Impeaching Fast and Slow

Could the House delay voting on the Articles of Impeachment, or vote on them, but decline to transmit them to the House?

|The Volokh Conspiracy |

After the House Judiciary Committee approved two articles of impeachment, several media outlets reported that the House would promptly hold a floor vote, as early as December 18. Now, the timing seems to have slowed down, and it isn't clear there will be a vote this week.

Philip Bobbitt writes that the House should pause the impeachment process. In the interim, the House should litigate various subpoenas against the Trump Administration:

Resort to the courts may take many weeks, but there is no reason it would take many months. The ultimate guidance given the parties—as in the Nixon case—can preclude endless re-litigation.

Success in getting a judicial order to produce documents and testimony is the only way to overcome the partisan impasse we currently face. The only possibility left lies in public attention, which will be substantial when Secretaries Pompeo and Perry, chiefs of staff Mulvaney and Kelly, national security adviser Bolton, White House Counsel McGahn and the president's lawyer Giuliani are compelled to testify under oath. Some of these individuals are known to have had direct conversations with the president about Ukraine; others are knowledgeable about the president's alleged obstructions that predate the Ukraine matter. Pausing now may afford other pieces of the story to fall into place.

What's more, action by the courts broadens the legitimacy of the inquiry beyond the acts of one highly partisan body of one branch of the government.

Larry Tribe proposed a delay, but for very different reasons. The House should hold off on a vote until the Senate confirms that it will hold a fair trial. He tweeted:

The House Judiciary Committee approved the Articles at a blistering pace. But now, the House may see advantages–both legal and strategic–in dragging this process out. Bobbitt identified one such pragmatic reason:

And I ask the president's political opponents: would you rather run against a candidate who is under indictment or one who has been acquitted?

Hitting the pause button would allow the allegations to hang over the political landscape for the next 11 months, without any definitive conclusion, such as an acquittal. The majority could also prevent its members in swing districts from having to take a difficult vote, at least until the political currents settle.

My colleague Seth Barrett Tillman suggested another option. The House could approve the articles of impeachment, but not transmit them to the Senate. As far as I can tell, there is no requirement that the House take any action after approving articles of impeachment. For certain, the Senate cannot take any action until the House managers show up. In this fashion, the articles of impeachment would operate as a censure that could stand indefinitely. The House, in theory, could vote for impeachment again in the next Congress.

Consider another possibility. The House could determine that the Senate, with its current leadership and majority, would not afford the House managers a fair trial. (Tribe hints at this option.) Therefore, the House plans to wait until after the election to transmit the articles of impeachment. Of course, that option would be premised on President Trump winning re-election. What better way to start Trump's second term than by holding an impeachment trial? Indeed, if the Senate flips to Democratic, the Senate trial could serve as a lengthy post-mortem of the Trump administration. However, even if Trump loses, I agree with co-blogger Keith Whittington that a former President could be impeached.

NEXT: "Keeping IP Real" Symposium Piece out in Houston Law Review

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  1. It’s a good thing I didn’t bet any money on this thing not getting any crazier.

    1. I’d have taken that bet.

  2. Question out of ignorance, why is this certain?

    “ For certain, the Senate cannot take any action until the House managers show up.”

    I mean it’s obvious why it’s a good idea, I don’t see how it’s mandatory. If the House claims to have impeached the President, how isn’t that good enough for the Senate to start.

    Note: expecting the answer to be along the lines of “because of NN USC 9999”

    1. It isn’t certain. Indeed, it isn’t true.

  3. Also: good wordplay on Kahneman. It’s a great book, and very accessible.

  4. “My colleague Seth Barrett Tillman suggested another option. The House could approve the articles of impeachment, but not transmit them to the Senate. As far as I can tell, there is no requirement that the House take any action after approving articles of impeachment. For certain, the Senate cannot take any action until the House managers show up. In this fashion, the articles of impeachment would operate as a censure that could stand indefinitely.”

    Oh, the Senate can do something like this –

    “RESOLVED, that we understand that the House of Representatives has approved certain articles of impeachment against President Donald J. Trump, and the Senate shall meet as a Court for the Trial of Impeachments on [date] to receive these articles. The Chief Justice is invited.”

    [the date arrives]

    CHIEF JUSTICE: We have a note from the House that they will not exhibit their articles of impeachment at this time because the Senate are a bunch of unfair meany-heads.”

    Then the Senate “RESOLVES, that the House will have until [date] to exhibit their articles of impeachment, and if they miss the deadline the defendant’s speedy-trial rights will be deemed violated.”

    1. Or the CJ / Senate can set a trial date and dismiss or enter a judgment of acquittal if the House managers don’t show up.

      1. OK, sure, so yes, there are ways for the Senate to assert its prerogatives and – more important – secure the rights of the defendant.

    2. Let us not forget that the Senate doesn’t have to take any action until the House transmits the Articles of Impeachment. Prof Tribe has definitely lost his marbles by suggesting that the House do nothing until the Senate determines how they will deal with the Articles of Impeachment. It is truly sad that these idiots believe they can deny Due Process during the House proceedings then make demands on the Senate. It sounds more like they are afraid of the Senate treating Dems the way the House treated the Reps.

      1. “Let us not forget that the Senate doesn’t have to take any action until the House transmits the Articles of Impeachment.”

        Sure, but if the House deviates so far from normal procedure as to vote articles of impeachment and fail to officially notify the Senate, the Senate may make a slight deviation from procedure so as to take “judicial notice” of the charges and appoint a day for the House to formally submit the articles. If the House persists in failing to notify the Senate officially of charges the whole world knows about, the Senate would be fully justified in saying that the President’s speedy-trial rights have been violated, warranting dismissal of the charges if the House belatedly comes to the Senate with the articles.

        Every other federal impeachment I’ve heard about involved the House appointing Managers and notifying the Senate promptly after voting articles of impeachment.

  5. Delaying weeks? Maybe.

    Delaying eleven months? Are you high?

    1. Nope, They just realized that trying to high speed the impeachment to get the trial done in an attempt to remove Trump from office before the 2020 election will do them more harm to them than it will to the GOP in the 2020 elections.

      1. They aren’t attempting to remove Trump from office because it was pretty much guaranteed the GOP majority wouldn’t convict Trump of anything. All the dithering over whether Pelosi would hold an impeachment hearing included this as a reason to not do it in the first place.

    2. Trying any such schenanigans would be tantamount to admitting these impeachment proceedings to be a fraud. At least that is how Trump will spin it.

      1. Is it really spin if it’s obviously true?

        1. I would not go so far as fraud. Farce, definitely. But not quite fraud.

  6. Slow down the process to exploit impeachment for maximum political advantage? Remind me again, who exactly is abusing the powers of office for political advantage?

    1. House Democrats. Who did you think?

      They’re not even bothering to pretend anymore at this point.

      1. Y’all were complaining that the investigation was dragging on too long before this. Then that it’s too fast (‘blistering pace’).
        Now y’all are trying for too slow again.

        Do you even believe yourselves at this point?

        1. I don’t recall ever complaining about any “blistering pace”, personally, so don’t pin that on me. At this point the investigation is done, what purpose is served by delay?

          Two, obviously: Keeping accusations out there without a defense rebuttal, and the hope that if the trial can be pushed out past the GOP primaries, some Senators will feel free to give their base the finger.

          So, my point stands: They’re not even bothering to pretend this isn’t an exercise in swaying the 2020 election anymore.

          1. Deliberation after investigation seems very in character for Congress.
            I’m surprised they didn’t add a bloviation step.

            But you assume the worst. Again.

          2. “what purpose is served by delay?”

            I believe the colloquial term is “chickening out”.

  7. Ugg….

    I’m hard pressed to think of anything more blatantly partisan/political than delaying an impeachment trial for political advantage.

    “What the president did was deeply, deeply bad, and he deserves to be removed from office over it. But we’re not going to try him NOW…instead, we’re going to use this for political advantage and use political game-manship to delay over a year or more”

    I can’t think of any better way to lose common voters.

    1. Framing your opponent?

      1. I suppose it’s theoretically possible to frame a guilty man, but why would anybody bother?

        1. But is he guilty of what he’s being framed for? If the point was salacious skullduggery wouldn’t the framing be something like the widespread use of Epstein’s services, rather than the sale by proxy of governmental action? Guilty in unius, guilty in omnibus?

  8. Just curious, would a fair trial be one where the full depth of Democrat corruption and hypocrisy involving Ukraine is exposed? If so, then I’m for it too. Let’s make it last months.

    1. Sorry Mr. Biden. You’ve been called on AGAIN to testify before the Senate. I understand that this has been extremely burdensome, and you’ve been asked to testify for 70 of the last 80 days, and that you REALLY need to get back to fundraising and campaigning, but these proceedings are very important, you must realize.

      1. Good idea. Maybe we can somehow get Corn Pop to testify too. And some of those kids who rubbed his blond hairy legs.

      2. Sorry Senators Warren, Sanders, et. al. We know you need to get back to campaigning but you being here in the Senate for the trial is your sworn duty. We agree that protecting Biden while campaigning against him sucks big time but hey that’s what your party decided to do.

      3. I love it when partisans think that naked partisanship like this would play well with not only the American People but a body all of whom need to stand for election at some point.

        1. Since you seem to be particularly cognitively challenged today Sarcastr0, I should let you know that I was joking about corn pop and the blonde hair reference. Of course, we should note that both references come straight from the deranged and corrupt Biden himself.

          1. Well, I was smart enough to ignore your comment, which is better than your mistaking a reply to Armchair Lawyer as directed at you.

            1. Not smart enough to understand a joke but I give you points on your blinding hypocrisy. Or from this point on have you decided only to comment when specifically addressed?

  9. I’m guessing this means Pelosi’s vote count is looking really, really bad. And I don’t mean for Trump.

    1. She’s already lost two members with one going to the GOP and the other still deciding between GOP or Indie. Not to mention the lovely town halls where even #ChickenSchiff was confronted by Dem voters.

  10. If Trump, the Democrats and SCOTUS all agree to resolve in at most 2 months whether Mulvaney, et al. are required to testify , then delaying is justified on substantive grounds.

    1. Can we add Joe and Hunter to the list? Some Burisma officials? What about looking into maybe a billion in missing foreign aid funds dispensed to Ukraine? We could bring in some Ukrainian gov’t officials too, like Oleg Tsarev ( a Ukrainian member of parliament and presidential candidate). Seriously, you Democrats have really stepped in it here. If the Republicans had any guts, they could decimate your party with this.

      1. Do you really think the Republican establishment’s hands are clean though?

        There’s a hooligans agreement (I’d call it a gentlemen’s agreement, but none of them are) that establishmentarians don’t burn the ground, but it appears that the Democrats think that doesn’t apply to Trump precisely because he’s not part of the establishment – he may be in another 5 years, but he isn’t today. So from a Insider’s perspective it’s proper to burn him down, but would result in the dumpster fire that is DC turning into a Superfund site if the parties turned on each other.

        It’s fun to muse about, but even with their depravities were overall still in a good position and I doubt we’d me materially better off under a new paradigm, and possibly much worse off.

        1. I take it as a given that the Republican establishment’s hands are dirty. Trump interests and the interests of the GOP establishment greatly diverge here, as they often do.

          The GOP establishment would be willing to sacrifice Trump to prevent a game of tit for tat that could turn into mutually assured destruction. Trump likely isn’t willing to be sacrificed, and considering the extent to which that establishment has opposed him, might even relish playing Samson in the temple.

          I think this is what’s behind the Republican talk about a short trial, possibly even an immediate vote on dismissing the charges.

          1. I tend to agree, which is why the House “investigation” was intentionally narrowed. Really shining the light into those stygian pits is far too likely to rouse the citizenry to a mass cleansing of all of them, and none of the denizens of the pit want to risk that.

          2. I just want to chime in that you made some excellent metaphors that I will flagrantly steal in the future.

      2. Joe and Hunter and Burisma continue to be completely irrelevant, because no matter what they did, it doesn’t justify illegally impounding funds intended for Ukrainian military aid. But hey, keep bringing it up, because Republicans are so intellectually honest. And investigate the Bidens all you want – in a legal manner.

        1. Not irrelevant at all. It would dispel the democrat lie that allegations of corruption were a mere smokescreen to cover an scheme to gain an advantage in the 2020 election.

          1. First, smokescreen or not Trump’s actions were abuse of his power.

            Second, even if it did matter, the question would be what factual predicate Trump had at the time, not what the deal was with the Bidens determined well after.

            Third, if the argument is that Trump wants to tar Biden with an investigation, your desire to call Biden up to Congress is mighty transparent, no?

            1. It wouldn’t be a legitimate investigation, because no matter what Trump suspected or had leads on in advance, he didn’t have hard information that would only turn up during an actual investigation?

              Your arguments are usually better than that. The swamp is fighting mighty hard to protect one of its own from accountability.

              1. Back-dating hard evidence to bolster Trump’s original motives isn’t how this works.

                If Trump had no hard evidence on Biden, but still tried to get an investigation going via strongarming a foreign government…that’s pretty telling.
                If he had suspicions, where did those suspicions come from?

                1. And still, it has no relevance to the narrow question at issue, whether or not President Trump illegally impounded funds for the purpose alleged. If the Republicans want to investigate the Bidens and Burisma, they have many resources they can legally use to do that.

                2. Thanks, that is more like the work I expect from you: A superficially serious comment relying on a blatant and recently rebutted double standard, interlaced with an afactual implication that even the ludicrous proposed rule was not easily met. You did not even mention the elephant in the unfounded-government-investigation room!

                3. Show your work, Michael. Where are the double standards? What is the proposed rule?
                  What is the reference of an unfounded government investigation to, and what is it’s relevance to the case regarding Trump’s pattern of actions?

                  1. Your proposed rule is — judging from the sliver you have actually said anything clear about — that it shows bad intent, pointing to culpability, to have no “hard evidence” before starting an investigation about a politician running for the presidency.

                    Perhaps you read about the Horowitz report and fabricated FISA evidence?

                    The DC institution tried to railroad Trump before, and now the swamp is fighting back to hide Biden corruption and to use a sham process to attack Trump for having the temerity to investigate corruption in the governments of Ukraine and the US. By all means, if Trump’s phone call with Zelensky is impeachable, let us be even-handed and impeach Obama and Biden for their efforts to use the FBI and CIA to dig up dirt on Trump and his campaign.

                    But you won’t support that, because you apply a double standard.

        2. Are you suggesting that Trump was the first President to delay distribution of funds allocated for foreign aid? Indeed, what was Joe Biden threatening if te prosecutor wasn’t fired?

          Besides, can you name the statute violated by delaying spending the money for a week or two, since the moneys were spent in the proper fiscal year?

          1. “Are you suggesting that Trump was the first President to delay distribution of funds allocated for foreign aid? Indeed, what was Joe Biden threatening if te prosecutor wasn’t fired?”

            When was Joe Biden president?

            On the other hand, I would be rather surprised if delays to foreign aid payments for political reasons didn’t predate the Reagan Administration.

            1. “When was Joe Biden President?”

              How is that a point you YOUR favor?

          2. Wow, Bruce, that is some disingenuous shit right there! Can you give an example of a past President impounding funds without Congressional approval as a means of forcing a foreign country to announce an investigation against a political opponent? Or a similar motive? I’m not asking rhetorically, maybe it’s happened, but I’ve never heard or read about it.

        3. it doesn’t justify illegally impounding funds
          Illegally, you keep using that word…wrong.

          Democrats know it lacks any elements of a crime, or Democrats would have written the crime as an article of impeachment. Democrats know, in a trial setting, the CJ presiding, and giving thumbs up thumbs down on matter of law, those missing elements will reveal their blindness to the facts.
          The President is well within his powers to pause the disbursement of funds to re-confirm the requirement Ukraine had taken proper steps to address corruption. Yes, even if govt agencies already certified that step had been met. The President has the power to demand further assurances.
          Facts get in the way of a good partisan rant.

          I

          1. Not all crimes have the political oomph or simplicity to be impeachable. Unsexy white collar stuff, for instance. Or disobeying a Congressional appropriation. Or disobeying the Presidential Oath.
            Doesn’t mean they aren’t crimes.

            The President is well within his powers to pause the disbursement of funds to re-confirm the requirement Ukraine had taken proper steps to address corruption
            Haha – this is what the GOP is going to try and argue Trump did?! Because seeing it written out like this is in pretty stark unreality in the face of every bit of testimony we’ve heard, as well as the transcript, and what Trump himself has said.

        4. “Joe and Hunter and Burisma continue to be completely irrelevant, because no matter what they did, it doesn’t justify illegally impounding funds intended for Ukrainian military aid.”

          If it can be shown that Biden really did have the prosecutor fired to prevent corruption between Hunter and Burisma from being exposed, then as a practical the impeachment is cooked. Dems technically might be able to argue that maybe Trump was trying to frame somebody he didn’t know was guilty, but that’s not a realistic path to impeachment.

          1. Essentially, the more guilty Biden is, the more justified Trump is in stretching his authority to ensure that justice is done. The facts involved in the justice department, with fairly brazen corruption while investigating Trump’s campaign and the lack of investigation into Biden despite the very disturbing bare facts of the case, undermine the argument that Trump should have had the case investigated officially by the DOJ.

            It’s an emotional argument, not a legal one. However, the accusation is also an emotional argument with the barest smattering of law and the vaguest of statutes.

            Since the real trial will occur next November, when both Trump and all of Congress are judged by the people for their votes on this matter, it’s a very valid argument.

      3. Can we add Joe and Hunter to the list? Some Burisma officials?

        It’s hard to see how they would have any information about what Trump has done, so that would be a bit odd.

        1. “It’s hard to see how they would have any information about what Trump has done”

          Is it though?

        2. I’m sure it’s hard for you to understand David (maybe you should stop relying on media matters, vox, slate?) but let’s try to make it simple. It is claimed that the President’s motivation is only explicable as an effort to gain an advantage in the 2020 election. Demonstrating that there are legitimate grounds for investigation of corruption would dispel that democrat fabricated fantasy/lie.

          1. Your logic fails. Whether someone has legitimate grounds for investigation (hint: no, which is why the DOJ didn’t investigate and isn’t investigating) depends on what that person knows, not on what a subsequent investigation reveals.

            An investigation is not retroactively justified if it turns something up, just as it is not retroactively invalidated if it does not turn up anything.

            1. Plenty of derogatory information about Joe and Hunter Biden was well-documented before Trump talked to Ukraine’s president. Hunter Biden has not suddenly gotten more drug-addicted, more stripper-impregnating, or less qualified to serve on Burisma’s board since the start of the year. (At least not significantly so. Possibly measurably so, but it hardly matters if Mt Everest gets a few feet taller.)

              The core argument that Democrats are making is that Joe Biden should be exempt from any investigation simply because he is running for president. You are just dissembling about how much information was already available to question the propriety of his involvement in the US government’s Ukraine dealings.

              1. If all that info was already available, let Trump and his administration say so.

                No one says you can’t investigate Biden. You can’t use your private attorney to invoke Presidential powers to extort a foreign government to announce an investigation of Biden.

                Your ‘derogatory information’ is not predicate for an investigation; it’s just a smear.

            2. Interesting, David, would the same logic apply to starting an unjustified “impeachment” investigation based on schiff’s staff coordinating with the “whistleblower”/leaker in the filing of a baseless and illegal complaint? As noted below, lets add the “whistleblower”/leaker, schiff’s staff, and schiff himself to the witness lists.

              1. I see you have a new chew toy.

                Too bad your hypo has nothing to do with DMN’s timeline argument.

              2. The complaint was not “baseless,” but rather has since been confirmed in every respect by every single person involved, including the president himself.

                The complaint was not “illegal” because there is literally no such thing as an “illegal complaint.”

                Whether Schiff “coordinated” with the whistleblower — he did not — is not relevant to Trump’s wrongdoing vel non.

                And since the previous Trumpkin talking point was, “The whistleblower isn’t even a real witness because he doesn’t have firsthand knowledge of anything,” subsequently arguing that they need the whistleblower’s testimony is kind of chutzpah-y, don’t you think? Why would it be helpful to have the testimony of someone who doesn’t have firsthand knowledge? What do you think he would add?

                1. It’s baseless David because its based on the author(s) opinions and, even worse, 2nd, 3rd, (4th?) hand hearsay opinions. It’s illegal because it’s not a complaint made pursuant to the process prescribed by statute and implementing executive orders. A purported intelligence community whistleblower is not entitled to make classified disclosures outside of the process prescribed by statute and executive order. Moreover, there was no subject of “urgent concern” within the meaning of the statute. In fact, the office of the president is not even within the scope of any whistleblower act. And was schiff’s staff (or schiff himself?) involved? Some reports say so and schiff doesn’t have a track record of honesty. Remember his memo on Russian “collusion”?

                  1. It’s baseless David because its based on the author(s) opinions and, even worse, 2nd, 3rd, (4th?) hand hearsay opinions.

                    Assuming arguendo that this is true, so what? That doesn’t make it “baseless.” It makes it baseful. (Well, that’s not a word. But it should be one.) “It’s baseless because it’s based on X” is a self-refuting argument.

                    If I am walking down the street and someone runs up to me and gasps, “Call the police; there are armed robbers in the bank down the block,” and I call the police, my call is not “baseless.” True, I am not basing it on firsthand knowledge, but so what? Should the 911 operator say, “Do you have firsthand knowledge? You don’t? Never mind. “? Hearsay is a rule for the admissibility of evidence at trial, not a rule for undertaking investigations.

                    It’s illegal because it’s not a complaint made pursuant to the process prescribed by statute and implementing executive orders.

                    That’s not an accurate statement of what happened, and it would not make the complaint “illegal” if it were. It would just mean that the WB isn’t entitled to the protections contained in the statute.

                    And nobody has alleged that any classified information was given to anyone without clearance.

                    Moreover, there was no subject of “urgent concern” within the meaning of the statute.

                    The ICIG disagreed. Of course, people can differ on statutory interpretation, and maybe he got it wrong, but the whole point of the procedure is to allow him to make that determination. It’s not somehow “illegal” to report possible wrongdoing just because someone disagrees about whether it is wrongdoing, any more than it’s illegal to report a suspicious event to the police just because it turns out that no crime was committed.

                    Finally, you guys are once again arguing for a monarchy rather than a presidency. You argue that the president can do wrong and it’s “illegal” to reveal that to anyone.

                    1. Ok, instead of “baseless” would you prefer “meritless”? Or maybe lacking all credibility? Let’s just sum it up with no matter even remotely approaching a statutory urgent concern under the law.

                      And no info given to anyone without authorization? Who wrote the bloody “complaint”? Where, under any interpretation of the law and procedures governing IC whistleblower complaints, is a purported IC whistleblower authorized, in advance, to hire counsel to write his complaint or consult with congressional staff? And convenient of you to ignore the small point that there is no statute authorizing a whistleblower complaint against the office of the president (probably couldn’t be constitutionally speaking, at least in regard to the president’s near plenary authority to conduct foreign relations, but that’s another matter). At the very least, a “whistleblower”/leaker who blatantly violates law and procedure is entitled to no anonymity or protection from any disciplinary reprisals. And frankly, the ICIG has some explaining to do regarding the retroactive decision to consider second hand info in the complaint process (a matter the Senate Intel committee should review). So, in sum, a complaint that fails to follow statutory and regulatory guidelines for such complaints. There’s a word for that. Illegal.

                    2. You are assuming, as usual without evidence, that all things are forbidden for whistleblowers to do unless they are explicitly permitted. That’s not how it works – you don’t need preauthorization for all your actions.

                      there is no statute authorizing a whistleblower complaint against the office of the president
                      You really do want a king.

                    3. Ok, instead of “baseless” would you prefer “meritless”?

                      Semantically it would make more sense. Factually it would not be any more correct. Every single thing in the whistleblower’s complaint was confirmed by one or more people — including the president himself.

                      Who wrote the bloody “complaint”?

                      The whistleblower.

                      Where, under any interpretation of the law and procedures governing IC whistleblower complaints, is a purported IC whistleblower authorized, in advance, to hire counsel to write his complaint or consult with congressional staff?

                      Why are you making up facts?

                      “The Whistleblower drafted the Complaint entirely on their own. Legal counsel Andrew Bakaj provided guidance on process but was not involved in the drafting of the document and did not review it in advance,” Mark Zaid, an attorney for the whistleblower, told ABC News. “In fact, none of the legal team saw the Complaint until it was publicly released by Congress. To be unequivocally clear, no Member or congressional staff had any input into or reviewed the Complaint before it was submitted to the Intelligence Community Inspector General.”

                      And convenient of you to ignore the small point that there is no statute authorizing a whistleblower complaint against the office of the president (probably couldn’t be constitutionally speaking, at least in regard to the president’s near plenary authority to conduct foreign relations, but that’s another matter).

                      The president does not have the near plenary authority that you describe. See, e.g., the Zivotofsky case, probably the most recent relevant SCOTUS one, where the court describes the president’s exclusive power only in the field of recognizing foreign governments. Everything else is shared with Congress.

                      But even in areas where the president is empowered to act, heck, even in areas where the president has plenary authority, that has nothing to do with whether someone can report presidential actions to Congress. I don’t know what you mean “statute authorizing a whistleblower complaint.” The First Amendment authorizes whistleblower complaints. The statute governs whether the whistleblower gets certain legal protections, but is not what empowers someone to report perceived wrongdoing.

                      And there was no “retroactive decision,” but for someone who keeps referring so religiously to “the statute,” you conspicuously fail to address that the statute contains no limitations on secondhand information.

                      So, in sum, a complaint that fails to follow statutory and regulatory guidelines for such complaints. There’s a word for that. Illegal.

                      If it’s illegal, what law do you think criminalizes such complaints? Would such a law, if it did exist, be consonant with the constitution?

                    4. I would certainly love to have you try to argue in a court that your complaint was not baseless, merely merit-less. That will surely impress.

                      So, attorney Mark Zaid told ABC news that neither counsel nor any member of congress or staff assisted in drafting the complaint. Well, that settles it. I mean, no one would ever lie in a news interview (like claiming they had direct evidence of Russian collusion when they had none). Have you actually read that complaint? That document that reads remarkably like a legal memorandum, with footnotes citing to authority? I think we may have another name to add to the witness list. Let’s see how Mr. Zaid answers the same question under oath.

                      And really, Zivotofsky is your authority to rebut my assertion that the president has near plenary authority in conducting foreign relations? The case holding that the president alone has the formal power to recognize a foreign government and that Congress had invaded that power? Not very convincing counsel.

                      And I didn’t say the complaint was criminal (although there may be questions of perjury in its filing or criminal disclosures of classified information). I said it was illegal. The complainant violated the statute and implementing executive and administrative orders governing such complaints. The complainant was a member of the intelligence community. He had no right, constitutional or otherwise, to make a whistleblower complaint outside the scope statute. I assume he could report supposed illegal activity to the appropriate DOJ official or his superior, but that isn’t what he did.

                    5. If you’re going to start declaring that people are lying, and that your alternate scenario is probably correct and should be investigated, you’re off in fan-fiction land.
                      At that point, why not make up a whole conspiracy with kickass cloak-and-dagger dead-drops in parking garages and maybe even a shady guild of assassins. If you’re just going with your gut, make it spicy!

                    6. I would certainly love to have you try to argue in a court that your complaint was not baseless, merely merit-less. That will surely impress.

                      First, that sort of distinction is very important in court; the former type of submission can get one sanctioned, while the latter cannot.

                      Second, I would certainly love to have you try to argue in court that I said an argument was meritless when I actually said that it was not meritless at all. (Lying about what your adversary’s argument is another way to get sanctioned.)

                      So, attorney Mark Zaid told ABC news that neither counsel nor any member of congress or staff assisted in drafting the complaint. Well, that settles it.

                      Do you have one shred of evidence to contradict it? (Hint: “It uses footnotes” isn’t such evidence.) It reads like something written by an educated person (which may be why fans of Trump may find it so astonishing), but it does not read like a legal memo at all. (The footnotes are not to legal authority; they’re just additional information.)

                      And really, Zivotofsky is your authority to rebut my assertion that the president has near plenary authority in conducting foreign relations?

                      A recent case that discusses and squarely rejects your assertion? Yeah. It explicitly distinguishes one narrow area — foreign recognition — from foreign policy.

                      And I didn’t say the complaint was criminal (although there may be questions of perjury in its filing or criminal disclosures of classified information). I said it was illegal.

                      Seems kind of pedantic, but fine, I’ll rephrase: what statute do you think makes it illegal to file such a complaint? (Hint: the whistleblower statute does not do so. Not a single provision of it says that people may not file complaints in other ways.

                      He had no right, constitutional or otherwise, to make a whistleblower complaint outside the scope statute.

                      Of course he did. I can’t imagine how you could think that any law forbidding such conduct could be constitutional, but even if it could be, there is no such law.

                      I assume he could report supposed illegal activity to the appropriate DOJ official or his superior, but that isn’t what he did.

                      I mean, the IG is in fact an appropriate official, as is the CIA’s general counsel (if he’s a CIA employee), both of whom he raised the issues with.

                    7. Not sure who is advising you David, but feel free to make your meritless submittal and tell the judge you can’t be sanctioned. And I guess you really didn’t read the complaint. It glaringly bears the imprint of some legal professional. (And, as an aside, the EOs cited there are legal authority just for your future reference). I also am somewhat perplexed how you can cite precedent wholly supporting me and still maintain the correctness of your view, but I don’t much care at this point. And, similarly, I don’t know why you believe that an intelligence community employee has some constitutional right to voice complaints outside of the process prescribed by statute (did you get this from vox, slate? Rachel Maddow?) but this is just plain wrong. And, again, he didn’t just report information of alleged criminal or illegal activity to his superior or even the ICIG. He abused and violated the process governing whistleblower complaints (undoubtedly for the precise political effect it engendered). He violated the law and his complaint was illegal. I think we have gone far past the point of any meaningful exchange when you obstinately adhere to such legally incorrect (dare I say baseless?) viewpoints.

                    8. He violated the law and his complaint was illegal.

                      Strangely, you still have not cited any statute that forbid him from doing this.

                      Do you think things can be illegal without a law saying that they are?

            3. “An investigation is not retroactively justified if it turns something up, just as it is not retroactively invalidated if it does not turn up anything.”

              As a practical matter, if something turns up, the impeachment is done, and it will be terrible politically for the Dems.

              1. Doesn’t make it relevant to the case.

              2. As a practical matter, if something turns up, the impeachment is done, and it will be terrible politically for the Dems.

                That might be true. But “this isn’t logically or legally relevant, but we want the testimony because it’ll be bad p.r. for you” isn’t really an argument for introducing that testimony.

                1. This is a political process. If the Dems try to argue, “The Biden stuff isn’t relevant because maybe Joe Biden was trying to protect Hunter from the prosecutor but Trump didn’t know that so the demand for the investigation was still improper” they will get killed.

                2. But this isn’t a legal proceeding, right? That’s how the Left justified Schiff’s tyranny…

                  1. Legal or no, introducing irrelevant information is doesn’t make a lot of sense.

        3. Dems called the recalled Ambassador to Ukraine. She had no information to offer since she wasn’t in country when the “crime” happened.

          1. You’re mistaken.

            Perhaps you’re still operating under the misapprehension/talking point that this is all about a single phone call. It’s not. It’s about a Trumpian scheme that dates back at least to March. Meanwhile, Yovanovitch was ambassador until May. (Getting her fired was part of the scheme.)

            1. Also David let’s add the “whistleblower”/leaker, schiff’s staff, and maybe schiff himself to the mix. Getting to the bottom of this orchestrated farce is important too.

              1. It amuses me you think that’d work out well for your conspiracy-tinged side.

                1. Do I think that exposing the bad faith underlying the creation of the illegal “whistleblower” complaint would be beneficial? Yeah, I do.

                  1. I think your side trying to browbeat Schiff with this fictional scenario will not cover them in glory.

                    Especially the whistleblower being illegal part. Didn’t you all try that and it went over like a lead balloon?

                    1. Democrats sure seem to be frightened about pursing the origins of the “whistleblower’/leaker farce so that’s a good reason to dial that inquiry up to 11. Don’t think the illegal nature of the whistleblower fiasco has been really pursued. And it was and is illegal, your ignorance notwithstanding.

                    2. Yeah, just like we’re frightened about the Senate Republicans doing a nude interpretive dance about turtles.

                      Sometimes when we say something isn’t relevant or looks purely political, that’s because we actually think that.

                      Alas for my side, McConnell is more politically savvy than you.

            2. Yet that ignores the simple fact that appointed positions, like Ambassador, serve at the pleasure of the President. The President can fire an Ambassador with or without cause. It could be something as simple as the Ambassador not representing the President’s position or as complex as an Ambassador working directly against a President.

              1. And yet there are clear exceptions to that power. If I pay the President a million dollars for him to fire someone, and he does, that’s not allowed.

                1. “If I pay the President a million dollars for him to fire someone, and he does, that’s not allowed.”

                  If you pay the President a million dollars for him to fire someone, that’s not allowed.

                  It doesn’t matter whether he follows through or not.

                  1. I hope you’re just being pedantic, because I can’t believe you’re arguing the Presidential power nevertheless includes firing someone due to bribery, since the crime has passed.

                    Anyhow, while promise is sufficient, actually performing the action is also within the elements of the crime.

                    1. I suppose they could argue that the firing, no matter how procured, would be legally effective. I think that might be correct; I don’t know that an ambassador fired under such circumstances could go to court to get his or her job back. But it would nevertheless be an illegal and impeachable act by the president.

                    2. “because I can’t believe you’re arguing the Presidential power nevertheless includes firing someone due to bribery, since the crime has passed.”

                      ?? Of course it does. The crime is the bribery, not the firing.

                      “Anyhow, while promise is sufficient, actually performing the action is also within the elements of the crime.”

                      Are you sure what understand what “element of the crime means”?

                      In any event, no, performing an action is not an “element of the crime”. Think how absurd that would be. If offer the President $100 not to nuke Paris, and he agrees and thanks the money, that’s a bribe. That’s the crime. It’s not a further crime for the President to then decline to nuke Paris.

                    3. Both the promise and the act are criminal. IIRC bribery includes as elements (disjunctively) the promise or actually doing/procuring the thing of value.

  11. “Philip Bobbitt writes that the House should pause the impeachment process. In the interim, the House should litigate various subpoenas against the Trump Administration…”

    If this means the House can put off its impeachment vote until they’ve got more evidence, that’s fine.

    Since as I’ve mentioned, I think “executive privilege” is a constitutional myth –

    https://amzn.to/2sxRUXk

    …then now would be a good time for the courts to stop recognizing such a privilege, or at least to scale it back. Then the House can get the evidence they need, assuming the witnesses have the desired proof of impeachableness.

    Also, they could remove the “national security” language from the charge, so that they won’t have to shoulder the self-imposed burden of proving that delaying aid to Ukraine damages the security if *this* country.

    If stopping the funds for corrupt purposes can be proved – that is, if this was a genuine attempt to “impound” money appropriated by Congress, then that’s an issue supposedly resolved in the Swinging 70s – impoundment is established to be illegal – it’s no longer an open question like “executive privilege.” Add corrupt motives and I think you have impeachable misconduct, assuming you don’t add the risible “national security” stuff and omit the references to other conduct.

    I wouldn’t want the Democrats to take such a sane approach, of course, because it would strengthen their hand, and I’d like them to fall on their faces, but if they narrow the charge as I suggested, and *prove* it, then I’d be obliged to acknowledge they have a case.

    1. 95% of modern constitutional jurisprudence is a constitutional myth, but as long as the courts are that myth’s priesthood, it hardly matters.

    2. I should clarify that impoundment *without notice to Congress* is established to be illegal now.

      1. How soon does the law stipulate, notice to congress must be given? My understanding, President Trump never bumped up against that provision of the law.

      2. I would note that the President does not have to immediately provide the funds upon approval from Congress. Not to mention this is not even close to the first time that foreign aid has been withheld pending verification or confirmation of a known issue.

        IIUC it was not just Ukraine funds that were withheld but one of several countries.

        1. I’m not saying they proved it, I’m saying that’s the charge with the most punch, the national security crap I can safely ignore.

  12. Well, then lets impeach Obama for (among other things) failing to uphold the laws of the United States, i.e. Fast and Furious.

    Or the spying on the Trump campaign.

    Remember, it was your idea!

    1. Not to mention Obama admin’s failure to uphold the ACA law as well as playing fast and loose with funds to pay more to Medicaid/Medicare providers.

      1. And yet I suspect both of you know that’s not going to happen.

        Why do you suppose that is? Might there be some way to distinguish Obama from Trump these days?

  13. Seems like nobody has learned that Trump’s appeal comes from not being a typical politician, that he doesn’t play the usual stupid political games.

    They just make him look better and better.

    1. There was one Canadian Youtuber who said it best. “They want to impeach him for investigating corruption? Is this the Onion?”

      Even if the methods were wrong, our culture idolizes people who break laws for the greater good. It’s the basis of the entire Superhero and Cowboy Cop genres.

      1. Since when is breaking the law in order to get re-elected “the greater good?”

  14. Delay addresses one substantive point (from Democrats’ point of view, anyway). If a sham process in the Senate promptly puts the impeachment scandal behind him, Trump may take that as license to do what he can to corrupt the election. How could he suffer for it?

    With an impeachment trial still pending, whatever punishments he might suffer, including for future actions, will still be pending too.

    1. Would this mean simply not voting to impeach now, while reserving the right to impeach in future?

      Or would it mean voting impeachment articles, then delaying their official notification of the Senate until they think the time is ripe?

    2. The Constitution does not require that the Senators be impartial, and indeed the framers deliberately put impeachment in the hands of politicians KNOWING they would be partial. So there’s nothing “sham” about a process where the Senators’ minds are made up, any more than there is anything “sham” about a process where in 1999, Senators’ minds were made up about the Clinton impeachment.

      At any rate, if the Constitution did require impartiality, it would be stupid. Heck, even judges aren’t prohibited from prejudging cases. Sure, we say they are, but does anyone doubt how Thomas or Ginsburg will vote in a typical abortion or federalism case? And does anyone think that such cases are “unfair” because those two have their minds made up?

      Only jurors are puportedly prohibited from prejudging cases, and even there, it’s only an instruction. We don’t enforce it and don’t voir dire jurors at the end of trials to make sure they followed it. The reality is even plenty of jurors prejudge cases. And it isn’t the end of the world, because our system actually doesn’t depend on having a bunch of blank slates adjudicate controversies.

      1. By the way, a more general point, but people really need to stop reading their talking points into the Constitution as if they are constitutional rules. Impeachment is its own animal, a political process that was deliberately designed not to strictly adhere to the sorts of legal rules that are found in an ordinary courtroom. The political branches have great latitude as to how they conduct impeachments.

        If you think that the House should afford Presidents more due process, fine, you think that. But it isn’t required by the Constitution. The Constitution just sets out the vote requirements. It doesn’t say what process the House should use or how fairly it should treat the President.

        Similarly, if you think that Senators really should be blank slates who never prejudge anything in an impeachment trial, I mean, I think that position is naive and idiotic, but OK, it’s a position. But don’t pretend the Constitution says anything about it. The only things the Constitution requires of the Senate are (1) some sort of unspecified oath, which can be anything the Senators want, (2) a 2/3rds majority to convict, and (3) the Chief Justice presiding.

        The Constitution does not enact either party’s talking points in an impeachment proceeding. It didn’t in 1999 and it doesn’t now. Each branch of Congress can do whatever it wants to do.

        1. I think the Framers would be delighted to see a Senate full of impartial adjudicators.

          Delighted – and very surprised.

          So that they wouldn’t have to rely on all Senators doing their duty, they had the 2/3 requirement – which has meant in practice that when someone is kicked out of office by the Senate (or driven out of office for fear of impeachment), they are actually guilty of some kind of abuse of office. Guilt has to be apparent to a supermajority which at least will have conflicting biases rather than all being biased in one direction.

          Still, if we see a Senator actually adjudicating an impeachment case impartially, note it – just as we’d not a Senator who didn’t profit from their office or vote for unbalanced budgets. They would be good examples to follow, if there are any.

          1. I don’t actually agree with that. I think the framers wanted it to be political and were right to want it to be political.

            Imagine the following two cases:

            1. Abraham Lincoln, after his reelection in 1864, confirming a dramatic mandate based on his performance in prosecuting the Civil War, is discovered in November 1864 to have taken a small bribe. The public doesn’t care and wants him to stay in office. The Senators believe that it clearly meets the standard of an impeachable offense (the Constitution expressly specifies bribery), but votes to acquit based on public opinion.

            2. A President is elected who is a later discovered to be hooked on prescription opiates. His addiction violates no laws. It isn’t an abuse of his power. He does not obstruct justice or obstruct Congress. But every time he gets stoned, he is completely zonked out and misses meetings, makes terrible decisions, and otherwise performs the job incredibly poorly. Very quickly, a bipartisan supermajority of the American public decides they want this guy out and don’t want his finger on the nuclear button. But several cabinet members owe him political favors and won’t implement the 25th Amendment.

            So, the House impeaches. At the Senate trial, the President’s lawyers make all the arguments we’ve heard in 1999 and now about juries, impartiality, deciding on the evidence, etc. The Senators, acting at the demand of the American public, almost unanimously vote to convict and remove.

            I don’t think EITHER of those scenarios is the least bit problematic. Indeed, I think both of them demonstrate why the Senate was placed in charge.

            1. Example 1 is fairly shocking – Honest Abe taking a bribe!

              If he did that, he wouldn’t be Abraham Lincoln, he’d in effect be a different person dressed up as Lincoln, so I’d have no problem with him being convicted.

              For example 2, there are two possibilities – (a) if the Cabinet doesn’t want to invoke the 25th Amendment, Congress has the power to designate some other body, such as a medical panel. or (b) the House can find a specific example of something the Pres did while high and impeach him for *that.* That’s how they got District Judge John Pickering – His Honor was drunk on the bench and engaged in misbehavior, and the Senate convicted. True, they ignored the possibility of an insanity defense, but they decided that the insanity defense wasn’t relevant to impeachment situations, which is a common-sense interpretation, not lawless and political as certain historians suggest.

              1. It doesn’t have to be Abraham Lincoln. Suppose it’s any very popular wartime President. Maybe it’s FDR or something. Or just a hypothetical President. The notion was the public saying “we want this wartime leader, we don’t want him removed from office because he took a bribe” and Senators agreeing.

                1. Then the Senate and the public would be implicated in the corruption.

              2. Eddy, Honest Abe suspended habeus corpus and imprisoned MD Assembly members. That would be impeachable conduct, no?

                Alternatively, what would the Congress do if a POTUS, by Executive Order, created a legal framework without Congressional approval….say like letting illegal aliens stay in the country.

                What constitutes impeachable conduct is very much in the eye of the beholder. The Founders knew this. Angels do not vote, men (and women) do.

                1. The technical question was whether the Pres needed Congressional approval before suspending habeas. There’s no doubt (for a non-secessionist) that Congress could have suspended it. And failure to impeach seems like a close-enough-for-government-work substitute for Congressional approval.

                  The more significant question in my view is how broad the suspension power is – not to mention other legal issues of the war where both Congress and Lincoln were, shall we say, breaking new ground.

                  Basically, the House didn’t impeach because the Republican majority didn’t think Lincoln was doing anything illegal – they accepted a broad war-powers interpretation of the Constitution. Believing as they did, they would have had to change their minds on the war-powers issue before they could conscientiously vote to impeach.

                  1. If anything, key Congressmen thought Lincoln wasn’t stretching the Constitution *enough* – they wouldn’t have gone along with a Democratic “abuse of power” initiative premised on the assumption that he’d gone too far.

        2. Dilan, your advocacy apparently includes approval of a trial without witnesses, with Senatorial decisions based on pure prejudice. A trial without witnesses is a trial where nothing is sworn to on pain of perjury. It admits the possibility that decisions be made not merely on prejudices, but purely on lies. Indeed, one must suspect that motivation to decide the question based on lies is all that can account for exclusion of witnesses. There is no possibility at all that any such monstrosity fulfills the constitutional requirement for a trial of impeachment.

          1. Without getting into what the Senate should do, you are mistaken. There were witnesses: sworn testimony given in the House hearings. Nothing says that the Senate needs to re-hear those same witnesses. They can decide based on the existing record, not just based on prejudices.

            1. Technically, there were people who testified. In order to be “witnesses”, they’d have to be testifying about things they’d witnessed first hand. Mostly they were testifying to their assumptions, rumors they’d heard, and conclusions they’d drawn from NYT op-eds.

              1. That’s not true Brett. A witness is anyone who gives testimony. Many forms of hearsay are admissible, and your definition would also exclude experts.

                1. That’s not true Brett.

                  Evergreen response here at the VC.

                  And not only does Brett not know the law, but he also doesn’t know the facts; it’s also not true that they weren’t testifying about things they witnessed first hand!

            2. Yeah. There were no live Senate witnesses in 1999 either. Just a few deposition videos.

            3. Nieporent, you make a fair point. But alas, the sworn testimony you mention was not given in front of the Senators. Even in the practice of ordinary law, is it not the custom to let higher tribunals decide issues of law and procedure, but leave facts decided below unreviewed? I am sure there must be exceptions. But seeing testimony given first hand is something of a standard in the usual practice of law, is it not? The right of confrontation means something.

              Nor is there any customary argument I am aware of that the Senate acts in an appellate role during impeachments. As you know, the usual analogies are otherwise, and the Senate is the court of original (and final) jurisdiction.

              More generally, in the case of the impeachment trial, you have not addressed my point—that a decision to do without witnesses opens the door to decisions based on no sworn testimony at all (because what the Senators did not see, they may never attend to). In short, a formula for no witnesses is in fact a formula which opens the door to an impeachment decision based on nothing but lies—and that without ever showing the truth and the Senators in the same room together, to create a visible record of accountability for the lies. Or do you expect McConnell to schedule time for the entire transcript of House testimony to be read aloud?

              1. The law is (1) the Senate is not a jury (Rehnquist in 1999) and (2) doesn’t have to have any particular procedures in its trial (Nixon v. United States).

                There’s no right of confrontation in an impeachment trial, and in 1999 there were no live witnesses.

                1. Dilan beat me to it, but I would elaborate on his second point. Nixon v. U.S. (which is about Walter, not Richard) involved an impeachment in which the senate delegated the fact-finding role to a senate committee; the committee issued a report recommending removal, and the senate then voted to approve it and remove Nixon from the bench. Nixon argued that this didn’t constitute a senate trial; SCOTUS said that it wasn’t a reviewable question because the senate had the sole power to try impeachments.

                  1. Sure. But no Senate investigative committee this time.

                    1. Why does that matter under Nixon?

                      Look, there’s only two possibilities here:

                      1. The world conceived by Nixon, which is actually the law: the Senate can choose any procedure it wants, as long as 2/3rds vote on the ultimate issue of conviction.

                      2. If we ignore Nixon, the world where we treat it like any other trial. In which case, motions to dismiss, motions for acquittal, summary judgments, special masters, etc., are all permissible.

                      Either way, there’s no requirement that there be a full-on trial with live witnesses.

                  2. Dilan, problem is, a trial with no witnesses, and no Senate investigative committee either, makes it impossible for the sovereign People to hold the Senators responsible for their votes. Done that way, there is no reason to suppose any of the Senators, or all of them, have any idea what the evidence is. The truth and the Senators have never been seen in the same room together by anyone. That negates the principle constraint on impeachment, that it is a political process, and that the Senators answer to the People.

        3. Yes impeachment is 100% a political process. Politics is what holds politicians accountable. That starts with voters. Democrats in the majority of the House, are unbound by politics, maybe. Republicans are unbound in the Senate, maybe.
          There is a good chance Democrats will loose control of the House, if those swing district members vote against the will of their constituents.
          The Senate? They two could loose control of the Senate, if 20 Republicans vote to impeach and remove

          This scenerio tells me, impeachment is not supported by voters.

      2. Dilan, there would be something sham about permitting counsel for one side, and not the other. There would be something sham about presenting no witnesses at all. There would be something sham about no cross-examination of witnesses. In general, there would be something sham about any process designed to let Senators who have made up their minds without hearing evidence escape responsibility for ignoring the evidence.

        The only way to be sure these Senators, on either side, have paid any attention at all to the case they are called upon to decide, is to present and test the evidence in front of them, in public.

        From a different angle, many on this forum have mistakenly concluded that calling impeachment a political process means that it is supposed to be about mere partisan advantage. Or at least that a lunge for mere partisan advantage satisfies what they take to be the low bar which “politics,” implies. That is cynical, mistaken, and destructive to the nation.

        To call impeachment a political process means only that accountability for government actors is less-than-typically-guarded by traditional government structures and norms, such as separation of powers, judicial oversight, and limitation of powers, and more-than-typically guarded by the political process itself.

        Impeachment is meant to be an exercise of sovereign power, not government power in the usual sense. Because of that, while exercising that sovereign power, people in government are held directly responsible to the sovereign People themselves, by the political process. That responsibility is both focused and intensified by the sole power clauses which govern impeachment, while excluding more-usual means of government constraint.

        1. Stephen, none of those things would be shams. Even in criminal cases, there are motions to dismiss and motions for a judgment of acquittal. Granting one doesn’t make a trial a sham.

          And, of course, this is politics, not criminal law.

          1. And by the way, there is no distinction between government power and sovereign power. Whatever sovereign power is involved in impeachment is held by the Congress. The way the public has power here is that Senators fear the opinion of their constituents and will vote accordingly no matter the evidence, which fits my model, not yours.

            1. Indeed, the more I think of it, the more I think your notions of popular sovereignty, which are generally silly, could be useful here.

              Let’s say the people are sovereign. The people, as sovereigns, can definitely require their Senators vote against any of the “fair trial” protections you want, right? They can require that their Senators vote for an immediate dismissal, and require that their Senators acquit despite proof beyond a reasonable doubt of High Crimes or Misdemeanors. And if a Senator disregards his or her constituents, they can vote him or her out. Popular sovereignty!

              And of course, that’s the point. The framers put politicians in charge. And all political proceedings are shams. Politicians always do whatever will further their careers, which means keeping their voters happy. The framers would have never given politicians the impeachment power if they wanted a real trial. They wanted the sham.

            2. Dilan, no one who does not recognize a distinction between government power and sovereign power should venture to comment on any historically-related interpretation of American government, let alone anything to do with the Constitution.

              1. Stephen, the framers were lying to you. Asked the slaves, the women, or the poor of 1787 if they were sovereign.

                You bought the con. So it is you who shouldn’t be telling us what the framers meant.

                1. Framers who believed the people were sovereign wouldn’t have an electoral college either, btw.

    3. Lathrop, maybe you can help us out here. You assert the Senate trial would be a sham. What specifically makes the House impeachment process legitimate and the Senate trial process a sham?

      The larger question in my mind is what happens the day after? Meaning, if there is a trial, and the Senate declines to remove POTUS Trump. Then what? As a libertarian-minded citizen, I really don’t like what I see. What is that, you ask?

      We will then have a POTUS completely unconstrained by the threat of removal. I don’t think it is a particularly good idea to have this POTUS unconstrained, but Team D leadership will need to decide that. If you think Orange Man is bad now, just watch what happens in the wake of an unsuccessful attempt to remove him from office. I am very concerned about this. It will set a spectacularly bad precedent.

      We will also have Team R bound and determined to return the favor. Does anyone seriously think that Team R won’t absolutely go after the next Team D POTUS when they control the House? It doesn’t matter if it is the right thing to do or not. That will absolutely happen.

      The damage being done to our Republic is grave.

      1. The best outcome in the wake of the House voting to impeach POTUS Trump, is a quick trial. The House Managers present their case, the POTUS lawyers present their rebuttal. No witnesses called. Team R does not call witnesses; Team D does not call witnesses. The Senate deliberates and votes. This could happen in a week. To me, this is the prospect that does the least amount of damage to the Republic, long-term. At least then, we can have a national conversation on this sorry episode.

        Regardless, between this impeachment effort, the FISA report, and the upcoming indictments that Durham will bring by next summer….there will be a lot of motivated voters next November. We the People will settle this question at the ballot box.

        1. Commenter_XY, you seem to be interpreting accountability for Senators as damage to the nation. That has been McConnell’s position, too. As I have said in several comments, I think both sides should get free rein, and call witnesses to their hearts’ content. Do the Rs want to call the whistle-blower? Have at it. Call the Bidens too. And let the Ds call whomever they please. Let the Ds put Trump on the stand.

          The only way to disinfect this mess is plenty of sunlight. Everything done to short-circuit the process will bolster the malevolent results you predict and fear.

          1. I don’t see why that is true. We’ll have an election in 2020. The President will either lose or win. Either way, life will go on.

            Predictions of dire damage to the country are silly. This is a strong, wealthy country, with a lot of strong institutions.

            Now, we can talk about particular populations being harmed (such as kids in cages), but that’s not the same as damage to the corporate entity that is the United States.

    4. “Delay addresses one substantive point (from Democrats’ point of view, anyway). If a sham process in the Senate promptly puts the impeachment scandal behind him, Trump may take that as license to do what he can to corrupt the election. How could he suffer for it?”

      Funny hearing the House Dems whine about a sham process.

  15. Democrats, having never taken a moment to consider what they got wrong in 2016 but only doubled down on the same, are now taking political advice from Larry Tribe.

    What could go wrong?

    1. The key is to count your electoral chickens before the hatch.

  16. Senate Republicans should be just as one-sided and unfair as Democrats were in the House with their proceedings, but even moreso.

    1. They will, whether they intend it or not.

  17. “For certain, the Senate cannot take any action until the House managers show up.”

    This is not “certain”. Indeed, I think it is dead wrong.

    If the House passes impeachment, the Senate and Chief Justice can schedule a trial date. If the House managers don’t show up, the Senate can just take a vote and enter a judgment of acquittal. If the Chief Justice were to rule the Senate couldn’t do this (which wouldn’t happen, because it is perfectly clear that the Senate can do this), a majority of the Senate can overrule the CJ and do it anyway.

  18. The House could do any of those things, but for any of them to be effective the nation would have to be waiting with bated breath for what happens next.

    No one cares, the stock market is hitting new highs, unemployment new lows, it’s Christmas time, and it’s all getting geared for the NFL playoffs to start. I don’t see much excitement brewing.

    If Congress pauses the impeachment no one will care and Trump will just taunt them about it on Twitter.

  19. If the House attempts to game the system by doing what it thinks will most help it win the election, it will totally undermine the legitimacy of any impeachment it produces.

    Sometimes there is no choice but to do the right thing and let the other guy do the wrong thing.

  20. Oh thank you Dems for the early Christmas present. Please please please continue this sham impeachment. Please please please media keep on pumping them up making those extremist think this is the will of the public. The real Christmas Day is going to be Election Day night in 2021. I’ll wait to open my presents till then.

  21. One reason not to delay is that Article II is vulnerable to being effectively mooted by the 5/4 Republican majority Supreme Court, by placing limitations on the House’s ability to override Executive Privilege by merely intoning the word “impeachment”, and voting to allow an investigation on a partisan basis. This could justify the Republican majority Senate to summarily dismissing Article II as now moot, leaving the House’s Article I attempt to oversee and second guess the President’s plenary power of conducting foreign policy as the remains impeachment count. Not a good place to be in an election year during the Democrat’s Presidential nominating process.

    1. Sorry I lost the original post and in my replacement post, I forgot to add that the Supreme Court has accepted three cases where the President and his Administration are appealing adverse lower court decisions. At least one of these cases involves the House’s attempt to override Executive Privilege by initiating an impeachment inquiry, which is essentially impeachment Article II.

      1. It cant be repeated often enough. President Trump believes, by executive privilege he is not required to present documents and witnesses. SCOTUS believes this also, or they would have refused this appeal.
        Can’t impeach a President for seeking judicial review.

        1. SCOTUS believes this also, or they would have refused this appeal.

          I guess this is the Trumpkin talking point of the day, but it’s doubly wrong. First, SCOTUS taking a case (or declining it) does not say anything about SCOTUS’s views. SCOTUS could be granting cert in these cases to issue a 9-0 ruling against the president. Like, you know, they did in U.S. v. Nixon.

          Second, none of the cases on which SCOTUS granted cert are about executive privilege.

          Can’t impeach a President for seeking judicial review.

          Well, of course the House can impeach a president for that, but that’s not what the House is doing, because the president did not seek judicial review with respect to the impeachment inquiries. Rather, the president took the position that not only can’t Congress compel this testimony or evidence, but that the courts can’t hear the dispute either, because the matter is non-justiciable.

  22. One can imagine the reaction of Tribe, Blackman, Kerr & c., If weeks ago Mitch McConnell had declared the Senate would refuse to consider any Articles of Impeachment unless the House acceded to his demands on the conduct of impeachment hearings.

    After weeks of running roughshod over the GOP minority in the House, gleefully singing, “‘SOLE power’! ‘SOLE power’!”, now that things transition to the Senate, the Democrats have the gall to cry. “Unfair! What about us?” McConnell should declare that he will give the Democrats all the consideration they gave the GOP in the House in shaping the proceedings.

    1. Or the Senate Reps could make it even worse by McConnell insisting on Federal Rules of Evidence be used. That would expose the House Dems actions even worse than a simple tit-for-tat.

      1. How so? You thinking about hearsay?

      2. Flame, you have a bad case of true believer. There is no chance that would happen, and it isn’t because the Democrats wouldn’t want it. Set the trial up procedure-wise as a regular federal trial, and Trump’s chances of removal go way higher. Trump’s witnesses would get butchered on cross-examination. The resulting campaign ads would threaten the Senate majority. McConnell can’t afford that. And he doesn’t much care about the difference between President Trump and President Pence. I believe this Senate would not hesitate to throw Trump out of office if McConnell told them they had to do it, to save the majority.

  23. At the end of the day, this is all most likely just #Resistance fan fiction which will never happen, like 25th Amendment talk and election do-overs, just silly fantasizing (which, in its earlier incarnations ended somehow with Hillary Clinton being triumphantly installed as President).

    1. Trump has confessed multiple times to the underlying conduct.

      Calling it “fan fiction” is just stupid and delusional.

      Quit being a mindless sheep.

      1. Your reading comprehension skills suck.

        The “fan fiction” is the three years of ludicrous #Resistance fantasies wherein, e.g., Trump’s Cabinet invokes the 25th Amendment to declare him incapacitated; some court declares the election void and orders a re-do, or, even better, declares Hillary the President; or, as in the instant case, the House initiates bizarre, unprecedented machinations that will somehow lead to 2/3 of the Senate voting to remove Trump from office.

  24. Actually, the impeachment could go forward even if Trump is out of office when it does.

    Secretary of War Belknap had already resigned when his Senate trial was held.

  25. There’s a typo in the subheading, unless the trial is suddenly going to be held in the House instead of the Senate.

  26. Senator McConnell has set the precedent of not acting on his constitutional duty during a presidential election year. Why should impeachment be any different? I guess he has the votes to acquit Trump, but didn’t have them to defeat Judge Garland.

    1. I’m not 100% sure your analysis is correct, because I’m not 100% sure that McConnell is actually against the idea of removing Trump from office.

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