Impeachment

The Case Against the Slippery Slope Case Against Impeachment for "Abuse of Power"

Why slippery slope concerns are a bad argument against impeaching and removing Trump for abuse of power.

|The Volokh Conspiracy |

The first of the two articles of impeachment on which Donald Trump is about to be tried by the Senate focuses on "abuse of power." In my view, Trump's scheme to withhold aid from Ukraine in order to pressure that country's government into investigating a political adversary is also a violation of the Constitution and criminal law. An abuse of power can also be an illegal and criminal act. But the article does not require proof of illegality for conviction.

Despite claims to the contrary by newly appointed Trump defense lawyer Alan Dershowitz, there is overwhelming evidence that the original meaning of the Impeachment Clause permits impeachment and removal for abuses of power that are not criminal or otherwise illegal. That is actually one of those points on which there is a fairly broad consensus among constitutional law scholars across the political spectrum. For good summaries of the relevant evidence, see recent analyses by Gene Healy of the Cato Institute, and prominent conservative legal scholar Michael Stokes Paulsen (here, here, and here).

But critics of the abuse of power standard nonetheless contend it should be rejected. They fear it would create a slippery slope under which presidents can be impeached and removed for frivolous or vague reasons. Dershowitz, for example, worries that abuse of power is a "vague, open-ended" criterion that could lead to a "slippery slope."

Unlike Dershowitz, my co-blogger Josh Blackman admits that "Congress can convict a president for conduct that is not criminal." But he too fears that impeachment for abuse of power depends on "subjective judgment" and therefore "the predicates of the Trump articles will set a dangerous precedent, as impeachment might become—regrettably—a common, quadrennial feature of our polity."

On this view, almost any president can potentially be accused of "abuse of power" by political adversaries in Congress. And then he might be impeached and removed for relatively trivial misconduct, or even just because of partisan animosity or policy differences with Congress.

I. Why the Slippery Slope Argument Against Impeachment is Overblown.

Such concerns are to some degree understandable. Every president has partisan adversaries who who would be happy to "get him" if they can. Nonetheless, slippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president's own party vote to convict him. They are highly unlikely to do so for frivolous reasons. Michael Paulsen expounds on this and some other constraints on abusive impeachment in greater detail here.

We might still worry that members of a House controlled by the party opposed to the President will impeach for frivolous reasons in order to do him political damage, even if he is ultimately acquitted. But this overlooks the reality that a frivolous impeachment can backfire on the party that does it. The impeachment of Bill Clinton notoriously backfired on the Republicans because most of the public decided that the charges against Clinton weren't serious enough to justify removing a president.

Of course, it's possible that skilled partisans will find an impeachment charge that is simultaneously frivolous yet also appealing to swing voters. But that risk is endemic to political life, and is not unique to impeachment. In a world where voters are often ignorant and biased, there is no way to prevent politicians from sometimes successfully damaging opponents' reputations with dubious charges.

Some might fear that a hostile House can tie up the president with impeachment investigations even if there is no chance of conviction (and perhaps even if the House never actually votes to impeach). But a hostile Congress can already harass administrations with questionable investigations, even if impeachment is not the purpose of the inquiry in question. Congressional Republicans effectively proved that with their two-year long Benghazi investigation, which was far longer and more costly than the Mueller and Ukraine investigations of Trump, despite the fact that impeachment was never a serious possibility in the Benghazi case.

Moreover, to the extent that frivolous impeachment is a genuine concern, the problem cannot be "solved" by limiting impeachment to criminal offenses. The scope of federal and state criminal law has grown so great that almost anyone can be charged with some crime if investigators work hard enough to find one. If a president cannot be charged with frivolous supposed abuses of power, he can still be accused of committing some petty crime. And most adult Americans probably have in fact committed one at some point or other in their lives.

Perhaps this possibility is precluded by the fact that the text of the Impeachment Clause is limited to "high Crimes and Misdemeanors" (emphasis added). But the difference between a "high" crime and a minor one is at least as subjective as that between an abuse of power and ordinary, supposedly non-abusive, policymaking. Those of us who lived through the Clinton impeachment remember how Republicans claimed that Clinton's offenses were grave affronts to the republic, while Democrats argued that they were minor, or at least nowhere near serious enough to justify impeachment. Whether a crime is "high" enough to justify impeachment is at least as subjective as the abuse of power standard is. If the word "high" does serve as an effective safeguard, it can do so with abuses of power no less than crimes, by limiting impeachment to serious abuses, as opposed to petty, insignificant ones.

Ultimately, the main safeguard against slippery slopes here is the combination of the need for a two-thirds majority in the Senate for removal and the danger of political backlash. It may not be a perfect safeguard, but it is very formidable nonetheless.

II. Barring Impeachment for Abuse of Power Creates Slippery Slope Risks of its Own.

Limiting impeachment to specific criminal or otherwise illegal conduct creates a slippery slope risk of its own. It creates a risk that the president can avoid impeachment even for grave abuses. Trump defense lawyer Alan Dershowitz gave a great example of such when he admitted that, under his approach, a president could not be impeached for the following conduct:

"Assume Putin decides to 'retake' Alaska, the way he 'retook' Crimea. Assume further that a president allows him to do it, because he believed that Russia has a legitimate claim to 'its' original territory… That would be terrible, but would it be impeachable? Not under the text of the Constitution."

If impeachment is strictly limited to statutory crimes and misdemeanors, a president could also avoid impeachment for gross violations of the Constitution that do not amount to crimes. For example, he could order his subordinates to discriminate on the basis of race, ethnicity, or religion, to violate freedom of speech, and so on. Such presidential misconduct is illegal, but generally not a crime.

Over the last several decades, presidents have all too often engaged in serious violations of the Constitution and grave abuses of power and gotten away with it. President Obama launched two wars without constitutionally congressional authorization—as serious a breach of the constitutional separation of powers as any. He got away with it. Donald Trump has gotten away with his brutal—and illegal—family separation policy, and with massive  cruelty of his travel ban motivated by religious bigotry. Even if you agree with the Supreme Court's dubious ruling that the judiciary was required to defer to the president on the latter policy, it was still a gross abuse of power. Each of these examples was actually a far more severe abuse of power than the Ukraine case,  especially if judged by the scale of the harm caused to innocent people.

Presidents have strong incentives to abuse their power and violate laws any time it seems likely to promote their partisan and electoral interests, or advance their policy agendas. Impeachment for abuse of power can provide a counterweight, albeit perhaps a fairly modest one.

III. Which Danger is Greater?

Let us assume the worst: if impeachment for abuse of power is allowed, occasionally a "good" president will get the axe even if he or she didn't really deserve it. That strikes me as a price well-worth paying for putting a tighter leash on presidents who genuinely abuse their power.

In criminal cases, there is good reason to avoid conviction unless the charge against the accused is an offense clearly delineated by law, and guilt has been proven beyond a reasonable doubt. The reason why is that the defendant stands to lose her liberty or property—or even her life. By contrast, the risk facing an impeached president is removal from a position of enormous power.

Unlike unjust deprivation of life, liberty, or property, removal from power doesn't violate anyone's human rights. When real human rights are at stake, it may make sense to allow ten guilty people to go free, in order to save even one innocent from conviction. When it comes to positions of power, almost the opposite is true: Removing ten "normal" politicians is more than justified if that is the only way to get rid of one who engages in grave abuses of power. It's not as if we suffer from a shortage of ambitious politicians who would be happy to take the places of those who get removed.

Imprecise delineation of  standards is also  far less problematic when it comes to removal from power than criminal punishment. If criminal laws are vague, people will fear to use their liberty, lest they accidentally run afoul of  the law. Such a "chilling effect" on liberty can be deeply problematic. If standards for impeachment are vague, the president might shy away from exercises of power that might be abuses, even if it is not entirely clear whether they really are. Such a chilling effect on power is more a feature than a bug, especially in a context where numerous other incentives incline presidents towards overreaching.

But perhaps the above underrates the harm caused by removing a "good" president. Such removal, it is said, is tantamount to "reversing" the outcome of an election. Not so.  A true reversal of an election would bring to power the president's opponents. Thus, Trump's election would be reversed by impeachment if his removal would bring Hillary Clinton to power. In reality, of course, impeachment elevates the president's own vice president, who comes from the same party, and usually has a similar policy agenda. Elevating Mike Pence to the presidency may or may not be a good idea. But no one is likely to confuse him with Hillary Clinton—and not just because of the difference in gender. It is possible to imagine scenarios where the president and VP both get impeached and removed, thereby elevating the Speaker of the House of Representatives (who will often belong to the opposing party).

Such scenarios are great fodder for political thriller novels. But if it is extremely difficult to get a two-thirds majority in the Senate to remove a president in favor of a successor of the same party, it is virtually impossible to do so in order to elevate a political opponent such as House Speaker Nancy Pelosi. Michael Stokes Paulsen offers some additional responses to the "overturning elections" argument here.

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified. But the threat of impeachment for abuse of power can at least help at the margin.

Let presidents—even "good" ones—lose more sleep over the possibility of impeachment. The rest of us will then be able to sleep a little easier, knowing we are that much more secure against abuses of government power.

UPDATE: Josh Blackman criticized parts of this post here. I have posted a rejoinder here. See also Jonathan Adler's response to Josh.

 

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  1. I do disagree with Desrshowitz that there has to be a criminal offense to impeach, but I do think if it’s not a criminal offense then it should be something that seriously affects the balance of power, or is so outrageous that a supermajority of voters are behind the impeachment.

    This case clearly doesn’t meet that standard.

    But of course the Democrats sabotaged themselves on impeachment. By starting non-stop impeachment investigations from the moment they took over the House in January 2019, the pretty much insured a large swath of the public was going to tune out of what was obviously a partisan exercise.

    Here is one example of Nadler trying to start up impeachment, again, in June a full month before the Ukraine call happened or any aid was delayed.

    1. It does seem to be lost on you that Trump is clearly the most unscrupulous and lawless president in all history. He fails any rational ethics test and in fact ignores ethics rulings by professionals. He openly profits off of government spending he directs himself. He compromises national security fairly routinely. His cabinet and advisor collection such as it is has been a revolving door of corrupt figures on their way out to face indictments.

      Had there been time it could easily have been more than a dozen articles of impeachment. Not just two.

      Just think of what a Republican congress would have done to any Democratic president had he or she done even one of the scandals that are so numerous with Trump the media and public has become numb to them. Republicans were attempting to impeach Obama before he even took office. And they were STILL trying to fix something on Hillary all throughout Trump’s presidency. (You might have noted that the Trump DoJ was forced to clear her — AGAIN — of any wrongdoing last month.)

      More than 50% of voters polled want Trump removed.

      Your attempted projection of outrage falls flat.

      1. “Had there been time it could easily have been more than a dozen articles of impeachment. Not just two.”

        Why wasn’t there time? Pelosi wasted about 3 weeks holding the articles, why didn’t they use that time?

        But all is not lost, there will be plenty of time to start all over with no rush after Trump is reelected in Nov.

        1. I’m enjoying the battle of the two clearlys here.

          1. It’s no contest between the clearly’s here. Because my clearly references a clearly articulated standard:
            “This case clearly doesn’t meet that standard.

            You are welcome to disagree with my standard, and thus my statement, but I think you would find it difficult to agree with my standard and find my statement wasn’t clearly correct.

            However orbital’s clearly seems to rely on some internal unarticulated standard that has as many gradations as we’ve had presidents. It seems to leapfrog Grant and all the Guilded Age presidents, Harding, Roosevelt^2, Johnson, Nixon, and Clinton without any explanation or context.
            “It does seem to be lost on you that Trump is clearly the most unscrupulous and lawless president in all history.”

            1. I disagree with you that a sitting President asking a foreign country to announce an investigation into a political opponent’s son “clearly” does not “seriously affect[] the balance of power”.

              1. It doesn’t if there is a legal basis for investigating a political opponent’s son. If it was a made-up investigation for purely political gain, then I would agree with you. However, Hunter Biden’s position at Burisma would be considered a caricature if it was in a work of fiction. Also, with the appearances that we had already interfered with their investigation in the opposite direction, you can argue that Trump’s actions were righting the wrong that we already committed.

                1. No – Trump’s methods were inherently abusive. They also pointed to a lack of concern about having or creating a factual basis.

                  1. No. I think both Hunter and Joe were very diligent about creating a factual record to support an investigation.

                    Hunter’s position. Joe’s bragging on video about firing the prosecutor. Emails to the State Department by Burisma lobbyists asking for meetings citing Hunter’s position on the board.

                    1. Hunter’s position what? What does that even mean? You should investigate someone for the ¿crime? of being a director of a company?

                2. What’s the United States’s legal basis for investigating Hunter Biden’s board position? What action is he accused of taking which would be a violation of US criminal law if investigated and found to be true?

                  1. And what was the basis for asking a foreign government to carry out the investigation?

                    1. What an idiot.

                      It’s their jurisdiction.

                    2. @Kazinski,

                      It’s now in the American public interest that a foreign power investigate an American citizen for violation of a foreign country’s laws? How would you feel if President Obama asked a foreign country to investigate candidate Donald Trump’s violation of that other country’s laws, during an election year?

                    3. If there is evidence of a crime then it should be investigated no matter who it was, or when. What I do object to is fishing expeditions when there is no evidence or predicate for an investigation. Like Crossfire Hurricane, or Trump’s tax returns.

                      Do you think Strzok didn’t ask for foreign assistance in the UK when he started crossfire hurricane during the 2016 election investigating Papadopoulos and Page?

                      I will concede it was unseemly for Trump himself to request the investigation, it should have been done at a lower level thru channels. But unseemly doesn’t mean illegal or impeachable.

                    4. @Kazinski,

                      “If there is evidence of a crime…”

                      So if an American citizen is accused of violating religious law in Saudi Arabia, the United States ought to withhold aid to that country until that country prosecutes the American?

                      “Do you think Strzok didn’t ask for foreign assistance in the UK…”

                      There’s nothing amiss with an American prosecutorial entity asking a foreign country to assist the United States in the United States’s investigation of violation of American law. That’s not what we’re talking about. If Hunter Biden violated American law, the FBI can investigate him. And understandably the US sometimes relies on foreign intelligence to help substantiate violations of American law. (As examples, the Australian government is the one that alerted the FBI of Russian contacts with Papadopoulos.)

                      But the FBI isn’t investigating Hunter Biden. And so the President could not possibly have been asking Ukraine to assist the US in its own investigation into Hunter Biden. Rather, the President wanted the Ukrainians to announce an investigation into a political opponent’s son, to improve his chances of winning the 2020 election. It’s fucking twisted.

                      “…there is no evidence or predicate for an investigation. Like Crossfire Hurricane…”

                      Well, according even to the infamous “Nunes Memo”, the “predicate for an investigation” that led to the counterintelligence investigation was the “Papadopoulos information”, specifically him bragging to a foreign official over drinks that he had met with a Maltese professor and a Russian to discuss emails that were politically damaging to Hillary Clinton.

                3. Yes, it absolutely does. First of all, if there is a legal basis for investigating a political opponent’s son, you don’t ask a foreign country to do it. You just conduct a domestic investigation of the opponent’s son. Second, that decision should not be made by the President who faces the opponent in an election. You would want that decision to be made soberly based on the resources available to the entire investigatory apparatus. The FBI (and foreign policy, for that matter) belongs to the people of the US, not the sitting President. Third (and it should go without saying), if the investigation was worth it, and in the public interest, it would not have been performed in private, using the President’s private counsel. If we should withhold (bipartisan) Congress-approved funds to a foreign power on the basis of an investigation, let’s have a public discussion about it.

                  1. Except Trump isn’t facing him in an election. And 2019 isn’t an election year.

                    I don’t care if this motherfucker gets impeached, he’s just as guilty of shitting on the constitution as the last three. But at least be accurate.

                    1. You can’t be this dumb.

              2. Because his status as a politician’s son exempts him from any sort of investigation. Clearly.

                1. Doesn’t matter whose son he is – the President doesn’t get to strongarm another country for a targeted public announcement he’s being investigated.

                  If Trump had something to investigate, he should use his own government, not funds appropriated for another purpose.

                  1. We literally have a treaty covering cooperation in investigating corruption with Ukraine, that legally contemplates our helping each other in such investigations. What are you envisioning, the FBI sending some guys over on tourist visas to question people who would have no legal obligation at all to even give them the time of day?

                    And he didn’t use funds, not one cent was spent for anything other than its statutory purpose. We have testimony that Ukraine didn’t even know the funds had been held up until after the fact!

                    1. The treat covers assisting in existing investigations. This very much wasn’t that.

                      Try again.

                    2. And he didn’t use funds, not one cent was spent for anything other than its statutory purpose. We have testimony that Ukraine didn’t even know the funds had been held up until after the fact!

                      No, we don’t. We have testimony that Ukraine wasn’t formally informed about the holdup until after the fact. And Trumpkins tried to pretend that mean that Ukraine didn’t know.

                      But setting aside the obvious — someone notices if hundreds of millions of dollars that one is expecting hasn’t been received — we have actual documentary evidence that they did know, and were asking about it.

                  2. Exactly, strongarming another country for a public announcement regarding investigations of coke-addict adulterers is the exclusive domain of the Vice President.

                    1. Which didn’t happen. Biden was implementing the US foreign policy at the behest of the President. This is well documented.

                      The timeline also shows Biden wasn’t defending his son.

              3. Of course it does not.

                How could it possibly do so?

                1. It’s screwing with our election, messing with out foreign policy apparatus to do so, and ignoring Congress’s funding appropriation to do so.

                  How could it not be unbalancing?

                  1. How does it screw with our election?

                    1. I’m pretty sure you’re not that dense.

                    2. You see, Biden was the front runner, and then he wasn’t, so clearly all of this stuff has fucked with our democracy. Just ignore the fact that we’re still 6 months away from the party nominations.

                    3. When, up until this week, was Biden not the front runner?

                      And if you don’t see the benefits of kneecaping the opposition during their primary, Richard Nixon might want a word.

      2. “It does seem to be lost on you that Trump is clearly the most unscrupulous and lawless president in all history.”

        It’s lost on us because we actually ARE acquainted with history.

        “Republicans were attempting to impeach Obama before he even took office.”

        Oh, wait, parody. Sorry, thought you were serious.

        1. Hey he has proof in all those times they sent articles of impeachment against Obama…

          1. Or even introduced an impeachment resolution or started impeachment hearings.

            Makes you wonder just who is the real “reality based community”.

              1. Yup, pretty sure that a resolution expressing the opinion that something is impeachable, (Which went nowhere, BTW.) is not the same thing as an actual impeachment resolution.

                Even if the judiciary committee hadn’t ignored that resolution, and it had passed the House, Obama wouldn’t have been impeached.

                1. “Yup, pretty sure that a resolution expressing the opinion that something is impeachable, (Which went nowhere, BTW.) is not the same thing as an actual impeachment resolution.”

                  Well we don’t know what an “impeachment resolution” is according to Kazinski, but his use of “Or” in response to “articles of impeachment against Obama…” suggests he had something else in mind than a full-out articles of impeachment. Please tell me what you think the middle ground is between articles of impeachment and a “resolution expressing the opinion that something is impeachable” that fills the gap in Kazinski’s argument.

      3. The only, and I mean ONLY, reason that Trump may lay claim to that title is that Hillary LOST.

        1. In terms of impeachable offenses, trump isnt even above the last president of the House. Pallets of cash alone to Iran is equivalent to anything trump is accused of. Spying on Congress is a far greater abuse of inter branch power. Warrants against journalists. Ex judicial killings if citizens. Starting of 2 military conflicts outside of an AUMF. There isnt even a comparison here.

          The whole belief if Biden and Ukraine for political gain belies the fact that both the NYT and Politico had reported on the facts concerned way back in 2016. It belies the fact that Ukranian courts ruled certain factions of the Ukranian government were working with Hillarys campaign to dump bad news about Trump and Manafort.

          Only a liberal could claim the release of information is a campaign contribution when no court has ever ruled it was. It is abject dishonesty.

          This is one of Ilyas worst posts by far as it lacks full objectivity.

          One can even argue both the Mueller and Impeachment shans were a greater abuse of power as they used government resources to sully an opposition candidate. This is especially true of Mueller given the Horowitz report and the hiding of exculpatory evidence.

          People who think the Ukraine is a high deal are just flat dishonest.

          1. The same people advocating / calling for Trump’s impeachment would never have voted for impeachment for Obama’s far more egregious conduct.

            1. Far more egregious! Like all the bad laws he passed via the accepted methods (and not using his personal attorney, I’d note.)

              1. you proofed my point

                1. Unless your point is that you have partisan double standards, I don’t think I have.

              2. Sarcastro’s response – “Like all the bad laws he passed ”

                You may wish to read up on the constitution – the president cant pass a law.

                1. Your pedantry is noted, Joe.

          2. Pallets of cash alone to Iran is equivalent to anything trump is accused of

            You mean that open negotiation not about an election the President was running in?

            Your parade of Obama horribles is all policies, not targeted announcements of dirt on political opponents.
            Quite telling about how little you have to defend Trump with other than inchoate anger at the other side. Or, from you, how little you have to deal with anything other than rage.

            1. No, we mean secretly deciding to give over a billion dollars to a state sponsor of terrorism, and doing it in the form of cash so that the decision couldn’t be reversed once people knew about it.

              Obama literally funded Iran’s nuclear weapons program. And if he didn’t know they were going to violate their end of the agreement, he was a moron.

              I think he’s a lot of things, but not a moron.

              1. It wasn’t secret, Brett. It was openly announced it was on the table.

                Obama literally stopped Iran’s nuclear weapons program. Until Trump screwed that up

                1. No, he pretended to stop it, with inspections which could only be conducted where Iran gave permission to conduct them. It was on the honor system.

                  1. The inspections were real. The incentives were real. Read anything any Iran expert has to say on the issue.

                    Plus, your narrative is ridiculous – Obama was a loyal American, conducting foreign policy to the benefit of America. You’re insinuation otherwise looks to be your own made up crap. As usual. Though your accusations are worse. Not that you seem to care.

                    1. The pallets of cash – refunding Iran’s money – have now become an article of faith with the RWNJ’s. Neither facts nor logic will change their minds. It’s right there in the catechism with Benghazi, emails, and whatnot.

                    2. The inspections were absolutely real, as was the fact that they were only conducted where and when Iran permitted.

                      Try that the next time the police show up with a warrant to search your house.

                    3. How often to the police get someone to consent to a search just because they don’t want to look hinky?

                      Not to mention there were areas that were open for inspection generally, and enrichment isn’t know for being easy to hide.

                      In other words, you have some simplistic notion that fits your narrative and you’re full speed ‘Obama is a traitor’ dumbness.

      4. We DID see what a Republican Congress did to a Democratic president embroiled in scandal. Obama committed a litany of offenses ranging from war powers violations through spending money without Congressional appropriation, clear Constitutional violations, and Republicans did nothing.

        That doesn’t really change the current state of affairs where Democrats are impeaching on very shaky factual grounds.

      5. Yes, what would a Republican Congress have done to any Democratic President? We have ample evidence they wouldn’t do diddly fucking squat. Obama flat out broke the law with DACA and the Republican-led House stood around with its thumb up its ass.

        1. To be fair.. they did wait until Clinton actually committed the crime of perjury before they voted for impeachment.

          1. Lying in a civil deposition isn’t a big deal and it certainly doesn’t amount to a “high crime and misdemeanor”

            1. Ask Paula Jones, who was suing Clinton for sexual harassment.

            2. Lying under oath. Suborning perjury by others. Having White House staff collecting and destroying evidence.

              Wrap your head around that: He ordered the White House staff to aid him in obstructing justice in a legal matter, aid him in destroying evidence and persuading people to lie under oath. He did this confident they wouldn’t turn whistle blower. The leapt to it like a well oiled machine.

              It was not the first time they did this, just the first time it could be proven. If they’d just gotten and destroyed that semen stained blue dress, too, you’d all be absolutely convinced the supposed affair with Lewinsky was a vile lie.

              Just like you’re convinced all the other scandals where evidence mysteriously disappeared are vile lies…

              Yes, it’s a big deal. He lost his law license over it, and if you or I had done the same, we’d have faced much worse consequences. He didn’t just behave criminally, he used government resources to behave criminally, and validated suspicions he’d been doing so all along.

      6. Wow. what a pathetic and partisan post. You should feel bad.

        1. We finally have a pathetic and partisan post at this blog that JesseAz doesn’t like.

      7. Ok, I will take you up on that challenge.

        We know exactly what a republican congress would do if a Democrat president attacked another country, overthrowing their government without provocation or a declaration of war, and even publicly flouting the war powers act. It happened within the last decade.

        We also know what a republican congress would do if a democrat president maintained a secret kill list that included foreign nationals and American citizens, people to be killed upon his word alone, with no judicial review or even congressional oversight.

        We also know what a republican congress would do if a democrat president unilaterally diverted a trillion dollars from the purpose for which it was allocated by congress and toward his own personal pet project. (to the direct financial benefit of one of his major donors and supporters).

        They did precisely nothing. Neither did the democrats who currently gnash their teeth and wail at the thought that someone might ask about an obviously corrupt arrangement with a foreign country.

        1. That was Iran’s money, it was not diverted money.

          Your Iran talking points are full-on false propaganda.

          Obama’s Syria flauinting of the WPR was impeachable, but he wasn’t impeached. I’ll leave it to you to figure out how that’s different from this phone call with Ukraine.

          1. It was money the previous Iranian government had paid for US weapons before the revolution, and it was being held to settle legal claims against Iran’s revolutionary government.

            1. Brett – Sacastro is entitled to his own facts –

            2. Republicans should have impeached Obama then.

            3. Legal claims that were not actually moving. As is evidence by the timeline you just laid out.

              Certainly it’s not ‘diverted money.’ No law was broken in unfreezing those assets.

              You’re really crazy about this. Or maybe it’s the latest ridiculous talking point. Either way, it’s wrong.

              1. Sarcastro’s response – “Like all the bad laws he passed ”

                You may wish to read up on the constitution – the president cant pass a law.

                1. I take your dragging this pedantic point from elsewhere in the thread over here to be a sign that you don’t have a lot substantive to respond with here.

          2. The heck you talkin’ bout?

            Iran’s money?

            TARP, son. TARP. Obama took the better part of a trillion dollars (not a billion) that was specifically earmarked to buy real estate backed securities to sure up the bond market and free up the banking system that was paralyzed… and spent it on a forced buyout of GM and Chrysler. An additional 30 billion was flat out stolen from secured creditors. And another 30 billion was just gifted to the UAW pension fund.

            Iran? Sheesh, dude. Get your head out of the day’s talking points.

          3. As a veteran combat leader, we got the short end of that deal regarding the cash to Iran. After the transfer we noted a HUGE increase in Iranian shaped charge explosives knocking out our armored convoys. Serious enough for you? In what delusional dimension does funding Iran, an official sponsor of terrorism, NOT a high crime? The fact that it is Iran’s money does not mean we should hand the executioner the blade to behead us because it is his blade.

            I want you to explain to me your support of Obama’s decision to transfer funds to Iran, regardless if the funds belong to them.

            1. It is unfortunate that people like you were sent to kill and be killed for a mistake. Your anger in this context seems to be misplaced — or selectively deployed.

          4. “Obama’s Syria flauinting of the WPR was impeachable, but he wasn’t impeached. I’ll leave it to you to figure out how that’s different from this phone call with Ukraine.”

            Apples and oranges. Ukraine at the time was know by all as one of he most corrupt countries on the planet. The POTUS has a responsibility to ensure taxpayer money is not diverted to corrupt pockets and holding those funds so that the POTUS could confirm is appropriate and within his authority. Obama sent them blankets and MRE’s. We sent them Javelin Anti Armor missile systems. Seems to me that Ilya’s contention is not supported by this fact. Yes the balance of power was impacted: From blankets to missiles.

            1. Hint: This wasn’t about cleaning up Ukrainian corruption.

      8. What percentage of those “more than 50%” don’t pay taxes? What percentage are people who would have been barred from the United States during the period between the National Origins Act and the Immigration and Nationality Act?

      9. “It does seem to be lost on you that Trump is clearly the most unscrupulous and lawless president in all history.”

        If you are going to state that as fact, then “clearly” lay out your case.

      10. It would be interesting if you could mention a single law this “lawless” president has broken. Pelosi, Shiff, and Nadler could have used your help.

      11. “And they were STILL trying to fix something on Hillary all throughout Trump’s presidency. (You might have noted that the Trump DoJ was forced to clear her — AGAIN — of any wrongdoing last month.)”

        What H. Rob ‘Em Clinton did was in plain sight & nobody had to pin anything on her…She turned the State Dept. into the Clinton Foundation State Dept. for personal & family gain, used a private e-mail to hide all the greedy lawlessness & when found out, deleted all the evidence & lied about it. She never should have been able to run & she should’ve been charged with crimes against the Republic! The FBI & DOJ higher ups under Obummy & Trump have dropped the ball like all longtime DC Swap Creatures do when it comes to charging other longtime DC Swamp Creatures with crimes!

    2. That about describes my position: Certainly you could imagine non-criminal offenses that would justify impeachment, but they’d have to be a lot worse than anything Trump has been plausibly accused of.

      At the moment we have impeachment charges that only seem persuasive to people who already hated the President, and nobody else. That seems the very definition of flimsy charges.

      1. Obama’s spying on Congress would seem a much greater abuse of power as it was a direct attack on a co equal branch.

        1. I give Obama somewhat the benefit of the doubt, Brennan was the officer responsible.

          I keep saying it over and over but the proper and most effective path to starting to enforce the standards that we all think should be enforced against the other party is to start by enforcing stricter standards against subsidiary officers where the stakes aren’t so high, and some support might be forthcoming from both parties. Feinstein might have supported charges against Brennan for spying on her and her staff but would never support charges against Obama even if he were directly implicated.

      2. Actually Lindsey Graham initially said Trump should be removed. Nobody believed a president would do something as stupid as what Trump did.

      3. At the moment we have impeachment charges that only seem persuasive to people who already hated the President, and nobody else. That seems the very definition of flimsy charges.

        How many times are you going to repeat that?

        And how many times are you going to ignore the fact that the only people who don’t think the charges are persuasive are Trump-worshippers?

        1. I’m going to keep repeating it so long as it’s true.

          You’re defining “Trump-worshipers” as anybody who doesn’t buy into your flimsy case.

          1. Polls indicate near complete identity between approving of Trump and being against impeachment, as well as the reverse.

    3. “it should be something that seriously affects the balance of power…
      This case clearly doesn’t meet that standard.”

      Using your office to kneecap your chief political rival the year before the election seems like something that seriously affects the balance of power to me…

      1. What was the form of this kneecapping?

    4. I have a great idea. How about we ignore the entire mess of word soup the author vomited onto the page above. Let’s not bother with the minutiae of his legalese, nor with the grave tones and jubilant faces of the democrats. Let’s go back to the basis of the claim against Trump: The Zelensky call.

      Go and read it for yourself in a quiet place, and while you’re reading it, imagine the perspective of the President. Whether or not you like Teump is irrelevant. You have to consider his perspective, though. Here is a man who was subjected to a virtually unlimited 2-year investigation (Fact) instigated by political rivals (Fact) and executed by collusion between the FBI/CIA/DNC/Clinton Campaign/Media in order to try to remove him from office.

      He was talking to the new President of Ukraine, where (as multiple liberal outlets like Politico and the NYT reported in 2017) Dem operatives had gone to try to dig up dirt on him and his associates. Furthermore, Crowdstrike, the IT firm that analyzed the DNC servers (that the FBI was not allowed to touch) and determined that they were hacked by Russia, is located in Ukraine. This unproven (but oft-repeated uncritically by Dems and Media) “Russian hack” was subsequently used to smear Trump and attempt to tie him to Russia.

      Furthermore, Biden and his family were deeply involved in corruption in Ukraine. If you don’t believe that, you are either ignorant (and therefore partisan, because the evidence for it is empirical and obvious if you’re willing to read non-left-wing news sources), or proudly partisan.

      So, read Trump’s call for yourself. If you still think that call— which is indisputably the basis for this absurd impeachment mockery— is sound basis for impeachment… there is no hope for you. I might point something else out to you: You have no basis for comparison. How does this call compare to hundreds of other calls other leaders have had with each other, the language used, the asks and offers made? You don’t know.

      Ilya Somin is a hack. A propagandist with an agenda. A fancy tailor from an exotic land who makes an enormous show of weaving clothes that only the smartest among us can even see.

      But It doesn’t take a tailor to know when the Emporor is naked.

      1. Correct, Trump released the smoking gun. He clearly abused his power and Republicans should at least force him to drop out of the 2020 race.

      2. If you’re going to spout conspiracy-theory nonsense, at get your fake “facts” right Crowdstrike is based in California. The purported Ukraine connection is that a lot of idiots believe that its Russian-born co-founder (who came to the US as a child) is Ukrainian.

        1. Then a Ukrainian investigation of Crowdstrike would come back saying that: “The dude hasn’t been seen in this country since he was a tyke. Maybe you should look in California.”

          I would say that Trump is somewhat predisposed to believe conspiracy theories, in as much as they told him the idea that he was being spied on by the government was just a conspiracy theory, and it turned out to be true.

          Some “conspiracy theories” are just whacked out fantasies, some are real events that somebody just doesn’t want you to believe. And the way you tell them apart is by looking into them.

          1. Not Crowdstrike silliness too, Brett?

            It’s Russian propaganda. It’s got nothing to it.

    5. Dershowitz isn’t even saying that there legally absolutely has to be a crime, he is saying that a crime is pretty much necessary in order to convince the Senate and get a super majority.

      1. “My client is innocent, your honor, because of the political composition of the jury.”

        1. Where “composition of the jury” means, “The jury does not consist predominantly of my client’s mortal enemies.”

    6. Your argument is that “Democrats sabotaged themselves” by rejecting Jerry Nadler’s attempt to open an impeachment inquiry before the Ukraine scandal went public?

      “…the pretty much insured a large swath of the public was going to tune out of what was obviously a partisan exercise.”

      What’s the data to support this? The public was around 51% don’t support/38% support for impeachment just before the impeachment inquiry. Within a month those figures had switched to 48% support/44% opposed. Right now it’s 49.5% support/46.3% opposed. Is it possible you’ve misread the room and/or overstated your position? Or can you save the argument by carefully defining “tune out” and “large swath”?

  2. I think this post is a long winded way to say he disagrees with Dershowitz. No where does he make a list of abuses of power that have happened in the past that he would apply his standard to, and how he (as a juror) would rule.

    Without historical grounding about the standard the Professor would have applied his rules to Fast & Furious, Iran Contra, Guantanamo, Watergate, Lewinski, etc, his statements are just a clickbait headline and unmoored yapping.

    1. Prof. Somin addresses the issue of overinclusivity without having to go all whattaboutism.

      1. He simply denies whattaboutism via a mirror image of it, saying so what if it starts happening more.

        1. I don’t mind impeachment becoming substantially easier, you can certainly make a case that every President in living memory has done SOMETHING worthy of impeachment, if we really took seriously the rule of law.

          But changes in the rules should be prospective.

        2. He says it’s a price he’s willing to pay on balance, not that it doesn’t matter.

          1. His lack of rigor in defining the price he is actually willing to pay is why this piece is unmoored clickbait. When one proposes a new standard of conduct, whether it be criminal, impeachment, or simply a new HR policy, they need to demonstrate the benefits of this new policy. Detailing previous bad conduct that went unpunished is a must, detailing conduct that gets close to, but would not meet the level of misconduct is also important (we do not allow HR to ban all use of the microwave simply because Sue is always nuking tuna salad).

            Without any demonstration of how the standard would have worked in the past, its simply yapping.

            1. If he had tried for rigor it would have been specious, since it’s all future hypothetical.

              He’s from a particular point of view applying it to policy. Nothing more, nothing less.

              Your argument is also anti-originalist, BTW.

              1. My position is not originalist or non originalist because my position is that the Professor used slightly over 2000 words to say nothing other than positing and immolating a few straw men. Nowhere does he posit a coherent standard that could be applied.

                1. You set out all these standards in your comment right above that the Founders did not. In fact, they’re cool with getting very nebulous: “defending the community against the incapacity, negligence, or perfidy of the Chief Magistrate”

                  Or even more contradictory to your point from the Federalist Papers – ‘The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.’

                  Not really very rigidly defined, there, eh?

                  Also, pretty new goalposts to say your main issue is with the OP all of the sudden after your last post.

                  1. Yes they set a vague standard, because they assumed there would be conduct they could not anticipate.

                    What the Professor is doing here is saying that we should treat some things differently going forward, but he doesn’t even provide a single example! IMO this is just chatter. Its fine to write a constitution that orders the executive to “take care” laws are executed, its dumb to redefine “take care” 250 years in, to another, even more vague standard.

      2. Agreed. As long as you ignore history, Somin is correct. Shorter sarcastro.

      3. I think some whataboutism is necessary, unless you are going with Trump Rules only.

        I think going by actual originalist standards ever President since Buchanan should have been impeached, or at the very least since Teddy, possibly excepting Coolidge. So I’ll go with a assertion that Trump has committed impeachable offenses by a original public meaning standard.

        But if that’s the case I would like an explanation of why the last 120 years of Presidents were exempt from that same standard, and why at least 1/3 of congressional acts since the Sherman Anti-trust act weren’t invalidated by the courts too.

        And lacking that, I’d need some iron clad assurance that we are going to start applying those same standards to all presidents and all acts of Congress from this day forward, otherwise it’s all water under the bridge. Maybe if the Supreme Court reversed Wickard v Filburn tomorrow sua sponte I could change my mind about impeachment, because lacking something as dramatic as that I don’t see Trump’s transgressions as any thing but business as usual.

        1. No need to play “whataboutism” games when it was by and large the exact same people in congress not just giving a pass, but cheerleading and shouting down objections to real abuses of power, like overthrowing the government of Libya, for example.

          The reason they say “impeachment is an inherently political process” is made obvious when you observe that we have had less than 10 principled legislators who are guided by a consistent ideology over the last 30 years. Denis Kucinich, Joe Leiberman, Amash… a couple of other libertarian republicans, maybe. That’s about it. All the rest are shills for their party. (which makes sense…. the party is the machine that gets people elected, after all)

          1. Don’t forget Bernie Sanders. He’s quite consistent. Awful, but consistent.

            1. I respect a Sanders or Ron Paul much more than the partisan hacks like Pelosi and Mitchell that are running the show. At least you know where they stand.

              1. And in Bernie’s case I know where I’ll stand if he ever gets his way.

                In front of a wall, or at the top of a ditch.

        2. Whataboutism is just the screecher’s way of saying “precedent”.

          Precedent used to be respected in legal circles, but many appear to agree with the Professor that long winded vacillation with a disregard for history is preferred.

          1. If precedent in this political arena is so great, why has McConnell ignored it in his rules?

            Yelling about Obama doesn’t make Trump not guilty.

            1. McConnell’s rules largely follow the previous impeachment trial.

              1. Except the arguments are compressed into two days,
                and more importantly the Senate also won’t automatically admit evidence from the House process.

                That’s a pretty big difference, dude.

    2. “long winded way”

      SOP.

      Somin won’t use 1 word when he can use 10 instead.

  3. In my experience, when somebody dismisses the validity of worrying about a slippery slope, it’s because they want you at the bottom of it ASAP, and fear that you might find some way to halt the slide and start climbing back up it.

    1. So in your experience, Prof. Somin is arguing in bad faith.

      Way to go, Brett.

      1. It’s possible that it’s a subconscious thing, yes. But I’ve seen it happen too many times.

        We were just discussing this in the context of the ERA: Opponents of the ERA claimed that it would lead to unisex bathrooms and SSM. This was a slippery slope argument. Proponents denied the slope was slippery.

        And, here we are, the 14th amendment reinterpreted to effectuate the ERA, and what did we get? SSM, and a good start on unisex bathrooms, using people who are delusional about their sex as a foot in the door. Seems the slope was slippery after all.

        And was SSM accomplished over the vehement opposition of ERA proponents? No. In many cases it was with their support.

        1. People who believe government should treat gay people like dirt are lousy citizens and deserving casualties of the culture war.

          Wrapping your bigotry in a silly shroud of superstition does not improve that bigotry.

          Unless you guys perfect a machine that mass-produces old, cranky, broadly intolerant, half-educated, easily frightened, stale-thinking, rural, southern, white males — and Republicans lawyers figure a way to register newly minted clingers to vote — these skirmishes won’t matter much longer in a nation whose electorate continues to improve — less rural, more diverse, less backward, more tolerant, less religious.

          Soon enough, not even voter suppression, gerrymandering, and our system’s structural amplification of rural votes will be enough to enable conservatives to remain competitive in national elections. The tactics Republicans celebrate today will outrage them in a few years. Enlargement of the House of Representatives (with it, the Electoral College) and Supreme Court are likely to be important developments as America continues to improve against the wishes and efforts of conservatives.

          1. You realize that the ordinary white people you hate pay all of the taxes, fight all of our wars, make all of our stuff, grow all of our food, produce all of our energy, and generally keep America functioning?

      2. Those Brett disagrees with are always arguing in bad faith.

        1. You and sarcastro just make an overwhelming habit of it. At least kirkland recognizes who he is.

          1. Bernard exemplifies bad faith.

          2. Jesse, just because I and Bernard disagree with you doesn’t mean we’re lying about it.

            I think you’re ideas are crazy, but you are sincere about it. See how easy it is:?

      3. Yes, he is. Just like virtually every argument you make is in bad faith or dishonest.

        1. So Somin right now, and Sarcastro virtually always, argue in bad faith. Dare I ask for a scintilla of evidence? Or is everyone who rains on your Hate Liberals Parade simply a bad person by definition?

        2. A battle of credibility?

          Bold strategy, Cotton.

        3. Telling how the more partisan among the conservatives here can’t even understand that people can disagree with them honestly.

      4. Yes. Somin is unequivocally arguing in bad faith.

        This is quite obviously a rationalization. A back-filling of logic to bolster a desired result.

        I get it. That is probably 90% of what lawyering is all about.

        But don’t pretend that this is an argument from first principles. It just isn’t. If it were, the argument would look very different. The facts relied upon would look very different. And the conclusions would look very different.

        This is not to say that the argument is not passionately believed. That is how motivated reasoning works. But that does not make this an objective argument, free of political motivations.

        Nobody in congress is doing more than holding a fig leaf in front of their naked partisanship here. The democrats loudly announced their intention to impeach Trump, sans any evidence of any wrongdoing. They very publicly announced that they were going to dig around until they found a pretext. They very publicly rejected at least 2 because they could gain no traction, before settling on this extremely weak tea.

        The context of this supposedly extreme abuse of power was gathering a defense against earlier, highly partisan impeachment attempts, where objectively false accusations of Russian collusion were the centerpiece – backed largely by claims of ties between staffers and Russian Oligarchs via clients in Ukraine. The water gets much less clear when you put this episode in the proper context.

        1. Quite obviously.

    2. What the good professor is saying is: “That will never happen. And when it does, you will deserve it, you hateful bigots.”

  4. I really don’t think Trump is more lawless than most other modern day Presidents (Carter excepted), I just think he is more open about it. The corruption and abuse of power has a long and deep history. You’ve been sleeping if you are just waking up now and noticing it because of Trump.

    1. Whether this is normal or not is a separate argument from whether it’s abuse of power or not.

      1. No, it most certainly is NOT. It’s an argument from precedent.

        If “X” has never before been treated as an abuse of power when it happened, precedent says it isn’t an abuse of power. If ordinary business income has never before been treated as an emolument, it isn’t an emolument today. If a campaign opening diplomatic contacts prior to the candidate taking office has never been prosecuted as a Logan act violation, it can’t be now.

        If the very people who never before thought an act was abusive declare it abusive when Trump is the one doing it, this should quite properly be thrown in their faces.

        1. This is the same bullshit the left has been doing since 2016. It is nothing more than the old adage about prosecutors jailing mother Theresa where they seek out ways to twist and interpret the law to get what they want. It was obvious from the moment they started screaming emoluments and other arguments that have never been seriously debated or seen.

          We have seen countless articles on twists if commonly held law as a means to arrest or impeach trump. This is simply another.

          Democrats would rather burn down the country for a win that live within the boundaries of prior precedence.

          1. They literally threatened somebody with a Logan act prosecution. Enacted along with the Alien and Sedition acts, nobody has EVER been convicted under it, in over 200 years. One guy got indicted in 1803, but not tried, another got charged and then the charges were dismissed. That was in 1852.

            It’s widely understood that if they ever seriously tried to convict somebody under it, the Act would be struck down as unconstitutional.

        2. That’s not how moral or policy arguments work.

          Whattaboutism isn’t precedent.

          1. “Whataboutism” is just the left’s irrational demand that none of their arguments or claims ever be put in context.

            If you tell me my shit stinks, “whataboutism” is nothing more than me reminding you that yours does, too.

            1. Indeed. Furthermore, intelligent adults use the proper term, “tu quoqe”. They also prefer to use the term in correct context, and not as part of this “acknowledging Left Wing hypocrisy and responsibility is somehow an argumentative fallacy” bunk,

            2. It’s not context, it’s just you’re angry at Obama and think we’re just angry at Trump and nothing more. That’s wrong, and it’s why you’re yelling about Obama is irrelevant to everything but your own angry fulfillment.

              1. Yes. It. Is. Context.

                Whenever the left accuses somebody on the right of something, and you point out that it’s something the left is equally guilty of, the cries of “whataboutism!” begin. You point at something Trump did, we point out Obama did it many times, and it’s, “Whataboutism!”

                The left is forever trying to preemptively win arguments by dictating what their opponents are allowed to say, what evidence and arguments they’re allowed to present. 1984 was all about that.

                “Whataboutism” is just the latest NewSpeak, an effort to win arguments by forbidding your opponents from putting your accusations in context.

                You want to be able to say that somebody’s shit stinks, without having to deal with anybody pointing out that yours does, too.

                It doesn’t work that way.

                1. Equally guilty doesn’t absolve Trump. Trump’s actions here are novel (personal benefit), and even were they not, hypocrisy of others isn’t an excuse for bad acts.

                  However bad you think the left is, that provides no context wherein Trump’s actions are transformed from bad to good.

                  You are the one ignoring your own shit by endlessly pointing out other peoples’.

                  Cute 1940 reference, but newspeak was about constraining ideas through language. This is a new word, not replacing the old, and so expands the discourse. You’ve completely missed the point.

    2. This is just cheap cynical nihilism. It’s an attitude that allows anything ‘oh, they’re all always corrupt, so let’s ignore this corruption here.’

  5. One important argument has been missed. Slippery-slope arguments are almost always fallacies. This particular usage is one of those cases.

    1. Slippery slope arguments are at once logical fallacies and useful heuristics.

      You have to remember that, while establishing that an argument is a fallacy demonstrates you haven’t proven your case logically undeniable, it doesn’t mean that you’re wrong. To be a fallacy, it merely has to be POSSIBLE for an argument to be wrong, not likely.

      “That accountant embezzled the last ten people who hired him, he’ll rob YOU blind too if you take him on!” is a fallacy. It’s also good advice.

      This is semi-formally known as “the Fallacy Fallacy”: The belief that demonstrating an argument is a fallacy is the same as proving its conclusion is wrong.

      1. No no. He believes the use of limiting constructions by justices is a fallacy.

  6. I kinda agree with Liberty Lover.

    It’s not so much what a president does, it’s how they do it.

    Everyone (even MAGA mouthbreathers) will admit that Trump acts like a drunk uncle.

    1. Nope. People who dislike modern America — and resent successful, educated, reasoning America — see Trump acting as a champion for their “traditional values” and general backwardness.

      1. You represent a truly unique class in American politics. The sub-average, uneducated plebeian whose life is made possible only by the forcible extraction of charity from others who nevertheless feels entitled to even more and hopes for a genocidal secular messiah to effectuate the fantasies that you yourself are too impotent, timid and frightened to do yourself.

        1. Huh, I guess the Rev is a Millennial after all.

      2. “modern America”

        Now, when you say this, do you mean the thirdworld cesspit the Obama administration tried to turn us into, or the mostly-succesful attempts to bring America back out of his little feudal age?

        1. These are your peeps, Conspirators — poorly educated bigots still ranting about the black guy and pining for illusory good old days (without uppity blacks, gays, women, Muslims, agnostics, etc.).

          So let’s here more about why better law faculties need to hire more movement conservatives!

    2. But is he that rascally beloved uncle that republicans see, or the bigot howling at the moon when my (black, immigrant) wife shows up at the (white) family reunion with our obviously hybrid kids?

      1. Who’s telling you that white people can’t marry black people?

        Apart from Obama hangers-on like the BP, of course.

  7. Professor Somin…Really liked this post. Informative.

    My critique: This post really doesn’t take into account human nature, or consider our actual historical record from the Johnson impeachment, which is much closer to what we have with the Trump impeachment than the Clinton impeachment. Our Republic was set back substantially with Johnson’s impeachment.

    While I agree that the 2/3rds requirement is a brake on stupidity, I do think that the ultimate check on impeachment is the ballot box. There are times when our elected leaders cannot resolve their differences. And the people decide the matter. I believe that is the case here: We the People will resolve this in November.

    1. Not much will be resolved in November. The tide of history is much too powerful to be controlled by a single election. A Republican win would not end, let alone reverse, a half-century of progress shaped against conservatives’ preferences. A Democratic win would not extinguish conservatives’ efforts in the current culture war.

      It should take at least three or four national elections to resolve the current differences. If Democrats arrange some structural changes, the process might be quicker.

      1. TRANSLATION: “Don’t worry. We Regressive Dems have all our bullshit excuses to explain our next dozen losses lined up, and none of them involve admitting how shitty our party and 19th century politics are.”

      2. “let alone reverse, a half-century of progress shaped against conservatives’ preferences.”

        Oh, really? Is that why entire crux of the Regressive Left’s platform is that we have to go back to the good ole days of Uncle Jo Stalin?

  8. “Brutal and illegal family separation plan.” Oh, you mean the one that was enforced to a larger degree during the Obama administration. Good to know.
    Trump is special. It is impeachable for him to do things that other presidents have done.

    1. Yeah, Somin gets it exactly backwards. The separation plan was required by law, by statute and court directives, which is exactly why the laws needed to be revisited.

      Trump himself called for those legal reforms. We should have pushed to take him up on it.

      Denying the context surrounding these brutal policies doesn’t do us any good. It just means they’re to continue as part of US law.

      1. This is an example of how you can spot an argument that comes not from first principles, but by rationalization.

        Blaming Trump for an Obama era policy that was created by judicial decree is a clear signal that you are casting about looking for anything to justify your conclusions.

        1. Trump’s instructions to CBP have been nakedly playing up the cruelty.
          It’s kind of the point for many of his supporters.

          The massive scope and length of child detentions have been full-on Trump’s choice. So have the deaths, which are a new thing for immigration detainees.

          Obama could and should have been better. But this not on Obama. It’s on Trump. And those who support dehumanizing illegal immigrants.

          1. “And those who support dehumanizing illegal immigrants.”

            Like Obama, his shitty supporters and his shitty party that created this shitty situation you’re now demanding we blame on everyone except the people who created it.

            1. When you’re arguing a situation like immigration is caused only by one political party, you may be talking out of your hat.

  9. A few points need to be drawn here.

    1. The original hypothesis “Trump withheld aid in order to get Ukraine to investigate a political rival” is yet to be actually proven conclusively. There’s circumstantial evidence, but that’s it. There’s evidence against it as well, including…
    A. The aid was released later
    B. There never was an investigation for that aid being released
    C. Ukraine apparently didn’t know the aid was being held up.
    This substantially weakens the accusation.

    2. There is substantial interest in the activities of Joe Biden in Ukraine. That is legitimate. It is common to seek for evidence of potential corruption, especially in politics. Indeed, DNC operatives were seeking political “dirt” on Trump in Ukraine in 2016.

    3. There is serious concern about Biden and Hunter’s corruption in Ukraine. This includes…
    A. Joe Biden is made point man in Ukraine. He demands more Americans be hired and involved in Ukraine’s gas/energy business. Three weeks later, his son is hired in Ukraine’s gas/energy business despite no experience in the field. This company is Burisma.
    B. Later, Burisma is under investigation by the lead prosecutor of Ukraine. He plans to bring in Hunter for an interrogation. Joe Biden then threatens to withhold aid from Ukraine unless the lead prosecutor is fired. The prosecutor is fired. The Burisma investigation is then closed.
    C. Russia has now hacked Bursima holdings. They may have evidence (IE “blackmail” of major corruption by a major US politician. In the interests of national security, it is very reasonable to want to know if these allegations are true and represent a credible blackmail threat.

    So, to tell a different story “In the interests of National Security, Trump asks an ally if there is anything to these allegations of corruption by a major US politician”. That would be entirely reasonable and NOT an abuse of power.

    1. That would be an interesting comment if the conspiracy theory about Biden had not been debunked. Actually, widely debunked. I know this because ever mention of the subject in the press includes the words “Debunked”, “conspiracy theory” or “without evidence”. Sometimes all three.

      Now, I’ve never actually seen this debunking, mind you. I have heard it asserted that their never was an investigation into Barisma…. but the former and current prosecutor both tell a different story (the current prosecutor says he closed out two dormant investigations with small fines, the prior says they were never dormant. I am not aware of anyone with greater knowledge of the topic than these two). And Joe says he never, ever discusses business interests with his family and didn’t even know that his son got a job in Ukraine…. this despite being photographed playing golf with his son and Burisma executives….

      But don’t worry. . It is debunked. You’ll have to find another argument.

      1. No, it’s debunked because Biden is a good guy, and would never do anything like that, so it’s debunked.

        And Hunter, well, Joe Biden says he trusts his son, and so, because Joe trusts Hunter, it’s debunked.

        1. The life cycle of a Democratic scandal:

          1) It didn’t happen.
          2) You can’t prove it happened.
          3) That’s old news
          4) That’s been debunked.

          1. As usual, your lack of self-awareness is breathtaking.

    2. In Armchair Lawyer’s world, Pres. Trump is the guiltiest-looking innocent man who ever existed, inexplicably lying, withholding evidence, and overstating his position despite knowing the truth would be a fine defense.

      1. In Rev. Arthur Hicklib’s world, the delusional bullshit that he’s fabricated in his imagination is a fine substitute for reality.

      2. I think the record in the Senate trial will convince every fair minded American that Trump was rightly aquitted, and never should have been impeached in the first place. Since the Senate will likely disallow the House managers to introduce any hearsay evidence into the record, it’s going to be remarkably barren.

        1. If the President continues to prevent people with first hand knowledge from testifying, and the Senate refuses to subpoena them, you’re probably right.

    3. AL- you are right on. The case for article 1 implodes on the facts. To your second point, there are powerful alternative explanations for Trump’s motives, and while this is not a criminal court, our principles of reasonable doubt sure as hell ought to apply to impeaching the president. Ascertaining his motives is ultimately an exercise in mind reading, and it’s a disgrace the Somin and other libertarians allow dislike of Trump and disagreement on immigration policy to cloud their principles on this.

      Further, while we are engaging in mind reading, I think a more plausible explanation is that Trump very much believes there is corruption with the Bidens and 2016 elections, and he relishes the idea of exposing that after these people have been corruptly trying to take him down for three years. That is self interested in many ways, but it also aligns with proper justice being served.

    4. Shockingly, I disagree with your conclusion that Trump did not abuse his power. But that difference of opinion is besides the point of this post. Dershowitz argues that even if Trump abused his power, he cannot be legally impeached. Given the gravity of the abuse, assuming it is true for the sake of argument, I find Dershowitz’ argument highly unpersuasive.

  10. Let us assume the worst: if impeachment for abuse of power is allowed, occasionally a “good” president will get the axe even if he or she didn’t really deserve it. That strikes me as a price well-worth paying for putting a tighter leash on presidents who genuinely abuse their power.

    Given a good chunk of constitutional design revolves around stopping those in power from using ther power to investigate and harm their political enemies, thanks for this honest sentiment. Have a 🙁

    1. Ilya seems to be fine with the legislature abusing power here. I wonder if he believes in legislative supremacy despite the fact the founders completely dismissed a parliamentary structure.

      1. No, I think he’s just decided that the end justifies the means, and Trump stands in the way of open borders. Ilya’s devotion to open borders has become that fanatical.

        1. You don’t get on the Koch payroll without being a single-issue open borders advocate. Doherty admitted as much.

          1. I am enjoying the cascade of telepaths here figuring out Prof. Somin’s real agenda. Because this can’t be what he really thinks!

  11. Somin commits a logical fallacy here, begging the question. He states as true that Trump engaged in the scheme Democrats outline, but whether or not he did is the fundamental question of this whole thing.

    And in weeks of testimony Democrats’ own witnesses brought doubt on their accusations.

    1. Yea, I caught that, too. Trump’s guilt is because…well..he’s guilty.

  12. I kinda agree with Liberty Lover.

    It’s not so much what a president does, it’s how they do it.

    Everyone (even MAGA mouthbreathers) will admit that Trump acts like a drunk uncle.
    خرید پرفکت مانی

    1. Yeah, no. It is what a president does.

      It is more important that criminal justice reform got done than that Trump “insensitively” at a taco salad on Cinco de Mayo.

      It is more important that Obama attacked Libya without congressional authorization than that he is really good in front of an audience on teleprompter when delivering a speech about it.

      It is more important that Obama’s healthcare reform more than tripled my insurance costs while simultaneously making sure that I had to come out of pocket (and out of network) to complete my son’s treatment for a broken arm because no providers in the state would see patients with Obamacare plans – six months into the year – than it is that Obama sounded presidential and erudite while insisting that if I like my doctor I can keep him.

      Trump’s nonsense is hard to see through…. but the results are more important than the fact that he insinuated that someone who insulted him is fat and stupid. And so are the results of politicians who know what to say and how to say it.

  13. “In my view, Trump’s scheme to withhold aid from Ukraine in order to pressure that country’s government into investigating a political adversary is also a violation of the Constitution and criminal law.”

    Well, then why was crime ( violation of law) not included in the articles of impeachment? Exactly-there wasn’t any crime.
    You can drag out your echo chamber of “scholars” who embrace the “evil deeds/abuse of power” noise until the cows come home, but in your heart you really know that Justice Curtis had the winning argument…that you need a crime, and, thus, you need a law to have been broken, for the originalist version of impeachment to commence.

    And what pisses off you “scholars” is that you have neither law broken nor crime committed.. Hence the tangential claptrap , abuse of power.

    1. Abuse of power is such a vague concept that it can be used to convict anyone you dislike. I’m sure ilya has condemned this practice by various authoritarian regimes… but cant find proof.

      1. Were these “abuse of power” advocates screaming for Obama’s impeachment when he committed the “lie of the year” by telling the public repeatedly it “could keep its (their) health-care plan…”?

        Nope. Of course not. Crickets. The “beauty” of the abuse of power doublethink is that it allows a soft version of what is an ex post facto practice; I.e., “we’ll find a law he broke when we need to.”

        1. Obamacare?

          Dude bombed another country and overthrew the government without even sending a tweet over to congress. I’d say that’s about as abuse of power as it gets.

          But if you prefer your abuses in domestic policy…. how about that time he redirected money from the TARP fund to take over GM and Chrysler. GM had over 30 billion in secured bonds outstanding. Those creditors were first in line. Obama threatened to bankrupt those investors using the bully pulpit of his office and the power of his regulators if the attempted to assert their rights… so they signed over the 30 billion. Which Obama promptly gave to the United Auto Worker’s Union in a stock deal to save their pension fund. Not a lick of that was even close to legal.

          1. Your examples are better than mine, but both of ours illuminate the critical point: that abuse of power is entirely too subjective to use as a standard for impeachment/conviction.

            All of us, each of us, with little thought, could proffer hundreds of “abuse of power”examples by any president. The )practice would fast become a shell game and turn impeachment into a political three-card monte : “Sorry, loser, the real abuse is under this card today.”

            Maybe that what’s why, in part (despite even Hamilton’s handwringing on the topic), the standard was omitted from the operative impeachment criteria.

            1. The Founders disagree. They were fine with a subjective criterion, provided proper procedures were followed.

              Nothing requires impeachment to be an objective standard.

              1. “Nothing requires impeachment to be an objective standard.”

                Treason, bribery and other highly crimes and misdemeanors sounds objective enough, inasmuch as each own and can be defined by elements of a crime. And, textually, they best rise to some serious level.

                I don’t see the leap to ( including) abuse of power, even if some degree of subjectivity is stipulated in the equation.

                1. Maybe read the Federalist Papers. Or floor discussions by Madison.

                  1. Been there, done that. Suffice to say, we got what we got-which, admittedly, invites abuse of power.

                    I’m not denying that. My point is that its practical application is too subjective, especially if not tethered to a crime, and it’s very dangerous as a precedent regarding impeaching a president.

              2. Which is a cannard.

                Complaining over “please look into these obviously corrupt acts” is not even a rounding error on “abuse of power” when overthrowing foreign governments is in the hopper.

                This isn’t “whataboutism”. It is exposing this entire exercise for what it is…. a ridiculous partisan attack couched in legalistic terms. Which abuse of power is bigger even in this teapot – asking for Ukraine to look into 2 potential acts of corruption by US officials, or spending millions of dollars and countless hours trying to drum up anything you can possibly find to justify impeaching Trump? It isn’t a close call.

    2. If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither the facts nor the law on your side, pound the table.

      They forgot the Trump Addendum to that old saw: shit in your pants and cry like an infant as well.

  14. Oh yeah, almost forgot.

    STILL no comment from Somin as to how Trump’s recent win in the recent Wall Funding case was a travesty of Justice.

    1. Is your lack of familiarity with standard English a consequence of backwater religious studies, or perhaps homeschooling involving substandard parents?

      Get an education, clinger.

      1. Shouldn’t you at least occasionally check in with your handlers to see if they can get you some new slogans to paste into the text box you mouth breathing sub-average self-loathing Appalachian meth baby?

      2. As a fellow sub-human, you should not be asking for my forgiveness.

  15. “Abuse of power” is stupid because it’s too vague.

    I would love to start kicking our politicians that use the power of their office for political and personal gain. We seem to be going about that arbitrarily, though.

  16. “Slippery” best describes Prof. Somin’s ethics. “Specious” best describes his argument here.

    1. Prof. Somin is unethical because you disagree with me.

  17. So many, many, many words.

    Here is everything one needs to know:

    GOP support for removing Trump from office from the four most recent major polls:

    CNN: 8/89
    Gallup 7/93
    Quinnipac: 5/94
    Marist: 7/92

    1. In other words, he can get away with it. Shocker.

      That may be everything you need (or more accurately care) to know, but for those of us who haven’t yet eschewed principles, it’s a bit thin.

      1. Yes, you are so principled that you are willing to eschew a trial with any introduction of facts or defense for the accused because the circumstances are just so dire.

        Go piss up a rope and watch it dry with your disingenuous bullshit you partisan shilling retard.

        1. Ahhh, Reason comment threads… the Algonquin Round Table of shit-flinging, knuckledragging douchebags.

          1. Only because your response to being made an utter fool of is to create another ten sock puppet accounts and screech your pants brown.

        2. That’s McConnell, Davy.

        3. The only reason no “defense” witnesses appeared is because those who were closest to the situation chose, at Trump’s instigation not to testify.

          Geez you guys are parrots.

          1. And because the Democrats didn’t bother getting a court order to force them to appear anyway.

            1. Trump’s the one who did this. Blaming the Dems for not using the this or that tactic to combat Trump’s obstruction is ridiculous.

      2. “those of us who haven’t yet eschewed principles”

        So brave, so virtuous.

        1. If one must talk about “principles”, Dershowitz is certainly wrong.

          The only legal “principle” about impeachment is:

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

        2. “So brave, so virtuous.”

          Give it a rest Bob. You regularly espouse will to power as your only political principle. Mentioning that isn’t a boast about my ethos. It just says that yours sucks.

          1. Blow it out your ass, Leo. Nobody buys that “LIBERTARIANS ARE POWER CRAZED BECAUSE REMOVING MY ABILITY TO ROB, MURDER AND RAPE OTHERS IS OPPRESSIVE TO ME” shit under your other names, either.

            1. WTF are you talking about?

              1. Some “libertarians” are just Republicans who want to be allowed to use recreational drugs. Some of them forget to hide the keyboard when they be trippin’.

      3. Impeachment is a political decision, not a legal one. Hence, the only standard that matters is a political one.

        You want a trial based on legal principals but administered by politicians. We call that a totalitarian police state.

      4. “, but for those of us who haven’t yet eschewed principles”

        You mean shit-flinging, knuckle-dragging Regressive Left hypocrite douchebag’s who stamped their little jackbooties for 8 years while Obama committed illegal acts, Constitutional violations and outright treason on a daily basis, and now want to pearl-clutch about the Constitution over false accusations the Democrats manufactured because they’re still desperately trying to rewrite history to say anything except, “DEMOCRATS LOST AN ELECTION THEY RIGGED BECAUSE THEIR PARTY IS THAT CORRUPT, INEPT AND REVILED”?

        Go make another sock puppet, loser.

        1. Mad bro?

          (And what the actual fuck are you talking about?)

      5. Stop trolling us with this phony “principles” nonsense. That ship sailed when Bill Clinton committed perjury and people like you gave him a standing ovation.

        1. As someone who’s as bored with partisan mind-reading as I am with whataboutism, I appreciate your creative effort to fuse them into a novel, albeit equally dopey form of logical evasion. It’s like heart-healthy Burger King or Kanye West punditry.

  18. “Unlike unjust deprivation of life, liberty, or property, removal from power doesn’t violate anyone’s human rights.”

    This is where you are wrong. Removal of someone from elected office violates the rights of the voters who elected him. That is the point. Most defects in a president (or any other elected official) are dealt with by elections. It is perfectly legitimate to vote against Trump or anyone else because you think they have abused the power of their office.

    But once duly elected, the standard for removing them is higher, traditionally much higher.

    You also misstate Dershowitz’s position. You don’t need a statutory crime (at the founding, most crimes were common law crime.) Acc. to him, what you need are misdeeds that fundamentally attack the integrity of the democratically elected govt. The Constitutional phrase is “Treason, Bribery and Other High Crimes and Misdemeanors.” The last phrase has to be like the first two. (The fancy Latin phrase is esjudem generis)

    What Trump did simply does not rise to that level, no matter how slimey.

  19. Removing a sitting president isn’t a criminal trial, it’s a last resort to fix a malfunctioning government. The standard is: is the president misbehaving so badly and on an ongoing basis that the country would be better off without him. Trump’s government is functioning just fine and we have an upcoming election anyway. Removing Trump from office at this point would be enormously damaging

    This is not a judgment lawyers are competent to make. Lawyers are supposed to enforce the law as written, not weigh costs and benefits to society (though they often get confused about that, you certainly do). Impeachment is a utilitarian judgment call. That’s why it is done by elected representatives, not people like you.

  20. There’s nothing categorically wrong (constitutionally or otherwise) with an “abuse of power” impeachment, even without an underlying crime. The problem here is that there’s a plausible explanation for Trump’s actions that’s consistent with a non-crazy view of the legitimate national interest. I tend to agree that Trump was acting primarily for personal political gain. But I only think that because he’s proven himself to be a pretty scummy guy. And even then, I doubt he would have pursued the investigation if it weren’t also justifiable for legitimate reasons he believed in. To me, the slippery slope that’s dangerous is the one that endorses essentially character-based impeachments in cases of mixed motives. In other words, the abuse of power has to be clear and pretty extreme. For example, had Trump literally sought made-up dirt rather than an investigation into a situation everyone seems to agree gave rise to at least an appearance of a pretty high-level conflict of interest, I’d be on board, and I suspect supermajorities in the Senate and the nation would be as well.

    1. Would tasking your personal attorney to seek an announcement of an investigation that falsely portrayed that Biden was under criminal investigation be enough of an abuse of power to justify impeachment in your view?

      1. Good thing that didn’t happen. Well, unless you believe a Russian trying to plead his sentence down and who will most likely go to prison on charges unrelated to the President.

        Show me the part of the Constitution where a President can’t appoint advisers, have them work on his behalf, request that foreign governments assist us with investigating potential corruption of previous administrations, or investigate potential corruption if said officials are currently seeking public office.

      2. The “falsely” part might, if that inference could be prove – because that would remove the legitimate ground for his actions (I don’t think anyone could claim that a false announcement of an a investigation is in the national interest). But on the current facts, the announcement was simply a means beyond private assurances of committing them to actually conduct the investigation (criminal or otherwise).

        1. Perhaps we should ask Mulvaney, Bolton and others as to 1) why an announcement was sufficient to release the aid and get the White House meeting, and 2) why Trump asked his personal attorney to seek the announcement from a foreign government rather than asking the Justice or State Department whether an investigation was warranted and letting them deal with the foreign government.

        2. I disagree.

          And thus we are back into a judgment call.

          I’d hope the President would cooperate in any Congressional fact-finding to get more than a hint of which scenario is true. But he very much has not. Which Congress is also impeaching him for. But which the Senate is helping him to do.

          1. I think we’ve been through enough impeachments and nonsense FBI allegations to know that these investigations are, more often than not, political hit jobs designed to dig up dirt or get someone to say something stupid, fall into a perjury trap, distract them from agenda, etc.

          2. Do the articles even suggest that Trump secretly opposed the investigation actually being conducted (i.e., that he was seeking a “false” announcement)? Personally, I think it would be really interesting to hear what Bolton thinks (whatever else he may be, he’s an opinionated stickler with strong and often interesting views) and what went on between the whistle blower and Schiff’s office. But on the current articles, it’s not clear to me how that testimony would make any relevant fact more or less likely to be true – as opposed to possibly uncovering facts (like the recent stuff about the ambassador being followed) that could potentially support different articles. The current process – which allows for additional evidence if relevant factual disputes are apparent after opening arguments and questions – makes sense To me from that perspective. In any event, I don’t dispute that the current facts can support different judgements about Trump’s intent. I just think that similar differences have existed in virtually every presidency, and will in future presidencies; hence the slippery slope.

            1. Opposing an investigation is not required for Trump to be satisfied with an announcement.

              1. Fair enough. I should have asked whether the articles suggest he didn’t actually want one, or wasn’t seeking one. I thought everyone agreed he did and was – but perhaps I’m wrong.

              2. *Or, to be complete, understood that any announcement would not be followed by one.

                1. The articles suggest he didn’t have mixed motives. He wanted an announcement (and only required an announcement) and wanted an investigation for the single motive of taking down Biden politically.

                  1. Again, so what?

                    How is it different than what happened to Rick Perry?

            2. The letters and testimony all suggest Trump didn’t care about the investigation at all.

              1. My point is that the announcement wouldn’t have been false; the understanding would have been that an investigation would have occurred, even if that outcome wasn’t completely certain. The inference that Trump didn’t care at all is part-and-parcel of the inference that his motivation was solely political. It’s this type of inference that I’m suggesting creates a slippery slope where a plausible legitimate purpose exists for a presidential action. In such mix-motive contexts, character assessments play a significant (I’d suggest a determinative) role. And whole slew of actions in virtually every presidency are subject to impeachment-level second-guessing where partisans predictably question the character, and thus the motives in particular instances, of the occupant of the Oval Office. Maybe Trump’s so bad he’ll turn out to be sui generis. But I’m skeptical. Imagine the reaction of Tea Partiers, and potentially of a House majority, to Obama’s request for flexibility until after the election, with impeachments of this sort legitimately on the table. (Yes, I get that it’s not exactly the same, and I agree Obama was doing nothing wrong. But that may well have been the argument advanced in the impeachment inquiry into whether Obama offered a foreign nation policy favors in exchange for help him getting re-elected – not the argument that took it off the table.)

                1. My point is that the announcement wouldn’t have been false

                  If Trump didn’t care if it’s true or false, I don’t understand why this detail matters.

                  1. Because, as I explained in my comment above, that resolves the mixed-motives case by concluding in the face of a plausible legitimate policy action that that president’s intent was improper; that kind of judgement doesn’t exist (potentially saving for very unique corner cases not at issue here) where the president seeks actual false dirt or openly request a facially false announcement. My view is that judgements like that are the source of the dangerous slippery slope, because they enable partisans to second-guess (even in good faith) a broad range of otherwise-proper presidential decisions based inferences based largely on his or her character. I get that some smart people disagree or think any slope can be managed, but I think it’s a cogent and serious concern, and one that’s a bit different from the one the OP frames up.

                  2. Says the guy who complains about mind reading.

                    1. Brett, you just intuit what you think liberals are thinking.

                      In this case there is testimonial, documentary, and historical evidence.
                      Evidence you don’t really refute; you just go off about what Obama did over and over again.

        3. This part really baffles me in the narrative. Why announce an investigation and not go forward with it? It would be such an easy thing to hold Trump to since he wants the announcement to be public. And all the people who think that he just wants the damage from an announcement and has no real interest in pursuing Biden (kind of like Hillary) are forgetting that he’s already inflicted that damage by simply talking about Biden. Trump never had to formally investigate Clinton and look at how people view her. Others have done quite a bit of investigating and we all know there’s something suspicious about her destroying evidence.

          A public announcement lets him hold Zelensky accountable to make sure he actually follows through with it. There’s no reason to ask for it unless he wants a real investigation. And contrary to the narrative, I’m actually still a bit disappointed that we aren’t formally investigating Clinton more. I understand she’s a low priority now that she isn’t a risk seeking public office, but still.

          1. The narrative is of course Trump wants to pursue Biden and he wants the Ukrainian government to pursue Biden in order to bring down Biden without any regard to whether such a pursuit is legally justified. However based on the same motivation, he only requires that the Ukrainian government announce an investigation because that adds legitimacy to the smear.

            The slippery-slope argument is we can’t tell for sure what Trump’s motives are, and we don’t want to make a future president too easily subject to impeachment based on mixed motives. I think the evidence in this case is already strong enough to conclude Trump’s motive was improper without risking a slippery-slope. Nonetheless, I appreciate Jonathon Turley’s argument that we should gather more evidence since it is available. Let’s call the witnesses.

            1. Indeed, calling the witnesses is my preference, too. Cry Havok! and let loose the dogs of war. Mutual assured destruction in Washington is my optimal outcome.

              As a practical matter I don’t expect witnesses to be called, because there’s no real prospect of the prosecution being permitted to call witnesses without the defense being permitted to, and the Democrats will not be in a position to veto the defense’s choice of witnesses.

              In the House they could craft an evidentiary record as hostile to Trump as possible, because they could block both witnesses and lines of questioning. They didn’t bother to pursue litigation to obtain more witnesses, though it would certainly have been heard on an expedited basis, and they might have already heard from them by now.

              So I reason that the evidentiary record is about as lopsidedly favorable to conviction as it was possible for it to be. Both sides calling witnesses can only hurt the case for conviction.

              And since Trump’s defense looks to consist of demonstrating that Biden was obviously corrupt and NEEDED investigating, and that the “whistleblower” report was a put up job, the potential for blowback if witnesses are demanded is pretty high.

              They’ll rest on the supposed “black mark”, and leave it at that.

              1. As a practical matter I don’t expect witnesses to be called, because there’s no real prospect of the prosecution being permitted to call witnesses without the defense being permitted to, and the Democrats will not be in a position to veto the defense’s choice of witnesses.

                More idiotic mind-reading. The Democrats are asking for witnesses to be called, but somehow you conclude that that’s not what they want.

                Your delusions of omniscience are getting worse.

                1. They’ll make a show of demanding witnesses, balk at the outrage of “witness reciprocity”, and in the end will fail to press the matter. That’s my prediction, it may be falsified.

      3. “that falsely portrayed that Biden”

        BAAAAHAHAHAHAHAHAHA.

        Nah. I’d be more upset about fraudulent and ultra-secret accusations of Russian “Hacking/Colluding/Medding/Memes” being used as a pretext to conduct illegal surveillance on the Democrat Party’s electoral opponents.

      4. No.

        It is no more wrong than an announcement that Harvey Weinstein was under investigation, or that Graham Spanier was under investigation,.

  21. Somin handwaves the idea that the electorate is an adequate safeguard
    for bogus impeachments, so have at it. This ignores how destructive this bogus process is for the country, particularly when it is legitimized by widespread media propaganda that is complicit in the corruption. This is indeed an issue of public opinion, and that is a real challenge when the 4th estate has become so corrupt in there own right. Yes, there is a good bet that reality and the truth will ultimately prevail because it’s a powerful counter to propaganda, but this comes at what cost to the country?

    1. Sounds like your beef isn’t with impeachment, it’s the media.

      1. Sounds like you have nothing honest or relevant to say.

        Time to switch sock puppets.

        1. Neat! Who else do you think I am?

          1. Maybe you’re me, who he also accuses of sock puppetry. (You have to admit, nobody’s ever seen us at the same place/same time.)

            Or maybe we’re both RestoreWesternHegemony embarrassing the Left with our over-the-top ignorant, bad-faith asshattery.

      2. I have a problem with this impeachment in that I think it is destroyed by the facts that 1) you can’t read Trump’s mind and legitimate Ukraine corruption concerns are easily identifiable and 2) no investigations were announced and money flowed. But on the point of electoral accountability for orchestrating a bogus impeachment, yes, I think there is a double standard that upends Somin argument when the GOP is the target.

        1. Courts divine intent from facts all the time. The State department did so with the President, as they do all the time with their leadership.

          Being caught before the results of the abuse of power are manifest doesn’t change what you did.
          I mean, the investigation announcement interview was booked.

  22. Requiring evidence to act on accusations from entirely untrustworthy parties who have already staged multiple false attacks based on lies and a complete lack of evidence is now a “slippery slope”.

    Might wanna take that “Often Libertarian” out of your subtitle.

    1. That’s not the thesis of the OP. At all.

      Maybe calm down and try reading again.

      1. Uh? Yeah. It is.

        But to know that, you’d have had to actually read the article instead of just spamming your usual pathetic melange of hypocritical passive-aggressive whining and idiotic claims about how it’s “Whataboutism” to acknowledge things that Obama did.

        Maybe you should go for a walk or something:

        1. It’s not about evidence, it’s about whether it needs to be predicated on a crime.

          You can say Obama sucks; it’s just not relevant about whether Trump sucks.

  23. “in order to pressure that country’s government into investigating a political adversary”

    Argument ad nauseam.

    Seriously though, the rhetorical trick here is really devious. You keep repeating a statement of opinion as fact and then criticize your opponents’ principles under the false assertion that they acknowledge the same opinion as fact and are still opposed. That’s called a strawman and you should know better.

    1. Yeah, everyone was fooled by that bit of deviousness.

      Good lord.

      1. Yeah, that’s not even a real fallacy. A real fallacy would be doing something like factually demonstrating Democrat res ipsa loquitur for something that Sarcasto badly wants to blame on everyone else, right?

        1. No idea what this means. You’re new, and pretty clearly more partisan than skeptic.

      2. Considering nobody calls it out for what it is, yeah, people do get fooled by it. We’re not even discussing in good faith. Part of the reason people feel like they’re talking to brick walls these days is because we don’t actually approach topics from a logically sound base. Most people end up talking past each other because they make assumptions and unsurprisingly, everyone thinks everyone else is a jackass.

        1. This is an opinion blog, dude. When facts are presented, they are linked to.

          This is the dumbest objection to the post on this entire comment thread, including the guy who decided Somin was on the Koch payroll.

  24. Trump secretly withheld congressionally-approved military aid in return for a personal benefit from a foreign government.

    That’s not about a policy difference.

    1. It’s not something that happened, either. It’s not “withheld” until it doesn’t get spent on time. It got spent on time.

      1. Pedentry. He got caught; doesn’t mean the bad act didn’t occur.

        1. Since the “bad act” in legal terms was not spending the money on time, it didn’t happen. The money got spent on time, thus wasn’t legally “withheld”.

          You can claim that if he hadn’t been “caught” he’d have run past the deadline, but this remains an element of the offense that you have to prove, not assert.

          1. This ‘I didn’t rob the bank because I never got any money’ logic is some high BS.

            Besides, the bad act is abusing power. The phone call itself was an abuse of power – that power being the disbursement of funds, and the abuse being using the power intending to gain a personal benefit.

            1. Guy walks into a bank, makes a minor transaction, walks out again. You accuse him of bank robbery. The bank denies being robbed, and what do you say?

              “Well, he would have robbed the bank, except that he noticed the guard looking at him, and chickened out. But he totally would have robbed that bank otherwise, so we should treat him as a bank robber!”

              Again, I suspect I’m going to have to say this about a thousand times before this is over: You, the guy forever complaining about mind reading, are just assuming he was doing it for personal benefit. But that’s the thing you have to prove, you can’t just take it as a given.

    2. What was the nature of this personal benefit?

      1. Pushing a scandal against a political opponent.

        1. How does that personally benrfit Trump?

          1. How does injuring one’s political opponent’s reputation help a person?

            This Socratic stuff is BS for this medium. If you have a point, make it.

  25. If congressionally-approved aid ( via statute) interrupts or disrupts the executive’s Article two powers ( specifically, foreign affairs/CiC), it’s possibly unconstitutional. Thus, no crime.

    1. Except this was for Trump, the dude. Not the United States.

      No part of the foreign policy establishment was along for this ride; just Giuliani and this rapidly growing goon squad.

      1. The charge is that it was for Trump, not the United States. To convict you’ll have to prove that, not just assert it over and over.

        1. It’s been proven. The evidentiary record makes as strong a circumstantial case about Trump’s intent as anything. Who Trump used, the thing he wanted, the way he asked, the way he pulled back the ask once he was outed. The Senate is going to let him get away with it, but that’s to their shame.

          You are the ones spinning debunked BS about Biden, and then trying to run a normalcy argument that Obama’s policies were about the same as Trump’s abuse of power for personal benefit. Or making process argument. None of those get at the idea that Trump’s abuse was not proven.

          1. No, it hasn’t been proven. It’s been asserted. Over and over.

            But it has never been proven.

            1. Not Reshufflex’s argument.

      2. Ah, Trump is! the foreign policy establishment. The clowns who follow his directives are called unelected bureaucrats.

        And the goon squad to which you allude began with the attorney general ( read call transcript) handling the matter. What a strange way for Trump to abuse his power, by telling Ukraine from moment one that it should expect to hear from the man in charge of the justice department.

        1. It’s strong circumstantial evidence Trump is acting for himself and not the country when he doesn’t include any of the people whose job it is to help the country.

          1. Trump is under zero obligation to consult with career diplomats, ambassadors, DC statists or assorted bureaucrats. It ain’t like their collective track record is compelling, especially on matters foreign.

            Indeed, niw that I think about it, he was primarily elected as a counterbalance to that swamp.

            Secondly, he used a bunch of people, including the attorney general, cabinet officials and senators, in his Ukraine endeavors.

            Finally, even if his mission was “for himself,” that doesn’t exclude a mutual gain for our republic or become tantamount to impeachment criteria.

  26. In the impeachment against Clinton, there was a victim- Paula Jones.

    Who is the victim here?

    1. LOL.

      The United States.

      1. The “victim” here is effectively Ukraine, who is on record as saying that they felt no pressure. Zelensky heard Trump’s request as nothing more than an offhand recommendation and nothing more. No one who had firsthand knowledge of the call ever perceived official condition or mandate. The democrats were left with having to prove corrupt intent and they fell short of that.

        1. No, Trump was screwing with out elections and Congressional mandates.

          Giuliani is still working on the former.

          We can’t talk to those with firsthand knowledge of the call due to Trump’s obstruction, so your argument there is pretty bad.

          1. And the democrats proved that Trump interfered with elections….. when? Trump already released the transcript and the other side all but verified the content. The democrats first witness admitted that he never met Trump, was not in on the call, and got talking points from the NYT.

            The democrats never proved any crime. They admit it as much when their report insist that they don’t need a crime to impeach. So they had to show how Trump specifically used his office to coerce anyone or that any of his conduct was a grave and serious threat to the nation. Meaning we’d have to believe our rule of law and constitutional order was threatened because Trump temporarily withheld aid that eventually went to Ukraine. That didn’t stop the dems from sitting on the articles of impeachment for 4 weeks.

            “Not a crime but still impeachable” still has to pass certain threshold. Otherwise we would just impeach presidents who have affairs with his subordinate regardless of consent, because the surface level conflict of interest would constitute “abuse of power” for some partisans. Clinton was impeached because he committed perjury, but his party acquitted him because they reasoned it wasn’t treason level misconduct.

            There is almost no case for the Trump impeachment. Did you hear that the FBI lied to obtain surveillance warrants? Or that a number of whistleblowers had prior collaboration with dems? In real life, this case would have been thrown out weeks ago.

            1. First, you just made up the grave and serious threat to the nation standard.

              Second, Trump using the power of the Presidency to help his reelection via his personal attorney and a foreign power is indeed destabilizing to our republic. Election integrity is kinda key.

              Third something can be a big deal and not be urgent. Especially when you realize Pelosi wanted assurances from the Senate they’d look at evidence. She didn’t get such assurances, and now look at the rules McConnel set up. Well below even the Clinton standard.

          2. In what way does Trump’s actions screw with our elections?

            1. In the part where he targeted his political opponent.

        2. The “victim” here is effectively Ukraine, who is on record as saying that they felt no pressure.

          Do you also take hostage videos at face value?

          1. “The very fact that the victim denies they were attacked is proof positive they were attacked!”

            This has become unfalsifiable in your mind, Sarcastro.

        1. Elections being free of outside influences are important. An act that forces us to doubt the nature of elections so long as the perpetrator is a participant is pretty invidious to our system.

          And most on here don’t care so long as the Dems don’t get in.

  27. The odds of the government actively tracking or surveilling my mom is pretty low. But the government has a record of illegal surveillance. For a libertarian to say “You don’t have to fear the surveillance state because it likely doesn’t affect you” would be strange indeed.

    If you believe that the government lies to obtain a certain end (like the FBI lying to get surveillance warrant) and that political process unbound by due process standards can be hijacked by partisan agendas, then concerned about impeachments being weaponized is absolutely genuine. “Slippery slope” only assumes a certain worst case scenario. There might be 20 more such impeachments or 2 in the future. Either case would represent injustice.

    If the government says “you can eat whatever you want, we won’t restrict your choices”, the natural consequences of unhealthy eating will discourage the population from resembling Richard Jewel. If you let unaccountable bureaucrats have their way, they can continue to spy, lie, and spend on their in spite of the negative consequences. Behold the VA, public schools, crummy roads, etc.

    Again, how can the libertarians acknowledge that impeachment is a political process, but dismiss concerns that it can be hijacked? How can a political party vote AGAINST removing a president who clearly violated the law, but move to remove a president whose crime hasn’t been proven beyond reasonable doubt? “Well abuse of power doesn’t have to be a provable crime to be used for removal” Well then the GOP has every incentive to impeach the next Barack Obama, who was basically a walking abuse of power.

  28. Ilya

    I appreciate your desire to be consistent – Yet where were you during obama administration which was arguably far more egregious?

    1. The topic is slippery slope, a feckless argument for people who cannot argue facts or law and who pretend they are not abusing the opposition. “I cannot do justice for you because the next appellant might be a douche.”

      If you take your whataboutism over to redstate, you’ll get so many hearts over there.

      1. I can accept your argument – but tell us what your position was during the obama administration.

        1. Seated at my desk, practicing corporate law. Thanks for asking.

      2. “whataboutism” – progressive political theory which posits that what’s good for your goose is never good for my gander.

  29. Assume for the moment Trump did withhold aid to gain an investigation. Pro-impeachers must either claim there were no plausible grounds to investigate Biden and Burisma, or they must admit there were additional material reasons and duties to do so. And so the case falls apart.

    1. “Pro-impeachers must either claim there were no plausible grounds to investigate Biden and Burisma, or they must admit there were additional material reasons and duties to do so.”

      Pro impeachers might point out that if Mr. Trump wanted an investigation into whether or not Mr. Biden engaged in corruption, the task would fall upon the Attorney General of the United States, a public officicial who takes direction from the President of the United States. There does not seem to be such an investigation underway, nor has there been any suggestion that one was started, nor any disclosure of any evidence pointing towards guilt.

  30. It would be nice if the Co-Conspirators had a more varied voice on this-
    INAL
    As someone looking at this circus, I fail to see a crime or anything so terribly egregious to merit removal.
    It reminds me of the movie Minority Report of jailing someone for their thoughts before they actually commit a crime, or in this case, jailing them even when they do the right thing.

  31. what a ridiculous hack this supposed “professor” is. all his trash has been refuted numerous times in the trial brief of trump. go back to russia

    1. The ad hominems are how you can tell he’s got nothing.

  32. There is one bulwark against abuse of the “impeached for abuse of power” situation, but I don’t have much faith in it.
    If partisans abuse the system, the voters can remove the Congresspeople who do so. Alas, I figure it’s more likely they’ll be rewarded.
    Giving the people what they want is only SOMETIMES a ticket to trouble (just because what the people want and what the people should have are different things). Give them narcotics and hookers? Big problem. Wait, they had a prescription for the narcotics? No problem, then, for at least a while.

  33. Don’t worry. This whole thing will be done in 2-3 weeks and you guys will have the chance to make up a new story about something the bad orange man did.

    Voters like jobs and economic growth and no new wars and more money in their 401k.

  34. Having largely botched everything in Trump’s impeachment, Democrats seem poised to commit their final blunder. Instead of going forward with the case against Trump, which yesterday’s proceedings show will never get traction with even a single Republican Senator, Democrats should now act to discredit Trump’s exoneration party. They should not go ahead as if they concede legitimacy to McConnell’s kangaroo process.

    Democrats should refuse to argue more unless and until documents and witnesses have been produced. They have made the case already, against McConnell’s verdict-first, evidence-optional sham. Now stick to that case. Not one more word until Republicans agree the time has come to subpoena documents and evidence.

    If Republicans want to imperil their own politically beleaguered colleagues by forcing them to vote for Trump’s acquittal without evidence, let them do it. Maybe those cowardly souls will think twice if confronted in stark terms with their upcoming fate before the last chance to rebel against these sham proceedings ends.

    And while they are at it, Democrats should demand lawyers for the prosecution. How can it be that Trump gets lawyers, and the House managers do not?

    That this has been a sickening spectacle, has been as much a result of Democratic blundering as of Republican intransigence and defiance of duty and patriotism. The least Democrats can do now, would be to hit the right historical note as they accept a defeat they seem powerless to avoid. Make it as clear as possible that this injury to the nation is one Republicans alone have inflicted, by deliberately shirking their duty to consider evidence. Refuse further cooperation on these terms.

    1. What “evidence?” Even if Trump did what he is accused of, we don’t think it merits removal from office.

      In any case, Obama’s use of the IRS against political enemies and Operation Chokepoint were 100 times worse than anything Trump has done.

  35. TL;DR: Congress’ abuse of power is justified because Orange Man Bad.

    1. Trump supporters knee-jerking about the imaginary knee-jerking of everyone else is quite the move.

      Saves on mental energy, I guess.

  36. In 1999 Republicans tried to impeach Clinton for abuse of power. It only failed and didn’t make it to the Senate because they didn’t have enough Democratic votes. That was also the same year the Republicans, including Lindsay Graham and Moscow Mitch, had no problem with overturning the last election.

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