Impeachment

When Is an Officer Impeached? IV

|The Volokh Conspiracy |

Now that President Donald Trump has gotten wind of the fact that he might not yet have been impeached, we should make some things abundantly clear.

At a Turning Point USA event in Florida, the president noted, "In fact, there's no impeachment. Their own lawyer said there's no impeachment. What are we doing here?" The president is taking note of an op-ed by Noah Feldman, one of the Democratic expert witnesses at the House Judiciary impeachment hearings, who argued that the president is not technically impeached until the articles of impeachment are exhibited in the Senate.

The Republican expert witness, Jonathan Turley, has now argued that Feldman is wrong. Laurence Tribe was among those advising the House Democrats to postpone delivering the articles of impeachment to the Senate, but insists that the House has nonetheless already impeached the president.

I've weighed in here, here, and here.

As I pointed out early on, this debate has no practical consequence for Donald Trump and the operation of the current federal impeachment process.

The American public believes that the president has already been impeached.

The House of Representatives believes that the president has already been impeached. The House Practice Manual specifies that "The respondent in an impeachment proceeding is impeached by the adoption of the House of articles of impeachment." The House resolution adopting the articles of impeachment against the president states that the president "is impeached" and directs that the articles of impeachment "be exhibited to the United States Senate."

This current House is acting in a manner that is consistent with how the House has impeached officers since the early twentieth century, though it is a departure from how the House impeached officers for more than a century after the founding.

Feldman argued that the exhibition of the articles of impeachment to the Senate is an essential procedural component for realizing the House's constitutional power to impeach. On this, he is almost certainly wrong.

In its early impeachments, the House authorized a member to go to the Senate and "impeach" an officer and then waited, sometimes for many weeks, before actually drafting and exhibiting the articles of impeachment in the Senate. The House and Senate thought the officer was impeached when the allegation was leveled at the bar of the Senate, not when the details of the charges were exhibited to the Senate. But neither Tribe nor Turley give much reason to think that the "power of impeachment" is best construed as simply passing a resolution of impeachment, nor do they grapple with the ample evidence that that was not how an "impeachment" was generally construed before the early twentieth century.

If you think that the the "power of impeachment" vested in the House is underspecified regarding the forms that the House has to follow in order to execute an impeachment or that it vests in the House a discretionary authority to specify the forms of an impeachment, then the current House rules are decisive. At least one state court has adopted this view of how the impeachment process works in American constitutions. The process of impeachment might be a matter of constitutional construction, and the longstanding federal construction is that an impeachment occurs at the moment the House votes to adopt an impeachment resolution.

If you think that the "power of impeachment" is fixed regarding the process of impeachment by the original public meaning of the term "impeachment," then the current House rules are probably wrong as a matter of constitutional interpretation. At least one state court has adopted this view of how the impeachment process works in American constitutions and pointed to the evidence that what it means to impeach someone had a fairly determinate meaning under the U.S. Constitution.

Even if the House is behaving inappropriately in regard to the correct constitutional interpretation of the "power of impeachment" vested in the House by the U.S. Constitution, absolutely nothing turns on it.

Under current Senate rules, the Senate will not begin a trial until the articles of impeachment have been exhibited, regardless of whether or not an officer had actually been impeached prior to the House announcing that fact to the Senate. There are no legal or constitutional consequences for the president from having been "impeached," except that he might eventually be subjected to a Senate trial. The House has not yet done what it needs to do to trigger a Senate impeachment trial.

If the House is doing it wrong, there are no consequences to the error. If the House is doing it wrong, there is no venue with the authority to correct the House. By the time of any Senate trial, the House's error (if it is an error) will have been "corrected" by the exhibition of the articles of impeachment. If the House never formally communicates the impeachment to the Senate, then there will be no trial and scholars can have epic footnote battles over whether Trump was ever actually impeached.

If this were an impeachment in a state with a constitution that suspended Trump from office until he such a time that is acquitted in a Senate trial and empowered Mike Pence to take on the duties of acting president at the moment of Trump's impeachment, then this question might matter—and it is quite possible that Trump, and not Pence, should currently be exercising the powers of his office. But Trump is not an officer under such a state constitution. He is an officer under the federal Constitution, and the federal Constitution creates one, and only one, consequence of an impeachment—the authorization of the Senate to conduct a trial to determine whether an officer is to be removed.

I was among those who were skeptical about Feldman's argument when I first saw it, but it was a serious argument that turns out to have been partly true.

Moreover, I continue to believe that actions of the Speaker Nancy Pelosi in taking no steps to communicate the president's impeachment to the Senate provides the House and the Democrats with no additional leverage over how exactly the Senate conducts the trial and tends to undermine the Democrats' claim that the president's immediate impeachment and removal is essential to the public safety. Given that the articles of impeachment have already been adopted and are ready to transmit, withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt—which is unfortunate.

NEXT: Today in Supreme Court History: December 22, 1789

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  1. withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt—which is unfortunate.

    Well, it is a partisan political stunt, so…

    1. But it reinforces the point.

      It’s like a prosecutor saying, “Charles Manson is an awful mass murderer and we intend to seek justice. And we just got the grand jury to indict him.”
      “So when are you planning to arrest and try him?”
      “Oh. I don’t know, when we get around to it. Maybe next year. What’s the rush?”

      Kind of diminishes the prosecutor’s credibility.

      1. If a police officer knows the prosecutor is biased, or a prosecutor knows the judge is biased, or a judge knows the jury is biased . . . it is improper to refrain from having jeopardy attach while attempting to solve the problem?

        Trump, for whom vanity is all, has been tarnished for the remainder of his life and beyond. Those who arranged that bit of justice are to be applauded.

        Not so much by the bigoted and backward, though.

        Carry on, clingers.

        1. Maybe the prosecutor, judge and the jury are biased because they know that in this case the police officer is a lying sack of shit.

        2. Yeah, he looks properly chastised.

          Now about the only way he can be truly vindicated is to win reelection. What verdict will the voters and history pass on the House when their impeachment is not only not sustained by the Senate, but repudiated by the electorate too?

          1. Only that we get the government we deserve.

            1. “What verdict will the voters and history pass on the House when their impeachment is not only not sustained by the Senate, but repudiated by the electorate too?”

              What verdict has history imposed on the Freedom Riders, or those who enabled women to vote, or opposed conviction and execution of ‘witches,’ or decried vicious gay-bashing, or defended science teachers who taught the theory of evolution, or ignored ‘no Italians or Irish need apply’ signs, or legalized contraception, or objected to the imprisonment of Galileo, or resisted the Klan, or opposed torture during the Inquisition, or arranged environmental and consumer protections, or overturned racist gerrymanders, or opposed Prohibition and the drug warriors, or funded school lunches, or fought voter suppression, or ended prayers in public schools, or refrained from bully Jews or Muslims or Catholics or agnostics, or stopped book-burners, or guarded black children who were spit on for attempting to attend public schools?

            2. All of us get the government the plurality deserve.

        3. “If a police officer knows the prosecutor is biased, or a prosecutor knows the judge is biased, or a judge knows the jury is biased . . . it is improper to refrain from having jeopardy attach while attempting to solve the problem?”

          Is it proper for a prosecutor to game the timing of a prosecution to get a more favorable judge?

          Is it proper for a judge to game the timing of a trial to get a more favorable jury?

          I sure hope not.

      2. I would analogize the situation to when an indictment is sealed, holding up the trial process. An indictment may be sealed for “good cause” which can include reasons such as a need to preserve evidence against destruction or protect witnesses for trial.

        Seems to me since McConnell has announced “verdict first, trial, not really,” it is no more than prosecutorial prudence to keep impeachment “sealed” from the Senate until there is a reasonable likelihood that the production of witnesses and securing of documents will occur.

        Doubtless trying to make sure that eyewitness testimony and pertinent documents are available for trial can be painted as a partisan political stunt–somehow just about every indicted politician manages to make that claim–but the announcement that there will be a whitewash in response to the charges seems a lot more “stunt-y” to me.

        While I respect the professor’s legal analytic skills, his political ones do not strike me as equally astute. Hardcore Trump supporters have needed no convincing that this was all partisan from before the first witness was called, so no marginal loss from Pelosi’s actions there. Nor will it affect those already all in on impeachment. The question is how remaining “persuade-ables” will react. So far, support for impeachment has inched higher despite the strident denunciations. I don’t see how this maneuver materially changes the argument.

        At the end of the day, I think blocking witnesses like Mulvaney, Bolton et al from telling the story looks far more partisan. Why not let them testify to Trump’s perfect conduct and produce the documents that show “nothing to see here”? Pelosi’s reasons for delaying transmission strike me as more plausibly substantive than McConnell’s frank promise to conduct the trial per the White House’s nakedly partisan instructions.

        1. The House had every opportunity to compel witnesses to testify and compel the Executive to hand over whatever the House felt they needed. Yet, when they controlled the process, they choose not to go to the courts to compel such actions (unlike was done when Congress wanted the Nixon tapes).

          When the Democrats started this effort, they knew it was very likely that unless they found something very compelling that the Senate would not convict. They found nothing more compelling and, yet, proceeded with the impeachment process without using the courts to compel testimony and/or handing over of evidence — thereby effectively yielding control over the process to the Senate.

          Why they did this? Only Pelosi knows for sure. But she knows that her attempts to “control” the Senate by withholding the articles of impeachment will not gain her anything and, if she waits much past the end of year break, voters on the fence (helped by Trump ads perhaps) will increasingly view the entire process as a political stunt.

          I’m pretty sure the House will meekly transmit the Articles of Impeachment to the Senate without getting any concessions very soon after the break and probably before the next Democratic debate on January 14 in order to shield candidates on the debate stage from having to agree or disagree with Pelosi on if it’s important that Trump be removed from office for impeachable offenses (obviously Pelosi does not believe he should be or the Articles would have been transmitted by now as the clock is ticking but it would be hard for most on the debate stage to say they believe the same — forcing them to disagree with Pelosi thereby creating more of a rift within the party).

          1. Do you think that question would even be asked at the next debate though?

            I’m curious about this, as there are lots of people who think the media are in the bag for (someone), they just tend to disagree on whom.

    2. The question is, why is this “unfortunate”? If withholding the articles tends to paint the entire process as a partisan political stunt, it must be true that withholding the articles is itself a partisan political stunt which, I would suggest, provides a reasonable suspicion that the rest of the process might be tainted as well. It’s like if you catch a trusted friend rifling through your purse and rather than thinking “Gee, she’s always been so honest and trustworthy before, this isn’t like her at all” you start thinking “Gee, I wonder how long she’s been stealing from me without my even having a suspicion of how dishonest and untrustworthy she is”. If you assume the impeachment process has been fair and impartial and non-partisan up until now with the “unfortunate” political partisanship of withholding the articles, you might need to check your assumptions.

      On the other hand, it might be “unfortunate” that we’re governed by a bunch of nakedly partisan political hacks or it might be “unfortunate” that the American people are right now waking up to the fact that we’re governed by a bunch of nakedly partisan political hacks, but I would suggest the former has always been true and the latter is only unfortunate if you believe that ignorance is bliss.

      1. Don’t discount the possibility that Pelosi et al are merely incompetent rather than rabidly partisan (though these are not mutually exclusive either).

        I happen to think she’s quite competent and therefore generally adopt your logic, but never discount that out of hand.

        1. I think it’s a combination of incompetence and partisan behavior. But the incompetence is due to being in an echo chamber where everyone repeats the same things, so it seems like a good idea.

        2. I think we can rule out their being categorically incompetent, for the same reason it’s implausible for Trump: Incompetence wouldn’t have gotten them where they are.

          Rather, it’s a focused competence. They’re really good at getting and keeping office, and suck big time at what to do with it.

  2. “Given that the articles of impeachment have already been adopted and are ready to transmit, withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt”

    Trump-fans already think it’s entirely a partisan political stunt, so no harm in doing something that might make them think this.
    The problem, of course, is that nothing the House does is likely at all to overcome the entirely partisan, political stunt of a Senate acquittal. I mean, unless they can get a proceeding in which witnesses are heard, evidence is publicly presented, and the defendant testifies under oath.

    1. How often does the Defendant in a criminal trial testify? Not as frequently as TV paints it. Most defense counsel, rightly so, force the state to prove their case and not make the case about whether the jury finds the Defendant trustworthy because a good prosecutor can always make the Defendant look like their dissembling. There is no good reason for Trump to testify because the public already has the transcript.

      1. Why focus on testimony from Trump while ignoring the testimony of a dozen or so employees of the taxpayers who could provide direct evidence but are obstructing the investigation?

        Other than the polemical partisanship in the service of stale thinking and intolerance, of course.

        1. Trump has asserted executive privilege. As SCOTUS has recently made known (in the Tax records subpoeona case), the POTUS has every right to avail himself of the Court’s interpretation when there is a conflict between two co-equal branches. Therefore, the “obstruction” impeachment article is pure garbage. He also believes he has the right to assert executive privilege as to his advisors and has requested guidance from the Court on that issue as well. However, instead of waiting for the Court issue to be resolved, Dems said that the need to impeach him was so great, and the danger he posed was so dire, that they couldn’t wait for the Court case to be resolved and impeached him anyway. But now, even though impeachment was absolutely time critical, Pelosi plays partisan games by withholding the articles of impeachment from the Senate and demands that the Senate comply with her demands even though the House has no role in the trial under the Constitution. Sounds like she’s obstructing justice and engaging in a quid pro quo to me.

          1. Trump didn’t assert executive privilege, he asserted blanket immunity and expressly refused to cooperate in any way. He didn’t send an attorney with witnesses to assert privilege, he said they were immune from process. He didn’t provide the redacted documents recently produced in the FOIA action for Ukraine, he said: no documents. One would think the Congressional process would be broader than public access to government documents, and that this wouldn’t be a hard call to make. There is a difference between making an overbroad claim of privilege that might not stand up in court, and complete stonewalling. I don’t see how this is not the latter.

            1. Has he been pressed on the matter though?

              Your kids make a mess and you say “you better clean that mess up now.” Then when the don’t you execute them. You don’t ask threaten, you don’t ask again, you just kill them. Seem like a good parenting tactic?

              Am I analogizing President Trump to a child? You betcha. And the House to an abuse be parent.

              1. Trump is not a child.

                He knows the court process would take past the election.

                No weaseling out.

                1. Not necessarily. The court CAN act quickly, when it’s necessary. During the Nixon impeachment, the court decisions came back relatively quickly.

              2. But you left something out of the analogy. If, instead of simply neglecting to clean up, they gave you the finger and said, “You’re not the boss of me, we can do whatever we want, and will never clean this up,” my suspicion is that punishment would be immediate, without any interim attempts at persuasion.

            2. You seem to forget that the Intel committee doing the so-called investigation refused to allow the President’s attorney to attend, let alone be heard. Yet that is exactly what a court stated should occur; that McGahn had to show up and that the President’s attorney had to be present to use Executive Privilege.

    2. We don’t just think it is a partisan political stunt, we ABSOLUTELY KNOW it was nothing but a short-sighted stunt based upon sham allegations.
      Time to hold those perpetrators of this bad faith abuse of power responsible.

      1. All you want for Christmas is blood in the streets, you tough righteous dude you.

      2. Open wider, Jimmy. Your betters are not done shoving progress and decency down your whining throat . . . not by a long shot.

        Thank you for your obsequious compliance, clinger.

        1. You’re the only ‘Clinger’ I see here. Revolving Artie

    3. The answer here is that the Constitution makes the trial the Senate’s business. If the Senate decides to hold a kangaroo trial and reach a decision without hearing any evidence or after hearing only highly selective evidence, the only recourse is the voters.

      Trump has consistently been very smart at identifying and pushing at the weaknesses in the American Constitutional system. This is one of those weaknesses. If the Senate does a summary acquittal, there is nothing to be done except vote senators out at the next election.

      The House has no leverage in this matter. They have no ability to correct anything. It’s not their business how the Senate conducts the trial.

      There is no choice here but to follow the constitutionally prescribed procedure, hope for the best, and also vigorously publicize any kangaroo-like behavior that may occur.

      1. Reader Y, I completely agree with your assessment. The ultimate recourse here is the electorate; we will sort it out next November.

        But could you tell me what you mean by weaknesses in the American Constitutional system? I don’t disagree with the concept, but would like to understand what you’re thinking of when you say ‘weaknesses’. I am genuinely curious.

        1. The weakness is that the drafters wanted an Electoral college that could and would choose to block an entirely unsuitable winner of the most electoral votes; and that impeachment to remove someone like Trump would be actually implementable.

          And with a bit of hubris, they assumed they’d developed a system that would operate without the partisan political parties that are the root cause of the failure of both processes.

          1. …and that Separation of Power’s “pitting ambition against ambition” would serve to balance the conflicting goals of the Executive and Legislative branches, not foreseeing that the real ambition versus ambition struggle, would primarily be that of the Parties.

      2. Wrong. The House was supposed to gather the evidence needed for an impeachment vote. The Senate then hears that evidence from the House managers themselves.

        I notice you ignore the House investigation that more closely followed Southern Progressive Dems using Jim Crow laws than anything resembling Constitutional rights like Due Process.

        1. The Senate rules on impeachment explicitly allow both sides to call witnesses, though any Senator may object to calling a particular witness, in which case the presiding officer (Roberts) rules on the objection, with his ruling subject to be overridden by a majority of Senators present. Pelosi appears to be daring to McConnell to change the rules.

  3. I have a question with regards to Pelosi not submitting the Articles of Impeachment to the Senate.

    Can she submit them after the 116th Congress ends on January 3, 2021? Or would the new Congress have to re-authorize the Articles of Impeachment?

    Meaning, is there an open window to submit the Articles that will close?

    1. Scatter,
      I suspect that the House can do whatever it wants re impeachment, given the “sole power” language in the Constitution. So, I would think that the House can pass (on a party-line vote, probably) a new rule that says, “There must be a new vote, now that there’s a new House.” Or it could pass a rule that says, “Carryover impeachments are still valid and may be submitted at any time.”

      Now, what is more interesting to me (although it starts to look like the plot for a TV series) is if (a) the House votes for impeachment, and submits this shortly before the next election [ie, the Senate has no time to do a trial before the election], and then, after the election, the new House wants to take back the impeachments.

      So, to carry this to its (essentially impossible) conclusion: House votes for impeachment of Trump in Oct 2020, (a) Trump is re-elected, (b) Republicans take the House, and (c) 67 Democrats take over the Senate!!!

      Q # 1. Can the House (after the election but BEFORE the Dem’s lose control in Jan 2021) have second thoughts and withdraw an impeachment? (ie, 40 Democrats supported impeachment, but only if they knew Trump would not be convicted in the Senate)

      Q #2. Can the new–now Republican–House, after Jan 2021, “un” impeach the president? (I am assuming the answer to this is “no,” but I’m not positive about this…it’s not like we have a ton of precedent re presidential impeachments, after all.)

      1. The question is, if you have anything of the sort, will Trump actually leave if convicted. If not, who’s going to make him?

        1. Federal marshalls, I suppose. Or perhaps the VP.

        2. He would be trespassing within the White House at that point and the Secret Service, protecting President Pence, would take a rather dim view of that and see to it that the threat was eliminated by removal of the trespasser just as if I was trespassing (although, in Trump’s case, the removal might be a bit more gentle if he didn’t resist). Although, I suppose Pence could let Trump sleep over with permission if Trump can’t find a place to stay right away and didn’t want to “couch surf” with friends while searching for a permanent roommate situation on Craigslist.

          And I suppose if Trump wanted to hang out with the tourists behind the fence of 1600 Pennsylvania Ave while gazing nostalgically through the fence at his prior residence he could do so — I doubt the Secret Service would consider him an imminent threat there.

          Anyone who asserts, or even suggests, that somehow Trump wouldn’t leave office if he was no longer President looks rather foolish – just as those on the fringe left who raised the same concerns about G W Bush leaving office or those on the fringe right who raised the same concerns about Obama or Clinton leaving office looked foolish then and still do.

        3. Contra everyone else who thinks that various federal enforcement departments would evict Trump I highly doubt it.

          Shenanigans like that would put us in a legitimate constitutional crisis as it wouldn’t be clear whether the Presidency had lawfully been shifted, and so I expect the Senate would bring it to Court – probably Judge shopping to get an eviction notice – which would promptly be ignored until the Supreme Court ruled on the matter, which I hope would be obeyed.

          It’s one thing to have a viciously partisan branch of government. It’s quite another to have one trying to cheat. Which is why, if the House were able to show that Trump asked President Zelensky to fabricate charges against Joe Biden that would be in the exact same category, and a threat to the republic – bribe or no bribe.

        4. The question is, if you have anything of the sort, will Trump actually leave if convicted. If not, who’s going to make him?

          Answers: Yes, and Melania. 🙂

      2. The new House may not be able to remove the impeachment once it was sent to the Senate however they could change the House managers presenting the evidence as well as include all exculpatory evidence. I expect they could also hold a new vote as to whether the previous impeachment vote violated the Constitution as well as holding hearings on certain House members (if they are still in the House), as to whether they violated the Constitution, US Laws, or even House ethics regarding their actions during the impeachment proceedings. Especially people like Schiff who refused to allow any questions, witnesses, etc. that did not fit his narrative.

      3. Santamonica811,

        Thank you for your analysis, but I would respectfully disagree.
        I would assume you would agree with me that the current House couldn’t pass a resolution binding the next House to pass specific Articles of Impeachment if Donald Trump wins the election? So doesn’t this House’s passage of the Articles of Impeachment only allow this House to transmit them to the current Senate.

        In a similar vein, what happens if the current House passes a law, but does not transmit it to the Senate until after the dissolution of the current House? I don’t know the answer, but wouldn’t it be a similar situation?

    2. “Can she submit them after the 116th Congress ends on January 3, 2021? Or would the new Congress have to re-authorize the Articles of Impeachment?”

      The impeachment dies with the house, so they would need to be re-authorized. But if Trump is re-elected, impeachment is over as a political matter. The people will have spoken.

    3. “Meaning, is there an open window to submit the Articles that will close?”

      At the very latest, they have to be submitted by January of 2025.

  4. Who cares whether Trump is impeached when the house votes or when the articles are presented to the Senate. For all practical purposes, Trump retains all presidential powers until 2/3 of the senate votes to convict.

    The argument is moot

    1. Well, it depends on how you define moot. OJ was acquitted, but the the trial ultimately convinced the majority of the public of his guilt–a result that was not without consequences.

  5. This stunt will last exactly as long as the polls show it is working, then they will don’t their somber clothing and their long faces and give a serious speech about protecting the Sacred Constitution that is obsolete.

      1. …or gay apparel, depending on whether they feel somber or festive.

        1. +1 Jingle Bells

    1. “This stunt will last exactly as long as the polls show it is working”

      According to the last poll results that I saw reported, over the course of the public hearings conducted by the House, public support for impeachment actually declined.

      1. Look again. Or, better yet, don’t. Never look at a single poll, ever, when one has the option to look at polling aggregates.

        Yes, there was some poll that suggested that support had declined, if one ignored margins of error. Other ones suggest otherwise. (See, e.g., the Politico one just released.)

        1. Fun poll time now. Note I’m not alleging any of this, just pointing out that we can’t rule it out (unless you know something I don’t).

          All people (and hence, all corporations) have preferences (aka biases – I hope this isn’t controversial). Those preferences are impossible to completely suppress, precisely because it’s a fundamental part of who you are. You can take steps to counter your bias, but even there you’re unlikely to exactly counter it, merely adding in more biases that you think point the other way (and you thinking your bias corrections point the other way is another point to introduce bias).

          Everyone recognizes that “when did you stop beating your wife?” Is constructed to yield only one answer – an admission that you beat your wife in the past. Many people (though not nearly all, even within their subgroups) cannot see the bias in “are you in favor of killing unborn babies?” Or “are you in favor of female enslavement?” Because they think that’s the neutral way to ask those questions.

          Many fewer people, however, can tell that “so you support gun bans that protect children?” Is a biased question that is impossible to yield useful results on – someone who thinks that any gun ban won’t protect children (by preventing parents from protecting them, by enabling totalitarian government, etc), so they can truthfully answer yes, but there’s no place for them to add, “but it’s a null set” or they can answer no for the same reason.

          So when these polling companies on stressful topics (like Trump, abortion, gun control, etc) report their results we have to ask: are they systematically biased? Because if they are their error bars and statistical significance don’t mean what’s portrayed. In the case if Trump its pretty clear that the pre-election 2016 surveys were biased too far and so were systematically wrong – probably by not adequately adding controls to their own bias.

          But what about now? Are these polls still anti-Trump biased, and we should add ~5% to his favor (yet still within the error bars), or are they now overcompensating because they blew it the other way last time and the real support for impeachment is even higher than the averages? Or are they motivated (even if unconsciously) to report high support for impeachment and so construct their polls to yield that result?

          1. Actually, the real question is where is there the support? National polls matter less when the Senate and electoral college are a state by state basis. Evenly distributed, 51% in favor of impeachment would do–but we know that is not the case.
            The curious polls are (a) a large majority of voters believe Trump did something wrong, impeachable or not, and (b) the differential between those who supported impeachment and those who supported removal. Given category (a), the Dems had to do something, else it would be an endorsement, or an admission that it was non-serious. Seems to me if the “impeachment” is not impeachment, then it is a censure.
            The Clinton impeachment is held up as a great failure, but who won the next presidential election? It wasn’t Gore. It was the guy who pledged to restore honor to the White House.

        2. You seem to ignore the Real Clear Politics aggregate of polls which clearly shows support for impeachment was declining.

          1. Notice he says “don’t look at just one” then cites the Politico online poll, which is an extreme outlier.

  6. The Constitution states that the House has the sole power to impeach, and the Articles of Impeachment specifically state that Trump “is impeached”.

    1. This is my view too, and anything else is idiotic under the current House rules.

      At the same time the current Senate rules state that they won’t get started until the House brings over their prosecutors.

      For fun: what if the Senate changes it’s rules so that any Senator can file the House resolution to start the impeachment process? Pretty sure that would also be binding. And more fun: what if the House also changes its rules.

      1. Hell, the House already changed their rules giving Schiff the power of deciding all witnesses and controlling all questions.

  7. My progressive friends take heart that the Democrats may finally vindicate themselves for have not been unanimous in the Senate impeachment trail of Clinton. The 12/20/19 Politico poll finds a majority of voters (52%) support impeachment and conviction of Trump. Presumably >50% think he’s impeached by now. How that translates to a 2/3 majority support in the Senate? Maybe we need Electoral Collage votes to elect *and* impeach/convict.

    1. Link? I think you are looking at old polling data.

      Accorking to 538’s tracking of impeachment polls, public support for impeachment is a 47.6%.

        1. “Look again. Or, better yet, don’t. Never look at a single poll, ever, when one has the option to look at polling aggregates.”

          538 are aggregates, sitting around 47%. Politico is a single poll, and claims error bounds far above the average of polls.

          Either Politico is doing it wrong, or everyone else is.

          1. “Either Politico is doing it wrong, or everyone else is.”

            Or, all them, including Politico, are doing it wrong.

          2. That would be a gotcha if I had said “Politico’s result is more correct.” But I didn’t; all I did was give a pointer to where MaverickNH’s data was coming from.

  8. You say this debate has no practical effect. But the foreign press will pick up impeached/not impeached discussions such as this blog and use it to make the USA appear more silly (if possible).

    incompetent. disfunctional. banana republic. Keystone Cops. Gee what other insults can we think of for the USA.

    IMO this stunt by Pelosi is a blatant abuse of power and against the best interest of the country. Can we impeach her?

    1. Members of both houses can be impeached.

      1. Not true.

        1. Considering the first one on the list is a Senator (who only got out of it because he was already expelled), I beg to differ.

          https://history.house.gov/Institution/Impeachment/Impeachment-List/

          1. House members don’t need to be impeached, the rest of the House can throw them out on its own. Contra Senators where the Houses only potential power is impeachment.

            1. Wait…Can the Senate just vote to expel one of it’s own? Or does it require an article of impeachment to start the process?

              1. Either house may expel one of it’s members.
                Article 1
                Section 5
                2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

          2. Blount is the only Senator the House has ever impeached because the same Senate that expelled him immediately thereafter ruled that US Senators were not “civil officers” for purposes of impeachment, and dismissed the impeachment case on grounds of lack of jurisdiction.

    2. Well, our allies will take heart that the American system is pushing back against the only president ever to be laughed at in the UN or at a NATO summit and to prostrate himself in front of a Russian president as well as denigrating our form of government as no better than Russia’s. The world will see that there remain forces in the US that reject venality and corruption as a governing philosophy.

      More generally, to the extent that the US is seen as incompetent and dysfunctional, the only logical person that is responsible for that is the guy in charge–you know, the guy his own appointees call a “moron” and “idiot,” who tried to make money off a G-7 meeting, whose campaign staff and personal attorney went to jail as he entertained the likes of Lev and Igor, who falls in love with dictators, complains about toilets, changes policy and personnel by tweet, gets in twitter wars with 16-year olds, pays off porn-stars–the list goes on. We’ve had 200 years of partisanship, and even a civil war, but have never been the laughing stock of the world like we are now. What changed?

      The fact is, even absent any appreciable political opposition to Trump, the rest of the world would view us as having a dysfunctional, incompetent, keystone cop government. Impeachment is the first sign they’ve seen that we might not. Once again, the wisdom of the founders is vindicated.

      1. Most of the world would be happy to have our system of government. We survived eight years of Obama’s daily assault on the Constitution, and we’ll survive this ignoramus. And please don’t get me started on the Europeans. They are on the way to becoming part of the caliphate. Then we have the British, who would rather go after people who “misgender” their fellow citizens than deal with more serious problekms.

        1. “We survived eight years of Obama’s daily assault on the Constitution”

          So, you’re saying that unlike THIS guy, THAT guy had a work ethic? He wasn’t taking off every weekend to Florida or somewhere else to play golf, but he was in there, assaulting the Constitution every day, without ever taking a day off?

  9. I am a real estate broker… According to contract law, a contract is not a contract (An enforceable legal document) until it is delivered. My opinion is that the rule should apply here… After all it is just a piece of paper while it sits in the House. Delivered to the Senate is becomes an enforceable legal document.

    That aside, this is a master stoke… Mommy has gone to the China Berry Tree and broken off a switch… Donny better behave or Nancy will apply to his bare legs…

    And even if he behaves, she has it there in case there is an event that would cause his polls to dip… Maybe another mass shooting… Maybe Indicting Hillary… Maybe a video… or Indicting Biden… Biden has friends in the Senate — and there are others doing the same thing with bag men or lobbyist kicking back foreign aid to their campaigns. I am learning the politics of getting/giving foreign aid.

    You can bet your last dime that the Soros bunch is working over time on Republican Senators to vote to impeach — all’s fair: money, sex, what ever. And what does Clapper and Brennan have on the Senators or the Supreme Court Justice? Roberts is already suspect of having his arm twisted by the Intel community to change his opinion on Obamacare.

    We will be walking on the edge of a razor until this is resolved. There is the potential for lots of Democrat mischief.

    1. “I am a real estate broker… According to contract law, a contract is not a contract (An enforceable legal document) until it is delivered.”

      According to contract law, a contract can be formed without even writing anything down. Sounds like you need a refresher CLE.

      1. Pretty sure real estate has to be in writing in every state. Otherwise agreed.

        1. “Pretty sure real estate has to be in writing in every state.”

          Had he stayed in his lane, and said a real estate contract is not enforceable until it is delivered, he wouldn’t have been corrected. But he didn’t. He said “According to contract law, a contract is not a contract (An enforceable legal document) until it is delivered. ”

          Which is not true.

    2. I am a real estate broker… According to contract law, a contract is not a contract (An enforceable legal document) until it is delivered.

      God save us from real estate brokers who think they understand law.

      1. I’m curious David.
        When is an indictment, an indictment? When the prosecutor indicts or when it is filed with the court? IIRC it is not until it is filed with the court and the prosecutor has a set time period in which to file.

    3. Hell yeah SOROS conspiracies are back, baby!

  10. I think Pelosi’s gambit has nothing to do with how the trial is conducted, but rather is entirely a device to keep D senators running for the party’s presidential nomination from being frozen in their seats during the New Hampshire and Iowa campaigning.

    I expect McConnell to reject her attempt to control the Senate trial, and then to transmit the articles late enough to allow for the campaigning I’ve mentioned. At that point, McConnell will schedule a quick trial and acquittal, to be followed by Trump’s re-election.

    1. An alternative would be that Pelosi keeps it open throughout the campaign season in hopes that it catches on with the public. That’s a very high-risk tactic, but you never know. The Ds have been pretty stupid thus far, right? Another alternative would be that she uses her failure to control the terms of the Senate trial as an excuse to never transmit the articles, but I doubt it’ll go that way.

      By the way, even if they’re never transmitted and no trial is held, I really doubt it matters (except to political science professors) whether or not Trump was impeached. That question, quite frankly, can play in both directions. On the one hand, the Ds want to use it as an instrument of humiliation against a president who, whatever his faults might be, is not exactly susceptible to humiliation. On the other hand, if they argue that he was impeached even if the articles aren’t transmitted, imagine the humiliation of the Ds when Trump is re-elected anyway.

      Bottom line: I would not want to be the Ds right now. They are in a class dog-that-caught-the-car moment. What the hell do they do now? LOL

      1. By the way, even if they’re never transmitted and no trial is held, I really doubt it matters (except to political science professors) whether or not Trump was impeached.

        JakeJ, it matters to this American. The impeachment of any POTUS, regardless of their party, is nothing to celebrate. The impeachment process is a cause of national shame, disgrace and dishonor. It doesn’t matter why it happened, or who made it happen. The decision to upend the results of a presidential election is a grave one. No one knows what the historians will write of this a hundred years from now, but I truly hope these historians will take note of the fact that there was a subset of Americans of viewed this episode as a national stain on the country’s honor (independent of the cause), and that we were horrified at the long-term ramifications and damage being done to our Republic.

        I don’t think we as Americans have taken the time to step back and reassess, along the way. This can and must be one of those times. Our desire for the stability of this Republic demands it. Whether the Speaker intended it or not, perhaps the delay in transmitting the articles can prompt this stepping back and reassessing. And I don’t see that as a bad thing, in a civic sense; God knows we need it.

        My personal opinion is the Speaker is just twisting The Donald’s tail, writ large, with the delay in transmitting the articles to the Senate.

        1. “I don’t think we as Americans have taken the time to step back and reassess, along the way. This can and must be one of those times. Our desire for the stability of this Republic demands it.”

          Which just comes back around to questioning whether the Republic can be said to be “stable” while it’s being run by the “stable genius”. Hint: People who have to tell other people that they’re stable generally are not. The same is also true of the term “genius”… if you really are one, you don’t have to tell people.

          1. Pollock, let me answer you this way. In my lifetime, I have seen the Nixon non-impeachment, the Clinton impeachment, and now the Trump impeachment. Literally, in the space of 45 years, the POTUS has been impeached (or resigned) three times. Our Republic is 232 years old, with the last 45 years a mess, politically and socially.

            We should step back and think about what is happening, because our Republic is not stable.

            1. ” our Republic is not stable.”

              Nope. It is dynamic.

          2. Yup. Goes back to Margaret Thatcher’s A woman who must constantly remind others that she’s a Lady…likely isn’t.

        2. The impeachment of any POTUS, regardless of their party, is nothing to celebrate. The impeachment process is a cause of national shame, disgrace and dishonor.

          I don’t see why our system allowing even someone as powerful as the president to be held accountable for wrongdoing is something to be ashamed of.

          1. “I don’t see why our system allowing even someone as powerful as the president to be held accountable for wrongdoing is something to be ashamed of.”

            Because it means admitting that we intentionally chose a criminal as our leader, that’s why.

  11. What Pelosi is doing is absolutely improper and subversive of the Constitution. Article I clear states that each House may determine the rules of its proceedings, but Pelosi is attempting to determine the rules of the Senate. It’s just as improper as the President refusing to disburse money that Congress has appropriated. If Ilya Somin had any intellectual integrity, he would be demanding the impeachment of Pelosi.

    1. “What Pelosi is doing is absolutely improper and subversive of the Constitution. Article I clear states that each House may determine the rules of its proceedings, but Pelosi is attempting to determine the rules of the Senate.”

      Amendment 1 says it’s OK to petition your government for a redress of grievances. The Senate is still part of the government, right?

  12. “Given that the articles of impeachment have already been adopted and are ready to transmit, withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt—which is unfortunate.”

    One of the funniest lines ever. You don’t say?! I thought the partisan political stunt was pretty obvious from the get-go.

  13. Whittington keeps asserting ex cathedra that this has no practical consequence for President Trump. It doesn’t get any more convincing with the repeating.

    1. Trump can’t be acquitted if he hasn’t been impeached. He can sit under a media “impeachment” cloud and can’t walk out from under it.

    2. If he has been impeached, the Senate can get on with the trial whenever it likes, by changing its rules. There’s no reason to believe that the Senate won’t change its rules if that becomes politically convenient – after all the House has radically changed its rules about impeachment this time round.

    3. Whether or not the impeachment is done has a potential effect on the lawsuits that have been launched to chisel more information out of Trump. If impeachment has happened, then the investigation is over and that strengthens Trump’s hand. If not, not.

    4. With a Schrodinger’s cat impeachment Pelosi holds an option over the Senate’s business timetable. She can close the Senate down for a month when she chooses. Very convenient if a SCOTUS vacancy opens up.

    5. But an is he – isn’t he impeachment, with Pelosi unable to articulate a coherent reason for not transmitting the articles does tend “to the paint the entire impeachment process as a partisan political stunt—which is unfortunate.” Unfortunate for the Ds chances of beating Trump next November.

    6. And also unfortunate for the Ds prospects of winning House and Senate. This looks like a shyster lawyer move – no doubt some folk (perhaps their mothers) like shyster lawyers, but probably not a large fraction of registered voters.

    Hardly no practical consequences for Trump.

    1. “With a Schrodinger’s cat impeachment Pelosi holds an option over the Senate’s business timetable. She can close the Senate down for a month when she chooses. Very convenient if a SCOTUS vacancy opens up.”
      1- No, with the Dem primary and the presidential campaign, time is not on Pelosi’s side. Dems want to be focusing on kitchen table issues, not a partisan impeachment. Nor does she want to pull Senators off the campaign trail come Feb/March. At this point, it looks as though we will go all the way to June with no clear Dem primary winner. We could end up with 4 candidates, all with between 20-30% of the vote.
      2- The Senate controls its own timetable after impeachment is delivered to the Senate. The Senate will schedule the trial for maximum political impact.

      If McConnell wants to hold the trial in Jan, that is the best time for the Senators running for Pres and the Dem primary generally. Pelosi should take that and send a great big thank you gift to the GOP.

      But she wont, she will delay the articles to please the left wing of the caucus, undermining the Dems case – basically demonstrating its a partisan process.

    2. Also, so long as Pelosi fails to deliver the articles, Trump can argue he has not been impeached, and Dems can argue he has, and no one can prove either side wrong. This furthers the narrative that its simply a partisan impeachment (while also undermining the urgency). By not delivering the articles to the Senate, Pelosi diminishes impeachment to basically a censure.

      1. “so long as Pelosi fails to deliver the articles, Trump can argue he has not been impeached, and Dems can argue he has, and no one can prove either side wrong”

        Donnie’s been arguing that his impeachment is illegal and unconstitutional, so I don’t think he needs this technicality to argue that he hasn’t been impeached.

      2. Um….no. The deed is done. The vote was held. Sadly, there is not an ‘undo’ feature.

    3. “1. Trump can’t be acquitted if he hasn’t been impeached. He can sit under a media “impeachment” cloud and can’t walk out from under it.”

      Yeah, it would suck if your political rivals accused you of crimes, but you were never charged or anything, so there was no formal acquittal, just large crowds chanting “lock him up, lock him up”.

      “6. And also unfortunate for the Ds prospects of winning House and Senate. This looks like a shyster lawyer move – no doubt some folk (perhaps their mothers) like shyster lawyers, but probably not a large fraction of registered voters.”

      By the time voting-time comes around, the voters will have had, more recently, the shyster-lawyer moves of the Senate R’s.

  14. The House and Senate thought the officer was impeached when the allegation was leveled at the bar of the Senate, not when the details of the charges were exhibited to the Senate.

    One difficulty with this interpretation is that for the House to exercise its “sole power” of impeachment”, it requires the co-operation of the Senate – to admit the House’s agent into the Senate, and to carve out a slot in its proceedings for the House’s agent to make the allegation.

    An interpretation which allows the House to require the Senate to give this co-operation clashes with Art 1.5 :

    “Each House may determine the rules of its proceedings”

    Which argues that impeachment, in the context of the House having the sole power to do it, needs to be something that the House can accomplish without the assistance of other parties.

  15. Nadler & Schiff started squealing impeach when their horse lost. This has been partisan politics from the outset.

    Let’s ask Ginsberg. She’s certainly fair and impartial.

  16. Imagine going to a wedding where the bride and the groom get into a huge fight right in the middle of the ceremony and storm out screaming and throwing things at each other.

    Were they married? Doubtless there’s an answer to the question, depending on the exact point in the ceremony where they got into their tiff and whether the legal essentials had been completed by that point or not.

    But I would hate to depend on a lawyer for such things. Their abruptly stopping casts doubt on the genuiness of their intention to go through with the ceremony and whether they ever really wanted to be married at all.

    This is similar. When Congress as a body starts something but its members do not follow through on their responsibilities, bringing in the lawyers to argue about the exact legal consequences of the exact point at which they broke up in a tiff is decide the point. People are entitled to doubt whether they ever meant to follow through, and whether what they initiated was done in good faith to begin with.

    1. Impeachment is the process by which a legislative body levels charges against a government official. Impeachment does not in itself remove the official from office; it is the equivalent to an indictment in criminal law, slip gajiand thus is only the statement of charges against the official.

      1. The question here is whether the House completed the impeachment or not. It was supposed to appoint managers to exhibit the articles of impeachment to the Senate. It stopped before doing so.

        1. The answer is still “it really doesn’ t matter”

    2. “Were they married? Doubtless there’s an answer to the question, depending on the exact point in the ceremony where they got into their tiff and whether the legal essentials had been completed by that point or not.”

      The legal part of this is actually simple to resolve… they’re married if the completed marriage license was filed down at the courthouse, and they aren’t married until that happens.

      Religiously it’s both more complicated, or it’s not complicated at all, since God knows all, His decision of whether they are married or not is obviously correct, and beyond question by mortals such as ourselves.

  17. Johnson became the first president impeached by the House, but he was later acquitted by the Senate by one vote. Slip Gaji The Constitution gives the House of Representatives the sole power to impeach an official, and it makes the Senate the sole court for impeachment trials.

  18. “tends to undermine the Democrats’ claim that the president’s immediate impeachment and removal is essential to the public safety. Given that the articles of impeachment have already been adopted and are ready to transmit, withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt—which is unfortunate.”

    Democrats have set a precedent for a impeachment as a partisan political stunt, and what goes around comes around in politics. It will be difficult for the public to see impeachment through any other lens now.

    1. …withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt.

      Unless, of course, the public becomes convinced that the D’s are correct in their theory that the Senate is purposefully making an honest trial impossible.

      And a number of R’s—the Senate Majority Leader not the least among them—are providing an awful lot of evidence in support of that theory.

      1. The well rehearsed hearings in the house failed to convince people. Support declined. In fact, Trumps approval went up. Now the GOP-controlled Senate will control the narrative, the process, and have the last word.

        Two strategic mistakes in any game: give your opponent the last word, and control over the endgame. The House simply should have gone with door #2 (censure). Now we are going to hear 9 months of “The Senate acquitted me”.

        Its like Obamacare: people hated it based on polling, until Republicans actually had the majorities to repeal it, then suddenly people loved it. Then as now, the key is – what are Dems replacing it with? Biden? A socialist WarrenSanders?

        1. Er, the D’s might like to do that, but the answer is they want to replace Trump with Pence… because that’s the sum of their options at this time.

    2. “Democrats have set a precedent for a impeachment as a partisan political stunt”

      Well, people old enough to recall the 1990’s would say that Democrats have FOLLOWED precedent for impeachment as a partisan political stunt.

  19. Folks, to join the argument over whether or not Trump has been impeached is to play someone else’s game. Much better to say, accurately, that it doesn’t matter until the House transmits it to the Senate.

    Keep your eye on the longer game.

  20. Regarding Speaker Pelosi’s de-facto suspension of effort until the new year, this really has been a thing for less than two weeks and specifics are still shaking out (with the considerable assistance of VC). Potential impact will be clearer one way or the other in another couple weeks. Since it doesn’t affect anything that was going to happen within the next few weeks anyway, there’s no risk in waiting.

    And McConnell’s unforced error is, of course the reason she did it. McConnell’s normally very good at covering his abuses of naked power with just enough facile rationale to allow Trump’s sycophantic, disingenuous supporters to at least pretend to have a case. Think, “I’ll block the current guy from filling a Supreme Court vacancy with the guy we already said would be the type of judge we’d approve because, ummm, there’s gonna be a new guy in a year!

    This time, however, in so explicitly acknowledging his Vulcan mind-meld with the defendant, McConnell provided the D’s a strong, objectively honest and principled objection to a purely sham trial. This could potentially (though not likely) extend to declining participation in a Potemkin Village fake trial, ever.

    Best case, the current 70% poll approvals for an honest trial (including relevant witnesses Trump says he’d love to have testify) motivates the half-dozen Republican Senators who just might see a benefit in being perceived as supporting a fair trial (it will only take four). Then we get to hear the first-hand accounts everyone says they want. Of course, 50-55 Senators will then vote not to convict anyway—but all that new first-hand evidence is added to the public discourse.

    Worst case, the Speaker names Managers and sends over the Articles without further conditions. Nothing changes and the Potemkin Village trial and quick dismissal of both Articles proceeds per McConnell’s original desire (this seems the most likely scenario, though Trump could still mess it up)—but Trump’s refusal to allow the fair trial he’d been demanding is emphasized, and that’s added to the public discourse.

    So, Pelosi’s still following the course of action she judges has the highest likelihood of removing Trump no later than January 2021 (though sooner would be better, it’s not absolutely necessary), and I think she’s demonstrated that she has pretty good strategic judgement.

    1. “And McConnell’s unforced error is, of course the reason she did it. McConnell’s normally very good at covering his abuses of naked power with just enough facile rationale to allow Trump’s sycophantic, disingenuous supporters to at least pretend to have a case.”

      It’s an abuse of naked power to adopt the unanimously approved rules they used for Clinton’s impeachment trial?

      Good luck making that case. Why were those rules considered good enough for Clinton by both sides but it’s an abuse of power to adopt them for Trump’s trial?

      1. As the trial begins all Senators will take this Oath:

        I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’

        At least two Senators have publicly committed themselves to act in a fashion inconsistent with their oath.

        Mitch McConnell, Senate Majority Leader:
        Everything I do during this, I’m coordinating with White House counsel. There will be no difference between the president’s position and our position as to how to handle this to the extent that we can…

        we will be working through this process, hopefully in a fairly short period of time, in total coordination with the White House counsel’s office and the people who are representing the president.

        Lindsey Graham, Chairman of the Senate Judiciary Committee:
        This thing will come to the Senate, and it will die quickly, and I will do everything I can to make it die quickly,” he said. “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.

        These differ from statements of many Senators on both sides that the evidence they’ve seen to date has made them conclude the Senate either should, or should not vote to remove President from office. That position is entirely proper and ethical, since it doesn’t preclude the possibility that these Senators could change their minds should new or additional evidence come to light.

        It’s the “total coordination with the White House” and lack of any possible “difference between the president’s position and our position” that shows influential R Senators are now and will continue doing everything they can to block any new or additional information from ever being seen.

        When advancing a position, it’s a lot of help if it’s both appealing (an honest and fair trial…), and true (…is being blocked by the naked partisan application of power).

        1. Neither McConnell and Graham have taken that oath yet, nor has anyone else, so they cannot be in violation of it. Trying to claim otherwise either indicates a lack of understanding of the process, or lying.

          Oh, by the way – Elizabeth Warren, Cory Booker, Richard Blumenthal, Michael Bennet, and Mazie Hirono are Democratic senators that have issued press releases announcing that they intend to convict, before a trial has even begun.
          Is that a bad thing, or is it like binary-chemicals that only become dangerous when an “(R)” appears after the person’s name?

          1. ” Democratic senators that have issued press releases announcing that they intend to convict, before a trial has even begun.”

            Because, unlike a trial in criminal court, the evidence against the accused was shown to the public before the trial has even begun.
            Mitch didn’t say he planned to acquit… he said he planned to work closely with Trump’s lawyers to assure an acquittal. That’s where some people (not Republicans, apparently) might have gotten the idea that the trial might not be 100% fair and balanced.

          2. I read the statements of every senator that made one. Warren came closest to Graham—too close for me—but even she didn’t make the R commitment precluding the possibility of of considering new information (not to mention, to actually block the introduction of any new information which might change anyone’s mind).

            The rest of the ones you mentioned (that you got the list of D’s right shows you’ve been paying attention) were all careful to say they were open to new exculpatory information if the President submitted any during the trial.

            But since you have been paying attention, you already know R’s Blackburn, Cotton, Cruz, Ron Johnson, and Rounds (among others) have made statements similar to the D’s you cited.

            The one’s I’ve seen with truly neutral statements (something like ‘I’ll review everything during the trial and then make my decision’) include Romney, Coons, Murkowski, Sinema, Blunt, Tester, Alexander, Cantwell, Collins, Casey, Burr, Manchin, McSally, Leahy, Thune, Jones, and many others.

            But no Senator, including Warren, have come close the Graham/McConnell commitment to break the oath” they will take.

            1. Yes, I do know that many Republican Senators have also made statements indicating their intended vote already. According to one columnist, he’s found 55 senators that have announced their intended vote. So, yes – plenty more have already committed.
              The same author found 33 more that have mode party-line noises, leaving just 12 – 6 Republicans and 6 Democrats – that have not yet prejudiced themselves publicly.

              As for “commitment to break the oath”, there cannot be any such thing. There has not yet been any swearing in, and the oath may not even be the same when the trial does start!

              At this point, anyone that is attempting to claim otherwise is being dishonest. Please stop.

              1. Read the above comment agains. he’s not talking about ‘plan to vote’ statements but rather something stronger than that.

              2. “…I will do impartial justice…”

                That is the oath right now, in the current rules. As I observed way back at the top of this, some R’s “have publicly committed themselves to act in a fashion inconsistent with,” that is, incompatible with, the oath in the current trial rules—the one all 100 Senators swore to and pretty much upheld in the last impeachment trial.

                Yes, they may desire to change it now, since it seems they know the can’t honor it. But I can only go on what exists right now, not on some speculative hope you might hold.

                You want them to either violate it or eliminate it. Yet while it’s true (as many have observed this week) that complete impartiality may be too much to hope for in a partisan political Senate, honorable people, even if not fully impartial, can still honestly mean it when they sayI will do impartial justice..

                I—honestly—retain the hope that’s what will happen. And it can if four honorable Republicans want it to. You just hope they don’t, hope that enough Republicans either eliminate or break that oath, and then go ahead and block even the opportunity for impartial justice.

                Please stop.

      2. The Senate rules for conducting an impeachment have not changed since 1986. They allow both sides to call witnesses.
        https://www.senate.gov/artandhistory/history/resources/pdf/3_1986SenatesImpeachmentRules.pdf

        1. Mitch doesn’t want to proceed with those rules.

  21. “Feldman argued that the exhibition of the articles of impeachment to the Senate is an essential procedural component for realizing the House’s constitutional power to impeach. On this, he is almost certainly wrong.”

    If he can be so wrong about such an obvious constitutional and procedural matter it raises even more doubt about his opinion that impeachment was justified in the first place.

    Turley seems to have gotten it right on both issues.

    1. I’ll agree with that, as long as you grant that Turley’s position included that the acts Trump was accused of were potentially High Crimes and Misdemeanors possibly worthy of impeachment, but that impeachment was not yet ripe in that additional information, of which the existence but not yet content were known, could, in time, be obtained through the judicial system.

      That’s a defensible position but one that differed from the democrat’s only in degree, not kind.

      1. I really should go back and review my convoluted run-on sentences before hitting Submit. How about:

        …as long as you grant Turley stated that actions Trump was accused of would meet the constitutional standard of impeachable High Crimes and Misdemeanors. Impeachment action, however, is not yet ripe because additional known, relevant information could, in time, be obtained through the judicial system.

        That’s a defensible position but one that differed from the democrat’s more in degree than in kind.

  22. Side 1: “He’s impeached. But let’s delay to drag it out for political reasons. Among other things we can make demands on the Senate that they, of course, will refuse, and can get some milage from that.”

    Side 2: “To heck with that. Since he’s impeached, we might just proceed anyway, even if we have to change our own rules to do it. So we can ignore their delay.”

    Side 1: “Well, to stop that, we now claim he isn’t actually impeached until we officially tell them.”

    The kid George Bailey walks over to the store cigar lighter and makes a wish, “I wish someone would slap all these people silly until they started crying.” [Clicks lighter and it lights up.] “Hot dog!”

  23. FORMER WRITING-TUTOR says: PLEASE do not use the overused cliche-phrase “abundantly clear”! Phrases like that invite your reader to tune out and go to sleep.

    I’m sorry to burst your bubble, and I don’t mean to get on a high horse or jump down your throat, but indiscriminate overuse of cliches and stockroom-phrases will make your writing as dull as dishwater; it really gets my goat and makes me sick as a dog, and that’s where I draw the line, when the rubber meets the road. So I’m putting my foot down and talking like a Dutch uncle at this point in time: take the bull by the horns and think outside the box, when you write! Just my two cents.

    1. That argument is a worn as a two-dollar horse.

      True though.

  24. Given that the articles of impeachment have already been adopted and are ready to transmit, withholding those articles from the Senate tends to the paint the entire impeachment process as a partisan political stunt—which is unfortunate.

    Precisely. I’d go a lot further than “unfortunate”, though.

  25. Impeachment’s meaning is broader than its political aspect. The Deep State and its habitués are impeached, and have long been for being tainted by progressives.

    1. Lol.

      Trump isn’t impeached, YOU’RE the real impeached ones!!!

      Using habitués doesn’t make your impotent tantrum any more mature.

  26. Bread, circuses, and impeachment.

    Beats “Russia, Russia!”, I guess.

  27. “As I pointed out early on, this debate has no practical consequence for Donald Trump and the operation of the current federal impeachment process.

    That is utter nonsense. If one believes Trump has been impeached in the House, once the vote was taken, then the Senate may acquit immediately, without a trial, and this is not reviewable by SCOTUS. See Nixon v. United States, 506 U.S. 224 (1993).

    1. But it IS reviewable by voters, as they consider whether or not their Senators represent them.

  28. Agreed re: leverage. I take no issue with holding the articles over the holiday to let the alleged moderates in the gop have to face uncomfortable questions back home and/or to allow even more incriminating evidence to dribble out, but cannot see any scenario where a much lengthier delay accomplishes anything in favor of an actual trial. Even if McConnell announced today he will host a full trial there’s nothing to hold him to it.

    Let them stew and hatch new and amazing legal theories for two weeks and then let’s get a move on.

    1. You’ll know it’s REALLY on when the House declines to appropriate any funds for Mr. Trump’s “I don’t want to be in Washington” Tour.

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