Impeachment

Acquit if You Must, But Don't Endorse the Dershowitz Argument

|The Volokh Conspiracy |

The Senate impeachment trial of President Donald Trump appears to be coming to its inevitable conclusion at a fairly rapid pace. The entire impeachment process has been distressing to observe, but it is time to start thinking about the fallout and how to minimize the damage to the constitutional system.

Given the legal strategy that the president's defense team has adopted, there is a particular risk that an acquittal will be framed as a repudiation of the traditional understanding of the scope of impeachable offenses and an endorsement of some version of the constitutional argument offered by Professor Alan Dershowitz. The Dershowitz argument would gut the congressional impeachment power and embolden future presidents to further abuse the powers of their office.

All high profile impeachments have legacies. To this day, we continue to argue over the lessons of the impeachments of Andrew Johnson and Bill Clinton, and apparently even over the resignation of Richard Nixon. How we understand those events has consequences for how we think the constitutional system should work today. The constitutional implications of an impeachment do not turn solely on whether an officer was acquitted or convicted. They turn also on what we understand the impeachment to mean. I argued similarly after the impeachment of Bill Clinton.

The Republican senators who will be voting to acquit President Trump of the charges that have been leveled against him by the House have a responsibility not to do lasting damage to the system of constitutional checks and balances in the process. The senators will have an opportunity to go on record to explain their votes to convict or acquit, and the senators should use that opportunity to say something about what kind of precedent they are setting.

In particular, Republican senators should resist the temptation to seize on Dershowitz's argument as providing the rationale for rejecting these particular charges against this particular president. Rather than embracing a general rule that presidents cannot be constitutionally impeached for abuse of power, senators should instead try to limit their judgment to the unique circumstances of this particular case.

It is not unreasonable to conclude that the charges leveled against the president are not sufficiently grave to justify his immediate removal and that the president can be safely left in office until the voters have a chance to express their judgment on his performance in November. The type of charges brought by the House might well be within the scope of the impeachment power, but senators must still exercise an independent judgment to determine whether the conduct in question is serious enough and dangerous enough to justify the immediate removal of a president. It is possible for a constitutionally conscientious senator to vote to acquit, but in casting such a vote senators should take care not to undermine the potency of the impeachment power entrusted to Congress by the constitutional framers.

Senators can put this matter in the hands of the voters, but they need not endorse a flawed understanding of the Constitution in order to do so. As they draft their statements explaining their votes, they should explicitly reject the constitutional argument put forward by the president's defense team.

I have elaborated on this argument in an op-ed now available at the Washington Post. It can be found here.

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  1. Of course the Senate will acquit. There is no other option. The House started a sham investigation, then carried it unnecessarily into a partisan impeachment, and now we end up here. There is nothing here and even the media is reaching that conclusion. Time for the dems to lick their wounds and move on to the next manufactured outrage.

    1. If an occasional contribution by a Conspirator strays from the Republicans’ backwardness-ignorance-bigotry line, the Conspiracy’s carefully cultivated class of clinger commenters immediately steers the course back to where the proprietor prefers.

      1. Kirkland, since the failure of Hillary to win the third term the Clinton Administration so clearly deserved (NOT), your have veered off into total derangement.

        Your fantasy of Volokh Conspiracy commenters cultivated by “the proprietor” sounds truly delusional. Do you have any evidence?

        1. Most of the Conspirators feed a steady stream of polemical partisanship (with a scant legal veneer) eagerly consumed by disaffected, credulous, anti-social, bigoted right-wingers.

          The clingers tend to respond with comments equivalent to the chants of “lock her up” and “send her back” at a Trump rally.

          It’s a fascinating co-dependency among culture war casualties.

          1. That’s funny considering that you generate the most steady stream of polemical partisanship on these threads. From what I can tell based on your comments, you are also disaffected, credulous, anti-social and bigoted. Perhaps it’s time to look in a mirror?

            1. All of this is a steady distraction, clearly designed to steer readers away from the one crucial point that really matters, which is that our esteemed colleague Alan Dershowitz is obviously right, because he is acting in the public interest. What is more, he has perfectly explained why all of us here at NYU have been right to cooperate with law enforcement authorities in the fight against illegal “satire.” We have always acted together as a single body in the public interest, and therefore it doesn’t matter if a few little “rules” have been bent along the way, a little money here, a little money there, a phone call here, a phone call there, to get the results we need not only in the pleasant vicinity of Washington Square, but on college campuses everywhere in America. See the documentation of our nation’s leading criminal “parody” case at:

              https://raphaelgolbtrial.wordpress.com/

      2. I’m surprised at how eager you are for President Mike Pence. Especially as he could run two more full terms, for 9 years total.

    2. Sham or not the investigation was shoddy, haphazard, and heavily biased.

      Thinking anything was ever going to come of that effort was unrealistic.

      1. Your comments have exactly nothing to do with what Prof. Whittington wrote. Please try to focus.

        1. “Prof” Whitless’ comments have nothing to do with the fact that the risk is of Congress using impeachment to attempt to force a President to abide by their wishes, when “obstructing” them is literally his fucking job description, per the Constitution.

          In a more just world, Nancy, Schiffylis, the rest of the DNC would be put in front of a firing squad for staging a coup, and their entire party membership would be charged under RICO.

    3. “It’s a sham investigation,” he said, while manufacturing outrage over an investigation supported by a majority of the country.

      1. And nearly 100% of media coverage.

      2. Really? I haven’t seen the poll numbers on how the public supports running a partisan kangaroo court by the House. Conversely, a lot of conservatives are fine with running a true investigation, because this is how truth is aired. However, it’s not an investigation when one side chooses preferential “witnesses” who have witnessed nothing, misreads actual text of conversations, and the accused doesn’t even get to cross-examine or face the accuser [a Constitutional requirement BTW]. Kinda like how the Klan used to conduct lynchings, claiming they gave the guy a fair trial by his peers in the cornfield while they were securing the noose around the victim’s neck.

        As for the media, consider that nearly 100% of the media has consistently refused to play the video of that idiot Biden bragging that he’d broken the law, which started the whole thing. I guess he pretty much had to run for President after that so that he was immune from being investigated himself.

    4. Keith W’s op-Ed is an Abuse of Power. He should be removed from all positions of responsibility.

      #DemArgument

  2. I would argue that the House Democrats are the ones who have gutted the Congressional impeachment power by forcing through a sham impeachment.

    1. Wow, you really turned the table on those Democraps. Tee hee.

      1. Next week, Trump will still be your president.
        Which is a good thing, because the alternative is President Mike Pence.
        Why are Demorrhoids incapable of following very simple logical chains?

  3. So some how this turd in punch bowl belongs to the Senate? We are supposed to ignore the crap that took place with the IC IG, the whistle blower, secret basement hearings, the President being denied representation and witnesses? All without the House voting to start an impeachment inquiry, until after most of the hearings?
    I give the Senate a lot of credit for conducting a fair and impartial trial. Don’t hang some make believe constitutional crisis on the Senate. This all rests with Pelosi and Schiff

    1. Precisely. The burden is absolutely not on Senate Republicans.

      1. Senators take an oath to uphold the Constitution so the notion they are limited to what the House finds is absurd. So these Republican senators have broken their oath to uphold the Constitution and are officially Trump cock holsters…I think Lindsey Graham is in heaven. 😉

        1. You sure did not complain about acquitting Clinton.

          1. How old are you??

          2. Bill Clinton’s sworn testimony was evidence at his impeachment trial.

        2. Seriously Seb?

          The House Managers went into the Senate on the first day; called the Senators and Chief Justice traitors if they didn’t do what the Progressive Dems demanded. They failed to do their job during the House investigation then they tried to use the Kavanaugh playbook of a last minute “witness”. Not to mention violating every Constitutional Right of an accused when they failed to allow the opposition to ask questions of witnesses, refused accused witnesses, denied WH counsel be present for WH witnesses, refused to turn over exculpatory evidence, and the list goes on and on. #ChickenSchiff and J. Wellington Wimpy refused to go to the 3rd co-equal branch of US government to resolve disputes in their sham investigation.

          If any prosecutor in a federal court had brought such a weak case then demanded additional witnesses while calling the judge and jury traitors; they would have had their case thrown out and most likely faced sanctions and/or removal from the bar for their behavior.

          1. Not to mention violating every Constitutional Right of an accused when they failed to allow the opposition to ask questions of witnesses, refused accused witnesses, denied WH counsel be present for WH witnesses, refused to turn over exculpatory evidence, and the list goes on and on.

            I can’t stress enough how dumb and dishonest this is.

            First, none of those things are a “Constitutional Right of an accused.” They are rights that arise in criminal cases; this is not a criminal matter. Second, even in criminal cases, these are all TRIAL rights. The House was not conducting the trial. The Senate is.

            Third, the opposition was allowed to ask questions of witnesses. There was no exculpatory evidence at all, let alone in the possession of the House. The GOP was allowed to call witnesses; they didn’t have anyone relevant they wanted to call. (The only person who prevented witnesses from being called was Trump himself, who asserted frivolous objections to keep people like Mulvaney and Bolton from testifying.)

            If any prosecutor in a federal court had brought such a weak case then demanded additional witnesses while calling the judge and jury traitors; they would have had their case thrown out and most likely faced sanctions and/or removal from the bar for their behavior.

            This may have sounded good in your head, but it was really really stupid. Every prosecutor in federal court gets to call witnesses.

            1. #Shampeachment is nearly over, dude. Time to seek help for your TDS.

            2. Prosecutors call on witnesses that participated in depositions, where the defense had an opportunity to question and lock in their statement. They don’t get to call new witnesses or introduce new charges they didn’t file at trial on a whim.

              You have two options here. Either the impeachment was conducted in a manner fair to the defendant, meaning it observed due process principle even when it didn’t have to, or it was unfair to the defendant because impeachment allowed the prosecution to ignore due process.

              That’s it. Period. The FBI lied to obtain warrants, and the Russian collusion probe was based on a sham dossier. The government withheld evidence favorable to Flynn. A house manager threatened to put the senators’ heads on sticks if they refused to convict. They urged for witnesses based on unverified leaks and whistleblowers who had collaborated with attempt against the defendant. In real life this never reaches trial or the judge will throw the case out. The Bundy case was dismissed for lesser violations.

              So you’re basically left with “but this isn’t a criminal trial” and turn a blind eye on what’s obviously a minor coup attempt. But even then, impeachment procedure requires the house to consider evidence and draw impeachment articles. The senate conducts a trial. The republicans have not broken any law by effectively not doing the house’s job for them.

            3. If this isn’t a criminal matter, why are we having a trial?

              herp a derp

              1. We have trials in non criminal matters all the time…?

            4. Rinse and repeat those downloaded Dem talking points once more… k? Geez, it’s like fookkin parrotville hanging around these leftists. Nancy Pelosi tells everyone what to say and then there’s 4 million repetitions of it on every network and every discussion board. I knew what your argument was going to be before you even heard it from someone else. Can someone make a montage of politicians saying, “it’s not a criminal trial” and “there is no acquittal”. Put it to music.

              Sorry, but the elements you just cited are accepted part of due process, which is not relinquished when taking the oath of office in the presidency. Since the only basis for removal from office is high crimes and misdemeanors, it is part of the process. Furthermore, the House is a Parliamentary body, the very definition of which is a deliberative body where the majority rules, with respect for the minority. Changing the House rules to silence the minority is not part of that process.

              And no, the GOP was not allowed to call witnesses. Boolshyte that there wasn’t anyone to call, and let’s start with Biden, father and son and the “whistleblower”. Dem approval had to be given, and it wasn’t. Again, there’s a Constitutional right to face one’s accuser when criminal charges are made. Also, no Republicans were allowed to even speak while 98% of the testimony was given in the Intelligence Committee, and limited virtually nothing when it all moved House judiciary committee. It was a House sham and you would have been squealing like a stuck pig if they did this to Obama for his arbitrary bombing of a country with which we were not in conflict or a dozen other severe abuses of power.

    2. Your understanding of reality has no basis in reality.

      Stop skipping school and pay attention in Civics so you might someday understand our Republic.

      ICIG did nothing wrong.
      Whistle-blower did nothing wrong.
      Hearings were open to all committee members (your complaint about the basement is childish).
      The President doesn’t get to tell investigators how to do their job, and the denial of witnesses at his trial is PURELY on him and his GOP lackies.
      The House shall have sole power of impeachment. That does not require the entire House to vote to investigate whether impeachment should be considered. It requires the House to vote to IMPEACH.

      No Senate impeachment trial in the history of this country has been done without witness testimony, and EVERY Senate impeachment trial (17) in our history has heard witness testimony from witnesses who did not testify in the House.

      Until now.

      Shove the ‘fair and impartial’ shit up your ass back where it came from.

      1. Actually, the Dems did things wrong. They tried to erase the results of the 2016 election by trying to remove a sitting president for things that are not only completely legal, but were also things every president has done since the founding of the Republic. So you can state bullet points until you’re blue in the face, it’s your own unhinged insanity that makes you believe those bullet points, instead of what’s obvious to anyone who isn’t a mouthbreather.

        So shove THAT up your ass, sideways, with a swordfish. Tool.

        1. The Republicans are out to erase the results of the 2018 election. The majority of Americans do not want this president.

          1. I don’t remember a presidential election in 2018. Trump wasn’t rejected by voters in 2018 anymore than Obama was when he lost the House in 2010.

            The voters will get every opportunity to have their say in November. In fact I would think you would want Trump rejected by voters to prove your point they don’t want him.

          2. “The majority of Americans do not want this president.”

            Then let the majority of Americans decide 2020 (through the Electoral College as provided in the Constitution).

            Why this partisan circus of an impeachment?

        2. Incorrect. Color me surprised.

          Impeachment is not ‘erasing the results’ of an election.

          It is not, in fact, legal for Presidents to solicit foreign interference in our elections. By all means – look it up. It’s actually a Federal crime.

          https://twitter.com/EllenLWeintraub/status/1139309394968096768

          It is also not something that every President has done in the history of our Republic.

          Might want to have a Doctor check for the extra holes in your head that leaked out whatever brains you had left.

          1. What was the nature of this interference?

          2. Jason,

            You might be unaware that the DOJ’s criminal division looked at the question of what you’ve characterised as “solicit[ing] foreign interference” and concluded that there was in fact no campaign finance violation.

            I understand that it was the unanimous view of the criminal division prosecutors that Trump’s call with Zelenskyy did not violate campaign finance law, so I doubt the Justice Department will redo it review of the matter; but by all means send them your insightful post. I’ve been wrong before.

            Before admonishing others to “[s]top skipping school and pay attention [..]” you might consider heeding your own counsel.

            1. The house managers even defended accepting foreign help in elections yesterday, as long as it is partly paid for. Was quite funny. They failed to mention the 13 countries that assisted with Mueller free of charge.

              1. Do you think 52 USC 30121 prohibits American law enforcement from receiving information from foreign countries?

            2. The DOJ’s criminal division reviewed the transcript memo and concluded that nothing of value was clearly promised or exchanged as a result of the call. Although the President said he intended to have AG Barr speak to Zelenskiy (on the call), the DOJ’s spokesperson said the President never followed through, and AG Barr never spoke “with Rudy Giuliani” (which in some ways was a strange non-denial that AG Barr had in fact reached out to the Ukraine).

              I noticed your careful wording (“Trump’s call with Zelenskyy”). Of course, their earlier review of the call was before the Parnas document dump and the alleged Bolton book revelations. I doubt this DOJ is going to take up an investigation of President Trump, but we’ll see.

            3. Please point to where I mentioned Trump’s call with Zelensky as the sole incident or evidence of solicitation. The evidence presented in the trial has demonstrated that there was far more to this issue than just a phone call.

              I re-iterate my insistence that people pay attention before opening their virtual mouths.

          3. “It is not, in fact, legal for Presidents to solicit foreign interference in our elections. By all means – look it up. It’s actually a Federal crime.”

            So must have been a crime for Trump to ask putin/Russia to find the missing 30,000 emails?

          4. It’s erasing an election if the real motive is getting rid of a political opponent and not faux concern for constitutional violations.

            Trump may have done wrong here. But that’s not what’s motivating the opposition, and yes that matters.

            1. “Trump may have done wrong here. But that’s not what’s motivating the opposition, and yes that matters.”

              Will you at least concede that it matters what motivated the President as well? Or are you saying that it matters what his opponents’ motivation was, but not his motivation?

              1. Motivation matters not.

                Facts matter.

                Trump has broken no law.

                Demorrhoids break any law that gets in their way.

                Demorrhoids must be exterminated to maintain democracy.

                #ChangeMyMind

        3. They tried to erase the results of the 2016 election by trying to remove a sitting president for things that are not only completely legal, but were also things every president has done since the founding of the Republic.

          Even if your claims were true, and you don’t show any evidence of knowing what happened, removing Trump would not “erase the results of the 2016 election.” Everything Trump did between 1/20/17 and the present would remain in effect. All the laws he signed, all the regulations he issued, all the people he appointed — all of those would still be there. And Mike Pence, not Hillary Clinton, would become president.

          Moreover, the “trying to remove a sitting president” is just a foolish attempt to make it sound more dramatic. Yes, that’s what impeachment/removal is for. “You’re trying to use the constitutionally specified procedure to remove a president to remove a president!!!!!”

        4. “…but were also things every president has done since the founding of the Republic…”

          Every President, since its founding, has asked a foreign country to investigate their political opponents’ children? Seems unlikely but if you have cites…

          1. Well, in this case, he asked them to investigate an apparent crime.

            If the opponents’ children are involved, then that fact should be relevant to the investigation.

            Unless your argument is that once someone claims to be running for office, no criminal investigation can take place of them or their family.

            Sounds very Kennedyesque.

      2. You do realize that just asserting these things doesn’t actually make them true, right?

        1. Oooh….I like that response.

          I’ll be sure to use it (probably in the near future).

          1. “ICIG did nothing wrong.”

            Whistleblower form was altered to permit hearsay, and the change backdated to conceal that it was done to permit this particular complaint.

            “Whistle-blower did nothing wrong.”

            The ‘whistleblower’ attested, under penalty of perjury, that he hadn’t discussed the matter with others before going to the IG. This was a lie.

            1. When did your source switch from birther bombshells to whistleblower bombshells?

            2. “ICIG did nothing wrong.”

              Whistleblower form was altered to permit hearsay, and the change backdated to conceal that it was done to permit this particular complaint.

              Every word of this is bullshit. The form was not altered to permit hearsay, because hearsay was always permitted. Hint: the form doesn’t have any legal significance; the statute determines what is allowed. (The statute does not say anything about firsthand knowledge being required.)

              “Whistle-blower did nothing wrong.”

              The ‘whistleblower’ attested, under penalty of perjury, that he hadn’t discussed the matter with others before going to the IG. This was a lie.

              Also all made up. The only thing he discussed was that he had something to report, and asked how to do it.

              But even if you weren’t making this stuff up based on the fan fiction you read in the Federalist, so what? What does any of that have to do with anything meaningful? Did the whistleblower also fail to use a hands free device while using his cell phone to talk to the ICIG’s office while driving?

          2. Why would you double post often? You always use bald assertions.

        2. Evidentiary pointers from birthers are always great!

      3. The question is not witnesses but “new” witnesses. Those other than the ones that tesfied during the House inquiry.

      4. The IC IG did nothing wrong? Hearsay? OK . But please explain how he had jurisdiction. This faux whistle blower revealed infomation that did not touch any component of the Intelligence Community. This was a White Houses or Foriegn Affairs issue. NOT the intellignce community. In fact. the WB first went to his agencies IG. The CIA IG with his information of wrong doing. That IG got a ruling from his CIA house counsel on what he should do. The legal opinion stated that since the complaint had nothing to do with the CIA (the WB agency) The IG had no jurisdiction.
        So explain how the IC IG had jurisdiction?

        1. The “whistleblower” is acting in concert with his agency’s leaders desires. The permanent bureaucracy in the intelligence agencies, including the CIA, loath Trump and are willing to bend the rules to allow a whistleblower complaint to be filed. Whistleblower protections are an HR mechanism to protect subordinate employees who expose wrongdoing by their own agency. This “whistleblower” is doing his superiors’ dirty business for them. He ran no risk by making this complaint. Indeed, the CIA leadership will reward him.

          The “whistleblower” here is not exposing wrongdoing that he witnessed in his own agency. Instead, he is “exposing” alleged wrongdoing by an elected official that he did not directly witness, that he only heard about. The whistleblower laws and procedures have been perverted so that the CIA can try to subvert and eliminate an elected commander in chief that they don’t like. If we let the CIA and the other intelligence agency leaders get away with this, then we will really suffer in the long term.

        2. What do you even think you mean by jurisdiction here, and what significance do you think it has?

      5. So the fact the ICIG transcripts havent been released isnt a thing to you? The fact that the applied the ICIG laws to someone, the president, who is not a member of the IC isnt wrong to you? For implying others as dumb you sure seem to know very little.

      6. witness testimony? Witnesses to what?? Democrats have been crying “urgent” and their sophistry has been non-stop along with their calls to action a la Maxine Waters.
        The result of all this is that we have no media to trust, no federal law enforcement to trust (good, do not need them anyway) and a capital full of attorney/politicians that gave themselves power that increases yearly. Then they have have the Goddam Gall to even use the word “Constitutional”.
        While in the background the states are going completely around the bend and that there is a single person who supports things such as “red flag” laws is one too many.
        reason is misnamed and looks more like a democrat than anything else and is brimming with blather…

      7. That’s the silliest crap I’ve seen on this page. First, there have only been two presidential impeachment trials so citing EVERY previous one is nonsense. And no, impeaching a president isn’t the same thing as impeaching a district court judge.

        Second, EVERY former presidential impeachment, and now this one has been nothing but a political stunt and zero reason to impeach. Andrew Johnson was impeached for political reasons and with enemies who complained he violated the Tenure of Office Act, which was subsequently repealed and then repudiated by SCOTUS as unconstitutional. Bill Clinton was impeached for lying about sex. Now Trump for trying to investigate the DERP who bragged that he’d committed a crime, and accused by someone who won’t show his face. And no, there is no “right to privacy”, and that is specifically repudiated in the Constitution with a right to face one’s accuser.

        The Senate has done as they should have done in ALL these presidential impeachments including this one. No reason to call witnesses to something that even the House managers couldn’t put any more substance to than “abuse of power”, which is claimed by the opposition party for nearly every president who has served. If you think someone abused a power, pass a law and turn such abuse into a crime. Until then, it’s a political opinion, and nothing more.

    3. Noise from Republican bizarro world.

      crap that took place with the IC IG, the whistle blower,

      WTF are you talking about? Some paranoid conspiracy theory?

      secret basement hearings,

      There were no “secret hearings.” There were almost fifty GOP representatives at the hearings, they had a lawyer, and were allotted just as much time for questions as the Democrats. That the gave time to clowns like see-no-evil Jordan is their fault.

      the President being denied representation and witnesses?

      The President was not denied representation. He was given the opportunity to have his counsel at the hearings. He refused the offer. The Republicans did get to call witnesses. They didn’t help Trump’s case much.

      All without the House voting to start an impeachment inquiry, until after most of the hearings?

      BFD.

      1. So tell us:
        Who was at the whistleblower deposition?
        Who was at the ICIG deposition?
        Where are the transcripts?
        Why did GOP House Intel members have to get permission from #ChickenSchiff staffers to look at transcripts?
        Why did Dem House Intel members leak only one side?
        Why did House Managers not turn over all exculpatory material?
        Why did House Managers lie at the trial?

      2. Yet if any GOP representatives who attended the hearings disclose information, they will be punished. Meanwhile, the House Dem leadership is free to leak any content from those hearings that they want.

    4. It belongs to the Senate because the constitution says it does.

    5. UNTIL SOMEONE CAN GET ZELENSKY OR SOME UKRAINIAN OFFICIAL TO TESTIFY UNDER OATH THAT THEY WERE THREATENED WITH LOSING THE AID UNLESS THEY DID WHAT TRUMP REQUESTED, THERE IS NO VIOLATION, NO CRIMES OR NO REASON TO VOTE TO REMOVE THE PREZ! UNTIL SOMEONE CAN GET AN AMERICAN GOVT. OFFICIAL TO TESTIFY UNDER OATH THAT THE UKRAINIANS WERE TOLD THEY WOULD NOT GET THE AID UNLESS THEY INVESTIGATED BIDEN & HIS SON, THERE IS NO VIOLATION, NO CRIMES & NO NEED TO REMOVE TRUMP! AND VERILY, NOTHING TRUMP ASKED FOR WAS GRANTED BY THE UKRAINE, BUT THE AID WAS STILL RELEASED! WHAT A COLOSSAL WASTE OF TIME, MONEY & ENERGY!

      As a matter of fact, the Ukrainians have gone out of their way to say they were NOT pressured & were not even thinking of it!…All the crap the House Dems put forth in this flimsy case were just innuendo, hearsay & personal opinions of what our foreign policy should be! NO FACTS AT ALL THAT PROVED THEIR CASE!

  4. So professor, tell me if I have this right, as IANAL.

    The defense is supposed to make the prosecution’s case when the prosecutors were too lazy to do a proper job?

    Asking for a friend.

    1. You are right about one thing: you aren’t a lawyer.

      The senate is not the defense. The prosecutors are not too lazy to do a proper job; they are trying to do a proper job and the Republicans in the senate are refusing to allow it.

      1. The Senate’s job is to weight the evidence provided by the House inquiry and decide on guilt or innocence. I am sure they will do their job and come to a verdict.

        1. There were witnesses called at the Johnson and Clinton impeachment’s. What was that about? Were they doing it the wrong way?

          1. In the Clinton impeachment, the witnesses were not new. They were witnesses that had been previously heard from in the House or (really) the investigation the House relied upon. The witnesses were not heard from live, but were simple video depositions, simply reiterating point that had been previously made.

            If the House wants to show video clips of the testimony of the various witnesses that have already been examined before the House, I’ve got no problem. But that’s not really what you want.

            1. What they want are last minute surprises like the Bill Burkette “Killian Memos” in the 2004 election, or Michael Avenatti’s Julie Swetnick and [name redacted] Declarations in the Kavanaugh hearing. And a quick vote before the fraud and fakiness of the last minute “evidence” is exposed.

            2. “The witnesses were not heard from live, but were simple video depositions…”

              Say, why weren’t there video depositions of certain witnesses from the impeachment investigation? I seem to recall something about the President refusing to cooperate.

          2. There were 13 witnesses in the Trump Impeachment trial, and +28,000 documents.

            Stop with the lie there were no witnesses

            1. And Schiff is still refusing to release the ICIG testimony from the basement depositions.

              1. Atkinson is the witness I most wanted to see called. With Hunter Biden a close second.

                1. Who would have been your dream witness in a birther hearing?

                  Birther-In-Chief Trump?

                  Trump’s “investigator?”

                  Rush Limbaugh?

                  Sarah Palin?

                  Newt Gingrich?

                  Michele Bachmann?

                  Joe Arpaio?

                  Orly Taitz?

                  Richard Shelby?

                  Christine O’Donnell?

                  Laura Ingraham?

                  Mike Huckabee?

                2. Hint: neither of those are witnesses to anything relevant.

        2. The Senate’s job is to weight the evidence provided by the House inquiry and decide on guilt or innocence.

          You are mistaken.

          I don’t know who told you that, but they were lying to you.

          1. Actually, you are wrong. The House acts as the prosecutor that brings the charges and the evidence. The Senate does not bring charges or prosecute charges brought by the House. The House has to present its own case to the Senate, and the Senate decides. Schiff has been the guy who for 3 years has been saying “there’s more evidence”, but can never actually come up with it. Staring hard into the camera doesn’t count.

            Essentially, the Senate has decided [as many courts do] to basically entertain a motion for summary judgment because the House managers brought the latest of shitty cases they’ve been trying to concoct before Trump even took the oath of office.

      2. And you are wrong about thinking you are correct. Trying to mind read is not advisable when your own mind shows limitations to read itself and disconnects from the tongue.

    2. I ANAL also, but unlike you, I don’t do it by shoving my head up my own ass.

      1. Yet your very first words say: “I ANAL…”, IOW declaring you are ANAL.

  5. The overwhelming stupidity of the general VC commentators is dismaying and breathtaking . . . at least on anything related to the entire impeachment proceedings. (And, probably, pretty much anything related to Trump.) It is hard to believe that there are this many Russian trolls on here. But the proof is in the pudding.

    1. Nice set of ad-homs here. Got any real argument to make? Is there a rule that all liberals have to be smug pricks?

      1. “Is there a rule that all liberals have to be smug pricks?”

        Not a rule, just a hobby they enjoy.

    2. Santamonica811 with the unjustified self exemption followed by the illiterate mangling of a proverb as if to certify his or her own overwhelming stupidity.

      Drink deep, or taste not.

      1. Ah, yes, you caught that, too, did you? (at 2:02 am, really?) : )
        The original form of the proverb asserted that “The proof OF the pudding is IN THE EATING.”
        Mis-quoting, mis-proverbing (if you will), annoys me to no end….

        https://www.npr.org/2012/08/24/159975466/corrections-and-comments-to-stories

    3. Indeed.

      The number of assertions made in the comments that are plainly and demonstrably false is stunning.

    4. This group of commenters has been carefully cultivated by the Conspirators, who actually believed this blog would make stale, fading right-wing positions more popular outside the clingerverse in modern America.

      1. How have the conspirators cultivated this group of commenters?

        1. By serving them daily helpings of polemical red meat for right-wingers.

          (And, to small degree, by engaging in partisan, viewpoint-based censorship.)

          1. I’m guessing “polemical” was the suggestion on your word of the day app since I’ve seen you use it about 4 times now in 24 hours. When your typical response is typically parroting Mika Brzezinski’s most ethereal talking points, it makes it look like you are trying to hard.

    5. Come on, go easy on me. I have to take a shot of vodka every time I’m called a Russian troll.

    6. Are you aware that Prof. Volokh is Russian?

      1. Prof. Volokh is an American citizen who immigrated from Ukraine with his family.

        1. IIUC technically Prof Volokh immigrated from the USSR although he was born in the once, and now again, country of Ukraine.

    7. Santa Monica continues his pattern of worthlessness in every post.

    8. Yes, you have a tough road to hoe trying to talk sense into these idiots. You have honed in on the key point though: for all intensive purposes they are just a bunch of Russian trolls.

  6. Don’t worry your pretty little head. If we learned one thing from this whole circus, it’s that the house doesn’t give a sh*t about historical precedent when they want to impeach a bad orange man. Stare Decisis doesn’t even exist as a doctrine for impeachment, as you so often argued in the lead up to this, it’s a strictly *political* process. Read your own articles!

    1. North49, I don’t think calling impeachment a “political process,” was ever meant to describe it as a circus for partisan political performances. I think the term was meant to invoke the method of accountability which applies, which is solely political. And that political accountability is what Republicans will attempt to dodge if they vote to acquit without seeing documents, or hearing witnesses.

      It is unfortunate for the nation that Republicans seem to be tending that way. If they do, they miss the chance to actually put the impeachment conclusively to rest as an ongoing political matter.

      That would have been a blessing to the nation, and reduce the chance of more-wounding disputes still to come. Instead, if Republicans do lurch for a premature acquittal, the nation likely will suffer a prolonged ordeal, as more and more witnesses and documentary facts which Republicans should have examined in public are later dragged into the light. Probably, that painful ordeal will begin almost immediately, with Bolton’s book and public statements.

      It is astonishing to me that Republicans could not muster the sense of self-preservation necessary to guard against the possibility that catastrophic revelations may later come out, and be charged to their account. That is the price Republicans, and their backers, may pay for reluctance ever to let themselves be seen in same room with the truth. Unfortunately, that price may not be confined to the guilty, but paid likewise by everyone.

      1. The clingers are going to continue to lose the culture war and for the most part they know it. They gladly trade some short-term benefit for the prospect of long-term problems, because in the long term they’re getting stomped by their betters. The predictable eventual revelations are for another day — but today, the Republicans party like its 1849!

      2. If it was so important to hear all the testimony, and see all the documents why did the House conduct it’s investigation behind closed doors?

        That was their chance to let the sunshine in and make their case. As Whittington acknowledges it’s perfectly legitimate for the Senate to decide that the facts as alleged don’t rise to an impeachable offense, and in that case there is no need for witnesses. In fact Lamar Alexander said the House had proved the factual basis of their case, but failed in convincing him it was serious enough to remove him from office.

        1. What closed doors? It was on TV.

          1. LMAO.
            Remind me where the whistleblower, ICIG, and others were on TV?
            Remind me where the GOP witnesses were on TV or even during depositions?

        2. Just a quick note.

          There were 13 witnesses, and +28,0000 documents.
          The house closed up their investigation and presented to the Senate Overwhelming, indisputable facts. The House made their rules and made their choices. Decided not to to have their “subpoenas” enforced through the courts.
          The Senate has conducted a thorough examination of the evidence, the House Managers described as overwhelming and Nadler said exceeded the standard of beyond reasonable doubt

      3. POTUS Trump will be held to account by voters in 9 months, Lathrop. You are making a deceptive argument on that.

        Your concern for the health of the Republic is heartwarming. I mean, a lot of us have been warning about this for some time now. Glad you see this the way I do. Our Republic has been damaged with this impeachment process. The cause here is irrelevant to the point; the manner the process was conducted is what hurt us. I can assure you, the Congress will be held to account via the ballot box.

        Maybe you’d like to take a swing at this question. I am not being a smartass. It was the very first question asked, and it goes to the heart of this impeachment trial.

        Assume POTUS Trump had mixed motivations regarding Ukraine aid, personal interests, public interests, and security interests (he did). How exactly do we draw the line here between them? Is it a case that a POTUS can never, ever have any personal interest of any kind in any foreign policy decision?

        1. Commenter_XY, my answer is framed outside the discussion which has dominated the coverage of Trump’s impeachment. I say the test ought to be whether, in taking any action, the president failed in some duty he owed to the sovereign People, or created an offense against them. If the answer is yes, and the failure is non-trivial, or defiant, or systematic, then other worthy motives don’t excuse the conduct. The president’s duty to protect the People’s sovereignty always comes first.

          Based on the evidence in the Ukraine case, and applying the test of performance of duty to protect the sovereign, Trump’s conduct is impeachable. Inviting a foreign sovereign to take action to affect a U.S. election—whether for the president’s personal benefit or not—always creates an offense against the People’s sovereignty. After exercise of the constitutive power itself, elections are the most important exercises of the People’s ongoing sovereignty, and the principle mechanism by which they keep government operating within the constitutional bounds the People themselves decreed.

          1. I have never seen (read) such a load of bullshit, in my life.
            “..performance of duty to protect the sovereign”?
            You’ve got to be kidding.
            “The sovereign” was not “protected” when Trump asked for a “look into” the actions of a former US official, when that former US official happened to be among two dozen aspirants to become his opponent in a more-than a year-away election? A look into an event that said former US official had bragged about his threat of withholding US loan guarantees to force a foreign nation to directly alter the composition of their government apparatus, was failing “in some duty he owed to the sovereign People”?
            I reiterate: What a load of bullshit!

  7. How do you justify not calling Bolton without accepting Dershowitz’s argument?

    1. Democrats proved the case beyond a reasonable doubt already…so I agree Bolton isn’t necessary. Trump should not have been removed—in November when it was obvious what Trump did 20 Republican senators and Nancy Pelosi should have gone to the WH and say they will give Trump $20 billion for his wall but he will have to drop out of the 2020 race. So Trump could go out a winner and Republicans could avert a constitutional crisis.

      1. OK, so SantaMonica was calling this commenter out as stupid. That makes way more sense. My bad…

    2. JoshR, are asking that of Adam Schiff? He’s the one that had the power to call Bolton. Schiff did not. Please to hold Schiff accountable for his poor performance. I wonder what infomation Bolton has the Schiff is hiding. Must make the Dems look pretty bad

    3. “Dershowitz’s argument“ has been characterized in many ways, and mischaracterized in many more. But the argument the OP links to is the one (actually made by Dershowitz, even if not quite in his Senate presentation) that impeachment requires a crime. I agree with the OP that that argument is wrong. And I think most would agree you can acquit (rightly or wrongly for other reasons) without accepting it.

      1. I agree you can vote to acquit without accepting Dershowitz’s argument. But, how do you justify not calling Bolton without accepting Dershowitz’s argument?

        1. You can think that, even if the articles are true (that is, their facts – not necessarily their characterizations and conclusions), impeachment is inappropriate. In that circumstances, more evidence is unnecessary. I might have allowed the evidence anyway, for prudential reasons applicable in this context even if not in an Article III court. The counterpoint to me is that allowing evidence where it is unnecessary allows impeachment to be used as a vehicle for politics even where it plainly lacks the support to succeed – so I think there are prudential considerations in both directions, and can see those considerations being reasonably resolved in either direction. It’s not clear to me that Dershowitz’s argument (however characterized) plays a necessary role in any of that reasoning. But I’m open to the possibility that I’m missing something.

          1. It’s not clear to me that Dershowitz’s argument (however characterized) plays a necessary role in any of that reasoning.

            It’s not clear to me either. That’s why I asked for the reasoning behind simultaneously 1) accepting Bolton’s presumed testimony as fact, 2) rejecting Dershowitz’s argument, and 3) acquitting Trump.

            1. I think Calvin did a pretty decent job of explaining “why”. If you don’t think that the charge and punishment fits the *crime*, even if it is the crime, then whether it’s a crime or not becomes irrelevant.

              If taken outside the current context, perhaps it makes more sense. Say a man crosses the street, but not in an approved crosswalk [jaywalks], and the prosecutor who happens to be his ex-wife’s brother charges him with ‘creating a terror to the public’ and demands a life sentence.

              Will ANY testimony about where the crosswalk is, what the law is regarding jaywalking, or witnesses regarding whether he actually crossed the street actually make a difference? Likely not. Chances are that a motion for summary judgement will be granted. In such a way, neither Dershowitz or Bolton were relevant.

          2. That’s what I tried to offer, but perhaps unsuccessfully. I guess I’d put it this way … You can reasonably think that acquittal is appropriate regardless of what Bolton might say because you can reasonably think that, although no crime is needed and the president can’t do anything he wants in order to help get himself elected, the noncriminal conduct alleged and apparently witnessed by Bolton here doesn’t rise to the level of conduct justifying removal. (I have my own reasons for thinking this, but I think there are lots of ways it can be framed without any need for Dershowitz.) Then, you can reasonably conclude that, since Bolton’s testimony wouldn’t change the outcome, it shouldn’t be heard (that is, as part of the current Senate trial – continued oversight is of course appropriate), since that would open institutional doors best left shut. There are counterpoints to this, but none of it turns on whether a crime is required or the president has carte blanch to act with an electoral motive.

            1. the noncriminal conduct alleged and apparently witnessed by Bolton here doesn’t rise to the level of conduct justifying removal.

              I am still looking for an articulation of why one would reach this conclusion without relying on Dershowitz’s argument.

  8. Derpawitz’ Jedi mind tricks only work on juries and that don’t know who he is. The notion senators are as dumb as the OJ jurors…actually that might be true. 😉

    1. Good thing we have Seb Cremmington here to tell us yokels what the law says and is. Oh wait – you didn’t say. You just came into the thread with mindless stupidity disguised as smug.

      1. Do you find value in Derpawitz’ opinions?

        1. Yes, because I actually understand them. You, apparently, do not.

          1. And as an aside, just to bring some levity to this subthread: Last night, Dershowitz shat out more legal knowledge than you’ve ever had in your entire life. So maybe you ought to consider that before opening your yap.

            1. So you agree with Derpawitz’ opinions that the Clinton impeachment was illegitimate and Bush v Gore was incorrectly decided??

              1. At least he is consistent in his principles.

                1. So you agree with Derpawitz that Clinton’s impeachment was illegitimate? And Bush v Gore was incorrectly decided??

                  1. Since Dirshowitz is an active Democrat supporter, those opinions would follow his politics.

    2. Senators have two things against them, only one is stupidity. The other being partisan. Explains why the previous two impeached Presidents were exonerated, and Trump will be also. Impeachment is nothing but grandstanding and trying to sway public opinion before an election. So far the effort has been futile.

  9. I’m not sure what anybody expects. The House “investigation” was a sham, why shouldn’t the Senate do the same? The only difference is that the Dems have been working on this since election night three years ago,and the Teumpistas have at least had the sense to get it over with quickly.

    1. Efforts to undermine Candidate Trump were underway long before election night.

      Democrats and Republicans don’t get it. Trump (variously registered as Democrat, Republican, Reform, Independent) was elected as a “none of the above” candidate.

      The groundswell that elected Trump may very well have been started by the Clinton Impeachment leaving the American people with a sense of a Pox on Both Parties.

      On election eve night, I used to sneak down to the Civic Auditorium and post my “Why Vote the Lesser Evil? Vote Pure Evil – Vote Cthulhu” sign amongst the Dem and Rep campaign signs.

      (For the record my Russian is limited to Da, Nyet, Sputnik, Eto stul, and Vodka.)

      1. I approve your record. Good job!

        Yes, what everyone seems to have missed is that Trump was elected precisely because he was the only non-politician in the bunch. As dishonest as he was and is, he is possibly the most honest politician since G. Washington. He’s ignorant, biased, confused, doesn’t give a shit, and still far more honest than any Dem candidate, and a lot of people were simply fed up with all the normal political choices. People don’t like him, but they don’t like him less than the pure disgust and hatred they have for “regular” politicians.

  10. I see the blind Trump loyalists are out in force here.

    Let me tell you about your “totally legal” president who was so unfairly and wrongly impeached.

    Today, Trump’s lawyers from the DoJ told a judge that the court had no role in enforcing subpoenas from the congress. When the judges asked what recourse the House would have if the courts had no role the Trump DoJ lawyer replied “Impeachment.”

    In other words Trump’s OWN DoJ just validated the Trump impeachment because Trump is refusing to comply with any and all subpoenas. That is itself grounds for impeachment. The White House defense assertions of insufficient grounds for impeachment have been utterly destroyed by Trump’s own DoJ defense.

    But I doubt you guys talking about sham investigations will be able to absorb that. Go watch Fox News and you’ll feel better.

    1. Do you think that’s how it works? That the DOJ merely making such an argument – never mind that it may be incorrect – has somehow destroyed Trump’s counsel’s defence against the Impeachment managers’ article 2 accusation?

      Why wouldn’t you think instead that the DOJ’s argument has been “utterly destroyed” by the White House defence in the Senate trial if we accept that the two argument are incompatible?

      And if Judge Moss decides the DOJ is wrong would that mean the Senate *must* acquit on the article 2 accusation?

      No, I don’t think I’ll let you tell me anything about anything. Thanks all the same.

      1. The two arguments are obviously incompatible. You can’t say 1) if the President blocks a subpoena your remedy is in the courts, not impeachment and 2) if the President blocks a subpoena the remedy is not in the courts but impeachment.

        1. Yes. So why does (2) “utterly destroy[]” (1)? And if a judge decides (2) is wrong does that mean we must accept (1)?

          The fact that the arguments are incompatible and are being argued simultaneously in two different venues simply doesn’t entail what Orbital Mechanic seems to want.

          1. I’d suppose that the point is not so much a kind of “preclusion” that operates in one venue or another, but rather to highlight the utter bad faith in which all of the legalistic garbage put out by the Trump camp is being offered.

            We all know what Trump did. Some of us thinks what he did was wrong. Others feel that what he did was right, but understand how utterly off-putting it is to openly embrace corruption, so they are making legalistic arguments about process in order to defend Trump’s continued tenure. That’s all that’s happening here.

            1. I mean, sure – it that’s all that’s happening here. But in that case, why get bent out of shape over *that* “utter bad faith” “legalistic garbage” but be just fine with the ‘We Have An Overwhelming Undisputed HyperUrgent Case For Removal’ but ‘We Need More Witnesses And Documents Even Though Our Investigation Was Completely Fair And Balanced’ “legalistic garbage”?

              The House Impeachment managers are also trying to argue things both ways, but in their case, *in the same tribunal*. Somehow Orbital Mechanic and the rest are fine with that.

    2. Today, Trump’s lawyers from the DoJ told a judge that the court had no role in enforcing subpoenas from the congress.
      That is not even close to the argument made by the Presidents Lawyers.

      1. Actually, it is.

    3. And if the House let Trump drag those subpoenas through the courts for the next nine to eighteen months, the very same folks complaining how rushed the investigation was and about all the precedents the House ignored would be screeching about the democrats stretching out the hearings in order to affect the election.

      1. “… if the House let Trump drag those subpoenas through the courts..”

        Let?

        Not sure you understand how any of this works.

    4. Nice try although that is not all the DOJ lawyers said to the court. I find it amusing when Progressives cherry-pick parts of what is said then claim it was all that was said.

      BTW: SCOTUS, being the Judicial Branch of our government, does have the Constitutional authority to hear Constitutional issues between the Legislative Branch and Executive Branch. Whereas District and Appellate courts derive their authority from law(s) not the Constitution.

      But of course, Progressives continually fail to mention that little tidbit.

    5. You mean like Obama DOJ making arguments in District and Appellate Courts that the PPACA was not a tax then claiming it was a tax at SCOTUS?

    6. “Today, Trump’s lawyers from the DoJ told a judge that the court had no role in enforcing subpoenas from the congress. When the judges asked what recourse the House would have if the courts had no role the Trump DoJ lawyer replied “Impeachment.”
      In what case?
      Somehow, I foresee that you’ve misrepresented the argument.

  11. Clinton committed perjury against Paula Jones.

    Clinton suborned perjury against Paula Jones.

    1. Not related. Even if true, it happened before he was President and (of course) didn’t invoke his office.

      1. “Regarding Clinton’s January 17, 1998, deposition where he was placed under oath, the judge wrote:

        Simply put, the president’s deposition testimony regarding whether he had ever been alone with Ms. (Monica) Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false ..”

        1. And very clearly, Clinton was POTUS on January 17, 1998.

          1. Wow, captcrisis sure in invincibly ignorant.

            But I had known that since the days of Volokh.com

    2. And Clinton was impeached for perjury. If you had a point in your post, try using a thicker pen so we can see it.

  12. Brilliant Dem Plan: We’ve thrown everything at Trump from Hitler to rapist accusations and everything in between for years and it hasn’t worked but this impeachment business will magically cause a mass defection of supporters who were holding out till now for some reason and finally dethrone him!

    No s%^& sherlock, of course the impeachment power was always going to be what was at risk. This is only news to the Dem’s far left Twitterati mobs and apparently a few commentators on here. The stunt has backfired and the Dems only have themselves to blame for caving in to the extremist faction.

    1. The Progressive House Managers, especially #ChickenSchiff and J. Wellington #Wimpy, didn’t help themselves when they accused the Chief Justice and Senators of being traitors if they didn’t do what House Managers said they should do.

      1. Imagine a prosecutor in Los Angeles County Superior Court accusing the judge and jury of being traitors…

  13. Mr Whittington, I feel like youre making a slipper slope argument where youre worried that if we reject abuse of power as an impeachable offense now that we close the door on it being used in the future. Where I dont share your concern is that I cant see charges of “abuse of power” ever being sufficient and I cant understand how you would either. Abuse of power is a long standing moral issue such that laws have been written against it for the egregious abuses. Laws such as bribery, etc. If an abuse of power doesnt rise to the level of illegal conduct, as in conduct we’ve all already agreed is a threshold for punish others, then its going to be an abuse of power we can live with. We’ve gone decades already with Senators becoming millionaires off of insider trading like behavior and the Republic still stands. I agree with Dershowitz that abuse of power is far too subjective to have any relevant meaning.

    1. Uh huh.

      So, day after acquittal in the Senate, Trump orders the DoJ to “investigate” some putative federal crime committed by some other leading Democratic candidate. Clearly and baldly political investigation, clear violation of the traditional separation of politics from the DoJ, but not itself “illegal.” Is that okay with you, as well?

      Congress acts to make it illegal, but Trump obviously vetos the legislation, and Congress can’t override his veto. Still okay?

      1. You mean like the investigation into the leading candidate in the 2016 presidential election?
        And don’t try the BS about 0blama not ordering it – it was his political appointees at the head of it – or that 0blama didn’t stand to personally gain – his legacy was on the line.

    2. The upshot of your argument is even if Trump’s only motive was to falsely portray that Biden should be investigated, Trump’s conduct would not be impeachable. That strikes me as a very dangerous precedent.

      1. “Investigating” opposition politicians and organizations is old hat for both parties.

        If I accept your idea, can we do much more thorough investigations of IRS abuses and investigations into Rick Perry and other governors that didn’t pan out…after they lost or left office?

        1. I do not understand your argument.

          1. Governor Perry was charged for threatening to use his veto power on the budget if they didn’t remove the drunkard DA that oversaw the State corruption office; who threatened law enforcement and jail officers after being arrested for DUI.

            1. Well, I guess the Travis County DA is not fit to be president of the U.S. either.

      2. Precedent.
        That’s a very strong element in today’s jurisprudence. Judges are supposed to use precedent to guide their opinions. Past decisions make up present legal decisions.

        The Senate of the United States? The Senate has no fealty to past Senate actions. Precedent is not a “thing” concerning impeachments.

      3. For your version of event to hold water, you’d have to point out where Trump said he wanted false information.
        Real investigations, or looking into something, can result in exoneration, too, you know?
        Look at the Mueller investigation, from which President Trump emerged even stronger.

  14. No president has ever been impeached and removed from office, and the idea that THIS case should be the first is preposterous. Frankly, I don’t think Schiff & c. give two sh*ts about Ukraine, and I know the howling anti-Trump mob doesn’t. The only defense senators need give is that the House didn’t prove its case, nor did its allegations meet the high standard for removal.

    But beyond that, it is the House’s conduct, not the Senate’s, that we should pray is not repeated. The particulars of its running roughshod over due process at a breakneck pace don’t bear repeating. But it is apparent that Democrats have been actively looking for a reason to impeach President Trump since the moment they captured the House. Many campaigned on that promise, all well before the infamous Ukraine call. Their hopes were initially pinned to the Mueller report, but when that fell flat, they hastily contrived this Plan B. It’s the Stalin-esque “Show me the man, and I’ll find you the crime.” Any House that devotes all its energies to finding a reason to impeach the President will find one.

  15. Dershowitz’ argument boils down to this: impeachable offenses must be defined, for if they are not, the President serves at the pleasure of Congress, and that’s clearly a violation of the structure of the Constitution. So, he suggests that impeachable offenses should be defined as criminal, or at least criminal-like, and offers substantial evidence in the record for that view. OK, so modern academics disagree with that, as if they are the ultimate authority on constitutional interpretation. But they are not, the courts are, and the Senate is an important, indeed central, court for impeachment. If you believe that impeachment is whatever the House votes on, then you must also agree that that vote is conditional upon what the Senate says when in court over an impeachment. They are the ultimate arbiter, not some dusty law review. But, and here is the question to Whittington, if you don’t like Dershowitz’ pretty well-defined limits on the authority of the House to impeach, what limits do YOU propose? I haven’t seen any. Absent that, Whittington’s argument is completely vacuous and irrelevant. Propose your own reasonable definition of impeachable abuse of power, or just be quiet, please.

    1. Maximus, thanks for asking. These threads on impeachment have been confused. Everyone ought to welcome a clearer definition. Here is my suggestion.

      Get rid of any tendency to focus on law -breaking in general terms. Instead, tie impeachment to offenses against the People’s joint sovereignty. Define those offenses in 4 categories:

      1. Any direct attack on the People’s sovereignty, by going to war against them, or supporting a warring adversary. In short, treason.

      2. Failure to guard the People’s sovereignty, by entertaining, promoting, or encouraging rivals for sovereignty. This would include encouragement of foreign election meddling, or negligent failure to act to suppress it. Also, any other interference in the American political process by another sovereign, or would-be sovereign, or by a foreign person not a citizen of the U.S. Also impeachable would be any actions to corrupt American elections from within, or negligent tolerance of such corruptions by others.

      3. Gross failure to enact the People’s scheme for limited government, as set forth in the Constitution. This would include, for examples, actions detrimental to the balance of powers, defiance of the courts, attacks on the Bill of Rights, or failure to protect enumerated rights, defiance of congressional subpoenas, misuse of appropriated funds, and a disregard for enforcing the law. Also, abuse of the pardon power to hide presidential wrongdoing.

      4. Legal violations while in office. Commission of any felony, and failure to pay taxes owed. Also accepting or paying any bribe.

      In every case, including non-criminal cases, the standard of judgment would be the degree of harm inflicted on the People’s ability to receive the government they prefer and specify in the Constitution.

      1. The key problem with every point your making, is that there is no underlying “the People” speaking with a unitary voice. This is, and always has been the problem when you go on and on about Sovereigns and such.

        1. I don’t think his proposed definitions depend on their being “a unitary voice.” But surely there does exist a sovereignty of the People as a whole. I don’t think that ever requires unanimity of judgment or opinion. Perhaps I am misunderstanding your comment.

          1. It’s more than a philosophical distinction.

            In an monarchy, “the sovereign” is the king or queen. That person decides the public good, the king’s personal will overlaps with the will of the sovereign because they are both the same thing. When “we the People” are the sovereign, as they are in America, there is no way to accurately determine what is the the “will of the People”.

            Take his point 4 “failure to enact the People’s scheme…..”
            Even elections, which can be won with 50.1% of the vote do not fully represent the will of the people as 49.9% disagreed. Good public policy is whatever the ruling coalition at the time says it is. Moreover, the people’s will is fickle, often contradictory, and prone to rash errors. Even if the Athenian Assembly was full of men as wise as Socrates, it still would have been a mob.

            It’s nice that we have people like SL that know that “we the people” are, in the end, the boss, but there are all sorts of intermediary institutions set up on purpose because, let’s put it this way, we aren’t a very good boss.

            1. Or shorter: Mob Rule is not the answer.

              Note: SL “…any other interference in the American political process…by a foreign person not a citizen of the U.S.”

              This would make every Progressive Democrat and many Republican and other politicians guilty of interfering in the American political process.

            2. When he said “failure to enact the People’s scheme…,” he was talking specifically about the Constitution, which was ratified by “The People” as a whole. My point is that I don’t see anything in his list that requires “accurately determining the will of the people,” other than what the People have already voted on and/or ratified. All the other things you point out are certainly valid criticisms of democracy in general, but I just don’t see the relevance to what Lathrop has proposed, which seems sensible to me.

              1. Drinkwater, you seem to have understood me pretty well. Thanks for the comment.

      2. Every POTUS can and must be impeached, using your criteria, Lathrop.

        1. Every POTUS?
          By that ridiculous set of criteria, “all civil Officers of the United States” would be facing impeachment.
          The left has this delusion that everything they do is for the good of “the people” – even those who disagree with them – when it is clear that power over everything we do, is their only goal.

    2. I don’t have a problem with limiting impeachable offenses to those that are “akin to a crime.” The problem is Dershowitz limits “akin to a crime” to acts which occur beyond the statute of limitations or outside the USA. In the present case, Trump’s actions did not meet the statutory definition of extortion because the threat was not to a person’s body, reputation or property. Instead, it was to the security of Ukraine. Do you agree that threat suffices to conclude Trump’s conduct as akin to a crime?

      1. Before answering, how many other similar instances have there been that you would now be forced to categorize as wrong on a metaphysical level?

        1. Which would be the thesis of OP, if inverted.

        2. I do not understand your question.

      2. IIUC you agree that VP Biden should have been impeached for his threats to a foreign government using USA $$$ to protect his son? Even though he may have had the good reason that he was implementing Obama’s foreign policy at the time?

        1. If it can be proven that Biden was motivated almost exclusively by protecting his son, he should have been impeached. Given that there has not even been an investigation of Biden from Republican and Democratically-controlled executive and legislative bodies, it is very likely the evidence does not support the allegation against Biden.

          1. At least some Trump supporters are smart enough to realize even if Biden did get the Ukrainian prosecutor fired to help out his son that is still a nothing burger. So those “genius” Trump supporters throw in an additional element—Hunter was actually receiving laundered American taxpayer funds through his fake Ukrainian job. So that additional element would make it an abuse of power by Biden that should lead to impeachment.

            1. What?
              The TDS has rotted your brain.
              Joe Biden’s actions were almost exactly what the demoncraps are accusing Trump of doing. That’s why it is relevant.
              There were no screams about it being impeachable for Biden, nor should it be looked at that way, now, even if true, which it isn’t.
              You’re the only “genius” who has brought up “laundered American taxpayer funds”.

      3. Trump didn’t threaten anyone.
        There was no quo in exchange for the quid, because he didn’t say the aid wouldn’t be released until the investigation happened, and it couldn’t have been implied, because the Ukrainians didn’t know the aid was paused.

  16. Anyone who has read the Nunes memo, Schiff ‘response’ memo, any of pencil neck’s Twitter feed, and the IG report knows that the leader of the impeachment is an inveterate liar when it comes to all things Trump. This means that anything said by the pile of shit in human form that is Schiff must be assumed to be untrue.

    1. Well, technically, we don’t have to assume it; much of it has been proven.

    2. I agree he/she/it is a huge steaming pile of #ChickenSchiff along with his co-liar J. Wellington #Wimpy!

    3. Of all the insults, Trump and Trump supporters making fun of Schiff’s neck is the among the most baffling. Glass houses and all that.

      1. Trump thinks his neck is perfect which is why he doesn’t want to lose weight.

      2. Have the next person, who retrieves your white cane, explain it to you.
        It’s pretty obvious to those with good eyesight.

  17. This is pretty exemplary of what the post-Trump VC commentariat has become.

    An OP talks about the constitutional dangers of a particular action. The comments largely revector to complaining about the Democrats’ past actions.
    Those that do not, mischaractatize the action being discussed to make it less crazy.

    Awesome job guys, way to go. Your reactionary party’s discarding of principles for anti-left monomania is why we have a constitutional crisis right now.

    1. Right on.

      Part of the occupational hazards of being on the Reason web site.

      1. The Conspiracy was a partisan, disingenuous clustermuck long before it reached reason.com, or the Washington Post. The problem derives from the Conspirators and the commenting followers they cultivate, not from anyone offering them a digital crashpad,

        To the Volokh Conspiracy Board of Censors: If “clustermuck,” when written by a non-movement conservative, violate this blog’s civility or language rules, please let me know. I sometimes struggle to remember the list of words you don’t want me to use here.

    2. Well Whittington did say this: “It is not unreasonable to conclude that the charges leveled against the president are not sufficiently grave to justify his immediate removal and that the president can be safely left in office until the voters have a chance to express their judgment on his performance in November.”

      That’s my view, except I don’t think there was anything at all wrong with requesting an investigation of Joe’s blatent statement about using foreign aid to fire a prosecutor with jurisdiction over his sons business affairs, even without concrete proof of wrongdoing it doesn’t pass the smell test.

      1. Biden didn’t say that. The action he “boasted” about was not his decision and it in fact made the prosecution of his son more likely, if of course there was anything to prosecute.

        1. “Hello, still-corrupt country and new prosecutor. I just got you your new job and we are sending you billions, you just have to hide the skimming a little better.”

          “Thanks for all that. In response, I will double down on detecting corruption in my own country’s powerful people, and also investigate your son’s mysteriously astronomical salary.”

          There may be nothing there, but your statement does not follow. Who do you think populates most counties’ politics and why? The fantasy superhero world where Superman never lies does not exist.

        2. Going with the alternate to “Burisma wasn’t being investigated” and shifting to “Shokin was corrupt because he was standing in the way of Burisma being investigated”?
          If only you commies would look to what Shokin said, himself.
          But you all think everyone else is lying, when that is the epitome of projection.

      2. Shouldn’t that be for the DOJ or Republicans in Congress (many of whom supported the ouster)? I mean you’re not going to get much or any admissible evidence from a Ukrainian investigation into the Bidens. The only result will be political damage.

        Think of another scenario. Imagine it’s China doing the “investigating.” Instead of doing an “investigation” they threaten some Chinese businesses men and their families to make confessions about corruption. You won’t be able to use any of that evidence in the court. If its so important to American interests, shouldn’t American’s with investigative powers be doing the investigating?

        1. The result will be information that the American people can use to judge Biden’s culpability.

          How many countries had prosecutors Biden demanded be fired, or foreign aid would be withheld? One.

          How many countries did Hunter Biden have business interests with foreign companies the state department considered corrupt? One, possibly two.

          That’s quite a coincidence.

          1. How many GOP Senators agreed with the policy in Ukraine at the time? All of them.

            How many investigations did any government authorities do into Biden until he announced his decision to seek the Democratic nomination? Zero.

            Has Trump complained about the Foreign Corrupt Practices Act? Yes.

            Also not for nothing: but if you’re going to be looking into Hunter Biden, shouldn’t you also be looking into the foreign business ties of the Trump children?

            1. “The foreign business ties of the Trump children.”
              You mean in businesses that existed long before their father seriously contemplated running for president?
              The Trump family has been pretty successful in all kinds of business enterprises for decades before PDJT.
              Hunter Biden couldn’t even stay off the crack for long enough to test clean at his father-created naval officer physical. Only to somehow land a super-high paying job, for which he had no experience, in a company, tied to the government over which his father had US policy control.
              Come on!
              You really want to make those comparisons?

    3. Past actions? The lying sack of shit stood in front of the Senate and continued his lies, including lying about the contents of the phone call. Dershowitz could have literally used the Chewbacca defense and the Senate still would have been obligated to vote for acquittal since the prosecution is so blatantly corrupt.

    4. “why we have a constitutional crisis right now”

      What “constitutional crisis”? House impeached, Senate [about to] acquit.

      Seems like the Constitution is working as written.

    5. I wouldn’t mind the TDS wackiness so much, if it would only pertain somehow to an argument in the original post.

    6. I find it amazing how Sarcastro embraces his hypocrisy!

      WTH happened to make you and several others become like Artie?

    7. Reactionary? The 1960s called, they want their meme back.

      Orange man suggests corruption is bad and ought to be investigated, and Schiff and crew go ape shit -that’s reactionary.

  18. So I read the lawfare blog post, and this post. The Professor fails to address the crux of the issue in this impeachment trial. Whether his personal views color his legal commentary is something Readership can decide. But I find his rationale….wanting (to put it charitably). Here is what I mean.

    First, why is the belief of POTUS Trump’s motivation relevant? I thought actions mattered. The aid was released. POTUS Trump met with Zelinsky. There was no investigation opened by Ukraine into Burisma (and Biden). The Professor (unsurprisingly) glosses over that.

    Second, let’s take the esteemed Professor at his word and assume one’s belief about another’s motivations actually matters. Crazy, but this is what the learned Professor argues, and we’ll assume it for now. We have here a case of mixed motives. Let’s also assume for argument sake, all of the below are motivations for POTUS Trump.
    — POTUS Trump wanted an investigation of Biden to damage Biden politically [personal interest]
    — POTUS Trump was concerned about Ukrainian corruption [public interest]
    — POTUS Trump was concerned about burden sharing with the EU re: Ukraine [public interest]
    — POTUS Trump was concerned about Ukraine’s political will and ability to fight, if provided with Javelin missiles. [security interest]

    Now, how exactly do we draw the line here, Professor? Because nothing in your lawfare blog OR your VC blog addresses this in anything remotely resembling a concrete fashion. Is it a case that a POTUS can never, ever have any personal interest of any kind in any foreign policy decision? So tell us…is there a line? Does it matter?

    Professor Dershowitz says you cannot draw the line. You appear to say you can draw the line. Very well – tell us where to draw the line, professor.

    I doubt the professor will take a crack at answering my questions, but I asked them anyway. Would love to read a considered answer to my questions. Because in my mind, this question on motivations goes straight to the heart of this impeachment.

    1. Short answer, draw the line on all impeachments, not just this one, on harm to the People’s sovereignty. I went into a bit more detail in a comment above.

      1. “The People” get to express their “sovereignty” every four years.
        It should only be for egregious actions that it be usurped.
        Even the most extreme of the demoncrap’s accusations don’t rise to that level.
        None of “the People” were effected, in the slightest by what Trump was accused of doing.
        The fact that the demoncraps have been trying to remove Trump, and openly saying so, since “the People” expressed their sovereignty by electing him, should be about what you complain, if that is your greatest concern.

    2. Firstly, the fact the aid was released without an announcement of an investigation remains the Sideshow Bob defense.

      Secondly, I would acquit based on your assumed list of mixed motives. However, I would look at the evidence to determine whether Trump in fact had mixed motives (I don’t think he did).

      Thirdly, I thought the Dershowitz standard would result in no impeachment even if Trump’s only motive was personal. So, you may have erected a straw man against Whittington’s argument.

      1. Hell Josh,
        The majority of the call transcript is about 2 public interest and 1 security interest while a minute mentions the personal interest.

        I would also note that the Dershowitz argument was only one presented while the WH Counsel’s office made and stuck with a different argument. That is common in a defense, to provide several alternate theories of the alleged action.

      2. Josh R….I actually do think there is a case of mixed motives. It makes the most logical sense.

      3. Josh R the standard isn’t what you think, nor what the delusional lunatic Adam Schiff-for-brains thinks.
        It is whether a rational person sees that alternative motives can be present.
        It can be argued that TDS has removed rationality from a great many people in our country, but that only points to a more expansive standard that a reduced one.
        Add the legal concept of “lenity” – that the least corrupt motivation be accepted, unless it directly violates the legislative intent – with no legislative intent present, and Trump must be acquitted.

    3. Commenter XY, perhaps this comment would have been relevant in a context where someone posted about President Trump’s motivations. Why are you writing it here? It has nothing to do with the argument Prof. Whittington made here.

  19. The Dershowitz argument would gut the congressional impeachment power and embolden future presidents to further abuse the powers of their office.

    And the Democrat argument would gut the power of the President.

    The President is accused of abuse of power because he asserted executive privilege and appealed to the judiciary. If this is the standard then the Presidency is no longer an independent branch of government but rather an office under Congress.

    Non-insane leftists (aka “Never-Trump Republicans”) argue, in the alternative, that impeachment is a political process, and therefore as long as Congress has the votes to impeach then it doesn’t matter what the President did. This is just parliamentary democracy with a Senate super majority.

    Congress has permitted the President to abuse power, violate the constitution, and disregard Congressional oversight of agencies. But only now that there’s a majority opposed to the President in the House do they act (and conveniently timed to be used in a political campaign)

    I don’t buy the show, and intelligent people shouldn’t either. Acknowledge that this is a political strategy and nothing more. We all know that if a future President Warren asks a foreign nation to help her defeat her future Republican opponent that Democrats would not seek her impeachment. Pretending otherwise is ridiculous.

    Mr. Whittington’s (and other “legal intellectuals,” including law professors) attempts to legitimize the process is an embarrassment.

    1. No the Democratic argument is just “get Trump”.
      Starting the day after election
      Electors defect!
      Emoluments or something!
      Russian collusion!
      He didn’t withhold aid but mentioned the corrupt Biden’s should be investigated!

      What’s next who knows but here will be a next. The Ds have no platform except pure crazy.

      1. The Democrats are pure crazy.

        The Republicans are poorly educated, superstitious, rural bigots destined for replacement and cultural irrelevance,

        Where is the hope for America, wreckinball?

        1. It is obvious that RAK (Royal Arse Kisser) hasn’t read the latest research on the education/knowledge of Republicans vs. Democrats. It is statistically significant that Reps do better on verbal and science than Dems. Whereas the other areas are basically equal statistically.

          IOW the poor Rev is #TalkingSchiff.

          1. That means the Democrats are the party of both the crazy and poorly educated.

            That just leaves superstitious and bigotry. I think the widespread support of segregationists and antisemites for the 2020 Presidential election puts the bigots soundly in their camp as well. The Rev. uses the word “superstitious” to attack Christians, but Christians tend to vote for both parties. So I think that’s an even split.

            The only point that the Rev. gets correct is that the more intelligent, sane, and non-bigots are destined for replacement and cultural irrelevance as the Democrats seek to import a new electorate that is crazier, more bigoted, more superstitious, and more poorly educated.

          2. Wait, wait! By “…the latest research,” are you referring to the earlier post on this blog? That is hilarious!

    2. The President is accused of abuse of power because he asserted executive privilege and appealed to the judiciary.

      He actually did neither of those things, so I don’t think you have a really good grasp on the facts.

      Moreover, he was accused of abuse of power (Article I of the impeachment) for trying to extort Ukraine to make up dirt about Joe Biden. The stonewalling on witnesses and evidence that you inaccurately describe was Article II of the impeachment, and was obstructing Congress, not abuse of power.

      1. It’s good that you clarified “Article II of the impeachment,” otherwise the Trump-trolls might think you meant the Article II where Trump can “do whatever I want as President.”

    3. And the Democrat argument would gut the power of the President.

      Feature, not bug. The imperial presidency needs to be cut down to size.

      1. Were you arguing for that with President Pen and Phone?
        You must be apoplectic about DACA.

  20. Is it over yet? I predict 50-50 and who knows what “even though you argued its not a tax it is a tax” Roberts will do.

    Squish supreme. But hopefully over.

    The Biden’s are corrupt as hell. They absolutely should be investigated. Oh and by the way old drunk Grandma just decided that this civil law thing we have in this country doesn’t apply to her and I guess the Biden’s. And don’t you dare mention the name of the accuser, aka whistle blower. Because of course it’s only Trump who can’t confront his accuser. Thanks Mr. “its a tax” Roberts.

    There is a problem with double standards regarding the law but it certainly is not Trump. he is below the law in constant investigation searching for a crime.

    Like this time. Good argument Dershowitz. Whittington not so much.

    1. Why do you place an apostrophe in “Biden’s,” you illiterate Republican bigot? Why do you omit the apostrophe in “its,” you half-educated clinger?

    2. If the Bidens are that corrupt shouldn’t DOJ be investigating? Or state authorities? Or Republicans in Congress? Why would you want a supposedly corrupt country like Ukraine to do the investigation so that you could produce a whole bunch of inadmissible evidence?

      1. Who has jurisdiction in Ukraine?

        Now I admit it’s unseemly that Trump himself asked for the investigation but it’s not illegal.

        Nor is there any rule written or unwritten that says you can’t ask for foreign assistance in an investigation of a political rival, here are some examples:

        – 3 Democratic senators write Ukraine asking for assistance in Muellers investigation.

        – Hillary Clinton the DNC hire Fusion GPS to pay foreign operatives to manufacture dirt against Donald Trump.

        – A DNC operative works with the Ukrainian embassy to dig up dirt on Trump and Paul Manafort, some of it manufactured.

        – Trump asks the Ukrainian Government to look into allegations that a Vice-president improperly threatened to withhold aid unless a prosecutor with jurisdiction over his son’s corrupt company was fired.

        1. The United States has jurisdiction over the activities of United States citizens and we have a Mutual Legal Assistance Treaty with Ukraine. We also have due process and criminal procedural guarantees that they may or may not have. The general policy of the United States is typically to promote and protect the interests of its citizens when foreign countries are investigating them, particularly when there are concerns over due process.

          1. Hence the USA President talking directly to the Ukraine President to investigate corruption and if pertains to the Bidens then give information to the USA AG. IOW getting the cooperation from a new Head of State on a matter that may affect both countries especially as it may affect a previous USA VP as well as providing the USA AG as primary contact for any info.

            We also seem to forget that AG Barr and Durham have already done lower level investigations in several foreign countries and IIUC Ukraine was one of them.

            1. Not sure the Crowdstrike Conspiracy counts as an “investigation”

              1. Ah, yes ClowdStrike.
                The thing you commies are really shitting your pants over.

    3. The whistleblower is not Trump’s accuser. The witnesses who gave evidence against Trump to the House are the accusers. Trump could confront all of them, simply by directing McConnell to call witnesses. Non-confrontation is entirely on Trump.

      1. Why call the witnesses when the witnesses already admitted they had no first hand knowledge just assumptions and gossip?

        Only first hand witness was Sondland; who admitted the President never asked for a quid pro quo nor investigations into Biden; although he did expect the new Ukraine President to live up to his anti-corruption campaign.

        If the Fed Rules of Evidence were used then none of the testimony about the President would be admitted into court.

        1. If the Fed Rules of Evidence were used then none of the testimony about the President would be admitted into court.

          You are mistaken. Perhaps you should not try to play lawyer on the Internet?

  21. A few points need to be drawn out, just for clarification.

    1. The impeachment was for a non-crime. Now, impeachment can be for any reason, but it strengthens it notably if there’s an actual crime that can be pointed to, rather than a arbitrary value that Congress decides to impose.

    2. The impeachment was entirely partisan (IE, not a single GOP Congressman for, with 2 Democrats against), on a non-crime. This further weakens the impeachment. Again, non-crimes can be impeachable offenses. But, if it’s a non-crime AND entirely partisan, it severely questions the importance of the non-crime. On the other hand, if it was a non-crime, but garnered a substantial number of the opposite caucus, then the non-crime would be viewed more seriously, and less a partisan tactic.

    3. The impeachment proceedings in the House were rushed, with a haphazard investigation. This is a major flaw, and betrays further partisan concerns. A more thorough investigation would’ve involved subpoenas of key witnesses, and forcing these subpoenas through the court until they were heard. These witnesses could’ve helped, or hurt the case. The fact the impeachment investigation was rushed and voted on without needing to know all the facts is a problem that questions the entire investigation.

    4. The impeachment proceedings in the House were biased. A fair and honest investigation would’ve heard from both sides, and allowed further witnesses and investigation by both sides. The fact only one side was really heard from, and that that side limited the other side’s ability severely is a major problem.

    5. The impeachment then proceeded to play partisan tactics with the transmission. This further weakens the case that it needed to be rushed because of an urgent need, and reinforces the partisan nature of the investigation.

    6. Similar actions to the impeachable articles by past administrations didn’t face impeachment. This is important for precedence.

    What this all really plays into, is that an investigation only by one side, on a non-crime, without any real cross or counter examination is an invitation to abuse of power by the Congressional party in the majority. Embracing these articles, on this biased an investigation, for a non-crime, would fatally weaken the presidency as an equal branch of government. The President would only serve at the discretion of Congress, until a non-crime could be imagined, a one-sided investigation rushed through, and the President thrown out.

    1. It would be just as accurate to say that the opposition to impeachment in Congress was entirely partisan.

      1. Wrong AWD. It was opposition to impeachment that garnered bi-partisan votes without the ability to question witnesses, call witnesses, etc.

        1. Republicans had the ability to question witnesses and call witnesses under the House’s impeachment rules.

          1. As I read the House’s impeachment rules, the Republicans had a 72-hour window from the time Schiff called the first hearing in which they could submit names of any and all proposed witnesses, and Schiff/the Democrats had veto power.

            Is there a different set of rules you were referring to?

            1. No; that’s them.

              (They also could call witnesses at the Judiciary Committee hearings.)

              1. No, they were allowed to request that witnesses be called and all their requests were denied.
                When the lead prosecutor gets to act a judge and jury, it isn’t exactly fair to the defense.

  22. Democrats are KICKING ASS …. gaining dozens of powerful campaign ads, of GOP gutless corruption.

    Democrats DID fuck up the impeachment. Removal would have been guaranteed, if they’d focused on all the UNDENIABLE proof that Trump was a lying sack of bigoted shit, claiming the mass assaults in Charlottesville were initiate by THE LEFT. Could Republicans afford to support jew-haters and nigger-haters?

    1. Damn…
      I hope you have some help come election night in November 2020.

  23. The sane morning crowd has distilled this impeachment kerfuffle. down to its essence.
    Facts and analysis. Much more enjoyable than the uninformed trolls,dirtying up the comments.

  24. “ Rather than embracing a general rule that presidents cannot be constitutionally impeached for abuse of power”

    That isn’t the proposed general rule. Rather, the proposal is that AoP, by itself nebulous, isn’t a stand-alone impeachable offense, not totally unlike conspiracy is not actionable without an underlying crime or tort.

    A POTUS could very well “abuse power” through the commission of an impeachable crime, and there would (academically at least) be no dispute.

    What should certainly NOT be adopted is any rule that allows legislators more hugely expensive partisan distractions. If you don’t like the guy, vote him out.

  25. So we’re going to get essentially another Clinton impeachment acquittal: he did it, but we’re not going to remove him because it’s not that serious and he’s kinda popular.

    Thanks for the precedent, Bill!

    1. Bill Clinton did not acquit himself.

    2. +1000

      That is the real reason Trump is going to be acquitted. All the talk about precedent is so much academic blather.

    3. Trump is very unpopular. The Republican senators about to acquit him represent 20% of the American population.

      And yes, this is serious.

      1. I appreciate the capt for publicly displaying his poor mathematics skills.

        1. He is referring to structural amplification of yahoo voices in the Senate.

          What are you trying to talk about?

      2. President Trumps popularity is better than Obama’s at the same time of their term in office.

  26. Whittington…jump in the WABAC machine and go warn Jefferson about impeaching Chase.

  27. The Senate is not a common law court. It doesn’t have binding substantive precedents. Even procedural precedents are subject to change with 51 votes.

    Endorsing or rejecting Dershowitz’s statement will not bind a future Senate. If the votes are there to convict some future president, then he or she will be convicted. If not, then no.

    Graham, Schumer, Biden and Nadler, among others, are on record arguing completely opposite things now and 20 years ago in the Clinton impeachment.

    1. IANAL, but that’s about what I came here to say. Every impeachment is inevitably going to be a one-off that in no way binds any future Congress. Circumstances will exert the most control. Sure people will try to argue about past events, but only if the cited ‘precedent’ works in their favor.

    2. I understand it is Congressional Privilege that members can lie in the halls of Congress, IOW they have 1A Rights when arguing, whereas anyone else is required to take an oath to tell the truth.

      Similar to the President having Executive Privilege for his WH staff and advisers, based on 1A so the staff can speak freely.

      Were it not for Congressional Privilege, #ChickenSchiff and other House managers would be held accountable for the demonstrable lies during the Senate trial.

  28. Kudos to Keith Whittington for calling out Professor Dershowitz’s Orwellian pretzel logic regarding presidential abuse of power.

    Ed P.

  29. The Democrats have reduced impeachment to a partisan censure resolution. For future Presidents, it will mean very little.

  30. Any “damage to the constitutional system” and to the impeachment power has already been done — By the House Democrats, and their co-conspirators in the permanent bureaucratic state, as well as the media.

    I suppose I agree that it might be a good idea for Senators to avoid “embracing a general rule that presidents cannot be constitutionally impeached for abuse of power” — whatever “abuse of power” means, who knows. It’s anyone’s guess, which I suppose is the point. You can be impeached/removed for just about anything. But you can also not be impeached/removed for anything.

  31. Side discussion re: the vote on witnesses:

    Can anyone point to any language or Senate rule in the context of the impeachment trial that says a procedural vote cannot end in a tie? Personally, I will be mildly surprised if the vote is a tie — I’m guessing 51-49 against, if that close — but if it is, does it actually require a tie-breaker?

    I’m guessing McConnell can just declare that the required majority to carry the motion is not reached and the motion fails. Anyone know different?

    1. The Senate Rules for this impeachment require 51 affirmative votes. Ties go down to defeat

    2. It is Chief Justice Roberts, not McConnell, who is the person who does the declaring here.

    3. In the impeachment trial of President Johnson, Chief Justice Chase cast a tie breaking vote on a couple of procedural votes.

      When the Vice President is the presiding officer, he gets to cast tie-breaking votes. Why should this change just because the Vice President has a conflict of interest and the Framers made someone else the presiding officer instead?

      1. I’d say it changes because the constitution specifically grants the V.P. his authority within the senate.

    4. Murkowski just came out as a No on witnesses, that leaves Collins for sure and perhaps Romney as Yes. So, no tie.

  32. Dershowitz is making the absurd argument that it is OK for Trump to abuse the power of his office to get re-elected because he believes it is in the “national interest”. So Trump being enough of a moron to actually believe he is good for the country is a defense against any level of corruption.

    Dershowitz is working hard to prove he is an even bigger legal dumbass than Giuliani and willing to go to any length to prostitute himself to Trump and his crime family.

  33. Dershowitz has claimed that abuse of power is the same thing as maladministration and cited the Constitutional Convention’s rejection of maladministration as grounds for rejecting abuse of power.

    But they are radically different. Maladministration involves mere negligence, while abuse of power involves intentional, willful acts.

    Any defense lawyer ought to know that there’s a difference between the two.

  34. I find it quite incredible – or perhaps I should find it unexpectedly partisan – to opine on the damage that the Republican Senators might do to the constitution (clutches pearls!) by voting to acquit without explaining that their vote is not in support of ONE of the many arguments the defense made – a ridiculous concept in of itself – and not concede that the greatest danger to the constitution and the power of impeachment is the shameful mockery the Democrats have made of it. Wow!

    KEITH E. WHITTINGTON, you are a tool!

    1. He’s a tool.

      You’re a bigot.

      No wonder conservatives can’t compete in the culture war.

    2. Also Prof. Whittington made his argument without any infantile name-calling, so it must have been a pretty weak argument.

  35. Impeachment requires a statutory crime. But the DOJ and State authorities cannot investigate the President or his associates for crimes, let alone indict. Congress cannot use its oversight powers to investigate crimes without voting to implement an impeachment inquiry. Once an impeachment inquiry is open, Congress lacks standing to enforce its subpoenas in Court, and the remedy for defying Congress is impeachment. You can’t impeach for obstruction of Congress because you can enforce those subpoenas in Court.

    In essence the true remedy is the ballot box. Not Congressional elections mind-you, but Presidential ones. If the President is not up for re-election or decides to use his power to improperly influence election results, voting, or damage opposing candidates, is there a remedy for that?

  36. You give the Senators too much credit. Not one of them care if he did what he is accused of. They all know he did. They only care about keeping power.

  37. Impeachment is a political process. Crimes are optional.
    And I see the Senate’s role more as the jury deliberations than the actual trial.
    But what we think does no matter; the house gets to make up it’s rules, the Senate likewise.
    So GUILTY!, then NOT GUILTY!
    The real action will be in November.

    1. So screw the Constitution. Don’t have a trial, have a debate.

      1. “So screw the Constitution.”

        The Ds have been doing so since that sham ‘pee’ report.

  38. I still think this argument misses the point of what Dershowitz said. He didn’t say you can’t be impeached for abuse of power. He said that the charge itself, or lack thereof in this case, is not impeachable. Everyone has overcomplicated the issue. Trump committed a legal act for nefarious purposes, he committed a legal act for virtuous purposes, or he did it for both. Absolutely nothing has been proven in any regard. Everyone wasted their time arguing about inside baseball.

  39. The Republic has been dying a slow death. The last evil deed to kill it deader than a door nail will not be the vote to acquit, but the vote not to allow Bolton to testify knowing that Bolton had more relevant evidence.

  40. Harvard Law School professor Nikolas Bowie wrote a law review article that was cited by Dershowitz in support of his claim that removal of the president from office requires the allegation of a crime. In a recent New York Times op-ed, https://www.nytimes.com/2020/01/27/opinion/impeachment-defense-trump.html, Bowie affirmed his view that a crime is indeed required but asserted that Dershowitz had misunderstood him in that he believes that a common law crime would suffice. He referenced a source showing that abuse of power was a common law crime and listing examples under the heading “Misconduct in office.”

    The Supreme Court decided in United States v. Hudson (1812) that the federal courts could not convict defendants for common law crimes, only statutory ones passed by congress, but it did not decide that the senate could not convict a president in an impeachment trial on the basis of common law crimes.

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  44. It seems to me that Dershowitz made some simple errors that I’ve not yet seen mentioned. To quote, “[Justice Curtis] then went on to a second provision. ‘The trial of all crimes, except in cases of impeachment, shall be by jury’ [Article III, Section 2]. This demonstrated, according to Curtis, that impeachment requires a crime.”
    Isn’t Justice Curtis (and Dershowitz, since he accepts Curtis’s reasoning) simply getting his logic wrong? The sentence in the Constitution leads to the conclusion that there is overlap between the two categories “cases with crimes” and “impeachment cases”, not that the latter category is fully inside of the former.
    Right? Can I get a law professor to help me out here?

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