Impeachment for Corrupt Schemes: A Response to Josh Blackman

I couldn't disagree more with my friend Josh Blackman. Here's why.

|The Volokh Conspiracy |

I haven't been blogging much lately, but I thought I would chime in to say why I strongly disagree with my co-blogger Josh Blackman's view that it is problematic to impeach a President for abuse of power based on a corrupt scheme.  Josh suggests that such an impeachment is legally improper because it "fails to accord with any notions of fairness for the accused."  I find Josh's view highly unpersuasive, and I thought I would explain why.

As Josh tells it, impeaching a President for an abuse of power based on a corrupt scheme is unfair because a President has no possible way to know what a corrupt scheme is ahead of time.  As Josh presents it, a President could just be sitting there, minding his own business, when boom! he is suddenly impeached.  Josh writes:

[I]mpeachment 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.

Here's why I disagree.

First, I think Josh misrepresents the passage of the report to which he objects.  Josh writes that the report "conceives" of this understanding of impeachment.  Without any context, that makes it sounds like some sort of new theory cooked up just for Trump. But the House report's passage was actually presenting and summarizing the teachings of the constitutional text, Framing-era history, and the precedents provided by prior impeachments.   It is arguing that this is the Constitution's preexisting impeachment standard, not that it should suddenly become the standard for Trump.

Here's part of the report's explanation, with footnotes omitted and a paragraph break added:

This understanding of impeachable abuse of power is rooted in the Constitution's text, which commands the President to "faithfully execute" the law. At minimum, that duty requires Presidents "to exercise their power only when it is motivated in the public interest rather than in their private self-interest." A President can thus be removed for exercising power with a corrupt purpose, even if his action would otherwise be permissible. As Iredell explained at the North Carolina ratifying convention, "the president would be liable to impeachments [if] he had … acted from some corrupt motive or other," or if he was "willfully abusing his trust."

Madison made a similar point at Virginia's ratifying convention. There, he observed that the President could be impeached for abuse of the pardon power if there are "grounds to believe" he has used it to "shelter" persons with whom he is connected "in any suspicious manner." Such a pardon would technically be within the President's authority under Article II of the Constitution, but it would rank as an impeachable abuse of power because it arose from the forbidden purpose of obstructing justice. To the Framers, it was dangerous for officials to exceed their constitutional power, or to transgress legal limits, but it was equally dangerous (perhaps more so) for officials to conceal corrupt or illegitimate objectives behind superficially valid acts.

The report then discusses the Articles of Impeachment approved by the House Judiciary Committee before Nixon resigned:

Again, President Nixon's case is instructive. After individuals associated with his campaign committee committed crimes to promote his reelection, he used the full powers of his office as part of a scheme to obstruct justice. Among many other wrongful acts, President Nixon dangled pardons to influence key witnesses, told a senior aide to have the CIA stop an FBI investigation into Watergate, meddled with Justice Department immunity decisions, and conveyed secret law enforcement information to suspects. Even if some of this conduct was formally within the scope of President Nixon's authority as head of the Executive Branch, it was undertaken with illegitimate motives. The House Judiciary Committee therefore included it within an article of impeachment charging him with obstruction of justice.

Indeed, following President Nixon's resignation and the discovery of additional evidence concerning obstruction, all eleven members of the Committee who had originally voted against that article joined a statement affirming that "we were prepared to vote for his impeachment on proposed Article I had he not resigned his office."Of course, several decades later, obstruction of justice was also the basis for an article of impeachment against President Clinton, though his conduct did not involve official acts.

Yet obstruction of justice did not exhaust President Nixon's corrupt abuse of power. He was also accused of manipulating federal agencies to injure his opponents, aid his friends, gain personal political benefits, and violate the constitutional rights of American citizens. For instance, President Nixon improperly attempted to cause income tax audits of his perceived political adversaries; directed the FBI and Secret Service to engage in targeted (and unlawful) surveillance; and formed a secret investigative unit within the White House—financed with campaign contributions—that utilized CIA resources in its illegal covert activities. In explaining this additional article of impeachment, the House Judiciary Committee stated that President Nixon's conduct was "undertaken for his personal political advantage and not in furtherance of any valid national policy objective."His abuses of executive power were thus "seriously incompatible with our system of constitutional government" and warranted removal from office.

This is not the entirety of the report's passage, but you get the idea.  This isn't a new standard, the report is arguing, but the traditional one.  From what I have read in books and chapters on impeachment from Frank Bowman and Philip Kurland, that sounds correct to me. And I think that makes Josh's arguments about fair notice difficult to make.

Part of my disagreement with Josh may be based on how we read the report's standard. Josh presents the House report as arguing in favor of an intent only standard, in which impeachment is proper only based on a President's thoughts—"solely on 'corrupt' intent," as Josh puts it.  But here's what the report says:

Abuse of power was no vague notion to the Framers and their contemporaries. It had a very particular meaning to them. Impeachable abuse of power can take two basic forms: (1) 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; and (2) the exercise of official power to obtain an improper personal benefit, while ignoring or injuring the national interest. In other words, the President may commit an impeachable abuse of power in two different ways: by engaging in forbidden acts, or by engaging in potentially permissible acts but for forbidden reasons (e.g., with the corrupt motive of obtaining a personal political benefit).

As I read this language, and the explanation that follows, the report is not just saying that corrupt motive alone makes an act impeachable.  Rather, it is saying that an impeachable abuse of power can be based on a corrupt scheme that misuses powers that the President had been given to faithfully exercise.  That is, the fact that a corrupt scheme includes in part some power that President has been given to exercise faithfully doesn't insulate the corrupt scheme from impeachment.  Again, that sounds right to me.

A second way to construe Josh's argument is more particular.  Perhaps Josh is saying that a President would have no notice that something like what Trump actually did could lead to impeachment.  I'm not sure if Josh is making that argument, but it's worth pointing out why it is plainly wrong if he is.  The facts about what Trump did and why he did it are remarkably clear, with most of the evidence coming directly from Trump himself, Trump's White House, Trump's appointees, and Trump's lawyer.  And what Trump did strikes me as pretty much the scenario you would have described if someone had asked you, before the Trump presidency, what kind of Presidential acts are impeachable.

Think about it.  In an effort to falsely portray his likely 2020 opponent as being under criminal investigation, Trump sent his personal lawyer—not a government employee, but a person loyal solely to Trump in his personal capacity  —  to co-opt official government power to get a foreign country to issue a press release stating that Trump's opponent was under investigation.  Trump realized that if he could place his government power in private hands, to advance his private interests, that power could be used to get a press release that would let him portray Biden as under a cloud of criminal suspicion and help Trump in the 2020 election.  So to get around the official channels that focused on the interest of the American people, Trump secretly placed that government power in a private hired gun with a duty of loyalty only to Trump personally to get the deed done.

This strikes me as pretty much the core of what the Constitution's impeachment power is designed to address.  And I should add, to the extent it is relevant, that I was against impeaching Trump before the Ukraine story broke. It was the astonishing facts of what happened with Ukraine that changed my mind, moving me from being against impeachment to being in favor of it.

One last thought.  Even putting aside these points, I'm not persuaded by Josh's major premise.  Josh seems to be approaching impeachment from the standpoint of criminal law.  The standard the House report describes is improper, he says, because it is inconsistent with "notions of fairness for the accused." It sounds to me like a void-for-vagueness argument, where we say in criminal law that an accused's right to freedom is wrongly violated if the criminal law does not state with some clarity what a person must do to avoid jail.

But I'm skeptical that the same standard of notice applies for impeachment.  In the criminal law setting, we start from the premise that a person's natural state is freedom. We demand high standards before that right to freedom is taken away by the State.  But no one has a natural right to be President.  The job of President is subject to all sorts of limits and caveats, and the check on the President imposed by the impeachment power is one of those longstanding limits.

Of course, we still must interpret the impeachment power correctly.   But I don't think our efforts to interpret the Constitution correctly should be unnaturally limited by importing criminal-law-based concepts of notice.

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  1. “As Josh tells it, impeaching a President for an abuse of power based on a corrupt scheme is unfair because a President has no possible way to know what a corrupt scheme is ahead of time. ”

    That is a grossly unfair reading of what he said.

    Rather, a President has no possible way to know what Congress will CALL a corrupt scheme ahead of time, because, absent criminal acts, a “corrupt scheme” is a subjective thing.

    You’re treating this as though “corrupt scheme” was an objective category, and Blackman is merely asserting that a President might be engaged in one without realizing it.

    Presidents probably know when they are breaking the law, but will they know when an opposition Congress is going to call some lawful act “corrupt”? No, not really.

    1. Indeed, that’s really the crux of it.

      Is sending a DNC staffer to Ukraine to investigate potential corrupt activity in Ukraine a “corrupt activity”?
      Is rejecting a meeting with someone, because they didn’t donate to enough to your campaign a “corrupt activity?”

      That’s really the issue. The post-hoc deciding what a corrupt “intent” is. Not the activity itself, but deciding the “intent” of the person make an otherwise normal act “corrupt”.

      Let’s hypothesize on this example, Trump sent his personal lawyer to Ukraine to potentially get opposition research done on his opponent. Is that corrupt intent? Or is it only corrupt intent if aid was withheld? But was the aid really withheld for this reason? How does one tell, I mean, remember the aid was delivered, without any investigation done. So, was it really withheld for this reason, or for another reason?

      Let’s hypothesize on a different example. Infamously, Obama promised Putin “flexibility” for “space”. Later, when Ukraine was being invaded by Russia, Obama denied all lethal military aid to Ukraine. Was this due to corrupt intent, as a payoff to Russia?

      1. Get opposition research in the form of an official governmental announcement?

        1. Probably better to get your opposition research from the FBI, CIA and NSA.

          1. Do clingers recognize that the last time a Democrat was FBI director was never?

            That problem seems likely to be rectified in about a year.

        2. I see. Any investigation of democrat corruption is per se improper and impeachable. Good to know.

      2. Was this due to corrupt intent, as a payoff to Russia?

        What personal benefit did Obama stand to gain from extending one kind of military aid to Ukraine and not another? No one is arguing that “bad foreign policy decision” = “corrupt.”

        1. If you like your doctor, you can keep your doctor. If you like your health plan, you can keep your health plan

          Was this knowing lie an abuse of power by Obama?

          When Biden compelled Ukraine to fire the prosecutor investigating his son’s company, was that an abuse of power? According to Orin Kerr, we can already draft the Article of Impeachment and keep it handy if Biden is elected President.

          1. “ Was this knowing lie an abuse of power by Obama?”

            If the GOP-led House wanted to impeach him for it, doing so was in their power. They wisely chose not to.

          2. It would require a use of power in doing so.

          3. “When Biden compelled Ukraine to fire the prosecutor investigating his son’s company, was that an abuse of power” — if helping son was his reason, yes. But that doesn’t make sense: all Western lenders pushed to fire that prosecutor for _not_ fighting corruption. If the prosecutor _was_ fighting it, why would the lenders — with billions at stake if corruption went up — want him fired?

    2. That is a grossly unfair reading of what he said.

      No, it’s exactly what he said.

  2. And you end up with the conclusion that it’s perfectly acceptable that Presidents walk across an impeachment minefield blindfolded, having no way in advance to know what actions Congress will view as impeachable. Sheesh.

    Well, Trump was better situated than that, anyway: He knew that he was going to be impeached regardless of what he did, for the crime of winning the 2016 election. The only live question was what excuse they would manufacture.

    1. Senator Schumer’s comment about the intelligence community was prescient.

    2. Even if it were correct that there was no way to predict that Congress could take issue with strongarming a foreign government so he could get ‘a press release that would let him portray Biden as under a cloud of criminal suspicion,’ you’re still wrong.

      Impeachment is part of the dialogue of separation of powers between the executive and legislature. As Prof. Kerr noted, it is not designed to be based on a criminal act, nor to mirror criminal law. Requiring a priori bright lines is not and has never been how impeachment was envisioned or operated.

      1. We strong arm foreign governments all the time. Biden bragged about strong arming Ukraine into firing Shokin.

        The question is why Trump strong armed Ukraine.

        Naturally you’re going to assume he had a bad motive for it. The question is, is there some legitimate motive he can produce for doing it?

        Where legitimate doesn’t mean a Democrat would have done it, it just means it plausibly furthered a legitimate end of the government, like making sure the new Ukrainian government was on the up and up before giving them a bunch of money.

        1. You do yourself no credit by swallowing Jim Jordan’s fantastical talking points.

          Do you really, really, believe that that was the cause of the delay?

          1. You do yourself no credit bernard by swallowing the Progressive Dems talking points and propaganda.

            Do you really, really, believe that Ukraine was the only delayed foreign aid?

            Do you really, really, believe hearsay from 2nd, 3rd, etc. hand accounts?

            Do you really, really, believe that #ChickenSchiff didn’t violate the Constitution and US Law in #BullSchiff Report. Hell, he admits to violating the Constitution and Law gathering data on lawyers, journalists, and other US citizens.

        2. Except the Pentagon had already signed off on the money.

          1. Except that Trump doesn’t work for the Pentagon, the Pentagon works for Trump.

            1. The point is that the Jordan/Bellmore BS has no rational basis.

              The Pentagon isn’t the boss, true, but it is the agency that is charged with evaluating the corruption issue. So you’re claiming Trump overruled their determination – based on what? – and made a decision himself, based on nothing.

              And with this logic you buy a load of crap, and then claim you don’t worship Trump.

              1. Trump is well within his powers to pull the review at any time and simply say that he wants it extended due to some additional concerns. And Trump did have strong animus toward Ukraine based on Alexandra Chalupa’s activities etc. He is also famously suspicious of foreign aid in general.

                There is another reason why this particular aid should have been subject to increased scrutiny: it involved lethal weapons that Obama was afraid to send based on Russia’s probable reaction.

                1. Trump is well within his powers to pull the review at any time and simply say that he wants it extended due to some additional concerns.

                  Sure he is. He is also well within his powers to ask DOJ to investigate. That’s been true since January, 2017. Even earlier Congress was well within its power to investigate Hunter Biden’s job with Burisma.

                  But nobody did any of that, did they? Instead, Trump tried, outside of normal channels, to get Zelensky to announce an investigation into Biden. And he threatened to withhold the aid, and the promised WH meeting unless Zelensky did that.

                  Look, you can believe that Trump ought not be impeached for what he did. You can believe the charges are too vague, or not serious enough, or not proven to a sufficient degree of certainty to justify impeachment, or some other things.

                  But it’s really hard to believe you honestly think this was all just an honest misunderstanding and that Trump’s motives were pure and that that server really is over there somewhere. That’s just willful blindness. What next? You going to help OJ find the real killer?

                  1. I don’t have to think that Trump’s motives were pure in order to think that this is a partisan hit job that rests on the shakiest of grounds. I don’t think that any of the items you listed in your third paragraph, even if accepted with your characterization, rise to the level of an impeachable offense. FWIW I felt the same about the Clinton impeachment. Clinton perjured himself and suborned perjury to protect himself, so no pure motives there, but I thought then and still do think that it was wrong to impeach him.

                    Johnson should have been impeached and removed because he was destroying Reconstruction, and Nixon would have and should have been removed because of gross abuse of power. Clinton wasn’t really harming the country and neither is Trump.

                    1. As I said, I don’t consider that irrational.

                      What I consider irrational is buying into the GOP version of what actually happened – Trump as anti-corruption warrior, server hidden in Ukraine, just checking Zelensky out, Ukrainian interference, etc.

            2. Except that Trump doesn’t work for the Pentagon, the Pentagon works for Trump.

              No; the Pentagon, like all government agencies and employees, works for the American people. They swear an oath to the constitution, not to Trump.

              1. But in that oath to the constitution they are affirming that they are subordinate to the President. These Resistance-inspired invocations of the constitution seem to elide that fact.

        3. Where legitimate doesn’t mean a Democrat would have done it, it just means it plausibly furthered a legitimate end of the government, like making sure the new Ukrainian government was on the up and up before giving them a bunch of money.

          And people with multiple functioning brain cells are entitled to view that as implausible, since Trump’s general attitude toward corruption is “yes please.” I mean, name a single thing Trump has done during his presidency to fight corruption in other countries. Nothing requires the House of Representatives to reject impeachment if there’s some theoretical possibility that the president didn’t abuse his power.

          1. This furthers the theme we’ve seen all of Trump’s time in office: People who don’t like him start from the premise that he has bad motives, rather than treating bad motives as something to be proven. Effectively he’s convicted in their minds even before a charge is identified.

            1. Well, it’s pretty easy to subscribe bad motives to him if you listen to the things he says and look at the arc of his career. Luckily our minds are not a criminal trial, and Rule 404 does not apply. Indeed, I am fairly certain you felt the same way about a certain former Secretary of State.

            2. He’s convicted on his record, in business and in the White House.

          2. “…name a single thing Trump has done during his presidency to fight corruption in other countries.”

            1) Trump withholds 65 mil in aid to the PLO because he said the group needed to make reforms.
            2) Trump’s demands as part of the trade war that China stop stealing out intellectual property and spying on American companies.
            3) Trump withholds aid to Lebenon because of the help it gives Hezbollah.
            4) Trump suggests declaring the Mexican drug cartels “terrorist organizations.”
            5) Trump announced sanctions against Turkey and used economic sanctions to get them in 2018 to release an American citizen in a Turkish prison for two years after being falsely accused of being part of a coup against their government.

            There is more, whether up to your partisan standards or not, I cannot say.

            1. Damn you and your Inconvenient Facts!

            2. #1 and #3 are ideological: no money for you because you’re soft on groups we don’t like.

              #2 and #5 are “hey, you’re hurting American companies/citizens,” not internal corruption.

              #4 is about the level of force the U.S. can exert outside its borders, and at any rate the argument is that the drugs are flowing into the United States, not a concern with Mexico’s internal corruption.

              1. He owned you. Time to change your screen name.

                1. It is always charming when culture war casualties declare victory.

                  Open wider, donojack.

                2. No, donojack.

                  None of the things M_K lists had to do with government corruption. In other words, there is no list of items to answer thrax2’s question.

              2. I mean, I don’t want to claim the powers of prophecy, but I kinda knew nothing would be up to your partisan standards. If trying to get the Chinese to not spy and steal from our companies, or do something about the narco-state that is Mexico, or getting released a U.S. citizen falsely imprisoned from Turkey, isn’t dealing with corruption in another country, then you won’t think anything is.

                Let me turn the tables, then, and ask for a particular concern about corruption as evidenced in policy decisions to deal with the corruption (not just jaw-boning), from the last two Democrat administrations.

                1. Responded with links, which may or may not ever show up, about Trump abandoning Obama-era international anti-corruption measures for the oil and gas industries. Viewing bad Chinese government domestic business protection efforts or failure to respect the rights of the accused as “corruption” is simply not what the word means.

                  1. If you include more than one link it will always be eaten by the squirrels (they never check the moderation box – too many comments).

                    Without knowing the specifics I have informed speculation on what might be at issue. In many areas (India is where I’m most familiar) bribes are a necessary part of the permitting and licensing process. I don’t mean they speed things up, or get you better deals, I mean that if you don’t give a bribe to the right person you will literally never get your approval.

                    The same occurs with things as simple as police – they may pull over your vehicle for “violating” a law that doesn’t exist, or that’s patently impossible to have violated (like not stopping for cattle when there are none present, and that’s not even illegal anyway). You can lay the bribe (often the equivalent of a few dollars or less) or you can spend the rest of the day at the police station – only to ultimately be released with an apology for overzealousness on the policeman’s part.

                    Banning adherence to local cultures just means US companies are at a disadvantage competing with European or Chinese countries.

                    We may want that handicap for obvious messaging reasons, but it’s a real handicap so the choice isn’t as clear as it might appear.

                2. It’s dealing with things we don’t like, but not everything we don’t like is the kind of corruption implied in the Ukraine case.

        4. Ultimately, if you continue to refuse to see the difference between “strong-arming” a foreign government in pursuit of the American public interest and doing so for private gain — which, of course you will because it’s what you do — then there is no point in engaging with you on the topic. Doubly so if you believe “the public interest” and Trump’s re-election are the same.

          1. Let me guess: you think Hillary’s election would have been in the public interest.

            1. Your guesses are as useless as everything else you offer here. No, no one person is so important to the nation that their election to the highest office is “in the public interest.” As we see with Trump, however, one person’s elevation to the presidency is proven to be so detrimental to our society and system of government that their removal is of the highest importance.

            2. If it happened? Then, yeah, by definition. As directly expressed by the public.

              That said, being properly elected is not a free pass to improper and corrupt behavior.

        5. Brett: like making sure the new Ukrainian government was on the up and up before giving them a bunch of money

          You are arguing on the facts that Kerr’s impeachment standard has not been met, not whether Kerr’s standard is faulty.

          As to the facts, how are so many people in denial over the obvious continues to baffle me.

      2. The reason Biden is under a cloud of criminal suspicion is because he and his son have apparently engaged in corrupt criminally suspicious conduct. Unless you happen to have a legitimate, innocent explanation as to why Hunter was lavishly compensated by a corrupt foreign corporation at time when the former VP was conducting official US policy in that country. By the way, the Obama administration had none. And we haven’t even gotten into China related misconduct. And maybe a future Republican House should look into impeaching Obama under your standards (whatever they are)? Maybe we can bring some law professors in to testify that former presidents remain subject to impeachment because they continue to enjoy the emoluments of office? Something to look forward to in the new, repulsive political environment created by democrats who are ironically abusing their power in this frivolous and politically motivated impeachment.

        1. “The reason Biden is under a cloud of criminal suspicion is because he and his son have apparently engaged in corrupt criminally suspicious conduct.”

          After birtherism, “lock her up,” Benghazi!!!, Pizzagate, the ‘war on Christmas,’ ‘that election interference was Ukraine’s doing,’ and now ‘Joe Biden is apparently a corrupt criminal,’ do clingers still wonder why better Americans no longer take them seriously?

          1. Does google translate crazy? it might help me understand you better.

          2. It’s interesting that I’ve only ever seen “ that election interference was Ukraine’s doing,’ expressed as a left wing position.

            Everyone on the right or libertarian appears able to conceive of the idea that Russia interfered, and Ukraine also interfered (especially since they’ve convicted some of their own citizens for precisely that).

            Amy counter examples? Anything to indicate this isn’t just a ploy to discredit any Ukrainian investigation by this straw man argument?

        2. Wow! Those six or seven sentences contain more garbage than the Fresh Kills Landfill on Staten Island. Congratulations — that’s quite an accomplishment!

          1. Ok then, give one legitimate reason why Hunter was on that board.

            1. Burisma wanted to flash his name around. Not a lovely reason, but it happens all the time.

              The question is what Joe Biden did in exchange that was corrupt. I haven’t seen anything like that.

              And no, withholding aid, in keeping with a broad international policy consensus, to get a corrupt prosecutor fired doesn’t count.

              1. That’s legitimate? The VP’s son is placed on the board of a foreign corporation and compensated lavishly (for nothing) so the foreign corporation can use his name for access to the US administration. Sounds a little like, oh I don’t know, bribery? At least vastly more of a basis for allegations of wrongdoing than anything alleged against President Trump.

                1. Not so much access to the US Administration as a general veneer of respectability.

                  And your claims about Biden and Shokin are nothing but more spin and lies from Trump.

                  Are you aware that while in office Shokin never issued a single corruption indictment – but you think he was all over Burisma. Right.

                  You really have to stop swallowing all the Fox BS.

                  1. Really? Just spin? And the 2nd, 3rd (4h?) hand hearsay and opinion “evidence” against the President isn’t spin? Doubt you can say that with a straight face. And what lies? The prosecutor wasn’t fired in Feb. 2016 after a phone call from Biden and after that same prosecutor had initiated a successful action against Burisma? Did Biden ever ask his son to resign? Speaking of BS, BS is Joe claiming that “son of a bitch” was fired in Dec 2015 after a threat to withhold aid. Has Joe ever been prone, shall we say, to stretch the truth? Just google search any public appearance. And I guess I need to point out again that Hunter was nobody. His name could not add an “air of respectability.” Burisma was buying favors and access and there is at least a basis to claim that they got it.

              2. And nothing suggesting corrupt motives on the part of Biden? You’re not looking very hard. Circumstances suggest Biden acted to help Burisma, you know that company corruptly paying his son for nothing. The prosecutor was not fired in Dec. 2015 after Biden threatened to withhold aid. He was fired in Feb. 2016 after taking action against Burisma and after a phone call from Biden to the Ukrainian president. Doesn’t look good. I doubt Joe wants the transcript of that call released.

            2. …give one legitimate reason why Hunter was on that board.

              The same reason that Elizabeth Holmes put George P Schultz, William Perry, Henry Kissinger, Sam Nunn, and James Mattis on the Theranos board of directors — to impress others. None of the Theranos directors were criminals either even though none of them knew anything about blood laboratory testing or even medicine and even though Theranos was a virtual criminal enterprise.

              1. That’s nonsense. Those people have achieved something in their own right that may be of value to a corporation. Hunter Biden was a nobody. Burisma was buying access and favors in the same way such access is always purchased. Bribes are never paid directly.

        3. “And we haven’t even gotten into China related misconduct.”

          Not sure I even want to know what this means.

          “Repulsive political environment created by democrats.” Yep. Donald “Lock Her Up” Trump had nothing to do with the political environment.

          1. You’re quite well informed. You must read the NY Times. The China comment refers to the billion dollar private equity deal Hunter’s firm won from the bank of china during the obama administration’s “pivot to asia.” I think Joe was VP at the time.

            And, really, rally exuberance is comparable to the democrat House grossly abusing its powers in this orchestrated farce?

          2. Except that Trump doesn’t work for the Pentagon, the Pentagon works for Trump.

            No; the Pentagon, like all government agencies and employees, works for the American people. They swear an oath to the constitution, not to Trump.

            1. What? The President is the commander in chief, not you or anyone else, individually or in concert. Call up your local military base and start barking orders if you don’t believe me. I suspect you’ll have as much effect as leaving a comment here.

    3. He knew that he was going to be impeached regardless of what he did, for the crime of winning the 2016 election.

      Another bad faith argument. They never tried to do so until this illicit scheme by Trump was revealed. And none of the articles of impeachment are “winning the 2016 election.”

      1. No, the Dems were going to move forward with impeachment from the Mueller report, but that crashed and burned when Mueller ended up as a frail and clueless fool during the Congressional hearings about his report.

        1. They would have been amply justified in doing so. The problem with the Mueller report was PR, not substance.

          1. Sure, as there’s no standard of ‘substance’ which must be met for an impeachment they could have impeached over Melania’s Christmas decorations too….except for the PR.

          2. Perhaps, but even the whitewashy IG report that just came out talks about the numerous, documented and provable lies that the FBI had to get the FISA warrants to spy on Trump’s campaign, based on the Steele dossier, which was used as the basis for the Mueller investigation. It wasn’t a winner then, and wouldn’t be now, except for the debatable “obstruction” editorial in part 2 of the Mueller report.

            1. “Whitewashy” because you don’t like the content. No other reason.

          3. The dotard never even heard of fusion GPS. What an embarrassment.

          4. The problem with the Mueller report was PR, not substance.

            If you need to spin it for success, maybe your evidence isn’t as convincing as you think.

            Nixon and Clinton had multiple proven violations. The only subjective determination was whether they should be removed. For Nixon, yes, per courtesy visit by his supporters. For Clinton, no.

            Here the core evidence is “read between the lines, see?” Which may be correct but won’t pass the test of convincing supporters to construct the supermajority.

            1. It doesn’t need to be spun for success. It needs not to be anti-spun by Toadie Barr, among others, and Mueller could have explained things a lot better.

      2. Huh? What? Calling anyone’s argument “bad faith” when you can’t even be bothered to check wikipedia…..

        https://en.m.wikipedia.org/wiki/Efforts_to_impeach_Donald_Trump

      3. I agree there is an element of the Boy who Cried Wolf in the Democratic party when it comes to impeachment. But, it is a logical fallacy to categorically reject an impeachment charge because of past, unsupported impeachment efforts.

        I agree with Kerr that those previous charges did not justify impeachment, but this one does.

        1. Well yeah. The point of the Boy Who Cried Wolf story is precisely that he’s not believed when he ultimately tells the truth.

          Same problem here – repeated spurious claims of impropriety, including claiming possession of direct evidence when no such evidence existed. With a track record on lying on this topic – not mere disagreements on the meaning, but outright lies – it’s no longer reasonable to take any assertion at face value.

          That doesn’t apply to every Democrat in Congress of course, but it does apply to each one leading the charge today. Which is even more suspicious – if it’s truly legitimate why keep using a known prevaricator when others are available.

          Unrelated: Siri “autocorrected” the word prevaricator to first prevarication, and then prevaricate. Only after typing it for the third time would it accept that word. Anyone looked into this in depth? I find that she “correct” a lot into the wrong word (though probably fixes more than she breaks).

    4. “And you end up with the conclusion that it’s perfectly acceptable that Presidents walk across an impeachment minefield blindfolded, having no way in advance to know what actions Congress will view as impeachable. Sheesh.”

      Those poor Presidents. They make $400,000 a year, everyone stands and plays Hail to the Chief when they enter a room, they get taxpayer funded travel to a bevy of destinations, they get to speak before crowds of thousands, and they are given enormous power.

      But maybe, theoretically, they might accidentally do something that causes early removal, although in over 225 years nobody has ever actually been removed.

    5. You cultists wouldn’t accept any reason anyhow.

  3. Beyond the points that Brett Bellmore made, there are other serious flaws in the analogies and defenses (of the Democrats’ view on impeachment) made.

    The ellipsis in the quote from Iredell hides key context. It was from an explanation by Iredell of why impeachment would be improper for reasonable mistakes, and should be reserved only for clear villainy. “A public officer ought not to act from a principle of fear. Were he punishable for want of judgment, he would be continually in dread; but when he knows that nothing but real guilt can disgrace him, he may do his duty firmly, if he be an honest man; ….” The particular examples he uses are only bribery and giving false information to the Senate (in particular, to adduce them to act with respect to a treaty by withholding “important” information).

    The example used by Madison almost exactly presages the Nixon case — the president was connected to the subjects of the investigation in a “suspicious manner”, and he offered to shield some of those being investigated if they helped him. Trump has not done any such thing.

    It might be impeachable to pardon someone like Marc Rich, but Trump’s pardons have been reserved for people like the SEAL, widely denounced as a war criminal, whose military conviction was for a single photo — not for what he did in the photo, but for having posed for the picture — in a court martial that, according to credible reports, was marred by unlawful command influence by intermediate-level military officials.

    It might or might not be impeachable to be the senior elected official guiding United States government responses in a country while your child sits on the board of a company under investigation for public corruption in that country. It absolutely should not be impeachable to ask that country to investigate whether previous US officials behaved corruptly as part of that arrangement.

    Having a clear concept of impeachable corruption is not only important, as Iredell said, for the president; it is also important for the public, so that we may have reasonable faith that the House will impeach for legitimate reasons — rather than primarily for partisan reasons, or to “put an asterisk next to” the name of a president — and that the Senate will try an impeached official with regard to constitutional and legal principles rather than emotion or mere rhetoric.

    1. … I’m sorry, but is your argument seriously that Trump is too stupid to realize that quid pro quo for personal gain isn’t right?

      1. I think it would be ignorance rather than stupidity, but I wouldn’t be surprised if he didn’t see a material difference between what happens in DC daily and what he’s accused of – and that’s accepting that he was trying to frame Biden, since that almost assuredly what he thinks happened to him.

      2. … I’m sorry, but is your argument seriously that Schiff and Pelosi are too stupid to realize that politicized impeachment for partisan gain isn’t right?

        And further, that Joe Biden had no personal gain in his son getting off the hook when the US government gave Ukraine’s prosecutors a list of people and groups to not prosecute, or when Biden personally ordered a quid pro quo for firing a Ukrainian prosecutor (and later boasted about it)?

    2. It absolutely should not be impeachable to ask that country to investigate whether previous US officials behaved corruptly as part of that arrangement.

      Agreed. But, using your personal lawyer to pressure a foreign country to issue a press release to portray Biden as under a cloud of criminal suspicion and help Trump in the 2020 election is clear villainy.

      1. That “ask” is just adorable. “Hey, Mrs. Grasshopper, Mr. Elephant is outside the door asking us to do him a favor!”

    3. “Trump’s pardons have been reserved for people like the SEAL” that’s not exactly accurate.

      As far as SEALs go, Behanna and Lorance were actually convicted of murder and Golsteyn had not yet been tried on his murder charge.

      Trump pardoned Conrad Black for fraud, who just happened to have written a book about how great Trump is.

      Trump also pardoned Joe Arpaio for criminal contempt of court for violating an injunction (about racial profiling) Arpaio is a vocal Trump supporter.

      Dinesh D’Souza is a right-wing author (and extremely bad student of history) who was pardoned for a campaign finance charge to which he pleaded guilty. He is a vocal Trump supporter.

      Scooter Libby was pardoned out of the blue, even though Bush refused to do so, simply because his associates asked him to be.

      1. Dinesh D’Souza was also prosecuted for a crime committed by the elite establishment constantly and never prosecuted, it sure looked like selective prosecution (there may be details that would change my mind on this). Given the trial tax I don’t find a guilty plea to be meaningful of the propriety of the charge, and only persuasive as to guilt rather than dispositive.

        Joe Arpaio should have been taken into the desert and left there to die of heat stroke, and I live in Phoenix.

      2. In all that, you could not find a single example of someone who was connected to Trump in a “suspicious manner”, and thus met Madison’s criterion for a justified impeachment?

        1. In wasn’t addressing that aspect of your comment. I was merely pointing out that his pardons are actually reserved for things like the Gallagher case as you had claimed.

    4. “but Trump’s pardons have been reserved for people like the SEAL”

      That is a remarkably and comprehensively stupid statement, even from a clinger.

  4. Think about it. In an effort to falsely portray his likely 2020 opponent as being under criminal investigation, Trump sent his personal lawyer—not a government employee, but a person loyal solely to Trump in his personal capacity — to co-opt official government power to get a foreign country to issue a press release stating that Trump’s opponent was under investigation. Trump realized that if he could place his government power in private hands, to advance his private interests, that power could be used to get a press release that would let him portray Biden as under a cloud of criminal suspicion and help Trump in the 2020 election. So to get around the official channels that focused on the interest of the American people, Trump secretly placed that government power in a private hired gun with a duty of loyalty only to Trump personally to get the deed done.

    This paragraph sounds like it was cut and pasted from a Vox article, or maybe even Mother Jones.

    First of all Trump didn’t use Giuliani “secretly” at all. He was quite open about it, and he didn’t use him exclusively either. He mentions both Barr and Giuliani in the phone call as contacts, and he used Sondland as well.

    You claim that he wanted to get a press release to portray Biden as under a cloud of criminal suspicion. Sondland says Trump wanted an announcement of investigations as a condition of a meeting at the White House, without mentioning either Biden. All the impeachment advocates have been at pains to claim that Trump only wanted the announcement and didn’t care about the investigations. But Sondland doesn’t say that; he says that the bar for a WH meeting was the announcement, not that it was all Trump wanted.

    The last sentence is typically strident and unworthy of what you claim is the purpose of the post. “private hired gun,” “get the deed done.” Why not “dastardly deed?” Why not “hit man” instead of “hired gun?”

    1. On “secretly,” it wasn’t known until recently that Giuliani was acting as a de facto diplomat, purporting to represent the foreign policy powers of the president. Why exactly would that be happening if everything was on the up-and-up?

      1. All of the US diplomats on the call were aware of it, right? They heard the President say that Ukraine should coordinate with Barr and Giuliani, so obviously Giuliani is operating at some level as Trumps surrogate (even if he overstated his effective powers).

        That hardly counts as “wasn’t known until recently.”

        That you or I, or even the Congress, didn’t know it doesn’t mean it wasn’t known – there’s lots of things we don’t know that aren’t secret or being hidden, they’re merely not massively publicized.

        So the question of why that would be happening if this wasn’t on the up and up is easy – it wasn’t happening.

        Instead you might ask “if everything was square why didn’t we know until recently that Biden arranged the firing of the prosecutor investigating the company paying his son millions a year when he had no expertise in anything the company was doing?” It wasn’t exactly a secret – no one had just tracked down the connections. That doesn’t make it nefarious itself, there are lots of interesting connections that are unpublicized but perfectly legitimate, and plenty of publicized things that aren’t legitimate but spun that way (like the assassination of a US citizen abroad).

        1. There’s a big difference between “known to the U.S. diplomats on the call” and “known to the public.” It may have escaped your notice that the diplomats who testified were doing so in express defiance of the White House. They weren’t free to go tell everyone at any time. No one involved in that level of foreign policy is.

          1. And at any rate, even if Giuliani’s role as de facto diplomat were known, the question still remains: why would this be happening if everything were legitimate? Exactly how often in previous administrations has the president’s personal lawyer, with no other U.S. government affiliations and no obligation to further the interests of the United States as opposed to the president’s, been sent to carry out U.S. policy? Most people recognize that this is, if nothing else, indicative that the president is putting his personal interests above those of the country. You seem to think it’s no big deal.

            1. Presidents often have used personal representatives, their lawyers or not, to conduct foreign policy. John Jay, sent by Washington to France had no particular post. President Ulysses S. Grant’s used his private secretary, General Orville E. Babcock. Woodrow Wilson bypassed normal channels and sent one Colonel House to Europe in 1916. FDR had Harry Hopkins. Truman used a personal lawyer at some point.

              1. Jay: there was barely a foreign policy apparatus to bypass at the time.
                Babcock: was the equivalent of the Chief of Staff, not at all the same as a completely private representative.
                Hopkins: ran the Lend-Lease program (and was sharply criticized for pursuing his personal interests).
                House worked alongside the State Department for much of the time, and while he does seem to have pushed the Secretary of State aside at some point, the arrangement collapsed and led to sharp criticism of Wilson.

                The point stands: when a purely personal representative of the president goes abroad instead of official representative and starts representing the president’s purely personal interests, the inference is obvious.

                1. No, the inference is in your mind, because you have pre-judged the situation. Trump was not unusual in using the former NYC mayor for foreign negotiations.

                  Want some more recent examples? Truman sent his *former* chief of staff to negotiate on his behalf. Carter sent Sol Linowitz to Panama. Nixon sent Kissinger places, and his official role was as and adviser on the security council, yet he acted as the personal rep for the president. People knew they had a direct line to the president if they were dealing with him and not some state department bureaucrat.

                2. Thrax2, just as a matter of history, you also have to cope with FDR’s use of Wendell Willkie as a private emissary and fact finder. I don’t think you are going to turn up any implication of corrupt interest.

                  1. I didn’t say private individuals can do nothing ever. I said it’s pretty anomalous for private individuals to replace the diplomatic functions of the government. Linowitz was working alongside Bunker, for example.

                    1. Do you think Trump trusts the establishment to execute foreign policy as he sees fit (and is explicitly delegated to him alone in the constitution)?

                      If no then why would it be surprising if he sent a minion he did trust for sensitive work? (Note that cuts both ways – anti-corruption or explicitly corrupt).

                      If yes then how did you come to that conclusion?

                    2. Robert Beckman, I don’t think Trump trusts himself to tell foreign policy professionals what he wants from them. If he will not tell them, they can’t do what the wants. So Trump looks around for someone no better informed than he is, so he can have a conversation between equals.

            2. If he trusts him to carry out his policies more than anyone else then it is “no big deal.” I haven’t been able to find anything in Article II that limits the President’s conduct of foreign policy to specific channels.

              1. The President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, *other public Ministers* and Consuls…”

                This could be read to say that all foreign emissaries are subject to Senate approval, though of course I realize the Presidents haven’t exactly conformed to this interpretation.

                1. There isn’t any limiting clause in any of that.

                  1. Right – anyone administering any US policy if any kind is a “Minister” requiring confirmation. Not a crazy reading, just not one that’s ever been in use. It might even be a better standard, but isn’t one we’ve tried.

                    1. I believe that when President Madison appointed emissaries to the Ghent peace conference (to end the War of 1812), he invoked his recess-appointment power (the Senate wasn’t in session), thus the Father of the Constitution was implicitly acknowledging that U. S. representatives going abroad for one-time purposes would need Senate confirmation if the Senate *were* in session.

                    2. So…was the Senate in session when Trump appointed Ghouliani?

                      And the fact that Giuliani had a conflict of interest – representing the Pres’s private interests *and* the U. S. interest simultaneously – is a bad thing. I mean, who sends an emissary abroad to deal with U. S. interests while the emissary has a private interest in the same matter? (Maybe Obama and Biden can tell us about that).

                    3. On Giuliani been a scum ball, totally agreed. And that it reflects poorly on the President. But as Rumsfeld said, you go to war with the army you have, not the army you might wish you had.

          2. So, you’re complaining that the media don’t cover foreign relations with Eastern Europe well enough?

            1. No, he’s complaining that the media didn’t report on things then that we want to know about now. It’s not just limited to a Eastern Europe.

          3. “Secret” doesn’t mean “known to pretty much everybody in DC but SD personnel not free to gossip about it.”

      2. Are you really that ignorant of US diplomatic history? US presidents have used personal envoys since we had US presidents. Try reading a book.

      3. I understand that progressives don’t know anything about anything that did not appear in Mother Jones or Vox, but you might want to read about the many Presidents who have conducted foreign policy through their own trusted advisors.

        https://en.wikipedia.org/wiki/Harry_Hopkins#World_War_II

    2. He mentions both Barr and Giuliani in the phone call as contacts, and he used Sondland as well.

      He mentioned Barr, but (according to Barr himself) he kept Barr out of the actual loop.

      Why? Because, as hackish as Barr is, Barr still wouldn’t have been willing to go to a foreign government leader and say, “Announce an investigation of the president’s political opponent or we won’t give you things you want like the military aid you desperately need that congress already appropriated.”

      1. That’s precisely what needs to be demonstrated, right?

        That the trade is “set this guy up in return for money” as opposed to “stomp out this specific apparent corruption in return for money.”

        1. And seeing as Trump’s interest in “corruption” started and ended with this one instance, the inference is obvious.

          1. How do you know this is the only corruption he’s interested in?

            Here’s an easy example. Suppose Trump only does things that pass a certain threshold of interest for him – like he likes to eat KFC, but only if there’s a knife and fork available, so he’ll decline it unless that other condition is met. That doesn’t mean he’s not interested in KFC, just that his interest isn’t sufficiently high to act unless the other condition is met.

            Now suppose he’s interested in lots of corruption (that’s a double entendre, laugh at the joke interpretation of it too),but none of the individual instances of corruption are sufficient to trigger his action. He wants them stopped, but each individual point just isn’t good enough in its own.

            Then he finds an example that has the side benefit of turning the tables in the people who improperly spied on him (regardless of your reading of the IG report, that’s what he believes). That one case of corruption now has enough interest – from anti-corruption + justice (or less charitably, vengeance), so he acts on it.

            That’s how people actually work – they only act on their desires when there’s sufficient perceived benefit, otherwise no one would ever have problems losing weight, or quitting smoking.

            How would this look any different than what we know? That’s what will need to be proven to convince those not predisposed to be anti-Trump.

            1. You’re describing someone who doesn’t care about corruption, he cares about smearing his political rivals; “corruption” is an excuse. And the idea that a cushy job as a reward for (perceived) influence-peddling outrages him isn’t very credible either, seeing as his own children’s careers amount to the same thing.

              As for getting more information: hey, maybe we would know more if top WH aides weren’t resisting subpoenas at the express direction of the WH! Any jury (grand or petit) would be entitled to conclude that a defendant who deliberately made key witnesses unavailable had something to hide. The House of Representatives is no different.

              1. What a laugh? How can you seriously represent the farcical process directed against the president by Democrat abusing their own power as legitimate?

              2. That cuts both ways though. Any jury could conclude that if a judge who is also prosecutor refuses to allow the defense to call witnesses isn’t seeking the truth.

                And your point on corruption says too much – any President who doesn’t investigate every appearance of corruption doesn’t care about it, they must just care about something else.

                Everyone operates on a multitude of desires, only when the confluence of desires is sufficiently high do they act, but that doesn’t mean they don’t care about each component it just means each component was important enough on its own.

                1. Hmmm? Trump has declined to participate in the House process, full stop. There’s no issue there about being allowed to call witnesses. And no one thinks he won’t be able to call witnesses in the Senate trial.

                  1. The House Republicans we’re denied multiple witnesses. If it was an investigation it’s pretty odd that they refused to look into potentially exculpatory areas.

                    1. What witness did the House deny that might have provided exculpatory evidence?

    3. Doesn’t this part give it away:

      “In an effort to falsely portray his likely 2020 opponent as being under criminal investigation[.]” If Trump had succeeded, he would have been accurately portraying his likely 2020 opponent as being under criminal investigation. For an act that most Americans find repugnant, and if not illegal its only not illegal because politicians have voted themselves special privileges to line their pockets for hundreds of years.

  5. I tend to agree with Professor Kerr on most things, finding his analysis persuasive, but I’m not making the connection in this piece.

    Using the examples in the quotation my view falls in line with (2), phrased as I put it in the other thread that an impeachable act is one which solely benefits the President (aside from things he’s not empowered to do at all, of course).

    So when Trump pardons his supporter that attacked a protestor at one of his rallies after he said he’d pay the bills of anyone doing so then he should be impeached. A pardon under those circumstances doesn’t benefit the United States, with all of the gain going to him directly. But if he pardoned all people involved in any altercations at any campaign event that wouldn’t be impeachable because there’s a legitimate governmental interest at play – moving the country past partisan clashes – and that’s so even if his supporters disproportionately benefit from it.

    So to me the questions are: did the President do something beyond his powers, and did the President do something for exclusively personal gain (which can include re-election).

    Apply this to the case at hand:
    is there a legitimate governmental interest in rooting out corruption? Yes.
    Is there a legitimate governmental interest in re-electing Donald a Trump? No.
    Is there a legitimate governmental interest in preventing the election of a Democrat to President in 2020? No
    Is there a legitimate governmental interest in framing Joe Biden? No
    Is there a legitimate governmental interest in stopping a corruption investigation of a US overseas asset used for more important work? Yes
    Is there a legitimate governmental interest in stopping a corruption investigation of an oligarch who’s paying your son millions of dollars a year? No

    So the real question is which of these were the real reasons for the various actions. Framing your opponent (or anyone at all, opponent or not) is not a legitimate governmental interest. Quashing corruption is always a legitimate interest.

    So was Trump quashing corruption with the side benefit of quashing his opponent? Or was he framing his opponent and using claims of corruption as a cover? Even if Trump wouldn’t have concerned himself with corruption but for the added benefit of screwing his opponent only the second pattern is illegitimate.

    Regardless of your answer, how do you know that?

    Alternatively, why is this the wrong framing? In the other thread most of the rebuttals to this amounted to “we know Trump doesn’t care about corruption because he explained in detail how he usually had to buy corrupt politicians himself to get things done, therefor he can’t have had an anti-corruption intent.” I don’t find this even moderately persuasive, as even if he’s accustomed to corruption in NYC, DC, and many cities overseas, that doesn’t mean he wants the parties he’s working with to actually be corrupt, merely that he understands that’s the real world.

    To use a parallel example; getting electrical service in India in most cities requires a bribe to be paid. Not because of any ill intent, but because if you don’t your service will literally never be connected – bribes are built into the financing of those enforcement departments effectively as a way to prioritize work. Pay a small bribe and it’ll be done eventually, pay a big enough bribe and it’ll be done right this instant (which can literally include tearing up streets and not repaving them). That’s why I don’t run my own operations in India, and I use a firm whose accustomed to the real world there – I find it quite distasteful while I’m also at a disadvantage of not knowing what bribes are necessary, to whom, and how much. The same applies to cars being pulled over by police – they’ll often do it if they see a foreigner, precisely because they can get more graft that way.

    1. The payout to Hunter Biden and friends is alleged to be $16.5 million. Hunter Biden had no relevant experience in energy, the Ukraine or anything other than hookers and blow. But Prof. Kerr seems unconcerned about the abuse of power involved in paying off the son of Vice President Biden.

      Ukrainian Indictment Claims $7.4 Billion Obama-Linked Laundering, Puts Biden Group Take At $16.5 Million

      Quote:
      An indictment drawn up by Ukraine’s Office of the Prosecutor General against Burisma owner Nikolai Zlochevsky claims that Hunter Biden and his partners received $16.5 million for their ‘services’.

      “The son of Vice-President Joe Biden was receiving payment for his services, with money raised through criminal means and money laundering,” he then said, adding “Biden received money that did not come from the company’s successful operation but rather from money stolen from citizens.”

      According to Interfax-Ukraine, MP Andriy Derkach announced at the same press conference that deputies have received new materials from investigative journalists alleging that the ‘family’ of ex-President Yanukovych funneled $7.4 billion through American investment firm Franklin Templeton Investments, which they claim have connections to the US Democratic party.”

      “Last week, November 14, the Prosecutor General’s Office (PGO), unnoticed by the media, announced a new suspicion to the notorious owner of Burisma, ex-Ecology Minister Zlochevsky. According to the suspicion, the Yanukovych family is suspected, in particular, with legalizing (laundering) of criminally obtained income through Franklin Templeton Investments, an investment fund carrying out purchases of external government loan bonds totaling $7.4 billion,” said Derkach, adding that the money was criminally obtained and invested in the purchase of Ukrainian debt in 2013 – 2014.

      “The son of Templeton’s founder, John Templeton Jr., was one of President Obama’s major campaign donors. Another fund-related character is Thomas Donilon. Managing Director of BlackRock Investment Institute, shareholder Franklin Templeton Investments, which has the largest share in the fund. It is noteworthy that he previously was Obama’s national security advisor,” Derkach added.

    2. So to me the questions are: did the President do something beyond his powers, and did the President do something for exclusively personal gain (which can include re-election).

      Apply this to the case at hand:

      […]

      So the real question is which of these were the real reasons for the various actions. Framing your opponent (or anyone at all, opponent or not) is not a legitimate governmental interest. Quashing corruption is always a legitimate interest.

      I may quibble with some of the things in your list, but for the purposes of this discussion I’ll accept them.

      So was Trump quashing corruption with the side benefit of quashing his opponent? Or was he framing his opponent and using claims of corruption as a cover? Even if Trump wouldn’t have concerned himself with corruption but for the added benefit of screwing his opponent only the second pattern is illegitimate.

      Regardless of your answer, how do you know that?

      As I said elsewhere, absent Trump ranting, “You’re goddamn right I ordered the Code Red!”, we will not have direct evidence of Trump’s thoughts. But as I also said, we do not need direct evidence; only in Hollywood is the phrase “circumstantial evidence” an epithet. In real life, almost every criminal and civil case in the country relies on circumstantial evidence for determining intent. We can determine what Trump was thinking by examining the things he said and did. And all of that evidence is inconsistent with Trump caring about corruption, either in general or in the Ukraine in particular.

      1. “we will not have direct evidence of Trump’s thoughts. But as I also said, we do not need direct evidence”

        What are your thoughts on the IG report and “political bias or improper motivation”?

        1. Yeah, didn’t you say that this report would start the trials of a bunch of Obama-era officials?
          Sorry ’bout that.

          And it is quite proper for the IG to look into motivations. As it did. Just like it’s fine for Congress to do the same. And courts all over the country.

          1. No, no I didn’t say that . . . you may be jumbling together everyone you disagree with.

            My point was the IG expressly ignored the sort of evidence David is arguing for here. The IG just said “documentary and testimonial evidence.” So, people like you are egregiously misreporting on the IG’s conclusions.

      2. Which of Trumps actions is inconsistent with a legitimate purpose, from someone who isn’t a DC insider?

        This is one place where, for example, Clinton should be held to a higher standard. She’s demonstrably competent in working through the DC structures, while Trump is demonstrably incompetent. Many of his actions, even purely legitimate ones, look like floundering to me.

        That higher standard of course also applies to Biden, Ted Cruz, Jen Bush, Nancy Pelosi, et al.

        1. I’m reminded of that meme. “This sign can’t stop me, I can’t read!”

          Which is to say, if he’s too incompetent to be corrupt, then he’s too incompetent to be president and should be treated as such.

          Simply put, if you demand he be treated with kid gloves, then don’t be surprised if he’s put in time-out.

          1. Oh I’d be fine with that.

            Notwithstanding my other comments about impeachment I think it’s clearly appropriate to remove a president for incompetence. And if that’s the argument that had been made I’d take it seriously, as this administration is quite bouncy.

            I’m reminded of a quote from the Troy trilogy by John Ringo (highly recommend) where the main protagonist is talking to an AI from another species that there’s a saying among humans that is something’s crazy, but it works, then it’s not really crazy. The AI responds that this saying only exists among humans – everywhere else in the galaxy it’s just considered crazy.

      3. But as I also said, we do not need direct evidence; only in Hollywood is the phrase “circumstantial evidence” an epithet. In real life, almost every criminal and civil case in the country relies on circumstantial evidence for determining intent. We can determine what Trump was thinking by examining the things he said and did.

        Fine words. Hard to find fault with any of that. Now try to peek out from under the corner of your TDS blanket for just a moment and see if you can apply that to Biden. It isn’t hard I promise.

    3. So was Trump quashing corruption with the side benefit of quashing his opponent? Or was he framing his opponent and using claims of corruption as a cover?

      As Kerr put it:

      The facts about what Trump did and why he did it are remarkably clear, with most of the evidence coming directly from Trump himself, Trump’s White House, Trump’s appointees, and Trump’s lawyer.

      What more do you need?

      1. How about anything even remotely resembling something criminal? How about something that could be described as a High Crime or Misdemeanor by someone other than a deranged anti-Trumper?

        1. Do you still think impeachment is a criminal process?

          1. Still? Did I claim it was a criminal process? Whatever high misconduct or misbehavior would constitute a High Crime or Misdemeanor, I would think it would be something recognized, by both political parties, as an objective wrong, like perjury or burglary. This is not that thing.

            1. This is not that thing.

              Yes, it is. Republicans recognize it to be objectively wrong; they just don’t care. Big difference.

              1. The vote in the House was bipartisan…AGAINST IMPEACHMENT!

      2. Actual evidence, rather than assertions that the unspecified evidence is clear?

        I may be missing facts that would easily convince me, after all. But when the damning argument is of the form “the evidence is is remarkably clear” rather than “because of A, B, and C, that we know because X, Y, Z, Trump should be damned.” And I at least will want to know why we think we know what we think we know (comes from being a scientist, others may not need that).

        1. In terms of direct evidence, we have the July 25th call, Mulvaney’s Oct 17th press conference, Giuliani’s interview with Chris Cuomo on September 19th, and Sondland’s testimony on the July 10th meeting in Bolton’s office. Additionally, there is a mountain of circumstantial evidence from documents and testimony detailed in Schiff’s report.

          1. You (and others) keep saying “there’s specific facts in that mountain over there that are clear” in response to questions about what facts are clear.

            And no one whose been watching Schiff ag all should be taking what he asserts as fact to actually be fact. The only person worse than him at conflating his opinion and conclusions as direct observed facts is President Trump (largest inauguration crown, heh).

            1. In addition to the four direct-evidence examples above, below is a small sample of facts from Schiff’s report. Which ones do you think aren’t facts?

              “Ambassador Sondland had relayed a message to President Zelensky six days earlier that “assurances to run a fully transparent investigation” and “turn over every stone” were necessary in his call with President Trump”

              “On May 9, the New York Times published an article in which Mr. Giuliani declared that he intended to travel to Ukraine on behalf of his client, President Trump, in order to meddle in an investigation. After public backlash, Mr. Giuliani canceled the trip, blaming “some bad people” around President Zelensky.”

              “In order to schedule a White House visit for President Zelensky, President Trump told the delegation that they would have to “talk to Rudy.”

              “Mr. Giuliani made clear to Ambassadors Sondland and Volker, who were directly communicating with the Ukrainians, that a White House meeting would not occur until Ukraine announced its pursuit of the two political investigations.”

              “Ambassador Sondland and President Trump spoke only about the investigation in their discussion about Ukraine. The President made no mention of other major issues of importance in Ukraine, including President Zelensky’s aggressive anti-corruption reforms and the ongoing war it was fighting against Russian-led forces in eastern Ukraine.”

              “Ambassador Sondland understood that President Trump did not require that Ukraine conduct investigations as a prerequisite for the White House meeting so much as publicly announce the investigations—making clear that the goal was not the investigations, but the political benefit Trump would derive from their announcement and the cloud they might put over a political opponent.”

              “On August 2, President Zelensky’s advisor, Mr. Yermak, traveled to Madrid to meet Mr. Giuliani in person. There, they agreed that Ukraine would issue a public statement, and they discussed potential dates for a White House meeting.”

              “On August 12, Mr. Yermak sent the proposed statement to Ambassador Volker, but it lacked specific references to the two investigations politically beneficial to President Trump’s reelection campaign. The following morning, Ambassadors Sondland and Volker spoke with Mr. Giuliani, who made clear that if the statement “doesn’t say Burisma and 2016, it’s not credible.”

              “Following this meeting, Ambassador Sondland pulled aside President Zelensky’s advisor, Mr. Yermak, to explain that the hold on security assistance was conditioned on the public announcement of the Burisma/Biden and the 2016 election interference investigations.”

  6. I’m not an expert on what happened in Ukraine and Washington, but I’ll note this paragraph:

    “In the criminal law setting, we start from the premise that a person’s natural state is freedom. We demand high standards before that right to freedom is taken away by the State. But no one has a natural right to be President. The job of President is subject to all sorts of limits and caveats, and the check on the President imposed by the impeachment power is one of those longstanding limits.”

    The possible punishments for impeachment go up to perpetual disqualification from federal offices. That maximum punishment was, in 2010, imposed by the Senate on a crooked federal judge:

    https://en.wikipedia.org/wiki/Thomas_Porteous#Trial

    Other federal judges have gotten this maximum punishment too, on conviction.

    Conviction on impeachment means the defendant is subject to being perpetually disqualified from any office in the gift of the American people or their representatives. A consequence that serious suggests a serious burden of proof.

    This isn’t simply Human Resources firing some employee.

    1. Which is why I find the phrasing that an impeachable offense is anything the House says it is so dangerous.

      An impeachable offense really needs to be a high crime analogous to felonies at the founding (what exactly is a Misdemeanor in this context is less clear, though I find the argument of Rogers and Young in 1975 that this means a breach of fiduciary duty moderately persuasive). That this should only be enforced by the consciences of the Congressmen, and at the ballot boxes by the a People, doesn’t change the fact that it isn’t just whatever Congress says it is – they too have a duty to uphold the Constitution, quaint though that idea may seem today.

      1. Which is why I find the phrasing that an impeachable offense is anything the House says it is so dangerous.

        What is why? What’s the logic?

        Note that no punishment – removal or disqualification – is imposed unless 67% of the Senate agrees.

        1. So, you see nothing wrong with an out of control House abusing its powers in a frivolous politically motivated impeachment as long as the Senate acts like an adult and dismisses the nonsense? Where are you from? Venezuela?

          1. Ahh yes, frivolous house but an “adult” senate that has already decided to dismiss all charges before hearing a single thing at the trial.

            You’re off your rocker.

            1. Dismissing something facially lacking all merit produced by a disgracefully kangaroo court process? yeah, I’m good with that,

            2. If a child throws a tantrum is the adult obliged to respond to the demands of the child?

              1. I don’t know. Ask the White House staff.

                1. Hard to fire a child but easy to fire WH staff. Even easy to fire Secretaries of the Navy. Chain of command is a bitch.

          2. So, you see nothing wrong with an out of control House abusing its powers in a frivolous politically motivated impeachment

            That of course does not describe what has happened, but in any case, I did not say that I “see nothing wrong with” such a scenario. I said that I don’t see how it is “so dangerous.”

        2. Because I think a standard of impeachment any time the opposing party holds the Presidency for the explicit reason that they associate with deplorables to be fundamentally immoral.

          I’d be more ok with a charge of maladministration, even though it was explicitly rejected, but an impeachment because the other guy associates with people we don’t like is abhorrent. It would be just as bad as impeaching because the other guy has the wrong skin color.

          And the Senate line merely makes it less likely that we get actual removals, but if one party is able to gerrymander (realizing a Senate gerrymander is a lot harder) a permanent legislative majority then the Presidential election loses meaning – even if the populace wants the opposing party they’ll never get him. This becomes a bigger risk when you add in the various electoral alterations being proposed by the 2020 candidates (though still a small risk, as you’d need some really creative gerrymandering that’s not quite plausible now).

    2. I observe that Congress has classified crimes based on the *maximum* available punishment, not the punishment actually imposed (the only exception I know of is criminal contempt. where it’s classified on the penalty imposed in the particular case)

      https://www.law.cornell.edu/uscode/text/18/3559

      So by analogy, whatever classification impeachable offenses get (and any burden of proof based on the possible consequences) should be based on the maximum punishment for a convicted defendant, which is perpetual legal disqualification from all federal offices.

    3. Eddy, I’m not sure where you’ve worked, but where I have when an employee is fired they are typically ineligible to be rehired.

      1. Interseting…but generally private employers can’t invoke the law to make an ex-employee permanently ineligible for federal service.

        And in the area of public employment – based on Reason’s coverage – it seems that cops are eligible to be rehired after they’re fired and an arbitrator says they were treated too harshly.

    4. Perpetual disqualification from federal office != imprisonment or the death penalty

      Betrayal of the public trust and abuse of power are two very compelling reasons to never again allow a person the benefit of the public trust or a position of power. And it is a punishment that is in no way, except the most tangential, similar in kind to imprisonment or the loss of one’s life.

      1. “Betrayal of the public trust and abuse of power are two very compelling reasons to never again allow a person the benefit of the public trust or a position of power.”

        Yes, assuming 2/3 of the Senate can be persuaded that the defendant committed such a betrayal.

        Traditionally, making someone legally ineligible for public office is considered a brand of infamy – it’s just a step away from deprivation of citizenship, which the Supreme Court (admittedly in a decision I’m unpersuaded by) said was cruel and unusual even as a punishment for *desertion.*

        And consider that the punishment also affects the people themselves, who are denied the power (whether directly or indirectly) to choose a certain person to office, based on the Senate’s judgment that the people should not be allowed to appoint or elect a person to any post.

        So whether the burden of proof be “beyond a reasonable doubt” or “clear and convincing,” it should reflect the seriousness of the punishment authorized for convicted offenders.

        1. it’s just a step away from deprivation of citizenship,

          No. It’s a step, bus ride to the airport, plane trip to Cape Canaveral, and then rocket ride to another planet from deprivation of citizenship.

          1. Under the heading rights of citizenship, the Citizenship and Immigration Service lists, among other things:

            “Right to apply for federal employment requiring U.S. citizenship.

            “Right to run for elected office.”

            https://www.uscis.gov/citizenship/learners/citizenship-rights-and-responsibilities

            1. Setting aside the oddity of relying on a website for an argument, it also lists “Right to vote in elections for public officials.” That’s a right that is routinely taken away for, e.g., possessing small amounts of cocaine or one of zillions of other felonies. Is the entire penal code “just a step away” from depriving millions of people in this country of citizenship?

              1. Most states deny you the right to vote while you’re serving a felony sentence but let you vote afterwards. Some states are harsher and some are mellower (I think Vermont lets you vote from prison).

                Yes, indeed, losing the right to vote, along with your freedom, in the case of felony convictions, represents a significant dilution of your rights as a citizen – but rights you can regain in many cases if you’re nice.

                “Setting aside the oddity of relying on a website for an argument”

                How did linking to a Web site get added to the list of logical fallacies? What if I simply summarized the government’s list of citizens’ rights and didn’t provide a link, then you’d wonder why there *wasn’t* a link.

          2. Yeah funny. Banana republics are always a big laugh. Won’t we be the envy of the world when the gross abuse of power on display by the democrats becomes the new norm?

            1. Be quiet troll. Adults are speaking.

              1. you’re writing not speaking you illiterate moron

            2. Banana Republics are where a populist President uses the powers of his office to gin up a scandal about his opponent.

              It is not where Congress goes through Constitutionally mandated procedures for removal of same.

              1. Don’t worry you two. We won’t be a banana republic until we are economically dependent on a single export and our political structure is dominated by a foreign corporation we have a neocolonial relationship with.

  7. “This understanding of impeachable abuse of power is rooted in the Constitution’s text, which commands the President to “faithfully execute” the law.

    So a President who fails to faithfully execute, say, immigration law, is eligible for impeachment?

    1. Yes, which is why many recent President should have been impeached.

      Could President Obama have enforced all of the immigration law with the funding Congress provided? No. Does that absolve him of the obligation to try to enforce as much as he can, even if that means he has to select whole swaths he won’t actively enforce? Also no. Can he choose which parts he’ll focus on, and ignore other parts unless the opportunity lands in his lap? The answer has to be yes.

      I think it’s even more important when what’s not being enforced is apparent improprieties of the government itself. I’m a strong believer in respondeat superior for the government so you might think I place the liability for eg Lois Lerner and the IRS on President Obama – I don’t. Where he failed to faithfully execute the law however was in not prosecuting anyone for their unlawful acts – that’s a direct dereliction of duty for what appears to be partisan reasons, and should have resulted in impeachment (curable via prosecution). The alternative was that Lerner was allowed to tell Congress she thought answering their questions would inculpate her in crimes (that’s what pleading the 5th means), and then she was allowed to retire with full benefits. That just reeks of corruption, just as it would reek of corruption should Ivankas companies just so happen to be involved in trade with China that’s not subject to a tariff war when almost everything else is.

      1. Lerner was allowed to tell Congress she thought answering their questions would inculpate her in crimes (that’s what pleading the 5th means)

        I don’t think that’s what it necessarily means. It can also mean that you know the prosecutor is out to get you, and will turn anything you say to that end if at all possible.

        Haven’t we seen plenty of examples of terrible prosecutions in the Short Circuit posts here. And politicians with a point to prove aren’t going to be fairer.

        1. Yes, the self-incrimination clause means they can’t force you to testify against yourself. Not even if you’re innocent and “have nothing to hide.” Once a prosecutor has worked his/her magic on your remark (“at 5:30 I driving down Mean Street but didn’t notice anything unusual”) and turn it into a virtual confession (“he admits he was in the vicinity of the liquor store when it was being robbed, but claims he wasn’t involved and didn’t even notice anything! Obviously he wasn’t in the area for innocent reasons, he was the robber.”).

          1. To the historian or journalist, though, who isn’t conducting a criminal trial, someone who takes the Fifth deserves a second look to see whether they were protecting their innocence against an overbearing govt, or shielding their own guilt.

            1. In short, there are legal and practical differences between the voluntary choices of private-sector employers and the laws governing public employment.

              Again, getting fired by a private company (or even a police department) doesn’t stop you from “working in the industry” in future, unless of course there’s a legal ban on you taking such jobs in future.

        2. That’s not quite the standard for pleading the 5th though. You have to think that testifying on a subject will inculpate you (even if you also think no laws were broken). So she couldn’t lawfully claim the 5th unless she thought testifying would inculpate her. That could be because it was a witch hunt (Eddys example) or because she thinks she broke the law and doesn’t want to be prosecuted, but either reason is cause for further investigation – after all if you’re on a witch hunt you keep looking for witches, and if you’re not then it’s suspicious as hell.

          All that sets aside a detail in this particular case, that she waived her 5th amendment rights by testifying on the topic when it was to her benefit, but refusing when she thought answering would hurt her. The 5th amendment applies to entire topics – if you want to tell your story you’re no longer able to avoid answering questions – you have to stay silent on everything or answer questions on everything.

          Looked at another way – she was allowed to refuse to participate in a corruption inquiry by her employer and then retire with benefits. In the private sector refusal to participate would result in termination for cause. That obviously ignores any civil service protections, which may just highlight the indulgences the government gives itself.

    2. So a President who fails to faithfully execute, say, immigration law, is eligible for impeachment?

      Are you referring to President Obama and his completely illegal DACA?

      1. When you say completely illegal, do you mean the granting “legal status” or using discretion to defer deportations of those eligible in favor of focusing on more pressing (and less morally questionable) cases?

        1. The funny thing is, if President Trump had imposed DACA, I bet you would be using this as another example of an unconstitutional abuse of power meriting impeachment.

          1. I don’t think I would actually, since I’ve long considered the possibility of deporting people to countries they have no real connection to morally odious.

            1. What the bloody heck does that have to do with the president’s lack of power to impose DACA?

              1. Well you asked if I would be using it as an example of an abuse of power if Trump did it, I would not for the reason stated. Your bet was wrong.

                1. If you’re in law school my advice is to drop out. if you actually passed the bar, after I get over my shock, I would recommend you resign.

                  1. Graduated with honors and sworn into the bar two years ago.

                    And I’ll resign once people who like to view themselves as “law and order” admit they’re only talking about enforcing a small subset of criminal and immigration laws, and not law as a whole, resign first.

                    1. We should enforce all laws to the hilt. Maybe then we can get rid of all our stupid laws.

                      What we have now just begs for abuse by whoever controls the prosecution and investigators (think J Edgar Hoover).

              2. So an abuse of power is anything that LawTalkingGuy considers morally odious. Got it!

                1. It’s as consistent as the view that anything Trump does is automatically in the national interest.

                  And it’s not just me, I would think it would be morally odious to anyone who takes seriously the duties we owe to each other as human beings.

  8. I’m confused about your conclusion: in an election, who’s rights are excercised? Was trump exercising his right to be elected, or were ‘the people’ exercising their right to select their own government? Only under the first theory does your argument hold. Otherwise the same presumption of freedom must control in the people’s choice of representative in office as in their choice of book to read or gods to worship.

    Also, nobody’s arguing that criminal standards of evidence should be used because impeachment is actually a criminal proceeding, we point to criminal standards of evidence because they have been carefully crafted, tested, and refined over the centuries to afford the greatest balance of justice for both sides. An argument against using these standards of evidence in any proceeding (some university title 9 cases come to mind) is just an admission that you prefer to put your thumb on the scales for one side or the other.

    1. I’m confused about your conclusion. You seem to think impeachment is automatically illegitimate.

      The House was elected by the voters “exercising their right to select their own government,” and it has every right to impeach the President.

      1. Impeachment is permitted only in the case of treason, bribery and high crimes and misdemeanors.

        Name the section of US code that President Trump is alleged to have violated.

        1. Although I’m sure this has been explained to you many times, to no avail, while criminal activity is an impeachable offense not all impeachable offenses are crimes.

          1. Treason is a crime, Bribery is a crime. Both very serious crimes actually. But after the enumeration of two of the most serious crimes that exist, the framers actually intended “high crimes and misdemeanors” to mean, well, just about anything? I guess that’s one possible meaning. An ill conceived, poorly reasoned, banana republic-like meaning, but a meaning nonetheless.

            1. How do you square misdemeanor? That’s the opposite of a “serious” crime.

              1. Domestic violence is often prosecuted as a misdemeanor.

                So you’re saying domestic violence is not a serious crime?

                A conviction results in the loss of gun rights, among other consequences.

              2. Just so you know super lawyer, “High Crimes and Misdemeanors” is not intended to include by reference petty crimes punishable by less than 6 mos in jail as prescribed by some local municipal ordinance.

                1. Just so you know, MKE, you’re making things up and both the Founders and the Supreme Court have said differently.

                  1. No he is correct. According to Cass Sunstein “High Crimes and Misdemeanors” are “acts that, whether or not technically illegal, amount to an egregious abuse of office.” Sunstein, Tribe and any other Constitutional scholars that I have seen don’t separate the terms and they pretty much agree on the meaning.

                    1. I’d like to see those cites. Because as discussed on this blog both Hamilton and the Supreme Court in Nixon both disagree.

                2. Misdemeanor must have some meaning because otherwise it’s surplusage that contrasts it from high crimes.

                  1. I’m simply noting that the modern conception of a “misdemeanor” is not synonymous with the use of term in the phrase “High Crimes and Misdemeanors” in the Impeachment clause.

      2. ?? I didn’t say they don’t.

        Maybe you’re new here, so I’ll fill you in on a little tip: one of the special things about libertarians is we can believe things are wrong even when they’re technically legal!
        I’m not saying the house doesn’t have the “right” to impeach, I’m saying it’s pretty obvious they’re abusing that power for raw political advantage. Commentators (particularly libertarian ones) shouldn’t give them a pass just because some government permission slip says they’re technically allowed to.

    2. North49, in an impeachment, whose rights are exercised? The answer, of course, is the sovereign’s rights, or, to put it another way, to suit the United States, the People’s right to self-government.

      Impeachment itself is not a right. It is a power. It is a power the sovereign People delegate solely to their most representative division of government, so that division (the House) can act promptly to begin removal from power a chief magistrate who offends the sovereign.

      The House is trusted as the government division to determine what offends the sovereign, and charged to rely on the sovereign’s decree, the Constitution, for guidance as to the sovereign’s intent. In that judgment, nobody else gets a say.

      As always with sovereignty, the sovereign’s power is held and exercised at pleasure, without constraint of any kind. The power of the House in impeachments is thus similarly unbounded, except by politics. It is politics which constrains the impeachment power, not law. Which is as it must be, because neither is the sovereign constrained by law. To insist the House be constrained by law in an impeachment would be to insist paradoxically that the sovereign People are constrained likewise. They are not.

      I expect as a self-described libertarian you may have difficulties with the notions of sovereignty mentioned above. I have learned by experience that most libertarians are troubled—troubled to the point of rebellion—by classic notions of sovereignty.

      We are all entitled to our opinions, and you are certainly free to disagree. If so, please do it while knowing your disagreement is with the founders, whose views on sovereignty are the ones I have mentioned.

      With any such disagreement, it would be helpful if you could explain in detail on what basis you propose to correct the founders’ scheme for impeachment. Try to do so with an eye to showing how your own scheme fits without disruption into the notion of constitutional self-government by the People (or perhaps, for you, it should be small-“p,” “people.”)

      The consequences of removing the notion of sovereignty from the founders’ creation are far-reaching, so try to be thoughtful. For instance, absent an unbounded sovereign power to keep government within constitutionally prescribed bounds, what other power greater than government’s is available? If no such power exists, what can limit government?

  9. Reading the passages, it sounds like they were actually more supportive of Blackman’s argument in that the history emphasized the wrong action, even if there was a side of assumed intent, while the Democrats are emphasizing the assumed intent regardless of action.

    It’s not that the legality of the action defends the assumed intent, as Kerr suggests, but that the legality of the action should be front and center. If the action is unquestionably legal then the bar for accusing someone based on readings of their intent should be very, very high.

    After all, if someone does good while intending to do bad, well, they’ve still done good!

    Kerr’s argument is unpersuasive there, but he goes on to assert without question the Democrats’ claims against Trump even though they’re disputed (regardless of how many times Democratic politicians repeat that these disputed facts are undisputed).

    1. They’re established. Saying, “Lalalalalalala I can’t hear you” does not constitute a dispute.

      1. It does when you’re trying to convince the people who are saying “lalala I can’t hear you…”

        That something is obvious to me doesn’t make it obvious to you, and my merely claiming that it’s so obvious that I don’t need to show why it’s true won’t convince anyone who doesn’t already hold that position. That’s the problem with a lot of these arguments – they’re not designed to persuade, but merely condemn. I can’t tell if that’s because the speakers don’t understand the difference and think they are being persuasive, that they don’t care about the deplorables because their opinions shouldn’t count, or something else.

        1. I’ve come to the conclusion it is a waste of time to use the facts to convince people who are saying, “lalala, I can’t hear you.” What I don’t know is how large this group is.

          1. Agreed – and how to discriminate between the ones who are merely ignorant versus the ones who are willfully ignorant.

  10. The rule of law according to Professor Kerr, and other supporters of our elite rulers, is that there are two rules of law, one for the elites and one for the rest of us. The elites are presumed to have good motives for everything they do; the rest of us are presumed to have bad motives.
    Sad thing is, the elites are so full of themselves that they don’t realize that their beautiful programs to make our lives better are, in fact, failing. They won’t realize they are wrong until everything has fallen apart, though even then, they will blame it on the non-elites charged with carrying out the programs, not with the programs themselves.

    1. Trump: totally not an elite.

      Populism is not a silver bullet by which you can win every argument.

  11. What we see is that if a Dem commits a minor offense, then when there is an investigation, lies about it and has her staff lie about it and refuses to assist the investigation, there is no crime. When a Rep commits a minor offense and there is an investigation and has his staff tell the truth about it, but refuses to assist the investigation, there is a crime and impeachment is required.

  12. Back when I was a hearing officer, I had a case where I had drafted a final determination and submitted it up to my supervisor for review. My supervisor was a lazy, entitled young jerk who kept getting promoted by the executive administrator of my division.
    So this is how things sat for over a year. There was an election and a new governor was sworn in. Sometime later, I was pulled aside by the executive administrator and told to expect a phone call from the governor’s office regarding that case. I went back to my office and took the call. The governor’s staffer asked me about the case and asked me to take a specific position in my final determination. In fact, the FD I had written over a year earlier made that exact point. I told the staffer that. A few weeks later, my FD was signed. The executive administrator and the governor’s staffer had corrupt motives and their actions were criminal. Mine were not. This governor later got in trouble because similar actions by his staff resulted in bad situations that became front page news.

    1. So the solution is to carry a huge chip on your shoulder forevermore.

  13. Is it true that Trump was pressuring the Ukraine to investigate JOE Biden? Why is an investigation of a Ukranian company, Burisma, being conflated with an investigation of Hunter Biden, a director of Burisma, being further conflated with an investigation of Biden the contender in the Democratic primary? Are corrupt activities by a contender’s relatives, or corrupt activities of companies with which the relative is formally associated, off-limits?

    1. No. But, why wouldn’t it be done through official channels?

      1. Because the official channels were still dedicated to the prior administration’s foreign policy?

        If you’ve got a ‘Resistance’ movement in the bureaucracy, is a President somehow obligated to ignore it, and pretend they’re loyal?

        1. Exactly. People can call that a “deep state” conspiracy theory all they want, but it is crystal clear that there is a class of career govt officials who pursue a policy agenda of their own regardless of the current administration’s wishes

        2. I was more thinking the Justice Department does investigate FCPA issues and works with other countries through MLATs. DOJ line prosecutors are not typically hesitant to investigate people related to either party.

          In Trump’s case though, he would probably wouldn’t recognize a loyal bureaucracy anyway because he is ill-informed and thinks he is more knowledgeable than everyone else on every subject despite all sorts of evidence to the contrary.

          1. Which is why it’s so strange that many simultaneously assert that Trump is unqualified as President, yet conclude that his bumbling failure to effectively use the apparatus of the Executive is proof of ill will rather than proof of incompetence.

            Is he incompetent, and you should assume incompetence in his actions?

            Or is he an evil mastermind, and you should assume evil in his actions?

            I don’t think you can reconcile “incompetent” and evil “mastermind.”

            1. Republicans reconciled it with Obama and Hillary all the time.

              But you can obviously be incompetent and have ill-will at the same time. It’s the classic high school bully.

              Trump makes the most sense if you just remember he’s simply a not very smart bully who is used to getting his way. He might not understand the full implications of what he’s doing at any particular point in time, but like most bullies he generally understands how to crudely manipulate people to his crude ends.

      2. A President to President conversation is an official channel. Just as Biden’s ultimatum to the Ukrainians as to firing the prosecutor in exchange for aid was an official channel

    2. Why is an investigation of a Ukranian company, Burisma, being conflated with an investigation of Hunter Biden, a director of Burisma, being further conflated with an investigation of Biden the contender in the Democratic primary?

      Because the false claim is that Joe Biden corruptly interfered in an investigation of Hunter Biden.

      1. Trump wasn’t asking the Ukrainians to investigate that allegation, whether true or false. He was asking them to re-institute the investigation of Burisma.

        1. No. He was asking them to investigate Biden. We know that from the non-transcript. We know that from the testimony of about a dozen witnesses. We know that from Giuliani’s words. And Mulvaney’s. And Trump’s.

      2. You’re getting pretty fast and loose with the word “false.” But setting that aside I don’t think that there is or should be a great deal of interest in investigating Hunter Biden, apart from his role in the conflict of interest. It is quite possible that he did nothing beyond getting money for nuthin’ and chicks for free.

        Zlochevsky and Joe should be the focus and obviously Burisma is a part of that but not exclusive to it.

        1. No, it’s false. You’re just super dumb about it.

          1. But how do you know it’s false?

            And not just false, but so obviously false that anyone who doesn’t know that – even if they haven’t tracked down whatever made you conclude that it’s false – are necessarily dumb?

            I can see how one could conclude it’s likely false, but I’ve seen nothing even remotely dispositive.

          2. That certainly settled it. Why didn’t you just pull me aside and tell me that in private? Would have spared me so much embarrassment.

            1. But the money for nuthin’ part was good, no?

      3. How do you know it’s false?

        Saying that the President ordered it doesn’t prove it, because Biden could just as easily have been the originator of the idea.

        “Hey boss, we should get this guy sacked because he’s corrupt”
        “Good idea Joe, get it done”

        1. No way you’re not biased. The facts are well established, and they do not support any wrongdoing by Biden.
          You can make up some scenario about Biden doing all sorts of secret stuff to twist things around, but that’s not evidence; it’s fan fiction.

          1. “The facts are well established.” Yes they are so well established that you don’t even need to know what they are anymore. They are so well established that they are now officially “well established facts.” In fact we now have an official acronym for them: WEF

            So now if you try to argue some ridiculous point all I have to do is say “WEF.” Saves time.

  14. ” In an effort to falsely portray his likely 2020 opponent as being under criminal investigation,”

    Where’s the evidence that he sought to “…falsely portray his likely 2020 opponent as being under criminal investigation,”?

    All of the evidence I’ve seen indicates he sought an actual investigation, in addition to the announcement of an investigation. Dems claim that there was no truth to the allegations about Biden, so such an investigation would likely have cleared him. How would that have helped Trump?

    Now maybe Trump believed that the investigation would turn up evidence of criminal activity, but if that’s true I’m not sure you get a “corrupt scheme.”

    1. All of the evidence I’ve seen indicates he sought an actual investigation, in addition to the announcement of an investigation. Dems claim that there was no truth to the allegations about Biden, so such an investigation would likely have cleared him. How would that have helped Trump?

      Repeating the same argument won’t make it less dumb. If Ukraine is a corrupt country, why on earth do you think that an investigation conducted by such a place would clear a person just because he’s innocent? Particularly when that country is being extorted to conduct such an investigation by someone who wants them to find something?

      1. If Ukraine is a “corrupt country”, why are we giving them money in the first place?

        If your claim is that we need to infer that Trump was trying to get Zelensky to frame Biden, why won’t people say that? The articles of impeachment don’t say anything about that, or for that matter anything else about “falsely portray[ing] his likely 2020 opponent as being under criminal investigation”

        If the allegation is that Trump were trying to get Zelensky to frame Biden, shouldn’t the articles of impeachment say that?

        1. Agreed.

          And if proven true would easily be an impeachable act.

        2. If Ukraine is a “corrupt country”, why are we giving them money in the first place?

          Because they’re an ally under attack by our enemy. (Not Trump’s enemy, though — just the country’s.) Because we are trying to help them strengthen their institutions. Because a majority of Congress decided to do so.

          Anyway, you miss my point; if Trump thinks they are a corrupt country — which was his argument — then he would have no reason to think that an investigation would be legitimate. (We know he doesn’t care, because he also asked China to investigate Biden, and nobody denies that China is a corrupt authoritarian regime.)

          If your claim is that we need to infer that Trump was trying to get Zelensky to frame Biden, why won’t people say that?

          Um, they will. They do. They have. (Remember Schiff’s paraphrase of Trump’s call? “I want you to make up dirt on my political opponent. Understand? Lots of it, on this and on that.”)(Emphasis added.)

          But it’s not necessary for the purposes of impeachment to prove this, and while it’s a reasonable inference, there’s also some contrary evidence suggesting that he just wanted an announcement and didn’t care about an actual investigation at all. So why complicate things?

          1. “So why complicate things?”

            Because there’s a third possibility: That Trump thought an investigation might actually turn up dirt. That would take the facts outside of Kerr’s “Corrupt Scheme” definition, “In an effort to falsely portray his likely 2020 opponent as being under criminal investigation,”

            ISTM that if you don’t exclude Trump trying to instigate an actual investigation that turned up actual criminal activity from your articles, you have to explain why that would be impeachable.

    2. All of the evidence I’ve seen indicates he sought an actual investigation, in addition to the announcement of an investigation. Dems claim that there was no truth to the allegations about Biden, so such an investigation would likely have cleared him. How would that have helped Trump?

      How would the implication of an investigation help Trump? If only we had some recent example an investigation into a candidate that helped the opposing candidate win an election, but it would only be applicable if it were a race for president, but even then, it would only be applicable if it were Trump who won the election.

      I guess we can only rhetorically ask, how would Trump be helped by an investigation into an opposing candidate.

      1. such an investigation would likely have cleared him

        This may be the dumbest argument yet. And this isn’t the first time I’ve heard it.

        1. such an investigation would likely have cleared him

          This may be the dumbest argument yet. And this isn’t the first time I’ve heard it.

          I know, but the Dems are claiming that there’s nothing to the Biden allegations, so…

          1. Com off it TiP. You are not this dumb.

            No factual predicate to start an investigation does not mean that an investigation would be damaging.

            See 2016.

            And do better.

      2. ” If only we had some recent example an investigation into a candidate that helped the opposing candidate win an election…”

        So… Jill Biden would have been caught meeting Zelensky before the results of the investigation were announced? Or Zelensky would have found that Biden did some bad stuff but questionably claim that “no reasonable prosecutor” would prosecute?

  15. As I understand it, the IG report on Crossfire Hurricane confirms that the investigation into Trump and his campaign was opened solely on the basis of a vague “tip”: An Australian intelligence guy said that George Papawhatever said that Joseph Mifsud said something about Russia having Hillary’s emails. CIA guy Stefan Halper had also arranged for himself to grill Papa about this topic. That’s it. That was the basis of the investigation, and apparently over 13 foreign countries then pitched in.

    I’m not an impeachment scholar or anything. But, it seems to me, if (and I emphasize “if”) you can investigate the Republican presidential nominee candidate on the above basis . . . then surely the Biden-Burisma matter is a valid predicate for investigation. And the Trump-Russia farce did nothing if not create a “cloud of criminal suspicion.” Just think – the entire matter could have been kept secret and under wraps, and probably closed much sooner when “no collusion” was apparent or in Strzok’s words “no big there there.” Instead it was trickled out by thousands of leaks adding up to a flood, blown wide open and exploited, and made into the conspiracy theory of the century.

    1. ML, the IG report more or less blew up all your conspiracy theories. Have you no shame coming here with this selective BS?

      The investigatory chain was found to have begun and continued properly. You didn’t mention that bit. eh. Quit lying, you utter tool.

      The FISA court process sucks, but then we all knew that.

      1. What will your position be then if the Durham report indicates otherwise? There are already reports (which everyone should be really skeptical of) that Durham told Horowitz a month ago that because of the expanded scope of his inquiry he’s uncovered evidence that causes him to disagree with Horowitz’ bottom line.

        1. Good luck with that report having any legs if it goes off on Deep State conspiracyland now.

      2. Sarcastro,

        You poor thing, you don’t know how mistaken you are.

        You may want to read more about the IG report than just the headlines at Mother Jones and WaPo!

        1. Don’t continue to make a fool of yourself. The report explicitly found no political motive, and that the investigation was started properly.
          As you quoted above in this thread.

          At this point you must by lying.

          1. So, in time you may learn more and have no choice but to be less ignorant. But here: “the investigation was started properly.” Yes, that was the entire premise of my post. The IG report concludes that, even on this slender basis, which is now confirmed to be the only basis, the investigation was started properly. Therefore, if that is the case, then. . . etc.

            However, it appears the FISA warrants were not properly obtained, even if the investigation started OK.

  16. “(2) the exercise of official power to obtain an improper personal benefit, while ignoring or injuring the national interest. ”

    this prong would seem to remove official acts with mixed-motives, or at least mixed effects, from being an impeachable abuse of power.

    It isnt against the national interest for the country to know whether 1) another foreign country attempted to interfere with the election (which a Ukranian Court recently acknowledged their country did. Even the NYT and other outlets reported on this at the time b4 attempting to memory hole it)
    2) a major candidate for president is compromised or acted in a corrupt manner.

    There is also good reason to believe that officials in the Obama admin leaned on Ukranian officials to investigate Manafort. This was justified as there was the appearance (and as we eventually discovered, the existence) of corruption and illegality.

    With Hunter Biden there is at least as strong of a basis to investigate a potential violation of the FCPA, which is not to say there was necessarily any illegal act committed. Were the Democrats to have their way, those connected to presidential candidates would be shielded from legal scrutiny lest the current president is accused of weaponizing his office for political gain.

    1. “Were the Democrats to have their way, those connected to presidential candidates would be shielded from legal scrutiny lest the current president is accused of weaponizing his office for political gain.”

      Interestingly enough, the Trump administration recently argued something similar to the Second Circuit, about investigating the President and those connected to him. He lost.

      1. I thought the argument that Article II shields the president and his associates from investigations of any sort was a major overreach and the 2nd circuit seems to have made the right call

  17. Ds suddenly caring about tradition and Constitutional practices is the new standard for Trump, not the standard itself. At this point, you would have to be a useful idiot to pretend that after a successful impeachment and conviction that Ds would ever uphold this standard.

    1. Why not? Republicans (claim) to have believed McConnel when he said the problem was appointing a SCOTUS justice so close to an election, and not just a partisan exercise in power.

      1. Really? I don’t recall meaningful numbers or influential people saying that.

        They may have been thinking something along the lines of “well that’s sorta iffy, but we should probably vote anyway…. oh we think we’re going to benefit? Totally hold the vote.” They were borderline on it before, but buttering their bread pushed them over the line. That wouldn’t mean they agreed for purely partisan reasons, merely that partisanship was also part of their reason.

        1. Yep, not a partisan. Taking the side of the GOP as acting in good faith once again is merely coincidence.

          1. How is questioning his memory taking the side of the GOP?

            I remember them effectively snickering to themselves at the cleverness of their shenanigans, even going on to say that if Clinton won (and the Senate flipped) they should immediately vote in Garland to prevent Clinton from putting in a more liberal Justice. That’s pretty low, but you jumped straight to inferring the opposite.

            1. You are arguing the whole Gorsuch thing was done in good faith by the GOP.

      2. I was under the impression that are supposed to make SCOTUS as un-political as possible, but its a political process at this point. Nobody pulls punches on that. I’m all for leaving lifetime appoints of 50 y/os to elections when the vacancy occurs to an unpopular lame duck. The Garland debacle (and recent concerns about RBG’s health) also proves a very important point about having balanced perspectives on the court. People clearly value it on all sides.

  18. This understanding of impeachable abuse of power is rooted in the Constitution’s text, which commands the President to “faithfully execute” the law.
    The problem with this statement is it is a very subjective matter, that can be used to tie the hands of all Presidents to follow.

  19. “It was the astonishing facts of what happened with Ukraine that changed my mind, moving me from being against impeachment to being in favor of it.”

    Obviously, Prof Kerr approved of the Obama administration’s organization of demonstrators and snipers – yes, the Maidan snipers were working for ‘US’ – to sow chaos and bloodshed in Ukraine leading to the ouster of its elected president. A lot of corrupt officials in the US government, including the Bidens, have profited immensely from this violent coup. Perhaps Prof Kerr or his friends are among them.

  20. What they are accusing Trump of doing is exactly what Biden did and admitted on tape.

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