as closely as you might, or you are evading the issue. In the Trump call he specifically mentions the Crowdstrike theory that the DNC “server” (there were about 100 cloud servers) is in Ukraine. That theory posits that Ukraine got to “the server” before the FBI and framed Russia for the DNC hack. So yes, the requested investigation was absolute nonsense. It is part of the supposed illegitimate origins of the Russia investigation. Trump in his own words;
                    “I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it. I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike … The server, they say Ukraine has it…. that whole nonsense ended with a very poor performance by a man named Robert Mueller…but they say a lot of it started with Ukraine.”
                    Trump was not talking about an Op Ed, nor the leak of the Manafort ledger by the National Anti-Corruption Bureau of Ukraine that was prosecuted for disclosing evidence before trial (or, per the defendants, to curry favor with the Trump admin.) by the Poroshenko administration. He was talking about the nonsense theory. As you say, “rading aid for no legitimate governmental purpose I think counts as treason. To be true to your previous argument, since Trump was asking the announcement of a fake investigation, he committed an impeachable offense, though I do not think it is technically treason.

      2. Robert, I think that statement of the rule is oversimplified, but do you not see a difference in meaning between “something to benefit them personally” and “something that benefits them personally”? The second includes those incidental and downstream benefits that come up in these counterexamples, benefits like getting reelected or having your face added to Mount Rushmore by overwhelming popular demand, but I read the first as limited to acts whose principal purpose is the personal benefit. I take it you don’t?

        1. I see (and cede) your point, but I’m not sure how to differentiate them.

          Take the Ideal Man and elect them President. Everything they do is to benefit the nation – that’s why they’re the Ideal Man (and please ignore for now how that’s literally fascism – the State above the Individual). What’s the difference between “doing this and they will benefit from this” and “doing this because they will benefit from this.” To that ideal man, they’re the same thing – what benefits all of us is their entire intention.

          Can you think of an example that you think firmly separates these? I can think of constructs where I imply specific intent to get to that answer, but not one that I can evaluate differently without assuming a specific intent.

          For example: Trump wanted fabricated evidence on Biden from Ukraine, but surprise: he really was corrupt and they find it! Compared to: Trump thought he was being screwed by Obama et al including via Ukraine and wanted those corrupt acts uncovered, but it turns out there was no corruption there. Opposite intentions going in, and opposite outcomes. I think the first is definitely impeachable, while the second is laudable (even if ultimately fruitless), but how do you tell them apart without mind reading? They both will have exactly the same evidence – where “I don’t want a quid pro quo” is taken at either face value (by people who prejudged the case one way) or just more evidence of a cover up (by people who prejudged the case the other way).

          If you say that Trump is an exception then what’s the general rule?

          1. I would disagree that outcomes are determinative. An investigation is either adequately predicated or not at the time it is initiated, the result neither justifies nor invalidates the means.
            Also, you take as a given the need to avoid specific intent, and I don’t. Yes it can be hard to determine, but the legal system deals with it on a regular basis as it does with other questions of fact. Consider the evidence against the putative explanations, even bias the result with rebuttable presumptions, and decide whether it meets the appropriate evidentiary threshold.
            And in response to the charge that this would paralyze the executive branch, and make investigation of any political rival impeachable, it would not. At most it would disincent a President from personally directing an investigation into a rival, just as is done throughout the rest of the executive branch when individuals are excluded or self-recuse from investigations where they have a personal stake.

            1. Sorry, I didn’t mean to imply that the outcome mattered, I was specifically trying to show that the outcome is immaterial and apparently failed at that.

              What you seem to be describing is the President Obama – AG Eric Holder relationship (with holder describing it as “ I’m still the President’s wing-man, so I’m there with my boy”), or the Obama – IRS Commissioner Lois Lerner relationship where 8 different peoples hard drives suddenly crashed as soon as the House subpeonad the contents. When You have cronies like that you don’t need to give explicit (such as “no quid pro quo”) or even specific (investigate Burisma and make sure it includes any Americans and their families associated with it) directions. I don’t think that makes it ok, but maybe your point is that the right remedy is impeachment and removal of the specific bad actors.

              But if so what do you do about the revolving company of corrupt and soon to be impeached people, but who suffer no other consequences of their bad acts, since the AG obviously won’t prosecute them (and they weren’t, last time, and I have no reason to think the Republicans will be any better on this than the a Democrat’s were).

              1. I’m not sure I see the connection to suffering “consequences of their bad acts”. Impeachment is like firing an employee for stealing from the company, it is to protect the employer although the employee may feel punished as a side effect. If the corrupting influence is eliminated by impeachment and removal then protection is achieved, and whether anyone also ends up in prison is a separate question. And, to be frank, I am less concerned about whether individuals are punished, the country survived OJ and can survive worse.

                1. So you’re saying that the correct action is impeachment, and (for example) the problems during the Obama administration (such as Lois Lerner not being prosecuted for obstruction of justice – at least) was because the Democrats failed to police their own, and the Republicans were merely inept – that they should have impeached?

                  It’s a consistent model, but runs into the risk in another sub thread here that we’ll just have impeachment’s every time the House and President are held by different parties, and removal when the Senate and House are aligned too.

                  We may not have a better choice, since we’ve already lost the prior norms, but I don’t like that model.

                  Of course Congress could fix this easily – just reduce the size of government to remove opportunities for improprieties, but both parties like to suckle off the teat of this overgrown hog.

                  1. I believe Lois Lerner would have been classed as a government employee, not an officer subject to impeachment. She didn’t keep her job though, which is the result a successful impeachment would have produced, so I don’t see a gap there in any case.

                    If the gap is that she didn’t go to prison, an impeachment wouldn’t change that. Criminal prosecution has a deliberately high bar, and there isn’t anything unusual about someone being fired for misbehavior without being charged, either because what they did doesn’t satisfy all the elements of a crime or because the evidence won’t sustain a conviction beyond a reasonable doubt. As to whether the Obama DOJ failure to prosecute was proper I have no inside information, though the fact that the Trump DOJ declined to reopen the case in 2017 would suggest it was.

      3. Add Carter’s appointment of Volcker.

    3. I have somewhat the same conclusion. I’d just assumed that, if the Democrats spent some time, they’d be able to identify a real crime on Trump’s part; He seemed like a dodgy guy, and Presidents tend to skirt ethical and legal boundaries anyway. (Though I liked Reagan, Iran Contra was a real, criminal scandal, for instance.)

      But three years of intense effort, and THIS is all they’ve got? Trump must be cleaner than I ever could have guessed.

      1. I think that’s largely because of the institutional bias within the executive against Trump, so he hasn’t been able to wield the full power of the executive apparatus.

        It’s not that I think he’s truly innocent, but that he hasn’t had a chance to be sufficiently corrupt. Contra the IRS scandal where the obvious cover up went pretty far down the ladder (eight people had their hard drives fail, immediately and only after receiving congressional subpoenas? Really?).

        1. That might be a factor, but I think it’s also because Trump isn’t a member of the political establishment, hasn’t had a lifetime to become habituated to the idea that the only rule in government is, “Can you get away with it?”

          I think to some extent he’s still operating on a Schoolhouse Rock view of how the government runs, not a Chicago Way view of it. He expects Congress to legislate, he thinks it’s his job to enforce the laws they’ve passed and conduct foreign policy, he obeys court orders even as he complains about them.

          1. This is hilarious. Trump, good-government rule-follower!

            I missed the “it’s okay to use one’s office to one’s own personal financial benefit,” “the executive can declare an ’emergency’ and divert money for its own purposes at any time,” and “the president can use the Department of Justice to go after his political enemies” episodes of Schoolhouse Rock.

            Psst, Brett, the line is supposed to be that Trump doesn’t care about all them dumb swampy rules, he just gets things done. Follow the script, man.

            1. Yeah, I don’t recall Schoolhouse Rock doing a catchy song about the National Emergencies Act, but it’s still a law, duly enacted by Congress.

          2. How quaint, the idea of enforcing the laws the Congress passes. Not even they expect nor want him to do that – which I think is a more fundamental problem.

            Prosecutorial discretion shouldn’t exist – every prosecution should be to the fullest extent, because only then can we see how bad our laws are. Otherwise you allow room for bad actors who use the law against their opponents, yet are themselves effectively insulated from their own transgressions.

  3. So is the argument that “impeachment for using the power of the office for improper purposes” is unwise because of the precedent it sets? Or is it that such impeachment is unconstitutional because the convention rejected the ground of “maladministration”? The piece reads as slippery on this distinction to me.

    1. Not mutually exclusive, Im not sure why you think this is slippery. And i dont think blackman would say impeachment for corrupt motives is unconstitutional but merely a departure from how the founding generation conceived of impeachable offenses

    2. You’ve missed the point. Impeachment by “corrupt intent” requires no standard. Only 67 Senators hurt feelings are required. To do that, is to have the President serve at the pleasure of Congress. That nullifies co-equal branches of Government, which used to be an un-debated constitutional tenet

      1. I wouldn’t mind much if the President lost power relative to Congress. They have given way too much power to the executive, so getting some back would be good.

        But not this way. This isn’t taking power back. It’s saying “Exercise your (and our!) almighty power as we wish, or we will throw you to the wolves.”

        It will also make the running mate a much more important choice. As long as the President isn’t impeached in his first year, the VP will take over, and his impeachment would only cut short his term by one year.

        But then what if the Presidential election also brings in a house of the opposite party? They could impeach right away. This whole thing is just weird.

      2. But the idea of “co-equal” branches is a bit of a fraud to begin with.

        The Constitution actually set up a system of moderate legislative supremacy, not three co-equal branches.

        1. Pssst….don’t tell that to the courts.

    3. It’s clearly the former. One might also try to make a case for the latter, but Blackman didn’t

      1. I agree. There is absolutely no indication of the latter. I don’t even think Professor Blackman is fully making the former argument either. Only that it is something to consider in deciding whether impeachment is appropriate, not that it is absolutely unwise.

  4. A charge of extortion in order to gain a personal, political benefit would not lead to a dangerous precedent.

    1. Trump threatened to nuke Ukraine unless they announced an investigation of Biden?

    2. Like Biden getting a Ukrainian prosecutor fired – who was investigating his son’s company? No dangerous precedent?

      1. Where is the evidence that any investigation of Burisma was active when Joe Biden expressed his concerns about prosecutorial corruption? Or is that a Big Lie made believable only by incessant repetition?

        1. Testimony from the former prosecutor.

        2. Maybe the investigation would have exonerated Biden. So how would that have benefited Trump?

          1. “Sure, guy with a gun pointed at my head, I’ll undertake a fair, dispassionate investigation of your political rival whose results are in no way preordained.”

        3. There was (the equivalent of) a search warrant executed the month before the prosecutor was fired at Bidens demand? Seems pretty strange to be executing warrants for an investigation that isn’t ongoing. Also makes you question the motives of those who ought to know better who make that claim (not saying you’re one of them, but you heard that from someone who should have known better).

          John Solomon has a pretty good too-long-to-be-a-summary here

          https://johnsolomonreports.com/hunter-bidens-ukraine-gas-firm-pressed-obama-administration-to-end-corruption-allegations-memos-show/

          Which links to a Ukrainian news wire service report of it (I’d add the link, but then it would go to permanent spam hell).

          1. John Solomon is under investigation by the Hill for printing lies ginned up by Russian intel.

            1. Yes those insidious links to source documents–how to even measure the scope of the duplicity?

            2. See? Trump really broke you Sarcastro. That’s literally blaming the messenger.

              Even accepting that some of what he printed was intentional regurgitation of Russian propaganda that doesn’t address the merits of the claims.

              If you applied this standard consistently you’d be rejecting everything Adam Schiff was involved in because he’s a proven fabricator of evidence (when he “read” fake quotes into the Congressional record, then said it was a joke when caught, or when he lied about having concrete evidence of Trump collusion with Russia), and you’d apply the same to the DNC which propagated Russian and Ukrainian propaganda via the Steele Dossier.

              But you only want to use idiotic standards because Orange Man Bad.

              1. Dude, you’re all in on the IRS thing being about persecuting an Obama enemies list. Forgive me if I take your sober analysis of my deraingment with a grain of salt.

                I’m fine with such company as NToJ, bernard, and DMN. You enjoy your befellows of WesternHegemony and the impeachment is treason guy.

                As to your substantive scope, Schiff didn’t fabricate anything, it was quite clearly a joke if you bother to read the transcript or watch his statement. Which you very clearly did not. The Mueller Report presented plenty of concrete evidence of collusion with Russia.
                And the Steele Dossier was not originated by DNC, and neither was it Ukranian propaganda.

                Don’t pretend you’re an honest broker. It’s lame as hell.

                1. Eh, I think it was at least half a joke, but that Schiff didn’t mind if somebody mistakenly thought he was reading from a transcript. But that’s not a criminal offense.

                  “The Mueller Report presented plenty of concrete evidence of collusion with Russia.”

                  Oh, BS. He came right out and said that he couldn’t identify ANYBODY who knowingly colluded with Russia. Granted, he also said he couldn’t exonerate Trump of collusion, but you could say the same of Trump and the Kennedy assassination; Under our legal system, you don’t exonerate people, you fail to demonstrate that they’re guilty.

                  “And the Steele Dossier was not originated by DNC, and neither was it Ukranian propaganda.”

                  Democratic talking points. The DNC did indeed contract for the Steele dossier, and yes, it was Ukrainian and Russian propaganda.

                  1. Which is why it’s pretty clear Sarcastro has been broken by Trump. Too bad, his satire was quite enjoyable while it lasted.

                    1. If Trump has broken Sarcastro, that might be a price worth paying for the way Trump is destroying the Republican Party.

                    2. @Kirkland

                      If Trump actually broke the Republican Party it would be well worth it (so long as the replacement isn’t a mixture of the left and right nationalists – that would really be worse).

                  2. Mueller also laid out his standard of proof that he felt wasn’t met. Didn’t stop him from detailing the many meetings and offers back and forth. Which all count as concrete evidence.

                    1. Yes, just not evidence of collusion.

                    2. There is no crime of collusion, Brett, so he didn’t write to that. For better or worse.

        4. I notice you boys are very careful with your words, especially when you try to use “Burisma” as a limiter.

          https://en.interfax.com.ua/news/general/322395.html

          Zlochevsky (head of Burisma but also lots of other oligarchical things) assets seized 2/4/16.
          Shokin fired 3/29/16 after Biden extorts promise to fire by withholding 1 billion in aid.

          1. You keep flogging that doc like it’s the smoking gun it isn’t.

            You know why Biden fired Burisma, it’s been corroborated by the EU and Obama. At this point, you’re full-on lying to people.

            1. Why Biden fired Burisma? You’re starting to get incoherent here.

              1. Sorry Brett, but luckily everyone, including you, know what I meant.

                Grumpy today? Because usually you’re more forgiving of people’s typos. and name mixups.

                1. Got a moderately bad respiratory infection, that might have something to do with it. Coughing up gunk is not a favorite pastime.

                  OK, you meant, why Biden coerced Ukraine into firing Shokin.

                  No, I don’t know why he did that, any more than you know why Trump asked for an investigation. I know that, I infer why. But I try to retain enough self-awareness to distinguish the two.

                  Now, maybe we’ll know why he did it at the conclusion of the investigation, but right now it just looks dirty. And the involvement of the EU and the IMF don’t particularly make it look cleaner, hives of scum and villainy, both of them.

                  1. Tying this back to the earlier point – this conflation of fact and inference is what’s causing so much distrust.

                    Biden says (and is backed by the President – at least I assume that, I haven’t actually seen any statements) that he did a good thing.

                    Trump says (and is backed by the President- himself) that he did a good thing.

                    People with anti-Trump TDS say we know Biden did the right thing and we know Trump did the wrong thing.

                    People with pro-Trump TDS say the opposite.

                    But if you point out that we don’t actually know that and it’s merely an inference, only one group accuses you of acting in bad faith, however phrased. I’m not even sure they’re lying – it may just be that they’ve been so broken by TDS that they really can’t tell the difference anymore between a known fact and an inference from that fact, and that’s more worrisome to me in case the symptoms don’t abate after the contagion wears off in 1-5 more years.

            2. “it’s been corroborated by the EU and Obama.” That’s funny. Aside from the circular part of that it’s been established that the Obama administration lobbied the EU and others to advocate for Shokin’s firing.

              But what I’m really curious about is what happened to “boffo news?”
              Your first reaction to it was spot on, even to the point of getting me to believe for an instant that you had some ability to separate yourself from your tribe. I see now that you have received the proper talking points and are back in line.

              It is a smoking gun. You can’t paper it over. The juxtaposition of events speaks for itself.

              1. My point is that there is a reason why not even FOX News or even Breitbart is pushing this. All I see it on is Gatway Pundit, lol.
                Can’t click on the link at work, but from others’ reactions to it, it seems that you’re offering it for something other than what it says.

                1. You clicked on the link before or you wouldn’t have called it “boffo news.” I offered it for what it was, an article describing in particular a seizure of assets. People have tried to muddy the water by falling back on the “Burisma investigation was dormant” deflection. But Zlochevsky was paying for protection for Burisma and for himself. It is my contention that the asset seizure ramped up the pressure from Biden to get Shokin fired. The 1B loan guarantee wasn’t signed until Shokin was out.

                  1. In fact I hadn’t clicked on it before – you, as you did here, provided a summary of what it stood for. Then, as now, I questioned whether that was true, given how no one has picked up this clear contradiction in the accepted timeline and run with it.

                    There are no shortage of people eager to prove it’s a mere deflection, and yet only you (and Jim Hoft) have managed to pick this up. Maybe others are finding a different interpretation than you have.

                    Boffo is a great word, though, isn’t it? It pops, due to it’s rarity and mouthfeel.

                    1. I love boffo. In fact I think we should collaborate on a blog called “Boffo News.”
                      I told you when I first posted it that I had no corroboration for it, that I wasn’t there when they hauled off the Bentley. In truth I was and still am surprised that it hasn’t gotten any attention. It may be a fabrication for all I know. If it does prove to be accurate, though, I think it is if not a smoking gun a strong piece of evidence that, along with the huge conflict of interest, makes a strong predicate for an investigation of Biden.

                    2. I suspect most who’ve read the article are also suspicious of its veracity (which was also linked from the John Solomon reporting, but that’s the article I’d been looking for).

                      The difference seems to be that some of us think it means something if true, and others who deny that it exists. And if the President knew of it, or something like it, that supports a theory of anti-corruption even if it’s entirely false (because he may be acting in good faith on bad facts). But far too many have prejudged the case and so aren’t interested in facts that ought to cause them to re-evaluate their positions. From this thread I’m describing you, of course, though from prior many years I’d never have thought this would have applied to you, so I hope it’s merely a cold, like Brett has.

                2. Also after Shokin was gone the charges were dropped against Zlochevsky, his assets were returned, and he returned to Ukraine after having fled the country.

            3. Zlochevsky (head of Burisma but also lots of other oligarchical things) assets seized 2/4/16.
              Shokin fired 3/29/16 after Biden extorts promise to fire by withholding 1 billion in aid.

              You seem to have omitted the date that Biden did this, for some reason. Hint: it was months before 2/4/16.

              1. Wrong. The 1B loan guarantee was signed on 6/3/16 after Poroshenko after Shokin was gone and Lutsenko was appointed to replace him.

                1. You think Biden signed the loan guarantee?

                  1. He bragged about being able to withhold it and it doesn’t get signed until it’s approved so…you tell me.

                    1. The answer is that he did not. He was the messenger. Come on, man.

                    2. “The answer is that he did not. He was the messenger. Come on, man.”
                      If he has the power to withhold it he has the power to approve it. I assume some State Department person signed it but that is utterly irrelevant. You’re being ridiculous here.

                    3. He was the messenger. Acting on orders.
                      Your assumption that he was deciding anything is unsupported.

                    4. Sarcastro,

                      Do you honestly think that Obama had any interest in Ukraine? If so I haven’t heard about it. Biden described himself as the “point man.” I took that to mean that he was given a free hand wrt Ukraine.

                    5. Obama has interest in working with the international community, and this was what they wanted.

                      By contrast, zero people except for Trump wanted his deliverable.

                  2. I’m sure he didn’t sign it, but if we take VP Biden at his word then we know that Shokin was fired within 6 hours of his demand, right? That’s how he tells the story.

                    And we know that Shokin was fired in March 2016, about a month after the search (assuming its legit, of course).

                    So the claim that March 2016 is months before February 2016 is either specious (for obvious reasons), non-responsive (because it might be a claim that Biden first raised the issue months before he set the several-hour deadline in March), or really interesting (because I want to see this time machine).

                    But to reiterate a point I’ve made elsewhere on this thread, we know Biden was on the up and up because he said so, thus there’s no reason to look further to see if Trump was on to something.

                    1. Biden didn’t set any several hour deadline in March 2016. He issued the statement in December 2015. You might want to read up on the actual facts (from actual sources — not John Solomon) before discussing the matter.

                2. Your comment is utterly nonsensical. Your label “wrong” does not actually identify anything I said that was wrong. You then assert a separate fact unrelated to what I said.

                  Biden said that the loan guarantee would not be issued unless Shokin was fired. Then later Shokin was fired. What happened after Shokin was fired is irrelevant to those points.

    3. Just like removing the fillibuster for judicial nominations wouldn’t come back to haunt the democrats?

    4. Can you define political benefit? It would seem virtually everything a president does is for political benefit. Look how much obama gave to Russia and Iran because he felt it was politically beneficial to get hostages returned or try to make some new friends.

      So you’ve asked for a standard, define a clear definition of political benefit that is not allowed.

      1. “Political benefit” obviously includes enacting spending programs that you think will entice voters to vote for you. Or tax cuts. And you still get the political benefit even if – from time to time – you do actually think the particular slice of pork you’re voting for would benefit the country.

        1. Obviously, there is no way to differentiate between policy and personal gain.

          Oy.

          1. Despite your name, try to take the question seriously, Sarcastr0. You are criticizing people who say that it’s difficult to draw a bright line that differentiates between policy and personal gain. Instead of being slick and sarcastic, just prove them wrong. Tell us what the practical line is.

            Tell us for example how, in a world without mind-reading, we should differentiate between “investigating a corrupt political opponent because he’s corrupt” and “investigating a corrupt political opponent because he’s a political opponent”.

            1. Courts do it all the freaking time. It’s fact-based, but it’s not hard.

              1. I concede that courts do it all the time. Courts have lots of disinterested actors to help do it properly. There are presumptions of innocence, burdens of proof and specific elements of what must be proved. Despite all that, they frequently get it wrong, over-charging for some crimes and under-charging for others. It ought to be fact-based and it in fact is very hard.

                Yet you seem to think we can magically import that degree of dispassion and reason into what everyone concedes is an entirely political process with none of the procedural controls applicable to a criminal proceeding. You seem to think that despite motivated actors, undefined standards and a complete lack of due process controls, that you can divine intent.

                If you’re not mind-reading, basis what are you using? Chicken entrails? Or just your own preconceptions and bias?

                1. So there cannot be impeachment because Congress is too partisan for motive analysis.

                  Good lord.

                  1. That’s not what I said and you know it. Stop with the strawmen and answer the question.

                    1. You do seem to be arguing that Congress is too partisan to discern motive: you seem to think we can magically import that degree of dispassion and reason into what everyone concedes is an entirely political process with none of the procedural controls applicable to a criminal proceeding. You seem to think that despite motivated actors, undefined standards and a complete lack of due process controls, that you can divine intent.
                      So yeah, you’re arguing that intent is impossible for Congress to determine. That’s not much less silly than arguing not even courts can determine it.

                      Anyhow, I’ve divined motive from bare text of Trump’s phone call, the understanding of numerous State Department officials, and Giulliani’s statements on television.

                    2. Yes, I am arguing that Congress is too partisan to reliably discern motive even though courts try (and sometimes succeed) at doing just that.

                      Your strawman was when you said that means “there cannot be impeachment”. That is not true, merely that the impeachment cannot (or at least, should not) be based on assessments of motive.

                      Re: your assessment of motive, the fact that other people have reviewed the exact same material and reached differing opinions in apparent good faith suggests that your divination may not be as free of bias as you want to think. Note, by the way, that I have not yet reviewed those materials and will therefore admit that I do not have an informed opinion about Trump’s motives. My point, like that of the original post above, is that whatever your opinion about this case, impeachments based on motive are an awful precedent that will be bad for the country.

                    3. The assertion that this particular impeachment is wholly based on the perception of motive is the real straw man.

            2. Rossami, on the distinction between policy and personal gain, there might be hard cases. Cases where the action in question involves pressuring a foreign government to intervene in a U.S. election are not among them. Why? Because doing that is illegal, so not any part of any legitimate motivation. So among the various lines, that one is firm, visible, and practical.

              Before you squawk, keep in mind that the framing I described is supported by evidence that Ukrainian leaders saw the question as I described it—saying they did not want to be dragged into U.S. domestic politics. If thus dragging them had not been Trump’s intent, and message, where would they have got the idea?

              1. You are starting from a false premise. “[P]ressuring a foreign government to intervene in [another sovereign’s] election” is not only not illegal, it’s barely even considered unethical in political circles. The US has done exactly that in dozens of well-documented cases. It’s been a practice of Presidents of both parties ever since WW1. We have done far worse than what is alleged here yet never a peep that it might be an impeachable offense until Trump.

                Countries attempt to tamper with each others’ elections all the time. Politicians lobby for advantage. That’s inevitable. Deal with it. Honestly, you sound like a fish complaining about being wet.

          2. Obviously, there is no way to differentiate between policy and personal gain.

            Absent :

            (a) a smoking gun email in which you state “propping up this car company is a grotesque waste of tapayers’ money , but I have to do it othewise I’ll lose Michigan” or

            (b) the total absence of any conceivable non corrupt reason for your policy decision

            picking out an overriding corrupt motive for the policy decision is simply a Rorschach test.

            Politicians make policy decisions that they think will benefit them politically all the time.

            1. No, Lee. No.

              Courts do this all the time, and don’t need the extremely narrow factual predicates you’ve herein outlined.

              Look up some cases piercing the business judgement rule. It may surprise you how many involve a quid pro quo found to be for personal gain.

      2. Digging up dirt on your reelection opponent easily meets any definition of improper political benefit.

        1. Are you saying that a corrupt political opponent cannot be investigated? That’s a strange one!

          Here, the dirt didn’t need digging up. It’s been known for years. Does that change your mind about when it’s ok and not ok to investigate a corrupt opponent?

          1. Of course a political opponent can be investigated when the motive is to weed out corruption. The evidence strongly indicates Trump was not motivated by weeding out corruption.

            1. How’s that? The left keeps saying that there’s nothing there with respect to Biden. I haven’t seen any evidence that Trump set out to frame Biden, so how does an investigation that exonerates Biden help Trump?

              1. Trump didn’t ask for an investigation. He asked for an announcement of an investigation which casts doubt on Biden.

                1. Shiff’s IC report says repeatedly that Trump asked for both the announcement and the investigation itself:
                  “Trump…openly pressed for Ukraine to investigate former Vice President Biden”
                  “Mr. Mulvaney publicly acknowledged that the President directly tied the hold on military aid to his desire to get Ukraine to conduct a political investigation…”

                  etc.

                  So how does the announcement of an investigation that would exonerate Biden help Trump?

                  1. This strikes me as a major problem with the case against Trump. If Trump believed there was something to the charges, it’s hard to argue corrupt motive. And if he didn’t, it’s hard to see what he thought the benefit would be.

                    1. Only if you can’t figure out that he wanted Ukraine to make up stuff about Biden.

                      (Yeah, I know, he didn’t expressly say that. And the mafioso who says, “Nice place you’ve got here; shame if anything were to happen to it” doesn’t expressly say that he’s going to torch it if you don’t pay protection money.)

                    2. So if he HAD said that, he’d be guilty, but because he DIDN’T say that, he’s guilty.

                      Heads the Dems win, tails trump loses.

                    3. You have this all wrong.

                      Trump keeps claiming it’s a witch hunt BECAUSE HE KNOWS HE’S A WITCH.

                      So: throw him in a lake and see if he sinks, or unfolds his wings and flies south to Florida with the rest of the ducks.

                    4. David,

                      How have you “figured out” that Trump wanted Ukraine to make up stuff on Biden? After all no one has to bother to make up anything on Biden.

                    5. “Only if you can’t figure out that he wanted Ukraine to make up stuff about Biden.”

                      Do other folks agree with Nieporent? That the case hinges on an inference that Trump was implicitly demanding that the Ukrainians frame Biden? Because I don’t think I’ve heard that before.

                    6. I think most people who’ve been following the news wouldn’t have the nerve to suggest it would be necessary to frame Biden. He’s clearly guilty, at the very least, of allowing a conflict of interest to develop.

                    7. He never said the case hinges on that, only that it’s easy to figure out.
                      Between the pattern (that continues to this day with Giulliani), the transcript, the later press discussions, the State Department’s understanding, and even his ‘I want nothing!’ phone call after he got caught, there’s no shortage of routs each of which is sufficient.

                    8. “He never said the case hinges on that, only that it’s easy to figure out.”

                      In the context of the thread, I took Nieporent’s response to mean something like, “[It’s hard to see how an investigation that would ultimately exonerate Biden would help Trump] only if you can’t figure out that he wanted Ukraine to make up stuff about Biden.”

                      So again, assuming that Trump didn’t believe there was anything to the allegations against Biden, and absent in inference that Trump was asking the Ukrainians to frame Biden, how does an investigation that would likely clear Biden help Trump?

                    9. It was testified that the Ukrainian government had a habit of agreeing to things privately then backing away. With a public announcement it would be harder for them to back away.

                    10. It was testified? By who?

                  2. And he’ll keep saying it even when confronted with an obvious refutation. They have their talking points and they aren’t about to abandon them.

                  3. I think most people who’ve been following the news wouldn’t have the nerve to suggest it would be necessary to frame Biden. He’s clearly guilty, at the very least, of allowing a conflict of interest to develop.

                    No. But of course that’s not a crime, and in any case any such conflict of interest would be an American issue, not a Ukrainian one. Ukraine would have nothing to investigate in that regard and no reason to do so.

                    That’s what you guys can’t get past: the U.S., including a GOP-run DOJ and a GOP-run Congress, has never even tried to investigate this fake scandal. And it was not doing so, which is how we know that Trump’s request was bogus.

                    1. No. But of course that’s not a crime, and in any case any such conflict of interest would be an American issue, not a Ukrainian one. Ukraine would have nothing to investigate in that regard and no reason to do so.

                      This particular conflict of interest does impact Ukraine because a Ukrainian citizen is responsible in part for the conflict of interest to exist in the first place. If an American official with a lot of power over the issuance of aid to Ukraine is involved in an influence peddling scheme with a Ukrainian oligarch that is very much something for them to investigate, and to share the fruits of the investigation with the US authorities.

                    2. That’s what you guys can’t get past: the U.S., including a GOP-run DOJ and a GOP-run Congress, has never even tried to investigate this fake scandal.

                      The absence of an investigation is not proof of the lack of need for one. There can be any number of reasons for not investigating a former colleague: good ole’ boyism, mutual dirt, affection, not wanting to look like a snitch, you name it.

                    3. Bill Barr is not a “former colleague” of Joe Biden.

                    4. Huh? What? The allegation is that Biden was covering up criminal conduct of the company his son ‘worked’ for. How would DOJ investigate a Ukrainian company? Ukraine needed to reopen the investigation into burisma, and only if it concluded in wrongdoing on burisma’s part would that prove Biden acted improperly.

        2. “Digging up dirt” “Exposing official corruption”
          What a difference a turn of phrase makes.

        3. Very interesting indeed; considering the Steele dossier, Muller investigation, and impeachment hearings were all targeted at Democrats’ political rival. I can only assume you will be advocating for the criminal prosecution of the obviously corrupt dems any moment then…..Or is investigating a rival only obviously a crime when an orange man does it?

  5. Maladministration is vague and inclusive enough to comprehend “doing a bad job”. Corrupt abuse of power for personal gain is not.

    1. If it’s abuse of power, just call it that. Abuse of power: the commission of an unlawful act, done in an official capacity, which affects the performance of official duties.

      When you get into people committing lawful acts within their duties, but you need to interpret their “intent” and the subjective intent makes it a crime or not…. Everything is a potentially a crime.

      1. Abuse of power: the commission of an unlawful act, done in an official capacity, which affects the performance of official duties.

        That’s not what abuse of power is. If that were what we were discussing, we could just talk about the unlawful act.

        Yes, we need to interpret intent. We do that all the time. In everyday life, and in law. Do you know that the difference between murder and justifiable homicide is intent? We infer intent from the facts and circumstances.

        1. No, you don’t need to interpret intent, David. Why? It is an arbitrary and capricious judgement in the hands of politicians. That is precisely what the Founders worried about. That is why there really isn’t traction here.

          I thought Professor Turley made a telling point in his testimony. If you want to overturn the results of an election by means of impeachment, then the charges had damned well better be real, and they have to stick.

          Abuse of power is in the eyes of the beholder. There is no objective criteria I see acceptable to both Team D and Team R. Was bombing Libya (Reagan, Obama) an abuse of power? What about Iraq (Bush the Younger)? Or trading enemy combatants for US soldiers (Obama)? The standard is well….not really a standard, is it?

          To be seen as completely legitimate, you need something ‘real’. Something that is clear, undeniable and unequivocal. That is where everything falls apart presently, when it comes to Ukraine. Could POTUS Trump have wanted to ‘stick it’ to former VP Biden? Sure. Could POTUS Trump have been concerned at the level of corruption? Sure. Could POTUS Trump have been concerned at the lack of aid from the EU? Sure. Any one of these three are plausible. The point is: it is not clear, and it is not unequivocal.

          The country has not reached a consensus to impeach and remove this POTUS. That has become crystal clear. Team D that wants him out, the rest of the country just isn’t there.

          1. If you want to overturn the results of an election by means of impeachment

            Impeachment does not overturn the results of an election, so that’s definitionally not a great point.

            Any one of these three are plausible.

            No. Two of them are so obviously implausible given the established facts that they can be argued only in bad faith.

            The country has not reached a consensus to impeach and remove this POTUS.

            The constitution only requires 50%+ to impeach a president. Not a consensus. (It requires a significantly higher threshold, but still not a consensus, for removal.) If the framers had meant it to be so hard to impeach and something that should only be done if it was “clear, undeniable and unequivocal,” they could have made it 67%, or 75%, or 90%. They didn’t. They decided that if more than half of people thought a president should be impeached, then it was legitimate to do so.

            1. Ok David….we will agree to disagree,

              1. But you only do so because you’re arguing in bad faith, duh.

                I realize not everyone will agree with me, but that’s actually a mark against Trump that he’s the source of so many otherwise seemingly reasonable people falling apart. Maybe it just that they were never reasonable but out on a good face, or maybe he just broke them, but this is exactly the sort of thing that concerns me the most, especially the backlash to an otherwise boring President (setting aside social media, of course).

                1. I don’t think so. There are a number of reasons people are falling apart over Trump.

                  1) Democrats, of course, have been gradually losing their tolerance for anybody but themselves being in power. All many of them need to go gonzo is Trump not being the Democratic candidate.

                  2) The Republican establishment thought that they had gatekeeper authority over reaching office as a Republican: That if they couldn’t stop somebody outside the establishment from getting the nomination, at the least they could make sure they lost the general election. Trump broke them by demonstrating that they had lost control, and this is a personal threat to their self image and livelihoods.

                  3) Moderates used to the “Uniparty” governing are horrified that somebody got elected promising to shake things up, and then actually tried to shake things up. This leads to the unsettling possibility that elections might result in changes of policy.

                  1. Brett, this is a case where we will simply have to resolve it at the ballot box. Our elected leaders have failed.

                    1. Commenter_XY, unless Republicans can assure themselves a tightly-controlled sham trial in the Senate, I give Trump a fair shot to be removed from office. Democratic lawyer Barry Berke has twice stepped in to cross examine Republicans. Both times played like scripted TV courtrooms, with the witnesses shortly breaking down, unable to do more than stammer out confessions of lies and duplicity. Give Berke a fair shot at Republican witnesses in an impeachment trial, put the results in prime time, and Trump is probably toast.

                      Any hesitation in predicting removal is based almost entirely on recognition that Republicans, having seen what Berke can do to them, will be desperate to set things up so he can play no role.

        2. That is what abuse of power is. That’s what it’s defined as. Which is why we should talk about the act.

          The comment you make about “intent” is ridiculous. There’s a crime called “unintentional manslaughter”. By definition, it wasn’t intentional murder. And yet, it’s still a crime of murder.

    2. Define personal gain. Was Obama’s ability to blame a video personal gain? 500 million to Iran for a hostage swap, personal gain? Iran treaty that was never introduced to congress a personal gain? Various carbon treaties? Please clearly define these limits.

      1. That’s what Blackman and many others here are getting at – if this is the new standard then every time the opposite party holds the House-Presidency there will be an impeachment. And every time the Senate aligns with the House there will be a removal.

        It’s an interesting equilibrium, and a shift from what we’ve had with essentially no impeachment’s to everyone gets impeached. I’m not sure it’s a bad idea, because it would effectively shift the presidential election cycle to 2 years, but we’d look more like a badly structured parliament as Speaker after Speaker ascends the Presidency after they knock out the President and VP.

      2. You don’t know how to tell the difference between personal and political? Come off it.

        1. Is an investigation of a political rival for “political” gain or personal gain?

          Sound like political gain.

        2. Yes, Sarcastro please give us an example of Trump’s personal gain, divorced from political gain. It’s easy with Biden: money to Hunter.

          1. Winning an election by getting another country to smear your opponent is personal gain; it is not political gain.

            The personal gain nature is also independent of the truth of the smear.

            1. How about winning an election by getting another country to expose your opponent’s very real corruption?

              See, that’s the problem here: You seem to be blowing off the possibility that there’s something real here to investigate.

              1. From birtherism to CrowdStrike to Biden . . . you’re on quite a roll, Brett.

              2. Did you see how I said it is independent of the truth of the smear, Brett?

                1. Yes, I’m not sure why I should care about that.

                  If I personally gain from framing someone for corruption, that’s bad. It’s bad because of the framing, not because of the personal gain.

                  If I personally gain from exposing somebody’s real corruption, that’s GOOD. And that I gain from it does not change that it’s good to expose corruption.

                  Adam Smith: “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.”

                  The situation is somewhat the same for politicians: While it would be nice if they did the right thing out of the goodness of their hearts, we don’t rely on it. We rely on making doing the right thing personally advantageous.

                  Now, we expect the personal advantage to come in the form of getting reelected, not money crossing their palms. But that’s the sort of advantage you’re talking about here, isn’t it? Trump isn’t making money off of exposing Biden’s corruption, he’s enhancing his reelection prospects.

                  That’s not corruption, that’s a happy confluence of interests.

                  1. Yeah, but regardless of whether you’re framing or exposing, using your office to get another country to announce an investigation is using your office for personal gain.

                    1. Yes, but if the personal gain is in the form of enhanced reelection prospects, and you’re exposing real corruption, that’s GOOD.

                      I mean, not if you’re a member of the party whose corruption is being exposed, obviously, but in a general sense.

                    2. Brett,

                      Are you arguing that pressuring a foreign leader to announce a corruption investigation of a political opponent is justified even if your motivation is not to expose real corruption, so long as real corruption is exposed?

                    3. Yeah, but regardless of whether you’re framing or exposing, using your office to get another country to announce an investigation is using your office for personal gain.

                      And you have yet to rigorously prove that is wrong.

                  2. If I personally gain from exposing somebody’s real corruption, that’s GOOD. And that I gain from it does not change that it’s good to expose corruption.

                    No. It’s only “GOOD” if done via legitimate means.

                    To listen to you Trumpkins, Nixon should have tweeted, “Yeah, I authorized the DNC burglary. So what? I heard they were corrupt.
                    Many people were saying it. So I was justified.”

                    1. True.

                      Brett did writer that framing someone for corruption is bad. Note that he did not write, “except if that someone is guilty”.

            2. Virtually every election is either won by smearing an opponent, or involves smearing in an attempt to win. We can, however, establish the two poles of a smear: at one end an outright fabrication and at the other truth that happens to be damaging. I think that the former is impermissible and the latter is not, even though in both cases the goal is to win an election with a smear.

              You, David and probably others seem to believe that you have “figured out” that Trump was going for the first case, and amazingly enough you figured it out without having to resort to evidence.

              1. Obviously. If those who don’t come to your conclusions could only have failed to do so through bad faith as explained above what need is there for evidence?

                1. Claiming that there’s no evidence is the bad faith. People get put on death row with less evidence than there is here.

              2. Paying a foreign government to smear your opponent is not how virtually every election goes, though.

                Damaging truth or damaging lie, does not matter; that’s new, and it’s something y’all seem okay with.

                1. Try reading that again. I said a smearing lie was impermissible, but the truth was not. And you have developed a very novel take on this case: paying a foreign government to smear your opponent. Even Schiff was not so bold.

                  1. Read what I said again. Either way, the motive is for personal gain and is impermissible.

            3. “To win an election”…..

              Sounds political. Like a politican gain.

              1. Fine. Everyone else knew what I was talking about, but you want to be pedantic. Policy gain versus personal gain.

                If you can’t tell the difference between wanting a policy win and wanting to kneecap your opponent, you’ve gotten dumber.

                1. Would it be just as bad if the personal gain was laundered, as opposed to direct?

                  If Trump hadn’t said what he did (which some at least think is open to interpretation), but we had a recording of Trump telling Giuliani to go to Ukraine, meet with their President, and give him a direct ultimatum – dig up dirt and here’s your envelops of money.

                  I think that’s just as bad as what’s alleged, do you?

                  If so, what if there are multiple layers of laundering? What if we don’t have all of the recordings, just some written contracts?

                  If you still say that’s impermissible then how is that different than what the Clinton campaign did with Steele?

                  1. If Trump hadn’t said what he did (which some at least think is open to interpretation), but we had a recording of Trump telling Giuliani to go to Ukraine, meet with their President, and give him a direct ultimatum – dig up dirt and here’s your envelops of money.

                    I think that’s just as bad as what’s alleged, do you?

                    Are you talking about money from Trump’s bank account, as opposed to money from the U.S. Treasury? If you are, no, that’s not as bad, no. (It would still be illegal; you can’t bribe a foreign government official to act. But it would not be a misuse of U.S. government resources. Assuming Giuliani did not make any threat relating to U.S. policy.)

                    If you still say that’s impermissible then how is that different than what the Clinton campaign did with Steele?

                    Well, first of all, the Clinton campaign didn’t do anything with Steele. The Clinton campaign engaged Fusion GPS, not Steele. They did not bribe Fusion (or Steele); they hired Fusion. Second, the Clinton campaign is not the federal government. You can’t abuse your office if you don’t actually have an office.

                2. I would think fighting corruption IS a policy win.

                  If you’ve helped uncovered a scheme where a high ranking US government official was beholden to a foreign government (and there might be potentially blackmail) that’s a huge policy win, and you’ve done the US people a great service.

                  I mean a personal gain is something like getting a huge payoff in cash for you, or a member of your family. Or perhaps protecting a member of your family from prosecution for their semi-illegal acts.

  6. The idea that Trump committed this impeachable offense over a phone call with 20 people listening, as opposed to, say, sending an emissary to deliver the message privately, is ludicrous. Furthermore, the President of Ukraine announcing an investigation of the Bidens would be a “personal benefit” is equally risible. Would that have even rated thirty seconds on Fox News? Of course, everyone knows the Democrats have been scheming t impeachment since Election Day, and that “Ukraine” was the last-minute Plan B after Mueller failed to answer Democrat prayers.

    There are shades of the ludicrous Rick Perry indictment, in which a threat to veto funding was characterized as “extortion”, and, even more preposterously, exercising that veto was “theft”. But, of course, the Democrats have always had less reticent to use abusive lawfare to go after their opponents than the GOP. (See, e.g., Wisconsin “John Doe” warrants).

    And isn’t nearly everything a president does to improve his electoral chances and those of his party? If a president thinks, “I don’t really believe in this policy I’m pursuing , but I think it will win me votes,” is that a “corrupt motive” for “personal gain”? Most motives are mixed motives.

    1. By the broad definitions here…. every press conference is a personal gain. Every bill signed is a personal gain. Impeachment is a personal gain. Mueller was a personal gain. Etc etc. There is no definition for this term.

      1. Look, I don’t think very highly of you, but I don’t believe that even you are so stupid as to believe the arguments you are making.

        “The president might benefit politically from lowering taxes, so therefore there’s no difference between lowering taxes and saying, ‘I’ll do such-and-such if you donate a million dollars to my campaign,” is not something a serious person says.

        1. “there’s no difference between lowering taxes and saying, ‘I’ll do such-and-such if you donate a million dollars to my campaign,” is not something a serious person says.”

          Then I guess it’s a good thing he didn’t say that.

          1. And no serious person would say that he did.

            1. Then I guess it’s a good thing that I didn’t say that he said that.

              What I did say was that JesseAz’s pretense that we can’t tell corrupt from non-corrupt acts simply because a president may benefit from both is arrant nonsense. And I illustrated that with an example.

              1. Look, the obvious rejoinder is that, sure, you can tell corrupt from non-corrupt acts where the acts are inherently criminal, such as bribery. But where the acts are lawful, and identifying corruption requires demonstrating the motive behind them?

                Hard to prove that a corrupt motive was behind an act when there’s an obvious legitimate motive available.

                Note, I said “prove”. Of course it’s easy to assume corrupt motive, if you don’t like a President. And that’s what is going on here: People who really, really don’t like Trump assume that he’s behaving corruptly in any case where it’s even possible.

                1. I continue to be amazed that reasonable people think it is credible that Trump is motivated by weeding out corruption. As Romney put it:

                  When the only American citizen President Trump singles out for China’s investigation is his political opponent in the midst of the Democratic nomination process, it strains credulity to suggest that it is anything other than politically motivated

                  1. Were there others getting fat paydays from the corrupt Ukrainian government? In that case there is even a better reason to investigate. And I had no idea Hunter was running for office.

                2. Look, the obvious rejoinder is that, sure, you can tell corrupt from non-corrupt acts where the acts are inherently criminal, such as bribery. But where the acts are lawful, and identifying corruption requires demonstrating the motive behind them?

                  Yeah. No big deal. We demonstrate motive in criminal and civil cases in our justice system all the time. Fact-finders can infer it from the circumstances, even if the person doesn’t blurt out that he ordered the code red. This is just isn’t the impossible hurdle you pretend it is.

                3. There’s some obvious “consciousness of guilt” evidence:

                  1. The “rough transcript,” which was classified as SECRET, was placed in system for particularly sensitive TOP SECRET records (TOP SECRET-SECURE COMPARTMENTALIZED INFORMATION).

                  2. The White House released the aid after it leaned that there was a whistleblower.

                  If Trump’s aims were noble, he sure acted like they were shameful.

                  1. I don’t find (1) even mildly convincing, once you know that many calls that have nothing suspicious on them were all stored in that same location, and that this came about after mass leaks from Whitehouse staff that reportedly upset the President.

                    (2) I do find suspicious though, even if it could be simply a matter of them needing a reminder to release the funds and the whistleblower complaint was merely the first thing sufficiently pointed to get their attention.

              2. There was an obvious public benefit to an investigation of the Bidens by Ukraine: not getting stuck with a corrupt president and his family of grifters.

                For all the time and energy the Democrats have spent trying to get Trump’s tax returns when there is no allegations of anything criminal, I think at least as much effort is needed exploring Hunter’s financial records to make sure we aren’t electing a family of crooks.

                1. TRUMP is worried about a family of grifters?

                  1. Why not? Trump might not be completely clean, but compared to your average government grifter he’s looking pretty good.

                    1. No, Brett. Trump is far more corrupt than any other politician in the history of ever.

                  2. Do what I say, not what I do?

                    Seems a common enough paradigm.

                    1. Yeah. It was pretty hilarious watching Trump’s kids go on TV to complain how Biden’s son spun his dad’s job into a job he wasn’t qualified for.

                    2. @Escher – well yeah, do what I say, not what I do.

                      Though at least the little Trumps have some qualifications for some of what they’re doing, while Biden Jr somehow didn’t lose his bar license when he was thrown out of the Navy for cocaine use (hint: those aren’t actually random tests, failing on one is either terrible incompetence or someone who uses constantly).

                  3. There is a huge difference between making your money in private enterprise and making your money selling your daddy’s influence to a corrupt oligarch.

                    I don’t think anyone seriously disputes that Zlochevsky is a corrupt oligarch. He is currently being investigated for embezzlement of state funds in Ukraine, and is currently on the run, from Wikipedia: “According to Ukrainian authorities Zlochevsky is suspected of “theft of government funds on an especially large scale”.[27] Still according to the Ukrainian authorities, the criminal investigation on suspicion of embezzlement is on hold, because Zlochevsky whereabouts cannot presently be determined.”

                    That makes Hunter Biden part of a criminal enterprise, which is a legitimate reason to open an investigation.

                    1. There is no sign of Hunter selling Biden’s influence. Don’t make things up.

                      As for being in bed with unsavory characters, the Mueller Report discusses quite a few examples of the Trumps doing that to a much more intimate extent than just being on the board of a company run by one.

                      Part of a criminal enterprise? That’s complete BS. That’s not how the law works. It’s not enough to open an investigation, and it’s not enough for Trump to suddenly be deeply concerned about the Bidens’ corruption – concerned enough to get a public statement about it.

                      I don’t much care for Biden, or about Hunter, but the speculative spinning the right is doing to try and gin up a crime where none exists is pretty ridiculous.

                    2. That makes Hunter Biden part of a criminal enterprise,

                      It doesn’t.

                      which is a legitimate reason to open an investigation.

                      Then why did the U.S. government not open an investigation of him?

  7. The Democrats have nothing and are engaged in nothing short of a conspiracy to overthrow the US government. The treason trials need to begin and soon.

    1. Trump is not the government.

      1. I thought he was a some kind of fascist king though who just ran the whole government? What is it then?

        1. David Nieporent may be fundamentally wrong on this, but he’s not a crazy (and I hope he returns that opinion to me), but the people who say “Trump is worse than Hitler” (or some analog) while simultaneously advocating gun confiscation confuse the hell out of me.

          1. We can agree on that last point.

            Similarly for FISA; complain about the fascist in charge (if you’re a Democrat) or the Deep State (if you’re a republican) but then authorize increased surveillance powers for those people.

            1. With politicians at least I think we can posit bad faith as the default reason, but regular people?

            2. They all view Trump as a temporary aberration, to be done with in 1-5 years, while the Establishment goes on. And they know he is severely handicapped by the “resistance”, and so can’t personally avail himself of these powers.

              And I’m somewhat concerned that maybe they simply authorized too much in the way of surveillance powers in the first place, and now can’t take them back without risking being personally destroyed by having their own secrets exposed in retaliation. That the intelligence services are gradually morphing from a servant of the elected, to their shadow puppeteers.

              1. You figure Trump-level backwardness, intolerance, ignorance, and boorishness are the American future?

                You need to spend more time with young, educated, accomplished, tolerant, decent Americans. In successful, educated, modern communities.

                Or just observe the arc of American progress throughout our lifetimes.

    2. You throw that word around far too readily. Impeachment is inherently a political process, and the Dems are just following the rules. It’s not even close to treason. If you think impeaching a President is treason, then try the framers for treason, for putting impeachment in the Constitution.

      1. Impeachment hasn’t been a purely political political process since Jefferson’s impeachment of Samuel Chase failed. This is supposed to be a criminal proceeding. The president is supposed to be convicted of a crime of some form.

        If it is a purely political problem, then Congress can override vetos, write new laws, deny funding, and overall contain damage until the next election.

        1. No, it’s not supposed to be a criminal proceeding. That’s why criminal punishments cannot be imposed via impeachment. Impeachment is about protecting the country from an unfit president. Punishing the president for committing a crime comes only after impeachment/removal.

    3. Then, it seems to me, Birtherism was treason as well, as it was an attempt to “overthrow the government” as it claimed that the president should be removed. By your logic then, Trump did commit an impeachable act–Treason. All done.

      1. To be truly pedantic Birtherism wouldn’t have removed the President.

        It would have annulled his election, or the Supreme Court would have ruled it non-justifiable giving it no effect. Even if annulled the Apparent Power doctrine probably would have left all of his actions in place.

        But either way he wouldn’t be removed. He’d either keep his seat, or never have lawfully possessed it in the first place.

        Just for fun 🙂

        1. Bad word choice by me. Should have been: “Then, it seems to me, Birtherism was treason as well, as it was an attempt to “overthrow the government” as it sought to annul an election.”

          1. Yes, pedantry can be fun, as long as we all know that’s what we’re doing 🙂

            For more fun that would have excluded either of the 2016 major party candidates, as they were both Birthers I’m their time.

  8. A well written and probably prescient article. Unfortunately for both progressives and the republic, we have all seen the results when the Republicans simply start playing by the progressive rule book. Turn about being fair play, we might not even have to wait as long as the election of a Democrat president.

    Presidents are not the only impeachment targets. Since the Republicans have been told by those on the opposite side of the isle that they can impeach based on a vague nebulous abuse of powers doctrine without the niceties of due process, it is not hard to imagine the possibilities. If the Dems manage to lose the House this next election cycle the fun doesn’t even have to wait for the outcome of the presidential election. It seems to me there are a lot of partisan federal Democrat Judges issuing national injunctions based on nothing but personal preference and ideology. Obviously since their motive and intent is determined by what the majority of this congress says it is, we can easily see they are abusing their powers in the service of their personal ideology and need to be removed. Expect the usual suspects to yell that this is unprecedented and it’s really, really bad for the Republicans to use the same tactics typical of the progressives, but it does seem you started this. If I were Judge Tigar or others like him, I would be starting to sweat a little. Reap the whirlwind guys. I think it is too late. With the vote in the house, the laws have already been flattened and the Devil is coming for you.

    1. That’s the general trend. I don’t think it will escalate that quickly; look how long it to the GOP to escalate the filibuster judge thing. But it’s going that way.

      I also think the GOP started this particular cycle with the impeachment of Clinton. The cause was more legitimate, but it still smelled of being a petty excuse to get rid of a President whose popularity they couldn’t dent. Yes, yes, he committed perjury; but he was also demonstrably guilty of several rapes, and they left that alone. What he was impeached for was petty indeed compared to Nixon’s pending impeachment.

      1. Agreeing in general but there is a difference in kind, not just degree with perjury.

        To phrase it alternatively, President Clinton subverted the entire Justice system for his exclusively personal gain. Raping (or murdering) doesn’t have that fundamental impact on the general populace, because if we can’t trust (in general) our justice system to get to the right answer then we live in a lawless state.

        Of course (and especially in hindsight) all claims about the President should be tolled during their term of office (at minimum), and probably have a limited discovery which requires preservation of everything based on class (I’m suing you for breach of a written contract sent by email – so all emails must be preserved).

      2. There were a lot more impeachment charges in the pipeline, and much worse ones. When Livingston got destroyed by that dump of blackmail files, the rest of the House managers quickly fell in line, shut down the investigation, and went with the abbreviated list of charges.

        It was a dive, in other words.

      3. Just imagine the Bill Clinton had been a Republican with a Democratic house. How loud would the Democrats have howled about the sex abuse of differential power.

        1. I’m not sure it would have been that loud back then, Anita Hill notwithstanding.

          Today it would be hilarious though.

          Just look at all the claims that Trump is a confessed rapist with the only evidence being his description of how broadly women grant consent to famous people such that you could grab them by their kittens (not sure if that will hit a filter), even though he never made either claim nor implication that he had ever done so.

  9. I think it would be a mistake for the House to pass entirely vague articles of impeachment, especially if the conclude that they cannot make any of the definite ones which have been proposed stick.

    I agree that the court’s animosity jurisprudence should not be expanded to corrupt and criminalize the political sphere, morphing ideological differences into evil motives. And I agree this protects things like DACA, the travel ban, the wall, etc.

    I also think that the House will need to prove that what Trump did bears a close analogy to a bribe for the investigation-related charges to stick, and was not simply prompted by “evil motive.”

    And I say this as someone who has been no friend of Trump’s.

  10. Is ‘don’t withhold money appropriated by congress for military aid to an ally fighting an adversary for your own private benefit’ really something presidents might reasonably expect is not an abuse of their power? Yeah the line for ‘abuse of power’ is blurry, no one’s arguing it isn’t, but you seem to be arguing ‘well, the line between right and wrong can get really blurry since it’s subjective, so who are we to say ethnic cleansing is wrong?’.

  11. For the record, the US could do worse than “tenure during pleasure of the Senate”. It’s how virtually all (other) functioning democracies work…

    1. I agree with that. If 67 Senators vote to remove a President then that is a strong indication that he has lost the confidence of a large majority of the country, especially as long as Senators are not elected at-large.

    2. You mean all those other “functioning” democracies like Greece, and Italy that change Prime Ministers almost as often as they change their socks? Or maybe you think the UK still counts as a “functioning” democracy despite their steady slide toward leaders who think that Orwell’s 1984 is a how-to manual?

      Maybe, just maybe, you could ask why none of those other “functioning” democracies have lasted as long as the US so far. Maybe it’s dumb luck. But maybe it’s at least partially because we don’t do stupid, self-destructive things that encourage mob-rule.

      1. Maybe, just maybe, you could ask why none of those other “functioning” democracies have lasted as long as the US so far.

        Same reason I’ll never be as old as my sister, who was born before me.

        That is, the lack of time travel.

        1. It could be that. But we can also generalize the analogy a bit. Neither you nor your sister have died yet. But if we look at your brothers and notice that a fair number of them died young, it’s reasonable to hypothesize a Y-chromosome-based component to survival.

          There have been plenty of examples of parliamentary systems where the chief executive effectively serves at the pleasure of the legislature. While they haven’t all collapsed yet (and some are still quite healthy), enough have collapsed to say that it’s not the magic bullet that Martinned tried to imply.

          1. ???
            This:

            For the record, the US could do worse than “tenure during pleasure of the Senate”.

            is not a “magic bullet”, implied or otherwise. It’s a shrug and a “meh”.

      2. For the record, my country (the Netherlands) has been a democracy-ish since 1581. The only interruptions during that period are the consequence of the fact that, unlike the US, we don’t have an ocean between us and our neighbours. But that’s hardly a flaw of our constitutional design.

        1. Canada and Mexico object to your claim of Hollandaise exceptionalism.

  12. This is very dumb. It’s a pretty ordinary thing to be able to distinguish between good faith execution of policy versus personal gain.

    This is like the business judgement rule. There’s a presumption the President is acting on behalf the country, but that doesn’t mean it’s impossible to prove otherwise.
    On other threads we’ve argued about whether that burden was met, but to argue that it’s impossible to examine such question is incredibly disingenuous.

    1. …Is disingenuous if it’s done by anyone that’s trained as an attorney.

      1. I think you put your finger on it Sarcastro. This kind of judgment is made all the time. Randy Barnett even wrote a post here called “The President’s Duty of Good Faith Performance.” (You can google it. My first try got eaten for containing a link.) As he notes in pertinent part is: “the fact that discretion exists does not tell us whether the party (or President) is in breach of his duty. What matters is the purpose or motive for the exercise of discretion.” Too bad the comments weren’t saved by WaPo. The commenter flip-flops from this Federalist Society theory put out during the Obama administration would be interesting to track.

        1. Are more than a handful making that assertion? I don’t recall actually seeing that as an argument, just as a few one line assertions, presumably from Trumpistas.

          Of course the President can be acting in bad faith, but it’s a presumption for good faith – we have to prove its otherwise was the Barnett standard, but what seems to be argued by many here is that because we know Trump is evil (the subtext) that good faith is always disproven in every specific example involving him, and that no one could argue otherwise in good faith (the actual claim).

          1. It’s the OP, chief.

            1. Sorry, I meant the flip flop from the Obama administration. Blackmans point boils down to “if any President could so this, then so can every President.”

              1. Nothing Obama did was strong-arming a foreign government to smear his opponent.
                Nothing Obama did contained such evidence of individualized corruption so as to pierce this presumption.

                While his supporters whattabout as hard as they can otherwise, Trump is special.

                1. Scratching my head on this one (literally, it’s itchy). This sub thread is about the “Presidents Duty of Good Faith Performance,” not whether what Trump did (or appeared to do) is qualitatively different that what his predecessors did.

                  And I just don’t see how things like Fast and Furious could fall under good faith performance. Some people (including the government) reject respondeat superior for the Executive, but I don’t.

      2. Of course this sort of judgment is made all the time, but ideally you want it based on evidence, not merely presumption of bad motives.

        If an act is lawful, and there’s a potential legitimate motive available, then you have to PROVE the illegitimate motive, not just assume bad motives.

        That’s the problem here: We keep seeing Trump accused of engaging in lawful conduct for bad motives, where legitimate motives are available. So the only people persuaded that a crime has happened are the people who already hate Trump, and assume the worst.

        1. The OP isn’t making an argument against fact like you are – it argues process. Most of the commenters are making process arguments as well.

          If you want to argue once again that you can’t prove an illegitimate motive, I’m all for that option because that’s a very weak argument given the factual predicate we have before us. Even some of the Trump folks have taken to arguing only that it doesn’t matter.

        2. You do know they spent weeks collecting evidence, right? And that evidence is going to be part of what the House and then the Senate considers.

          And here’s the kicker: if President Trump is actually removed from office over this, it will be that evidence persuaded a significnant number of Republican senators.

          So yes. There is evidence. And if Trump is removed, it will because that evidence persuaded people who do not already hate Trump.

          1. I will predict now, (And I’m not fond of making predictions.) that the only way Trump gets convicted in the Senate, is if you get rules providing for a secret ballot, in order that 20 Republican Senators can lie about how they voted. Or if McConnell somehow contrives to arrange for the vote to be held with enough of the Republican caucus not present that they can reach 2/3 with only a handful of defections.

            But there’s no way you get a roll call vote of 67 Senators to convict, based on anything that’s even suggested by the public record. And if the Democrats had evidence that could persuade people who do not already hate Trump, we’d have seen some indication of it by now.

            1. The first paragraph isn’t a bad prediction.

              The second one, however, is just you doubling-down on how because you aren’t persuaded by the evidence, that it just doesn’t exist.

              1. I’m saying there’s no indication of evidence that would persuade people like me, and so long as people like me aren’t persuaded, you don’t get to 67 votes, because voting to convict is political suicide for too many Republican Senators.

                Maybe they have evidence that would persuade me, and for some obscure reason have been keeping it a deep, dark secret. But I doubt it.

            2. Why do you think 20 Republican Senators would convict in a secret ballot, but would not in a public ballot?

              I think the Democrats would love to have Mulvaney and others offer first-hand, direct evidence, but the White House is stonewalling such testimony.

              1. Because the Republican establishment purely loathes Trump. They treasure their position as the gatekeepers to office for half the political spectrum, and here comes Trump, neither a member of the establishment, nor blessed by them, and he not only crushes their choices, he has the nerve to win the general election, too.

                The only thing that saves Trump from the Republican establishment is the Republican voting base. Give them a secret ballot, and they might imagine they can vote to convict without being held to account for it.

                1. I agree that Trump’s popularity with Republicans is what keeps Republican Senators from convicting in an open ballot. But I also believe these Senators are persuaded by the evidence. So the important question is then what evidence could convince Republican voters to turn on Trump. I am afraid Trump was right that he could shoot someone on Fifth Avenue and not lose support.

                  1. But would shooting someone on 5th be disqualifying for the role of President.

                    I don’t think so, just as I didn’t think Clinton’s adultery was disqualifying. I’ve even been advocating for many years now that we (the public) should supply the President whatever their vices are, specifically so they they’re not bound by their addictions – whether it’s cocaine or hookers.

                    So is it disqualifying? Not for me. Should it be prosecuted? Absolutely. But I don’t view the President as any kind of a moral leader, merely as a manager we hire to run our business. Great if he’s a moral man, but not necessary.

                    1. But would shooting someone on 5th be disqualifying for the role of President.

                      I don’t think so […]

                      I think you just disqualified yourself from any claims of moral or ethical behavior.

  13. Trump has been famously accused of favoring Russia. Wouldn’t then his approval of more sanctions been to his benefit? And in the same light, wouldn’t his delay of funds to Ukraine have hurt him politically?

    Who says what motives a Trump had? And whether he gained from the Ukraine remarks.

      1. The point that seems to have sailed over your head is that these actions could have the opposite motives than those progressives prejudicially assign to them.

  14. Wow, lots of mind reading going on. So he brought up the Biden’s to Zelensky. Wow, I mean there is nothing I mean absolutely nothing there right?

    Every day I hear about corrupt Oligarch’s paying folks millions just for nothing. Nothing at all. It’s common place. And VP’s bragging about withholding aid unless we fire the prosecutor investigating the oligarch who employs the VP’s son who gets paid millions by said oligarch for doing nothing is not unusual at all.

    Move along, Trump is bad impeach.

    1. “ fire the prosecutor investigating the oligarch who employs the VP’s son who gets paid millions by said oligarch for doing nothing is not unusual at all.”

      And is definitely not corrupt, but having your daughter as an unpaid advisor is beyond the pale.

      I keep looking for a standard other than “my guy is good, yours is evil” and keep coming up with nothing.

      1. How about “lenders to Ukraine’s government wanted that prosecutor fired for not investigating corruption”? Lenders with billions of dollars at stake thought this would _reduce_ corruption. Why would Biden (or anyone) think this would _enable_ it?

  15. When I first read the title, I thought it was going to be a discussion on impure motives in Congress, and specifically, using power to investigate the president to get rid of a political rival, on anything they they could find, that being the impure motive.

  16. “Yes, I am far less concerned about what happens to President Trump then I am concerned about what happens to the next President, whoever he or she will be.”

    Well, if he turns out to be Biden, and the Republicans take the house, the next impeachment will begin as Biden walks down the steps after his oath of office. And it will feature a broadcast tape of his confession.

    1. “From WSJ: “Biden was making the same demands that other lenders to the Ukrainian government were making… Everyone in the Western community wanted Shokin sacked,…The whole G-7, the IMF, the EBRD, everybody was united that Shokin must go, and the spokesman for this was Joe Biden.” If firing the prosecutor Shokin would protect corrupt Ukrainians, why would lenders — with billions at stake — push for that?

      1. Maybe for the same reason that they weren’t aghast at the conflict of interest represented by Hunter Biden and thus pushing for him to be removed–they were going along with the wishes of world’s only superpower, as represented to them by the VP.

        1. If you look at the track record of IMF heads, they’re more likely to be hostile to honest prosecutors, than corrupt ones.

        2. Except Biden didn’t start the push to oust Shokin, Europeans did: https://www.ft.com/content/e1454ace-e61b-11e9-9743-db5a370481bc

          1. And his son got a pretty sweet deal.

  17. Yawn.

    “An impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” Gerald Ford

    1. Good luck reaching that 2/3 and not getting blowback if you fail in making the case to the supporters he’s so bad he needs to go.

      1. Of course.
        But the Ford quote aptly points out that impeachment is purely a political effort. All this legal talk is totally besides the point.

        1. Bob is absolutely 100 percent right, as was Ford.

      2. This sort of argument would be much more persuasive if Republicans had discovered it back in 1996.

        That said, the impeachment of Bill Clinton is an argument against the “blowback” theory anyway. Republicans went on to win the presidency and maintain a hold on congress for years.

        1. They got a majority of the House so it was impeachable.

          They failed to satisfy the second part so no removal.

          Clinton proved Ford’s point.

          1. (check the comment thread. I was responding to Krayt, and his claim of “blowback”, not you.)

  18. So, surmise and speculation about Trump’s motive makes a proper conditional action (withholding aid from a country with corruption scandals unless that country promises to investigate corruption) into an action with improper motives?

    What people surmise and speculate about others is often a window into their psychology.

    If speculation about improper motives for an otherwise acceptable action works to impeach Trump, what president from any party will be safe in the future?

    Recall Elizabeth Warren and Alexandria Ocasio-Cortez waxing poetic in their admiration for the ruling style of Stormborn Dragonlady of “Game of Thrones” (Bend the knee or be fried); surmise and speculate about their motives for any government action.

  19. Fun times, we absolutely know there was no intent to mishandle classified information on Hilary’s part because ?? Not sure but Comey knew and even though the law requires no intent she’s good to go.

    Now we have all the great Democratic mind readers saying Trump’s intent had nothing to do with corruption and the Quid Pro Biden’s despite zero evidence of such intent beyond hearsay from swamp creatures.

    Yep makes total sense LOL

    1. Let’s accept for the sake of argument that both Hillary Clinton and Joe Biden are corrupt, dishonest people. How does that have any effect on what is alleged against Trump? He had many perfectly legal avenues available to mount investigations against either of them.

      I’m sure Democratic partisans can be just as hypocritical as Republican partisans. Is that your only point?

      1. “He had many perfectly legal avenues available to mount investigations against either of them.”

        And actually used one of them. You just don’t seem to like which one he used.

        1. Assuming it was legal for the sake of argument, no one should approve of using Giuliani as the avenue for pursuing investigations.

  20. I think it might well be a complete defense to any legitimate corrupt-abuse-of-power charges for Mr. Trump’s team to argue that his real motive was a secret attempt to pivot the United States away from being an ally of countries like Ukraine and Western Europe and towards being an ally of Russia.

    We might think it bad policy. But however bad a policy it might be, it would be a policy motive, not a corrupt motive.

    I agree that there has to be a corrupt element, an element based on personal gain rather than policy, and this represents a hurdle. But it is a surmountable hurdle. Corporate officers accused of pillaging company treasuries argue they merely made bad investments that happened to incidentally benefit them (but we’re really intended to benefit the company) all the time, and juries have been known to disagree.

    I agree amorphous “bad motive” charges are insufficient, impeachable corruption requires more than that. I agree this is a real hurdle that requires the House to put in more effort and prove more to make out an impeachable offense. I agree mere political incompetence, mere bad or wrong ideology, is not impeachable.

    But while the hurdles are real, they are surmountable if the evidence is there.

    1. Professor Turley made much the same point (that I happen to agree with) = But while the hurdles are real, they are surmountable if the evidence is there.

  21. “Now, this well-worn argument will likely serve as the basis for an article of impeachment: the President can ask foreign governments to investigate possible corruption, but this President cannot make such a request because doing so could harm his political rival.”

    Is Blackman really taking the position that Trump would have been pressuring Ukraine to announce investigations if Joe Biden wasn’t a rival?

    Because I’d really prefer him to lay out his indefensible positions clearly from the start, rather than merely implying them through similar scenarios that are easier to justify.

    1. I think if they had something on Rosie O’Donnell he’d be all over it.

    2. The Guilianni investigations started before Biden announced.

      That’s the problem with your timeline.

      1. Right, no one had any idea Joe Biden would be running for President.

  22. I’m not sure you are correct in your characterization of this impeachment being entirely based on the perception of motive, as opposed to his actual deeds. However even if that were true, I’m not sure that would invalidate things altogether. If a President were to, say, accept the promise of money in exchange for a pardon, surely that would be an action he has every right to take, but the perceived motive would make it a legitimately impeachable act.

    And as opposed to a pardon, President Trump had no constitutionally granted power to impound funds appropriated by Congress for military aid to Ukraine.

  23. Do presidents have authority to require _announcements_ of investigations, despite DOJ policy against such? Would Obama covertly forcing the FBI to publicize its 2016 Trump campaign probe have been impeachable? If yes, what’s different when it’s Ukraine’s FBI?

  24. […] the President can ask foreign governments to investigate possible corruption, but this President cannot make such a request because doing so could harm his political rival.

    A deliberate and obvious distortion of the argument.

    It’s really pretty simple.

    Consider the scenario. Remove the ability of the action to harm the political opponent. Does the president still do it? If so, then it’s probably okay. If the president does not still do it, then it’s apparent that the potential of harming their political opponent was the reason they took the action.

    And that is waht makes it illegitimate.

    Contrast with President Obama’s decision to not go public with the CIA’s claims of Russian interference in 2016. The CIA knew what Russia was up to, how it was trying to help then-Candidate Trump. Why didn’t Obama or the CIA tell folks?

    Becuase they knew it would be seen as a partisan, and improper, use of government power to harm a political opponent.

    So here we have President Trump trying to start an investigation specifically to harm a political opponent… and we have President Obama gagging the CIA to avoid harming a political opponent.

    Which way do you want a president acting?

    1. ” Does the president still do it? If so, then it’s probably okay.”

      Guiliani’s investigation started long before Biden announced.

      1. Hey, if you want to argue that Guiliani and Trump were too much of idiots to predict Biden running, despite many people having already publicly predicted it, be my guest.

  25. Blackman’s post title “impeachment based on improper motives”

    I read that as suggesting that the impeachment itself was based upon improper motives of the clan bringing impeachment. Maybe Josh has let slip his true heart.

    1. Nothing the Democrats have done since since 2016 has been based on proper motives.

      1. You don’t want women to vote. You can’t really speak on much about what’s proper.

        1. I’ll take “poisoning the well” for $800, Alex.

          1. I may start posting this to some of your comments. To give people the appropriate context for how to relate to you.

  26. “…gives Presidents no notice, whatsoever, of what is expected of them.” Not stealing an election by asking a foreign government to announce the investigation of a specific U.S. citizen is not something you think a president would know is expected of them? For real? You’re defending Trump with the ignorance argument?

    “…the President can ask foreign governments to investigate possible corruption…” Please point out where in the 7/25 call summary the word “corruption” is used. I can’t find it.

    Is Reason a front for the GOP? Asking for a friend.

    1. He said Hunter and Crowdstrike. There’s your corruption reference.

  27. I really like our new legal standards.

    The people at the FBI as well as Hillary Clinton clearly violated civil rights and laws. Yet, according to our austere prosecutors, they didn’t have “corrupt intent” so they are innocent of their lawbreaking.

    President Trump, however, hasn’t broken any laws nor violated anyone’s civil rights, yet he, according to our austere prosecutors, does have “corrupt intent”, so he is guilty and should be removed from office.

    What a wonderful, repeatable, and clear standard of law we have. Totally fair, and totally unbiased.

    1. The Rights constant going to whattaboutism really shows how their party has abandoned all principles for being an anti-Dem reactionary party.

      1. The right never were Democrats, and that’s all you really mean by “principles” at this point.

        1. Nope. Dems/liberals have an agenda – things we want to do.

          Scratch the commenters here, and it generally comes down to owning the libs being all the reason they need.

    2. Excellent post, thank you. It occurs to me that what’s good for the goose is good for the gander. Consideration should be given to Congress’ intent in impeaching POTUS. It is obviously NOT for high crimes and misdemeanors, it is for strictly political reasons: to remove POTUS because they lost the election. For this reason the Senate should find the articles of impeachment null and void.

  28. Central to this impeachment campaigjn is the fact that Joe Biden is a candidate for the Democratic nomination.

    The argument is that what Trump did was impeachable because, due to Biden’s status as a candidate, he would benefit from any criminal investigation by the Ukraine.

    This argument would imply that there would be nothing wrong with Trump withholding military aid if the Ukraine did not reopen an investigation into Random Joe Sixpack, that it was only wrong to request reopening an investigation involving Biden because he is a potential political rival.

    Implicit in this argument is that political rivals can never be investigated if the investigator may personally benefit.

    1. It’s a fair point. Just as a president cannot be above the law and immune from investigation, so should any candidate for public office. No problem with that.

      Here’s the way the conversation should have gone, if this were a fair dinkum investigation of the Bidens:
      Trump [to Mulvaney, or Flynn, or Barr, or ANY advisor]. I’ve heard information of corruption by Joe Biden and I want it investigated as soon as…
      Mulvaney [interrupting]. Okay, Mr. President. Here is what we are going to do and what we are not going to do. Frankly, the optics are terrible for you…you will look like you are doing this only for political advantage. But we can minimize this in several ways. (1) We are going to go to the Atty General, pass on all your information, and FROM THAT POINT ON, you will have NOTHING to do with this. (2) We will tell the AG, “You and your agency has full and sole authority to investigate this. You will never talk to me about this after this meeting, you will not talk to anyone in the White House about this, with only one exception. If anyone from my administration tries to influence you in any way, I want you to immediately inform me of this, and at the same time, inform both parties’ leadership in the House and Senate . . . and that person will be fired the same day. By me. Publicly.” If and when this comes to light, I want to be able to tell the American people, “I passed on this information to the proper place and I explicitly erected a Chinese Wall between my administration and the investigation after that.” [pause] Is that clear, Mr. President?
      Trump: Okay. But can we also ask Ukraine to investigate? We can do so secretly, so no one will ever find out?
      Mulvaney: NO NO NO. You already saw how much shit you took for seeming to ask Russia to dig up dirt on Hillary last election. We would have to be INSANE to be asking Ukraine to investigate in this election!!! And asking in secret would be 10 times dumber. Doing so would make you look sneaky and guilty. The FBI will figure out how to conduct its investigation. If it decides–ON ITS OWN!!! !!! !!!–to work with Ukraine on this, your hands must be 100% clean. People who are not in your base have an impression of you as unethical . . . the last thing we are going to do is feed into that.
      Trump: Wow, that is excellent and straightforward advice. Frankly, if I privately asked my Ukrainian counterpart to investigate the Biden’s, I think I’d get away with it. But your advice makes sense–let’s err on the side of caution.

      That’s how the conversation *should* have gone. Of course, if Trump were not so cowardly and if he had allowed people to testify, we’d know all about what conversations actually did or did take place.

      1. “Mulvaney [interrupting]”

        Wow, going that wrong in only the 2nd paragraph.

      2. I fail to see why it is wrong to ask the Ukraine to investigate?

  29. Yikes! Where is Bernstein?

    Republican Greg Steube spent his time in front of TV cameras yesterday spouting top-grade anti-semitic dog whistles. As (Jewish) Democratic Party attorney Barry Berke was eviscerating Republicans right and left on cross examination, Steube rushed in, spouting, “New York lawyer, New York lawyer,” time and again. That kind of thing was memorialized in the West Wing, years ago:

    Mary Marsh : School prayer, pornography, condoms – what’s it gonna be?

    Toby Ziegler : We’re not prepared to make any sort of a deal right now.

    Josh Lyman : Sure we are. M-Mary, I…

    Mary Marsh : My read of the landscape is that you’re cleaning out your desk before the end of business today, so I’d just as soon negotiate with Toby if it’s all the same to you.

    Rev. Al Caldwell : Mary…

    Mary Marsh : Please allow me to work.

    [turning to Josh]

    Mary Marsh : It was only a matter of time with you, Josh. That New York sense of humor was just a little…

    Rev. Al Caldwell : Mary, there’s no need to…

    Mary Marsh : Reverend, please! They think they’re so much smarter! They think it’s smart talk, but nobody else does.

    Josh Lyman : I’m actually from Connecticut. But that’s neither here nor there; the point is, Mary, I…

    Toby Ziegler : She meant “Jewish.”

    [heavy silence]

    Toby Ziegler : When she said “New York sense of humor.” She was talking about you and me.

  30. From Kerr’s twitter:
    I haven’t been blogging much at Volokh, but the need to respond to this piece by @JoshMBlackman is going to bringh me back. I couldn’t disagree with Josh more. Stay tuned.

    I’m out and about today, but this gonna be good.

  31. I am getting the feeling the Democrats will regret opening the Ukraine/Bide reason for impeachment before this is all over.

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