Has the President been impeached? The Supreme Court may have to decide

DOJ argued that the impeachment vote may affect the resolution of the subpoena issued to Don McGahn

|The Volokh Conspiracy |

The House Judiciary Committee issued a subpoena to former White House Counsel Don McGahn. McGahn, and the Department of Justice, asserted absolute immunity from the subpoena. The District Court rejected the claim of absolute immunity and DOJ appealed. After the House voted on the impeachment resolutions, a panel of the D.C. Circuit requested supplemental briefing "addressing the effect of the articles of impeachment on the issues in this case, including whether the articles of impeachment render this case moot and whether expedited consideration remains necessary."

DOJ has now filed that supplemental brief.

First, DOJ contends that the case is not moot. The subpoena was premised on the House's oversight and legislative powers, apart from its impeachment powers. More importantly, DOJ contends that the Court no longer needs to decide if "the subpoena was ever validly justified by the House's impeachment power in the first place." I suspect this argument is a preview of arguments the President would make to the Supreme Court if other impeachment-related cases arrive.

Second, DOJ explains that the impeachment vote does have one immediate implication: the proceedings should slow down. In short, the House has already voted on its articles of impeachment. Therefore, expedited consideration of this subpoena is no longer necessary. DOJ strongly suggests that the House's impeachment investigation is over. Is this argument correct? To be sure, the House only approved two articles. It will likely contend that its impeachment inquiry of other matters–such as Mueller and obstruction of justice–remain ongoing. This fact may have supported Leadership's decision to not bring articles directly premised on the Mueller Report and obstruction of justice–doing so could have potentially mooted pending litigation.

Third, DOJ argues that the Committee's "primary justification to sue no longer exists." That is, the need to facilitate the impeachment inquiry process. Again, the House will likely contend that the impeachment inquiry into Mueller and obstruction continues, without regard to the two approved Articles.

Fourth, DOJ contends that obstruction of congress article does implicate the district court's opinion, which was premised on obstruction of justice.

Second, the article of impeachment addressing purported obstruction of Congress relies in part on the judicial proceedings in this very case. The House Judiciary Committee's impeachment report, for example, cites the district court's characterization of the Justice Department's litigating position in this case for the proposition that the President "insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses." H.R. Rep. No. 116-__, Impeachment of Donald J. Trump, President of the United States: Report of the Committee on the Judiciary 165 (2019). Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is "far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement." Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). But that is exactly what the Committee has done. The effect of that choice is to "embroil[] the federal courts in a power contest nearly at the height of its political tension." Id

One of the risks of incorporating the judicial decisions into the article is that the courts may now avoid getting further entangled. This argument will resonate well with the Supreme Court:

Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. Cf. Nixon v. United States, 506 U.S. 224, 232, 235-36 (1993). The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels—before, during, or after a Senate trial regarding the removal of a President—puts in stark relief why this sort of interbranch dispute is not one that has "traditionally thought to be capable of resolution through the judicial process." Raines, 521 U.S. at 819. This Court should decline the Committee's request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction.

This argument creates potential recusal issues for Chief Justice Roberts. He will likely have to preside over these issues during the impeachment trial. Could he then hear this appeal from the D.C. Circuit? Or what about in reverse? What would happen first? The impeachment trial? Or an emergency appeal to the Supreme Court? Or might they happen at the same time.

DOJ filed a separate brief on Thursday, that closed with an ominous footnote:

The Committee has requested (Br. 53) that this Court should "vacate its administrative stay and affirm the district court's order without delay." Although the judgment instead should be reversed and the case dismissed, if the Court were to disagree, it should at least leave the stay in place for a reasonable period to allow the Solicitor General to seek appropriate relief from the Supreme Court, especially given the serious question whether McGahn's testimony is even relevant to the now-passed articles of impeachment.

In other words, if the D.C. Circuit agrees with the District Court, then the Solicitor General has asked for a "reasonable period" of time to file an immediate appeal to the Supreme Court. The D.C. Circuit will hear oral argument on January 3. I imagine a decision would be rendered shortly thereafter. Perhaps, at that juncture, the impeachment trial will have started. Or perhaps not.

Maybe the House follows the Tribe proposal, and refuses to transmit the articles, altogether. To resolve the mootness inquiry, the Court may have to decide if the President has in fact been impeached.

Update: The House has also filed its supplemental brief. The House contends that the controversy is not moot: newly uncovered information could lead to additional articles of impeachment:

The Committee thus continues to have an urgent need for McGahn's testimony to further support the misconduct described in the second Article. For example, if McGahn confirms to the Committee that the President ordered him to fire Special Counsel Mueller—an event that President Trump has publicly disputed— and then tried to cover it up, that testimony would constitute powerful evidence of the pattern of obstructive behavior described in the second Article. See id. at 167 ("There, President Trump used the powers of his office to obstruct and seek to fire the Special Counsel; here, President Trump used the powers of his office to obstruct and embargo the House impeachment inquiry."). The Committee—and the House— thus have a continued interest in ensuring that the Senate has before it any relevant information from McGahn's testimony in deciding whether to remove President Trump from office.

McGahn's testimony also remains central to the Committee's ongoing inquiry into the President's obstructive conduct. If McGahn's testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly—including, if necessary, by considering whether to recommend new articles of impeachment. The Committee's interest in obtaining McGahn's testimony pursuant to its ongoing impeachment investigations plainly suffices to preserve a live case or controversy.

We may yet enter a state of perpetual impeachment inquiries.

NEXT: Andrew Yang Is Wrong About Prostitution

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  1. If the House is on-going in their investigations, doesn’t that mean they could potentially draft and vote on more Articles of Impeachment? With this president there could easily be another half dozen.

    So this case is still very much germane.

    1. An IANAL question: I often read about new charges being added months after the original set, but I don’t recall ever seeing new charges once a trial has started, presumably because the defense would have no time to prepare.

      Are there any House or Senate impeachment rules which forbid new articles of impeachment once the Senate trial begins? What kind of time frame is there from impeachment to trial?

      Suppose, just for grins and giggles, that the Senate rules require at least 3 months from impeachment to trial, and once the Senate starts, Trump claims he hasn’t been impeached yet because the House has been stalling. That would probably end up in the Supreme Court, right?

      1. I was recently a juror in a trial. The defendant admitted to a crime on the stand that she hadn’t been charged for (presumably due to insufficient evidence) and that charge was added by the next morning.

        (Note, she had severe honesty issues as she was filmed lying to the police in their original encounter. My best guess is that this admission of a minor crime was intended to underscore how she was being fully honest with the court and that her testimony on the stand should be believed. It was the only logical reason I could imagine her public defender (who was quite good in my non-professional opinion) allowing such an admission.)

    2. What the House under Pelosi, and Democrats in general, are attempting to do is to end any discussion of 4th amendment or constitutional protections for political opponents. They are using the idea of impeachment to create general warrants to go after their enemies. Sadly the Democrats at Volokh cheer this on.

      1. Impeachment isn’t criminal. Once again.

        The 4th still applies to all criminal investigations, including of Dem political opponents.

        The 4th wouldn’t apply when Clinton was impeached, and won’t apply should the GOP get impeachment happy next Dem Prez.

      2. “What the House under Pelosi, and Democrats in general, are attempting to do is to end any discussion of 4th amendment or constitutional protections for political opponents.”

        The 4th only prohibits unreasonable searches. It specifically allows searches authorized by warrants, for example. It says nothing at all about subpeonae. So are you just talking out yo ass, or do you have a specific complaint you’d like to raise?

  2. How pathetic. He’s impeached. He and the Republicans could get it over with by agreeing to hold a fair trial and calling the witnesses needed.

    If he’s innocent- just put it out there. If it was the “most perfect phone call” then what does he have to fear?

    Somehow everyone seems to be missing the forest for the trees because the only story is that he abused his office to get dirt on a political rival. The “process”, while important, is far down the list for what’s going on. Ironically, it’s the only thing Republicans are arguing- not that he did it.

    1. It is pathetic, but not for the reasons you think it is.

      The House is in a pickle, they rushed this through and didn’t get the Courts to weigh in on testimony of Executive Branch officials, and the Senate has the sole power to run the trial as they wish. Now the House is negotiating from a weakened position, and trying to leverage the Senate to do things that it doesn’t have to do.

      “If he’s innocent- just put it out there” ….that’s not how trials work in America, even impeachment trials. The House has to prove guilt, and the accused has no need to cooperate.

      1. Will those running against Trump for president recuse themselves from the proceedings in the Senate? It is somewhat ironic that he is being charged with “abusing his power” – and then those from the Senate who are running against him will use their power against him. Will their judgment be (considered) “fair”?

        1. RealClearPolitics had an article where someone went thru and listed all the Senators that shouldn’t have to recuse, he came up with just 12, 6 Dems and 6 GOP.

          1. Thanks for finding that article. I’m not sure I quite agree with his premise about the importance of the primaries, but he found that 55 Senators have explicitly taken a side already. That’s a lot.

            Here’s the article for other people that may be interested in reading it:
            https://www.realclearpolitics.com/articles/2019/12/22/the_jury_is_tainted_heres_how_to_fix_it_142009.html

        2. ” those from the Senate who are running against him will use their power against him.”

          voting to convict while numbering fewer than 67 has approximately zero effect. Not a very strong abuse of power, if one at all. (and, of course, voting to convict him if he’s actually guilty as charged isn’t any kind of abuse of power.)

      2. ” The House has to prove guilt, and the accused has no need to cooperate.”

        There’s nothing that says I can’t infer guilt from attempts to avoid having a trial, including declining to put on an actual defense. To acquit, 34+ Senators don’t have to find him actually innocent… they can decide that he’s actually guilty, but not deserving of removal. Or they can decide “hey, this guy’s in MY party and we only care about wrongdoing when THEY do it.” Seems that the latter is likely to carry the day.

    2. The Clinton impeachment called no witnesses; the trial was only on the record from the House.
      And, oh by the way, he has yet to be impeached. The House has voted on articles. Just like the house passing a bill does not make it law until the Senate weighs in, (and the President signs) the impeachment does not occur until the articles are passed to the Senate.

      1. To be fair, Longtobefree, I think it’s a debatable proposition that Trump “is impeached”.

        Even if we are in some sort of transition phase prior to the House transmitting the articles, they will do so eventually, or the Senate will move to hold the trial or dispose of the issue, eventually.

        1. POTUS Trump was impeached; 100%, no debate. The deed is done.

      2. There is impeachment and then removal (conviction). He has most certainly been impeached. Impeachment is basically just an indictment and that’s what was voted on when the articles of impeachment passed. He’s impeached. The next step is the trial, where the House acts as prosecutor and the Senate as jury.

        Clinton was impeached but not removed from office and went on to get re-elected. Trump could follow the same pattern.

        1. Clinton was impeached in 1998 and acquitted in 1999.

      3. “The Clinton impeachment called no witnesses; the trial was only on the record from the House.”

        Which, as I recall, no Democratic Senator deigned to look at.

        It was a combination of two things; First, that the Senators thought it beneath their dignity to be lectured by mere House members. And, second, everybody was afraid of being taken down by the same sort of extortion material dump as was used to take down Livingston.

        The impeachment was rolling along like a steam roller until Livingston got taken out, then everything changed. They dropped the investigation they’d just won a vote to conduct, they threw out most of the charges, and then went straight to a brief joke of a trial with a pre-determined acquittal.

        In the end, Filegate turned out to be Clinton’s most vital scandal, it really saved his ass.

        1. “Which, as I recall, no Democratic Senator deigned to look at.
          It was a combination of two things; First, that the Senators thought it beneath their dignity to be lectured by mere House members. And, second, everybody was afraid of being taken down by the same sort of extortion material dump as was used to take down Livingston.”

          Most significantly, few Americans wanted President Clinton removed over lying about cheating on his wife (since they guessed, correctly, that most of his leading critics leading the impeachment were also guilty of doing so, but just hadn’t been maneuvered into doing so under oath.)

    3. I’m all for a thorough investigation, and the house didn’t do one.

      I think the best way would be to start with a complete investigation of Burisma, Hunter Biden, and what the leads the Ukrainian prosecutor had when he was fired. But it can’t be rushed, probably should be finished by election day though.

      1. Why does Hunter Biden (and by extension, his father) need to be investigated to know whether Trump engaged in quid pro quo for personal reasons? Whether or not Hunter Biden (and by political extension, his father) are guilty of something is irrelevant to whether Trump tried to extort personal benefit by waylaying a Congressionally approved aid package to a country under attack by a mutual enemy. The Biden’s potential guilt doesn’t vindicate Trump in the slightest.

        “I want you to do me a favor, though…”

        1. Shawn,
          Anyone who says that they want a “full investigation” and then goes on to talk about the Bidens, while also NOT demanding the immediate testimony of all the witnesses Trump is hiding from the American people and not demanding the documents Trump is hiding from the American people . . . well, those useful idiots can safely be ignored. Cuz that’s pure hackery, of a particularly eye-rolling type.

          (I note that the Senate has its own oversight and investigative committees, so there is NOTHING currently preventing the Senate from starting an investigation of the Bidens. There is zero reason for the Republicans to be jumping up and down, whining about the House not including the Bidens in its impeachment hearing–other than the political mileage Trump gets from this sort of distraction, of course.)

          1. People tell us till it seems like a mis-sold lie that impeachment is a political act.

            And then people complain about “hackery” and diminish the political mileage to be gained by one party if that party is allowed to adduce the same species of tangential and circumstantial testimony as has the other party.

            Anyone with two eyes can see that it’s perfectly proper for the “political mileage Trump gets” to offset the political mileage the Adam Schiff All-Stars have managed to eke out. The Democrats turned impeachment into a show of nakedly partisan political force but (somehow) didn’t reckon on the Senate behaving in kind. Eye-rolling hackery indeed.

          2. I’d like to see Trump asked the hard questions: What did he know about Hunter Biden and Burisma and when did he know it?

            Surely if his state of mind in asking for the investigation is germane, and everyone says it is, then it’s important to know just what he knew about Biden-Burisma corruption and how accurate that information was.

            1. Except how accurate doesn’t matter.

            2. He knew about it in 2016 when Politico, NYT, the Hill, and others reported on it. There is no new knowledge from Trump’s request, which means there wasn’t any actual gain there. Only the ignorant are pushing the political gain angle. It is stupid.

              1. Lol no politics there, and if you disagree you are a stupid ignorant!

        2. Actually it was “I want you to do US a favor, though…” …..and proceeds to recommend taking to the U.S. Attorney General.

          If there is a probable cause and reasonable suspicion to investigate Ukraine interference and Biden, that does weigh in Trump’s favor. It is highly relevant. The Obama administration made many requests to foreign governments in investigating Trump, and apparently the probable cause there was extremely thin and the course of the investigation was in large part completely baseless.

          So, I agree that an exhaustive investigation of Bidens is not needed to know whether Trump did something wrong, but there needs to be an examination of it up to a point.

          1. As DMN explainins in this thread, you are wrong about working with Barr.

          2. “If there is a probable cause and reasonable suspicion to investigate Ukraine interference and Biden, that does weigh in Trump’s favor. It is highly relevant.”

            If there was probable cause and reasonable suspicion to investigate Ukraine interference and/or Biden, he doesn’t need to go asking favors to get an investigation. Mr. Barr reports directly to him, and has a significant array of law-enforcement agencies to deploy in pursuit of such an investigation.

            But… there isn’t even an allegation that Mr. Biden ever acted at the behest of the corrupt men who employed his son.

        3. Whether or not Hunter Biden (and by political extension, his father) are guilty of something is irrelevant to whether Trump tried to extort personal benefit by waylaying a Congressionally approved aid package to a country under attack by a mutual enemy. The Biden’s potential guilt doesn’t vindicate Trump in the slightest.

          That’s truly bizarre.

          There’s no actual evidence that Trump “tried to extort a personal benefit” – that is merely a second remove inference, as to Trump’s motive, from the first remove inference, as to possible US domestic political implications of an Ukrainian investigation into Biden, from the actual evidence – that Trump sought an investigation.

          Now there’s no reason at all for you to refrain from inferring whatever you like, but whether or not there’s a reasonable justification for an investigation into the Bidens and their Ukrainian adventures, is directly relevant to how justified your inference as to Trump’s motives may be.

          Note, that there is a reasonable justification does not of itself prevent Trump’s motive being personal, if it was – Trump’s motive was whatever Trump’s motive was – but if you have no actual evidence of motive and you are relying purely on inference, then the existence of a reasonable justification for an investigation makes the task of proof of bad motive an order of magnitude harder.

          1. The evidence that supports the conclusion that Trump was motivated by personal, political gain is:

            1) He only demanded an announcement of an investigation, not an investigation.

            2) He tasked his personal attorney, not the DoJ, to pressure the Ukrainian government.

            3) The only American citizens he has any interest in investigating are Joe and Hunter Biden.

            4) After getting caught, he backed down as if he did something wrong.

            5) To this very day, he insists there was no quid pro quo even though he ought to be proud to condition military aid on weeding out corruption.

            1. 1) is obviously untrue – Sondland’s second or third hand evidence claims what you do, but the actual transcript of Trump’s own words requests the reality and does not even mention an announcement.

              1. Trump said, “Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.”

                That statement does not preclude an announcement satisfying “whatever you can do.”

                1. 🙂 good one

                  So we seem to have :

                  He only demanded an announcement of an investigation, not an investigation.

                  morphing into

                  “whatever you can do”

                  doesn’t preclude an announcement.

                  And you only got that far by clipping off the very next sentence :

                  “Biden went around bragging that he stopped the prosecution, so if you can look into it…..It sounds horrible to me.”

                  Now, hand on heart, does an “announcement” fall within the probable, nay even merely possible, constructions of “Biden went around bragging that he stopped the prosecution, so if you can look into it” ?

                  1. We have Sondland’s testimony that he only demanded an announcement coupled with “whatever you can do” which does not conflict with Sondland’s testimony. And with my hand on my heart, “so if you can look into it” falls within the possibility of persuading Zelensky to make an announcement.

                    1. Sondland directly said Trump never demanded any pid pro quo for aid. He mentioned only in his opening statement a pid pro quo for a meeting. He later refuted that argument during his live testimony.

                      Again, you keep proving you know jack shit about what was actually on record.

                    2. Trump told Sondland there was no quid pro quo only after he got caught. That’s consistent with “To this very day, he insists there was no quid pro quo even though he ought to be proud to condition military aid on weeding out corruption.”

                  2. Lee,

                    Sondland testified that Trump only wanted an announcement. Yes, the requested favor on the call was “if you can look into it.” But it would hardly be unusual to clarify the details of the request later and we have testimony from Sondland that Trump’s focus was on the announcement. There is no testimony to the contrary. So, the answer to you question is decidedly yes.

                    Now, there are witnesses who might have first hand knowledge of the exact nature of the favor Trump wanted in exchange for releasing the aid? Sure. But Trump has directed them not to testify. The best evidence we have is Sondland’s testimony (as well as evidence that Zelensky was preparing to make an announcement on CNN, then bailed when the aid was released) and there is no real reason to doubt his testimony against a man to whom he donated large sums and is otherwise friendly with.

                    (Of course, even if Trump wanted an actual investigation, that doesn’t make much difference. The point, as Josh and Mitt Romney and most thinking people understand, was to damage his most likely 2020 opponent.)

                    1. Sondland *presumed* Trump only wanted an announcement. That is all Sondland’s testimony has told us.

                      (Most thinking people understand that investigations are not usually predetermined to a preferred outcome: the investigation could have hurt Biden, or it could have helped him.)

                    2. Vaughn,

                      “Most thinking people understand that investigations are not usually predetermined to a preferred outcome.”

                      When the President personally requests an investigation of his opponent, do you think that general presumption holds? That presumption is why we generally prefer for less political professionals to initiate investigations and prosecutions. Venezuela does things differently. Maybe you like the Venezuelan system?

                      “the investigation could have hurt Biden, or it could have helped him”

                      Be serious. Biden has been hurt even without any investigation. It is extremely rare that an investigation helps the person being investigated more than they would have been helped by never being investigated in the first place.

                      Hillary was investigated and not charged with any crime. Did that help her? Does Trump feel like the Mueller investigation helped him? (I presume you believe, falsely, that the Mueller investigation exonerate him of any wrongdoing.)

                      The mere fact of an investigation creates the impression of wrongdoing in the minds of many. Trump knew this, which is why it is a plausible personal motive. (And the testimony is that he wanted an announcement in the U.S. media and there is evidence Zelensky was arranging a CNN interview to meet this demand until the whistleblower complaint came to the DNI’s (and presumably Trump’s) attention and the aid was released and Zelensky canceled the interview. Again, you have to go all in on coincidences to avoid the otherwise obvious conclusion.

                    3. NOVA,

                      I think the issue is that the investigation is downstream of the impression of wrongdoing and not, as you insist, the other way around.

                      This is true of Hillary and her handling of emails. And, had there been an investigation, it would be true of the Bidens and their entanglements with one of the Ukraine’s most corrupt oligarchs. The impression of wrongdoing is the cause, not the effect, of the investigations.

                      Hillary was charged with no crime; few believe they would have been so lucky in the same position. That’s probably why the investigation still hurt her.

                      Mueller could not charge Trump with colluding with Russia and this helped Trump undermine the Democrats main charge against him. Factor the derivative benefit of preparing the battlefield for subsequent investigations by Horowitz and Durham and I’d say Mueller’s investigation has helped Trump without question. The obstruction stuff may allow Trump’s critics to assert that the report did not exonerate him of *all* wrongdoing. Big whoop.

                      Trump may well have had a personal motive in prompting the Ukraine to investigate the Bidens. But it would’ve cemented the impression of wrongdoing rather than created it.

                    4. Vaughn,

                      “I think the issue is that the investigation is downstream of the impression of wrongdoing and not, as you insist, the other way around.”

                      You are assuming several things, including, most pertinently, that (a) there was any hint of criminal wrongdoing by either Biden (neither has been investigated or charged, despite this being well-known since 2013), no investigation by the DOJ, no investigation by the Republican-controlled House (prior to 2018), no investigation by the Republican-controlled Senate. Come on. If there was a genuine hint of criminal wrongdoing, one of these Republican-controlled entities would have investigated the matter prior to the 2020 campaign. And, in fact, they still haven’t. But Trump’s purpose was genuine concern about corruption, while Ivanka meets has dinner with the Chinese leader and gets a valuable trademark pretty much the same day? Be serious.

                      Also, the fact that investigations typically harm the reputation of the one being investigated is why DOJ has a policy of publicizing investigations. Yet, here, Trump wanted an announcement. This further supports the conclusion that Trump wanted to damage Biden’s reputation.

                      “The impression of wrongdoing is the cause, not the effect, of the investigations.”

                      No. A genuine impression of wrongdoing may cause an investigation. But an investigation also, necessarily, either causes (if there had been no prior cause) or enhances (if there was already a hint) the impression of wrongdoing. You assume once there is a hint of wrongdoing, all damage is done. No. Rumors of possible “wrongdoing” whether just ordinary non-criminal grift, actual corruption, or, worse, illegal conduct, become justified and more believed if an actual criminal investigation is initiated. Don’t pretend otherwise.

                      “I’d say Mueller’s investigation has helped Trump without question.” And yet he continues to complain about it and his defenders whine about unfairness. If it helped him, how is it unfair?

                      “Trump may well have had a personal motive in prompting the Ukraine to investigate the Bidens. But it would’ve cemented the impression of wrongdoing rather than created it.”

                      No, only a conviction by an impartial jury would have cemented an impression of wrongdoing, at least to rational people. But the harm done to their reputation would have been increased by an investigation. You are right about that. Hence, Trump’s motive to request the favor of an investigation and, according to Sondland, focus on announcement rather than an actual investigation.

                      You don’t seem to really be arguing against the idea that an investigation would be damaging to the Bidens. And you shouldn’t, because we all know announcing a criminal investigation of someone causes a certain percent of people to assume the person is guilty of something and makes more people suspicious that the person might be guilty of something, and, therefore, makes a significant number of people less likely to vote for the person being investigated for criminal conduct (regardless of the outcome).

                    5. “Will no one rid me of this troublesome priest?”

              2. 1) is obviously untrue – Sondland’s second or third hand evidence claims what you do, but the actual transcript of Trump’s own words requests the reality and does not even mention an announcement.

                I’m unclear how Sondland’s (firsthand) evidence supporting Josh’s argument makes it “obviously untrue” rather than “obviously true.”

                (Setting aside that it’s not an “actual transcript” in the first place, you’re playing dumb. Trump’s entire career, both before and since he entered politics, reflects that he is not a details person. He gives a general idea of what he wants and then delegates to his staff to get it done. In this case he spoke generally about Biden investigations and then told Zelensky to talk to Rudy about the details. And Rudy and Sondland and such explained that they wanted an announcement.)

                1. I’m unclear how Sondland’s (firsthand) evidence supporting Josh’s argument makes it “obviously untrue” rather than “obviously true.”

                  Josh’s proposition was that Trump only wanted an announcement, not an actual investigation.

                  If Trump had said on live TV “I only want an announcement, not an investigation” that would be first hand evidence for Josh’s propositon. We hear it direct from the horse’s mouth.

                  If Sondland had said “Trump told me he only wanted an announcement not an investigation” that would be second hand. We hear it from a fellow who says he heard what the horse said.

                  If Sondland had said “Giuliani told me that Trump told him that he only wanted an announcement not an investigation” that would be third hand. We hear it from a fellow says he heard it from a fellow who says he heard it from the horse.

                  My understanding is that we have a version the last example – albeit vaguer and couched in Sondland’s impressions and understandings and inferences, rather than attempts to quote Giuliani’s words.

                  Meanwhile we have the transcript (sic) in which Trump invites Zelensky to “look into it” and fails to mention anything about any announcement. That would be first hand – an official record of the horse’s actual words. In which the horse is saying precisely the opposite of what Josh’s proposition is offering.

                  So Josh’s proposition is “obviously untrue” because the transcript (sic) plainly contradicts it.

                  1. Lee,

                    Trump telling Zelensky that he wants Zelensky to “look into it” is hardly “the opposite” of wanting Zelensky to announce that he is “looking into it.” Trump’s defenders have been saying that the point of wanting the announcement was to ensure he would look into it. Get with the program.

                    The best evidence is that Trump wanted the announcement. There isn’t any evidence against that proposition. But we could certainly have Guiliani testify to this if Trump believes he will support that story. Or Bolton. Or any number of other people involved in this directly. The one who was involved (Sondland) testified that Trump wanted an announcement, which is highly irregular and typically not done precisely because of the reputational damage it causes.

                    The “transcript (sic)” not only doesn’t “plainly contradict[] it”, it doesn’t even contradict it a little bit. He says look into it and then says talk to Rudy for details. Sondland says the details included an announcement. A perfectly consistent piecing together of the pieces.

                    It doesn’t mean it is true beyond a reasonable doubt, but the only people who could contradict it are Trump and people Trump has ordered not to give evidence. The best evidence is that Trump wanted an announcement.

                    1. Trump telling Zelensky that he wants Zelensky to “look into it” is hardly “the opposite” of wanting Zelensky to announce that he is “looking into it.”

                      Is it a bird, is it a plane ? No, it’s another set of goalposts on the move. Wanting Zelensky to “look into it” is indeed the opposite of wanting Zelensky to announce an investgation, but not wanting him actually to do one. Because it’s a direct suggestion that he investigate. That’s what “look into it” means.

                      The best evidence is that Trump wanted the announcement. There isn’t any evidence against that proposition.

                      That wasn’t Josh’s proposition. His proposition was that the (alleged) fact that Trump only wanted an announcement of an invstigation, but not an actual investigation, is evidence that Trump could not have had the justifiable motive of wanting an inquiry into possible corruption. But there is evidence that Trump wanted an actual investigation – his own words in the transcript. “Look into it.”

                      Sondland’s third remove evidence (itself largely his own inference) is that Trump only wanted an announcement. Trump’s first hand direct speech refutes that.

                    2. My proposition was Trump conditioned the release of aid on an announcement of an investigation, not on an investigation. Not requiring an investigation is one piece of evidence that Trump was not motivated by weeding our corruption. As I said previously, “if you can look into it” is consistent with persuading Zelesnky to make an announcement.

                    3. Lee,

                      “Trump’s first hand direct speech refutes that.”

                      You don’t understand the meaning of “refute.”

                      Your friend Brett Bellmore put it pretty well:

                      “Sure, somebody who just wants an announcement, and nothing more, might publicly communicate their desire for an investigation, and privately clarify that they just want one announced, don’t bother actually investigating.”

                      Maybe you Trumpkins could have a team meeting on matters of strategy, basic logic, and the meaning of words like “refute.” Brett seems to have a good handle on this one, he could save you some embarrassment, Lee.

                      Trump’s call doesn’t refute the evidence that Trump’s team conditioned aid on an announcement rather than on an investigation. If you can’t understand that, I don’t see there is much help for you. Even Brett can acknowledge that basic fact in the midst of his efforts to defend Trump.

                  2. “Josh’s proposition was that Trump only wanted an announcement, not an actual investigation.”

                    You’re ignoring the other half of the evidence. If Trump wanted an investigation, there would have been one. Not conducted by Ukraine, but by the US federal law-enforcement agencies.

                    1. Very good point.

            2. 1: To all actual evidence of this, Trump requested an investigation and not an announcement. Sondland testified to the contrary, but that was induction by someone who disliked Trump. When a third hand assumption is contradicted by first hand evidence, I know which of the two I believe.

              2: Trump obviously distrusts much of the DOJ, and revelations about what happened during the initial campaign have shown that this distrust is not entirely without basis. Giuliani was personally loyal to Trump and has been a government official in the past. While it is unusual, I see no reason that this is per-se a problem. He also asked that Ukraine coordinate with Bolton, which undermines this point.

              3: So what? Trump wants a specific person investigated because he has probable cause to think that he is a criminal. That’s literally what every congressman who ran on impeachment did.

              4: Please elaborate. He backed down? How? Even if he did, that would be indicative of a politician who stepped into a sensitive area more than any actual indication of wrongdoing.

              5: This seems to be a catch-22. Quid-pro-quo would be considered corruption. However because he was not claiming that there was quid-pro-quo, that is evidence against him?

              1. 1) See my above reply to Lee. Also, perhaps we should hear from people with first-hand knowledge who could verify or refute Sondland’s testimony.

                2) The Deep State conspiracy is a weak defense. When did Trump ask Ukraine to coordinate with Bolton?

                3) As Mitt Romney said when Trump suggested China investigate Biden, “When the only American citizen President Trump singles out for China’s investigation is his political opponent in the midst of the Democratic nomination process, it strains credulity to suggest that it is anything other than politically motivated.”

                4) Trump backed down by releasing aid without getting an investigation.

                5) A quid pro quo does not imply corruption. Biden publicly bragged about withholding aid in order to get Shokin fired.

                1. 2) ON THE JULY 25TH PHONE CALL DUMBASS.

                  1. should be a response to working with his AG Barr.

                    1. Who’s the dumbass? The guy who doesn’t know that Bolton is spelled B-a-r-r? Or the guy who doesn’t know that Trump didn’t ask them to work with Barr, but rather said that he would have Barr contact them, and then didn’t because there was no legitimate investigation for Barr to contact them about? Oh, wait — both are you.

              2. Ben,

                In addition to Josh’s response.

                1. The request for a favor is not at all inconsistent with a later clarification that an announcement would satisfy Trump. Given Trump’s obvious motive to damage his most likely 2020 opponent, Sondland’s testimony is consistent with what we know of the facts of this case and of Trump.

                2. The defense that Trump really believes half-baked conspiracy theories and doesn’t trust the United States government he runs (“so-called Department of Justice”) is not really a defense to his unfitness for office.

                3. Trump does not have “probable cause” (that a child of a politician gets a cushy job is not “probable cause” of any crime) nor apparently does the FBI/DOJ and/or the Ukrainian government because no official actor who has to meet that criteria has actually initiated an investigation as far as we know.

                4. Note: Trumpists now are stuck with suggesting that it was coincidental that the hold on aid was initiated the same day as the July 25 request for a favor and the aid was released when the whistleblower complaint came to light. (And Zelensky canceled his CNN interview about the same time.) How many coincidences are you willing to swallow before you decide the string of coincidences is just too many?

                5. What Josh said.

                1. Given Trump’s obvious motive to damage his most likely 2020 opponent, Sondland’s testimony is consistent with what we know of the facts of this case and of Trump.

                  “Given” – yeah, well you see if you assume your conclusion, you’re liable to be able to prove it. But I’m not giving it to you. As I explained up top, Trump’s motive is a second level inference, and whether or not there’s a reasonable case for investigating the Bidens (whch there obviously is) goes directly to whether it’s easy or hard to prove Trump’s motive was personal benefit.

                  Trump does not have “probable cause” (that a child of a politician gets a cushy job is not “probable cause” of any crime) nor apparently does the FBI/DOJ and/or the Ukrainian government because no official actor who has to meet that criteria has actually initiated an investigation as far as we know.

                  You may have missed the IG’s report on the FISA abuse. You do not need probable cause to open an investigation. You don’t need anything beyond a vague suspicion based on a rumour, or even a hunch – which is why Horowitz concluded that there was adequate predicate for Crossfire Hurricane. Probable cause has to do with warrants, not investigations.

                  The defense that Trump really believes half-baked conspiracy theories and doesn’t trust the United States government he runs

                  Why on Earth would he trust the government he “runs” ? That would be the government which has been investigating him as a suspect Russian agent for the last three years. He’d be nuts to trust it. And Chuck Schumer agrees :

                  “Let me tell you: You take on the intelligence community — they have six ways from Sunday at getting back at you.”

                  1. NOVA,

                    In addition to Lee Moore’s response:

                    “Trumpists now are stuck with suggesting that it was coincidental that the hold on aid was initiated the same day as the July 25 request for a favor” The aid was placed on hold at the beginning of July and agencies had been informed of such hold by July 18. What do you take to be the special significance of the official withholding letter being signed on July 25?

                    “[T]he aid was released when the whistleblower complaint came to light.” Trump told Senator Ron Johnson on August 31st that Sen. Johnson would probably like the ultimate decision on releasing Ukraine aid. The Intel IG did not inform the House Intelligence Committee of an “urgent concern” that the DNI had overruled till September 9th.

                    You’re cherry-picking facts to make up “coincidences” that are convenient to your narrative. Nothing more than that – and it’s really not very persuasive.

                    Also what Lee said.

                    1. Come on,
                      The DNI certainly informed Trump when it came across their desk.

                    2. Vaughn,

                      Fair enough that Trump requested the hold on aid prior to the call, but they both happened the same month which is still “coincidental” timing. The DoD had certified that the Ukraine had taken the anti-corruption actions required to obtain the funds prior to the July hold. Arguing that Trump’s personal suspicion of Ukraine is sufficient to override Congress’s authorization and his own administrations verification that the funds would be properly used is highly questionable. A government run at the whim of one man is bad governance. Plus, aid had repeatedly been released to Ukraine under the Trump administration, so this hold is suspect for many reasons. The timing is very consistent with a hold to be used as leverage for the investigations (or announcements) that Trump wanted. Otherwise, it is a coincidence that other aid had been going to Ukraine and this time it was held up the same month as the favor request.

                      As Sarcastro pointed out, the DNI had the whistleblower complaint on August 26th and almost surely alerted Trump given the complaint was about Trump. The first time we hear Trump may release the aid is August 31st? To defend Trump, you do have to believe this is a coincidence.

                      So, Trump halts military aid in early July, asks for a favor in late July, learns of a whistleblower complaint in late August, then signals he will release the aid a week later in late August, then actually authorizes release of the aid in early September. This is either damning or a pretty remarkably coincidental sequence of events.

                      You are all in with coincidence, apparently. Quite a coincidence. And then we have testimony that it wasn’t such a coincidence.

                    3. NOVA,

                      You and coincidences!

                      The Ukrainian elections just happened. That’s a pretty significant change. Zelenskyy was not exactly a known quantity.

                      To defend Trump one doesn’t have to believe all this crud about coincidences. One just has to consider the other side of the story as one ought when trying to be objective. Ukraine was part of a raft of aid holds. The official reasons given by the OMB align. The string of coincidences are just an artefact of you filtering out so many datapoints that mess with your prior commitments.

                    4. Vaughn,

                      “One just has to consider the other side of the story as one ought when trying to be objective. Ukraine was part of a raft of aid holds.”

                      No, it wasn’t. The hold in Ukraine is wholly unrelated to any other holds. There was not “a raft of aid holds.” Besides, you said yourself that the Ukraine hold had something to do with Zelensky. Decide: were they all part of a raft or was the hold on aid to Ukraine due to recent developments in Ukraine?

                      Further, the official reasons given by the OMB align with bad intent by Trump. As far as I see, the only reason given by OMB is that the aid was held because Trump wanted it held. That’s what their recent memo said.

                      The timing remains: Trump ordered a hold on aid in July, in July Trump asks for a favor in response to Zelensky’s request for aid, in August DNI becomes aware of the whistleblower complaint, a week later Trump signals to Rob Johnson that the aid may be released, in September the hold is removed.

                      This is perfectly consistent with the narrative that Trump held the aid to pressure Ukraine to announce an investigation into the Bidens, but abandoned the plan when it became clear this improper use of the aid would become public knowledge. This perfect consistency with that narrative may be coincidental.

                      The other narrative is what? The aid was authorized by Congress for months, DoD had conducted the necessary anti-corruption verifications for months, then several months after Zelensky is inaugurated, Trump suddenly decides the aid should be held, then several months later after when nothing on the anti-corruption side had happened and there is no other apparent reason for the timing other than the impending deadline, Trump decides to release the aid but too late to fully meet the deadline. In other words, concerns about the deadline cut against your narrative and the actual chronology, not in favor of it.

                      One narrative fits the chronology (the corrupt intent to smear Biden) and one narrative does not (i.e., that it was just a routine hold that was lifted once anti-corruption efforts were verified and in time to ensure the aid was released before it expired).

                      You believe in coincidences and disregard objective analysis.

                  2. Lee,

                    It is just stupid to say that Trump doesn’t have a motive to damage Biden. Whether that motive was his reason for doing what he did is based on inference, but it fits the facts. Kind of a like when a spouse takes out a million dollar life insurance policy on their mysteriously murdered wife. It is a given they have a motive. It isn’t a given that they killed their wife or, if they did, that the life insurance was the reason they killed her. You are so eager to defend Trump that you are refusing to grant a given that is a given.

                    You obviously missed the comment I was responding to, claiming that Trump had probable cause. He didn’t, doesn’t. Before waxing poetic attempting to refute a point, maybe try to follow the thread. I know it can be difficult, but it stops you making an ass of yourself.

                    On your wholly unrelated point: Apparently, it is also true that no actual criminal justice agency has determined that there is a predicate to investigate the Bidens. It is highly unusual and inappropriate for the President of the United States to personally push for an investigation of his political opponent when the DOJ and FBI have not seen any reason to investigate and there are no facts to suggest any crime occurred, at least, no more than that there was a crime committed in relation to Jared Kushner’s business deals, Ivanka’s, or Don, Jr.’s. Which is why Trump even asking for the investigation, much less using U.S. military aid to coerce a foreign government to investigate his political rival, is beyond the pale. But you know that. Stop pretending otherwise.

                    Your Chuck Schumer quote is a non sequitur.

                    Trump trusting Putin more than the combined conclusions of the FBI, DOJ, CIA, NSA, and Senate Intelligence Committee is dangerous. You are defending that? Lol. Reagan is dizzy.

                    1. It is just stupid to say that Trump doesn’t have a motive to damage Biden. Whether that motive was his reason for doing what he did is based on inference

                      Motive, schmotive.

                      An investigation of Biden might have benefitted Trump personally, though at the July 2019 stage of the Dem primaries, it would be a heavily discounted benefit. Biden might not win the primary, and even if he did he might not be the strongest candidate. But sure, personal political benefit is a possible motive for Trump’s action.

                      But we have no evidence that this was his actual motive – and it is his actual motive is relevant for concluding whether his conduct is blameworthy.

                      Likewise, Biden had a possible corrupt motive in using US financial threats to force the Ukrainian President to fire a prosecutor he didn’t want to fire. But that doesn’t make it certain that corruption was Biden’s motive in fact.

                      But there’s certainly enough reasonable suspicion, given (sic) Hunter Biden’s obvious unfitness for his lucrative job, to justify an investigation.

                      But with Biden, it seems, a possible corrupt motive is insufficent to justify even an investigation, whereas with Trump, a possible corrupt motive is sufficient not merely for an investigation, but for conviction.

                    2. “Apparently, it is also true that no actual criminal justice agency has determined that there is a predicate to investigate the Bidens.”

                      The word *apparently* does an awful lot of work here. There is adequate predication for starting an investigation of Hunter Biden; this is true whether you know of any criminal justice agency investigation or not.

                    3. Lee,

                      “But there’s certainly enough reasonable suspicion, given (sic) Hunter Biden’s obvious unfitness for his lucrative job, to justify an investigation.”

                      Certainly does not mean what you think it means.

                      That a politician’s child is unfit for a lucrative job is not “reasonable suspicion” for an investigation. Otherwise, very nearly every member of Congress (and definitely Trump) should be investigated.

                      The U.S. pushed for more investigation of Burisma, not less. The investigation had concluded when Shokin was forced out. The investigation never had anything to do with Hunter Biden. For there to be suspicion, you need to link the job to something. That there were perfectly legitimate reasons to force Shokin out (IMF, Britain, World Bank, EU, anti-corruption organizations all wanted him gone) and forcing him out would have accomplished nothing for Biden (there was no investigation even tangentially related to Hunter ongoing or anticipated at the time).

                      Corrupt motive on the part of Trump is the theory most consistent with the known facts, including the fact that there was “certainly” no reasonable suspicion of a crime committed by any Biden.

                      Corrupt motive on the part of Biden in the pressuring of Ukraine to fire Shokin is inconsistent with all of the evidence. It doesn’t make sense. Including that he publicly bragged about doing it. The timeline and the fact that multiple independent entities wanted Shokin gone all undercut the theory that Biden had any improper motives.

                      (This is a good time to also note that Trump praised Shokin on that call. Shokin is widely known to be extremely corrupt. You believe Trump had pure motives. Seriously?)

                    4. Vaughn,

                      “The word *apparently* does an awful lot of work here. There is adequate predication for starting an investigation of Hunter Biden; this is true whether you know of any criminal justice agency investigation or not.”

                      No, it doesn’t do much work at all, other than acknowledge quite unlikely possibilities. As far as we know, no criminal agency (or Congressional subcommittee) has initiated an investigation. It is possible they have but we don’t know about it, though that is unlikely given this story’s prominence. I like to be accurate, that is all.

                      What is the adequate predication for investigating Hunter Biden? That he has a cushy job? So there is adequate predicate for investigating Jared Kushner, Don Jr., Ivanka, and Eric Trump, as well as countless other sons and daughters of congresspeople?

                      Be serious. Just because none of us like that the children of powerful people get well-paid jobs for which they aren’t qualified doesn’t mean we should suspect them of a crime. There isn’t a whiff of criminality. Even if there were circumstances sufficient to warrant an investigation into either Biden, Trump’s personal involvement (and push for an announcement and use of U.S. aid to try to coerce an a foreign investigation) is highly irregular and inconsistent with the impartial administration of justice.

                    5. Nova : Certainly does not mean what you think it means.
                      That a politician’s child is unfit for a lucrative job is not “reasonable suspicion” for an investigation.

                      I refer you back to the IG report. The thinnest of suspicions is adequate, per Horowitz. And the son of a politico getting a fat sinecure, while his Dad strongarms a foreign government to sack the prosecutor who is lookig into the company providing the sinecure is about forty times as much predicate as the FBI had for opening an investigation into Papadopoulos. Indeed it’s far more predicate than for opening an investigation into Trump.

                      The investigation had concluded when Shokin was forced out.

                      Shokin says different.

                      This is a good time to also note that Trump praised Shokin on that call. Shokin is widely known to be extremely corrupt.

                      So what has he been convicted of ?

                      As Giuliani has pointed out, if Shokin is corrupt, he’s extraordinarily bad at it, since his lifestyle is inconsistent with being good at it.

                    6. NOVA,

                      “What is the adequate predication for investigating Hunter Biden?” The Latvian Office for Prevention of Laundering of Proceeds Derived from Criminal Activities was investigating suspicious payments to Biden and Burisma-Friends in 2016. This has been confirmed by the Latvian Embassy.

                      If we know it, then people with official capacities to investigate such would have known. Whether they did investigate is neither here nor there; there was adequate predication to start an investigation.

                    7. What is the adequate predication for investigating Hunter Biden? That he has a cushy job?

                      Or to put it another way: investigating Hunter Biden for what?

                    8. “What is the adequate predication for investigating Hunter Biden?” The Latvian Office for Prevention of Laundering of Proceeds Derived from Criminal Activities was investigating suspicious payments to Biden and Burisma-Friends in 2016. This has been confirmed by the Latvian Embassy.

                      False. The Latvian government flagged some transactions in case anyone wanted to look at them. They did not investigate anyone for anything.

                    9. But we have no evidence that this was his actual motive – and it is his actual motive is relevant for concluding whether his conduct is blameworthy.

                      But we do have evidence that this was his actual motive: the lack of any other rational explanation for Trump’s conduct.

                    10. But we do have evidence that this was his actual motive: the lack of any other rational explanation for Trump’s conduct.

                      To elaborate: some Trumpkins think/pretend to think that we need a recording of Trump saying, “I want to smear my rival,” or at the very least someone testifying that they heard Trump say, “I want to smear my rival,” in order to conclude that Trump wanted to smear his rival. But: no. Certainly having such evidence would be ideal, but it is absolutely not required.

                      If it were, the whole criminal justice reform movement could close up shop and go home, because the jails would be substantially emptied out if courts were unable to make findings as to motive based on circumstantial evidence. In this case, we can look at what Trump said and did and see it as inconsistent with innocent explanations, and therefore conclude that corrupt motive by far best fits the evidence.

                    11. Lee,

                      You are having fun with your interpretation of the IG, no doubt. But that’s not what it says.

                      “And the son of a politico getting a fat sinecure, while his Dad strongarms a foreign government to sack the prosecutor who is lookig into the company providing the sinecure”

                      You know this is not true. First, Biden was acting at the direction of and/or together with U.S. policy-makers who did not have the motive you attribute to Biden. Second, he was acting in concert with multiple foreign actors (Britain, EU, IMF, World Bank, various anti-corruption organizations) who also did have the motive you attribute to Biden. Third, you know that the prosecutor was not looking into the company “while” Biden encouraged his sacking, but instead had allowed that investigation to go dormant which is one of the reasons the every non-corrupt actor wanted him sacked.

                      “Shokin says different.”

                      Official records disagree with Shokin. Shokin is corrupt. Shokin has obvious motive to lie on this point given Biden helped get him sacked. Shokin’s deputy disputes Shokin’s account. That you accept Shokin’s account says something about you and your objectivity.

                      “So what has [Shokin] been convicted of ?”

                      No convictions, but overwhelming evidence that he enabled corruption and used his position to held his superiors, e.g., Poroshenko, to extract bribes from the people he did not prosecute (no major convictions during his time in office). See The Independent.

                      And, for example, “When the internal-affairs unit launched a sting operation against a friend of Shokin’s, Shokin cracked down on Sakvarelidze’s team, prompting anti-corruption activists to protest. ” New Yorker (December 23, 2019).

                      Shokin made rapid career advancements which appear based on little more than his relationship with powerful people and his willingness to enable their corruption. He let major investigations, including the Burisma investigation, go dormant. He was corrupt. He is not the good guy Trump pretends he was to support his crackpot narrative. You should be smarter than Trump.

                    12. Vaughn,

                      “The Latvian Office for Prevention of Laundering of Proceeds Derived from Criminal Activities was investigating suspicious payments to Biden and Burisma-Friends in 2016. This has been confirmed by the Latvian Embassy.”

                      No, this isn’t confirmed. The existence of a memo that you have not faithfully summarized has, according to John Solomon, been confirmed. John Solomon (the man who pushes very dubious pro-Trump stories sourced, like this one, with very thin documentation usually procured through characters as savory as the now-indicted Lev Parnas) procured the document which has not been verified and which simply says Latvia was investigating Burisma wire transfers but does not implicate Hunter in any wrongdoing and the investigation (not of Hunter) appears to have been closed without finding anyone (at Burisma or otherwise) did anything wrong in connection with the wire transfers.

                      “If we know it, then …..”

                      Yeah, but we don’t know it, do we? We have innuendo, but not much else. And even the innuendo doesn’t implicate the Bidens. Try again.

                    13. “Shokin says different.”

                      Official records disagree with Shokin. Shokin is corrupt. Shokin has obvious motive to lie on this point given Biden helped get him sacked. Shokin’s deputy disputes Shokin’s account. That you accept Shokin’s account says something about you and your objectivity.

                      I would also add that Shokin did not make this claim in 2016, when he was actually in a position to act on it. Shokin made this claim in 2019, at the behest of Firtash’s Trumpkin lawyers.

                2. 1. Do you understand the difference between “not at all inconsistent with” and “evidence of”?

                  Sure, somebody who just wants an announcement, and nothing more, might publicly communicate their desire for an investigation, and privately clarify that they just want one announced, don’t bother actually investigating.

                  But then you need to demonstrate the existence of that private communication, not just assume it.

                  2. At this point, that the DOJ was operating against Trump is pretty fully baked, and on the verge of being burnt.

                  1. Brett,

                    1. You have explained the point well. And, happily, we have evidence of that private communication from a Trump appointee. We can’t have first hand testimony because Trump won’t let those who would have that information testify.

                    2. “that the DOJ was operating against Trump is pretty fully baked.”

                    Hardly.

                    Trump and his appointees had run the DOJ for well over two years prior to his call. Barr is investigating plenty of things, but apparently not this. The question “why not” answers itself.

                    This is a perfect example of why Presidents should not personally involve themselves in investigatory and prosecutorial decisions involving their political rivals. Or do you want to be Venezuela?

              3. “Trump wants a specific person investigated because he has probable cause to think that he is a criminal.”

                He does? You’d think he’d have brought that up by now. Why is he keeping it secret?

            3. 1) Strictly false. Nothing on record states he only wanted an announcement. Only assertions and opinions even implicate this.

              2) In the July 25th phone call he asks Zelensky to call his AG Barr to work with him.

              3) Based on what evidence? You are making assertions that are completely unsourced.

              4) The September 30th deadline was approaching, money was released. Similar delays had been put in for Lebanon and South American Countries.

              5) All delays to every country were based on corruption reviews of the country per the OMB member testimony to Schiff.

              It’s like you fucking know nothing about the actual case.

              1. 2) DoJ spokesperson Kerri Kupec: “The president has not spoken with the attorney general about having Ukraine investigate anything relating to former Vice President Biden or his son. The president has not asked the attorney general to contact Ukraine — on this or any other matter. The attorney general has not communicated with Ukraine — on this or any other subject. Nor has the attorney general discussed this matter, or anything relating to Ukraine, with Rudy Giuliani.”

              2. JesseAz,

                “1) Strictly false. Nothing on the record states he only wanted an announcement.”

                Sondland: “He had to announce the investigations. He didn’t actually have to do them, as I understood it.”

                That is on the record.

                3. “Based on what evidence? You are making assertions that are completely unsourced.”

                We don’t know of any other such requests by Trump for foreign governments to investigate other U.S. citizens. It is highly unusual for the President of the United States to personally request that another country investigate a U.S. citizen for possible violation of foreign law. That the only instant we know of where this happened involved Trump and his political rival is highly suspicious. If you think the President personally requesting foreign investigations of U.S. citizens is standard practice, or even that this wasn’t a unique incident, I think the burden of showing that is on you where it is not usual practice and we don’t know of any other requests like this.

                4. “The September 30th deadline was approaching….Similar delays had been put in for Lebanon and South American countries.” The DoD had cleared the money for release, then the hold, then the request for a favor, then the whistleblower complaint became known by Trump’s DNI, then the hold was released, then the delay resulted in missing the deadline. If Trump was concerned about the deadline, Trump waited too long and had been warned many times before. The timeline works much more cleanly that Trump wanted to pressure Ukraine for the investigation but abandoned the plan when he saw it would likely become public and began a CYA “No quid pro quo” campaign.

                Jesse, it’s like you fucking know nothing about the actual case.

              3. 2) In the July 25th phone call he asks Zelensky to call his AG Barr to work with him.

                I told you above, but also told you in previous threads, that this is false.

              4. Jesse, you keep repeatedly getting owned and then typing the same dang thing next thread.

                Even if all these replies to you are wrong, you’d think you would adapt at least a bit, if you cared about more than venting spleen.

        4. The personal reasons only works if there was no valid reason for an investigation. Aside from Biden and some other idiot liberals, nobody is saying the Hunter situation doesn’t look shady. Obama’s team itself prepped it’s appointees to answer and direct questions about Hunter to the State department.

          You’re running off an assumption that the only valid reason to look into Burisma is for political gain. It is an assumption idiots use to avoid the actual corruption and appearance of corruption of the Democrats. You probably also think flying on AF2 to get a 1.5 billion dollar investment from China was innocent, and since Biden is running for office nobody is allowed to look into it. It’s a simpleton view, but it’s yours.

          1. Jesse,

            “The personal reasons only works if there was no valid reason for an investigation.”

            First, no. That’s not how the world works. Among other things, the U.S. President generally does not request foreign criminal investigations of U.S. citizens. That he did in this case (and apparently no other case) and that it involved his political rival is highly suspicious.

            Second, you are conflating “shady” with “might be a crime.” No one in Ukraine saw any reason to initiate an investigation of Hunter, because Ukraine never initiated any such investigation. No law enforcement professionals in the U.S. saw any reason to investigate Hunter for the commission of any crime. That the issue was looked into for the appearance of a conflict of interest actually weakens the case that the situation needed to be investigated as a crime.

            “You’re running off an assumption that the only valid reason to look into Burisma is for political gain…” Actually, Trump wanted an investigation (or announcement of an investigation) of the Bidens, not Burisma. Further, no law enforcement agency has initiated an investigation of the Bidens and the investigation of Burisma’s owner had nothing to do with Hunter Biden. Trump leading the charge to investigate his political rival is the definition of “shady.” That is the kind of thing that happens in Russia, Venezuela, North Korea, and other corrupt countries.

            “You probably also think flying on AF2 to get a 1.5 billion dollar investment from China was innocent.” Debunked. https://www.washingtonpost.com/politics/2019/09/26/trumps-false-claims-about-hunter-bidens-china-dealings/

            And do you think it will be appropriate for a President Biden or President Klobuchar to personally ask for an investigation into Ivanka Trump for getting Chinese trademarks days before and after President Trump vowed to save jobs at ZTE, a major Chinese telecom, in 2018, and, in 2017, on the same day she sat next to Chinese President Xi Jinping at a dinner? It would be highly inappropriate and grounds for impeachment, especially if President Biden used U.S. government resources to exert pressure on China to get that investigation.

            You are advocating to allow the U.S. President to pursue personal vendettas under the guise of pursuing justice.

          2. “nobody is saying the Hunter situation doesn’t look shady”B

            Because (duh) the only people talking about “The Hunter situation” want you to think it looks shady.

            Here’s the thing… “the Hunter situation” is this: Some quite possibly shady dudes gave Hunter Biden a sweet job. And… what? Where is there even a hint of something Daddy Biden did that he shouldn’t have done? What, specifically, is the allegation of wrongdoing on Joe’s part?

      2. “I’m all for a thorough investigation, and the house didn’t do one.
        I think the best way would be to start with a complete investigation of Burisma, Hunter Biden, and what the leads the Ukrainian prosecutor had when he was fired.”

        So, you want to investigate what crimes Mr. Trump may have committed, by examining crimes he isn’t alleged to have committed?

    4. Another democrat who believes the onus is to prove your innocence. Pathetic.

      1. This isn’t a criminal case. Innocence isn’t the issue. Fitness for office is.

  3. Id Roberts has to recuse himself, so should RBG for her obviously partisan comments.

    I wonder if that would come up in briefs or in oral arguments. I also wonder if it would come up in their chambers, but we are likely to never know that.

    1. “Id Roberts has to recuse himself, so should RBG for her obviously partisan comments”

      RBG has no role in the impeachment trial. Roberts does.

  4. To resolve the mootness inquiry, the Court may have to decide if the President has in fact been impeached.

    Your colleague Whittington insists that whether he has been impeached or not yet has “no practical consequences” for Trump. Perhaps you might draw his attention to your view.

  5. “First, DOJ contends that the case is not moot. The subpoena was premised on the House’s oversight and legislative powers, apart from its impeachment powers.”

    I’d say that most activities of the executive are either

    1) Directly authorized by the Constitution (like pardons), in which case the House could investigate to see if an amendment to the Constitution were necessary to prevent abuses

    or

    2) authorized by Congressional statute, in which case the House would have a legitimate interest in seeing how the powers it granted – and the money it appropriated – has been used

    or

    3) unauthorized either by statute or Constitution, in which case the House would have an interest in knowing about the situation in order to prepare remedial legislation and/or articles of impeachment.

    Executive privilege is bollocks – *everyone* would like their private conversations confidential, the fact that the conversations happen to be with the President or his people on matters of the public interest makes the Congressional interest in the information greater, not less.

    1. I would say there is such a thing as executive privelege. The Kennedy/Kruschev talks around the Cuban missile crisis come to mind. Particularly in sensitive matters of diplomacy, it is sometimes necessary to have confidential conversations and secret negotiations. People and nations are sometimes willing to bend when talked to 1-1 when they won’t want to be seen to bend in conversations conducted in front of television cameras. The promise of confidentiality should be honored here.

      So executive privilege is a real thing, sometimes a necessary thing. The issue here is not that it shouldn’t exist at all, but that (a) it has limits and (b) there are sometimes considerations that outweigh it, and impeachment proceedings by Congress may well be one of them.

      1. If we look at the Cuban Missile Crisis, I don’t think Congress actually tried to exercise its prerogatives and find out everything that happened there.

        Thougn – simply to deal with the strongest case for executive privilege – if Congress had reason to suspect that there a missile deal selling out Turkey or subverting the Senate’s role in approving treaties, then absolutely it could have demanded to know about the substance of the deal. I say this, of course, knowing that the alternative to a missile deal could well have been a nuclear holocaust. But historically, the facts of the deal *did* dribble out, and indeed Khruschev was as I understand it overthrown by factions who though he’d been too weak in the confrontation.

        And greater Congressional oversight might have revealed some other potential nuclear disasters – scaring the public enough to press harder for peace.

        And…some of the things which foreign leaders want confidential, the reason is that they’ve been two-faced with their own people, or otherwise engaged in double-dealing, and in short have no reasonable expectation that it be kept quiet.

        1. …but there’s nothing wrong with a “patriotic” Congress creating a *statutory* rule of executive privilege concerning foreign policy, or a 30-Year-Rule about disclosure of certain sensitive information, etc.

          1. I mean nothing unconstitutional, maybe it would be wrong.

            1. The thing about executive privilege is that it doesn’t grant a general immunity to being called to testify. Like other privileges, it has to be specifically invoked in regard to specific questions.

  6. “This argument creates potential recusal issues for Chief Justice Roberts. He will likely have to preside over these issues during the impeachment trial. Could he then hear this appeal from the D.C. Circuit?”

    Yes.

    This has been another installment of “obvious answers to silly questions”.

    1. “Yes.
      This has been another installment of ‘obvious answers to silly questions'”

      This question isn’t so silly, nor is that answer obvious. By analogy, consider what happens when a case is argued before a circuit court, and one of the judges who participated in the circuit case is elevated to the Supreme Court before the case is heard there.

  7. I see no basis whatsoever for the courts to step in on this. If the Senate decides to hold a trial, I don’t see a basis for the courts interfering. Even if there a casefor the courts to decide, it’s not this one. It’s for the Senate to resolve disputes on calls this close, as it seems to me it’s entirely plausible that what the House did was an impeachment. It certainly walked, talked, and quacked like an impeachment. It said it was an impeachment. I suspect that will be good enough for the courts. And if the Senate does nothing, I don’t see a basis for standing or for courts to intervene either. The House is just as entitled to pass a hortatory resolution expressing displeasure with the President as it is to pass a hortatory, unenforced resolution on any other subject, and it’s no business of the courts if it does.

    I personally recommend that if the House passes a resolution impeaching a president, they go through with it and that the Senate should then conduct a serious trial. I think hortatory impeachments art a bad precedent and are not good for the country. But if Congress leaves things as they are now, there’s not a thing the courts lawfully can or should do about it.

    1. Fully agreed. I don’t see the Art. III courts having a role. Disputes should be handled by the High Court of Impeachment, i. e. Senate.

      The absence of judicial review can be taken a couple of ways:

      -as an excuse for the Senate to go ahead and do whatever it wants on “let’s party, no-one can stop us” grounds,

      or

      -as a reason to be extra careful in observing the Constitution, since mistakes will be final and unreviewable – no buck-passing allowed.

  8. Impeached or not, he has not been convicted, remains in office and can use all the powers of the Presidency.

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