McConnell Says Trump's Articles of Impeachment Are 'Constitutionally Incoherent.' But Are They?

The Senate majority leader announced he will acquit President Trump.


Senate Majority Leader Mitch McConnell (R–Ky.) on Tuesday railed against the articles of impeachment facing President Donald Trump, characterizing them as an affront to the founding fathers and an attempt to overturn the 2016 election. It is the "the most rushed, least fair, and least thorough" impeachment process in history, McConnell said, a call back to his first speech on the Trump impeachment in December.

Trump was impeached by the House of Representatives for abuse of power and obstruction of Congress over his role in pressuring Volodymyr Zelenskiy, the president of Ukraine, to announce probes that targeted Trump's political rivals.

The articles of impeachment are "dangerous" and "constitutionally incoherent," according to McConnell. But are they?

On the first charge, McConnell said that the House pursued the matter "without alleging a crime known to our laws." While he clarified that he does not believe that impeachment requires a criminal offense, he nevertheless argued that lawmakers "gave in to a temptation that every previous House has resisted." In other words, while McConnell agreed with the majority of legal scholars that "High crimes and misdemeanors" does not necessitate committing a literal crime, he implied that, in effect, a criminal violation should still be present for a valid impeachment.

That argument is an homage to the defense put forth by Alan Dershowitz, the retired Harvard professor and lawyer for Trump. Though Dershowitz said in 1998 that an impeachable offense "certainly doesn't have to be a crime," he has since altered his view. In his 2018 book, The Case Against Impeaching Trump, Dershowitz maintained that an impeachable offense must be criminal, and during the current proceedings, he argued it must instead be "crime-like." His evolving stance cuts against the legal consensus, which contends that abuse of power is a core impeachable offense. 

He now disagrees with that consensus. According to Dershowitz, a quid pro quo allegedly put forward by Trump in an attempt to increase his chance for re-election is not impeachable on its face because, in Trump's mind, keeping his grip on the Oval Office is in "the public interest."

McConnell seemed to reference that questionable argument in his remarks today. "Such an act cannot rest alone on the exercise of a constitutional power," he said, "combined with concerns about whether the president's motivations were public or personal and a disagreement over whether the exercise of power was in the national interest."

As for the second article of impeachment—obstruction of Congress—McConnell likened it to "nonsense impeachment." He does have a point there. House Democrats, in seeking to push impeachment through at a rapid pace, opted not to subpoena the witnesses whom Trump blocked from testifying, since that would have required a lengthy process of litigation. "The decision not to subpoena directly relevant witnesses such as Giuliani, former National Security Adviser John Bolton, and acting White House Chief of Staff Mick Mulvaney was based on a desire to avoid time-consuming court battles over whether they could be compelled to testify," writes Reason's Jacob Sullum. "But as [Jonathan] Turley notes, rulings involving Trump's financial records and the testimony of former White House Counsel Don McGahn suggest that Congress would have won those battles."

Is there any doubt that Trump obstructed Congress? The president himself all but admitted as much. "We're doing very well. I got to watch enough," Trump said at the World Economic Forum, referring to his Senate impeachment trial. "I thought our team did a very good job. But, honestly, we have all the material; they don't have the material."

Yet McConnell seemed to view that statement by Trump in a different light. "House Democrats argued that any time the Speaker invokes the sole power of impeachment, the President must do whatever the House demands, no questions asked," he said. But McConnell said the president was under no such obligation, citing executive privilege.

Unlike McConnell, other Republicans have conceded that Trump acted improperly when he leveraged the power of his office for his personal benefit. "It was inappropriate," asserted Sen. Lamar Alexander (R–Tenn.). Trump's behavior was "shameful and wrong" said Sen. Lisa Murkowski (R–Ala.). Nevertheless, their basic argument aligns with that of the majority leader and can be adequately summed up by Alexander's closing remarks: "Even if the House charges were true," he wrote in a statement, "they do not meet the Constitution's 'treason, bribery, or other high crimes and misdemeanors' standard for an impeachable offense."

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  1. Is this an attempt to game the law of question mark headlines?

    1. That is an excellent reply.

      I read that headline and my instant reaction was: “Finally, a headline that asks a question where the answer is ‘Yes!’.”

  2. Oh my god who cares?

    The media turned the presidency into a game show.

    Americans picked a team for the game show.

    Libs lost the game show.

    This has nothing to do with the constitution.

    1. This has nothing to do with the constitution.

      Thus, constitutionally incoherent.

      Does the Chiefs winning the Super Bowl violate the 1A? Are they guilty of ‘high crimes and misdemeanors’ by obstructing the 49ers’ victory?

      Incoherent nonsense.

  3. Iowa caucus failure, impeachment failure. Could life be sweeter? Yes, it could be watered by the tears of Reason.

    1. +10000000000000

  4. Late-breaking news! It had previously been unclear how McConnell would have voted.

    Now for the agonizing wait to see how Warren and Sanders vote.

    1. Luckily Warren and Sanders have no self-interest in this to be acting on. That would make their behavior during Impeachment impeachable.

      1. ooh….. another snappy and on-point response!

        But there is nothing incoherent about this impeachment… nope, nothing at all.

  5. This article seems to gloss over whether “obstruction of congress” is a thing.

    1. Equal branches of Government. One side’s ‘obstruction’ is the other side’s “defending the prerogatives of the Executive Branch”.

    2. I could see an Executive Branch official refusing to accept a Constitutional and duly passed law that the President signed into Law as some dispute but its not called “Obstruction of Congress”.

      Refusal to follow oath. Refusal to follow law. Or whatever.

      “Obstruction of Congress” implies that a President MUST do what Congress wants all the time.

      Branches can have disputes and there are remedies for that.

      1. I could see an Executive Branch official refusing to accept a Constitutional and duly passed law that the President signed into Law as some dispute

        Like, oh, I don’t know… maybe immigration law? You know, like inviting underage people to illegally immigrate with a promise that they will be allowed to stay?

    3. They’ve been glossing over whether or not ‘total submission to Congress’ every demand for Trump to turn over documentation’ is or is not obstruction.

      Personally, I don’t think it is, given that Congress doesn’t have unlimited and unilateral subpoena power. They can make any request they want – you don’t have to acquiesce to government requests.

    4. From my point of view, Congress obstructed the executive branch from doing its role, so the executive branch returned the favor instead of letting itself be fucked. Let’s not pretend they’re clean in all this.

    5. He is also grossly mischaracterising what Trump says here: ”Is there any doubt that Trump obstructed Congress? The president himself all but admitted as much. “We’re doing very well. I got to watch enough,” Trump said at the World Economic Forum, referring to his Senate impeachment trial. “I thought our team did a very good job. But, honestly, we have all the material; they don’t have the material.”

      His meaning is clearly that his defense has a lot more to work with arguing for aquittal than the defense has for conviction.

      1. Yeah, if you have to reach and stretch to twist words to fit your argument like some hack first year preacher trying to make a whole sermon out of the word “torn” from the book of Mark…. .maybe you should just give it up.

  6. “Trump was impeached by the House of Representatives for abuse of power and obstruction of Congress”

    Those are not REAL crimes as they only attempt to state a motive for the crime(s) – and not the crimes themselves.
    REAL crimes require a criminal action -at least under libertarian views.

    Reason’s rush to back these as crimes are an apparent attempt to validate the impeachment.

    Because there are no actual crimes stated, these fake crimes are easily politicized which may be the point McConnell is making.

    1. Impeachments and removal proceedings are not criminal matters.

      They are basically a form of employment tribunal. As such, the grounds for censure and/or removal do not have to come from criminal acts. Neither do they need to provide proof beyond a reasonable doubt that any act that forms the basis for an impeach has even occurred.

      You can certainly think that this impeachment is bullshit – but let’s not get confused as to what an impeachment is. Its not a criminal trial.

      1. They are basically a form of employment tribunal. As such, the grounds for censure and/or removal do not have to come from criminal acts. Neither do they need to provide proof beyond a reasonable doubt that any act that forms the basis for an impeach has even occurred.

        ^ This.

        1. So basically the same as immigration then.

      2. Obviously Congress can do what it wants, for whatever reason. But “high crimes and misdemeanors” are English words with definitions.

        1. Thank You. Law professors can bleat on and on into the next century that Trump committed an impeachable offense but if they want to change the plain language in the constitution they need to work on an amendment. There may have been disagreements at the time but the founders settled on the straightforward criteria as written.

      3. But let’s not pretend that “Obstruction of Congress” is an actual act either. Binion certainly wants or needs it to be but it’s really nothing more than more Red Queening.

      4. Well, and as employment issues, it’s clear that removing Trump from office at this point works be an absurdity: it would cause chaos and interfere in the election and there is nobody credible to replace Trump.

        That is, as an employment matter, this impeachment is even more ridiculous than as a criminal matter.

    2. Progtard democrat logic is that Trump is a big meanie who is not progressive like them, and and that anything he does is motivated by bad things. So therefore EVERYTHING he does is automatically a crime. Even if democrats would do the same exact thing at the same time with the same circumstances, because democrats are ‘woke’ and ‘progressive’. Therefore NOTHIng a democrat does is a crime.

      That basically covers it.

  7. 2 articles in the atlantic make a very salient argument, when taken together, that our republic is over.
    We will soon enter the era of post checks and balances.
    The founders warned against populists who appeal to your base desires for simple answers to complex questions.

      1. The fact that you think these articles are good is hilarious.

        1. Jeffy should just focus on his enthusiasm towards child rape. I’m sure his NAMBLA cell requires lots of managing by a worthless twat like him.

    1. Yet you’re still voting for a Democrat.

    2. our republic is over

      OMG, calm yourself. These are opinion pieces. And not even very good ones.

      Republicans in the Senate not agreeing that these are impeachable offenses != “there are no more checks and balances.”

      And the subheading:
      The government set up by James Madison and the other Founders requires a virtuous public and virtuous leaders—or the whole system will fail

      is incredibly ignorant and should be grounds to dismiss the author’s views out of hand.

      Autocratic/authoritarian government requires virtuous rulers or else it fails. That’s why the Framers constructed a form of government that counts on its participants not being virtuous. That’s the whole point.

      1. The government set up by James Madison and the other Founders requires a virtuous public and virtuous leaders—or the whole system will fail

        is incredibly ignorant and should be grounds to dismiss the author’s views out of hand.

        Correctamundo. If the author had any sense of history, he’d know that the American experiment, as it was first conceived was designed to protect us from the occasional scoundrel and lack of virtue because the levers to power were so limited as to restrict the damage that could be done.

        1. Virtue left the station when the Clintons arrived. i don’t want to be lectured by anyone who supported those two.

      2. Yep. But DOL is dumb and dishonest so it works for him.

    3. Our Republic has been over since the progressives took over Washington. We’re hoping to get it back.

  8. The Articles of Impeachment from the Democrat are a joke and should be treated as such. McConnell was being diplomatic by not laughing the House of Representatives officials right out of the Senate Chamber.

    1. It would have been more appropriate to have caned them.

      1. I miss the days when people would carry rotten vegetables suitable for chucking at bad actors.

  9. But Are They?

    *scratches chin and wonders with grave expression upon countenance*

  10. dude you gotta put a disclaimer somewhere or a sarc tag so we know it’s satire

  11. For those old enough (probably not you, Billy), think back to Richard Nixon…

    When a genuine impeachment case comes along, we’ll know it. A very clear majority of the nation–voters, legislators, etc.–will agree on it; no debate necessary. If the case requires so much persuasion and argument, then it isn’t the real thing.

    1. Trump getting elected to his second term will be grounds for impeachment.

    2. Yes….exactly what Barnstormer said. I was around for Nixon and remember that quality of decisiveness as well. No debate was really necessary.

      1. And I’ll add that what Nixon’s team did isn’t even a rounding error on the use of the state for political purposes by the Obama administration. They were so far over the line we’ve forgotten more than we remember…

        How about “unmasking”. Remember that? Notice how nobody got prosecuted for what was an obviously illegal act? Or taking classified information and disseminating it around the government to be leaked to the press after the inauguration with the express intent of forcing a special prosecutor to be named?

        Before that, Clinton held the modern record for being a poor sport after an election and doing a bad job with the transition…. and that was because they ripped the “W” key off of all of the keyboards.

        Heck, we aren’t even worried about using the IRS to attack conservative groups, or the hack job coverup afterwards.

        But yeah, let’s pretend that exerting executive privilege over deliberations about foreign policy is a heinous act that deserves removal. (an act that was never even tested in court – because the House Dems knew they’d lose that one overwhelmingly in the courts).

        1. No disagreement on any of your points, Cyto. I think Barnstormer is right (we won’t need a debate, we’ll know) and you are right (Obama and Clinton were no saints).

  12. But Are They?

    Yes. Yes they are.

  13. Let us remember that the Constitution is not just a racist relic of our racist past, but a racist beacon of our racist present. The sooner we confess our racist crimes and repudiate this icon of racism, the sooner we can heal and reconcile as a diverse nation. I for one cannot wait for our post-Constitutional future and the day you white-supremacist Constitutionalists are put up against the wall.

    1. Sounds like someone’s ready to start hosting dinner parties . . .

      1. Someone’s seen The Invitation

    2. The racist racist’s racism is racist racism’s racism. Racist.

    3. Needs moar ‘racist’.

  14. Is there any doubt that Trump obstructed Congress? The president himself all but admitted as much. “We’re doing very well. I got to watch enough,” Trump said at the World Economic Forum, referring to his Senate impeachment trial. “I thought our team did a very good job. But, honestly, we have all the material; they don’t have the material.”

    Is there any doubt that “obstruction of congress” is an entirely made up term that was created to make ordinary separation of powers and political disagreement criminal? No.

    Worse, Trump’s obstruction amounted to telling Congress to go to court and let the courts decide if its subpoenas were valid. So, reason’s position is that going to court and demanding a court order rather than just giving Congress what it wants is criminal. That isn’t very libertarian I don’t think.

    No one says reason has to like Trump. They can hate him. He is not a Libertarian. But, reasons’ refusal to abide by it’s proclaimed principles or any sense of reason and just blindly repeating every anti Trump talking point is pathetic. You would think Libertarians would be happy to defend someone they hated against bullshit. It shows one actually believes what they say. But not reason. Reason would rather act as a propaganda arm for the deep state because Orange man bad and God damn it those jobs at the Atlantic won’t come easy.

    1. “That isn’t very libertarian I don’t think.”

      I think we’ve reached the point where this should just be an unstated assumption with Reason when discussing national politics.

      1. Beyond all of that – Reason’s editors and writers mostly endorsed Obama over even the Libertarian candidate. That rorsach test of a candidate was as unlibertarian as any president in history. But whatevs… Now we have a buffoon who is arguably the most libertarian president in a century. And the bile spewing forth is overwhelming.

        We truly live in weird times.

    2. The obstruction charge, inter alia, was decimated by (remember this name) Pat Philbin. His performance was surgical and brilliant.

      He emphasized several crucial points: First, Pelosi improperly ( read unconstitutionally) initiating impeachment in the absence of a (required) House resolution, which made moot some 23 subpoenas; secondly, the failure of the House to attempt routine “incrementalism” and going to court, rather than rushing to impeachment, all of which revealed the raw political motivations at work.

      Not to mention how he exposed the total absence of due process afforded to Trump by the House committees.

      As to the point of the obstruction charge, I see it as a marketing tool by Schiff’s gang; the word obstruction has the ring of a crime. Abuse of power, not so much. These clowns needed PR as much as smoke and mirrors to sell this circus.

      1. I completely agree = Pat Philbin. Always started with, “Senator, thank you for the question…”

    3. Yeh well I’m not so sure Reason is libertarian at this point.

      1. If libertarianism means the Democratic Party’s platform, Binion is super-libertarian.

  15. And?

    What was accomplished in all this theatre?

    Show your work.

    1. Well two women walked away with a lot of dollars. The rest had a fancy dinner with plenty of Chardonnay and Pinot. Then they all went home and had a good cry. Also Suzanne has blocked Marie on Facebook because of something she said on the way out.

      Sounds like a typical girls night.

      1. Oh wrong thread. Hard to tell which kabuki theater we are talking about.

        1. There are no women in kabuki.

      2. Chardonnay? How blase. Figures they’d choose it.

        Barbera. Now that’s a grape you don’t fuck around with and if you stick with it, rewards you like few varieties.

  16. Wait, what? Trump was inpeached?

    1. Yeh and the sordid, sleazy affair cut into my Court TV.

  17. It’s like you’re TRYING not to understand.

    Dershowitz is saying that in order for there to be a valid impeachment, the President has to have actually done something bad.

    Asking an ally for help investigating corruption and foreign interference in our elections is not bad.

    Waiting to see if they’ll actually do it and holding aid until they do is not bad.

    In fact, objectively both those things are good.

    Which is why the ‘abuse of power’ centers around Trump wanting those things to help him get re-elected.

    But wanting to get re-elected is not bad either.

    And doing good things in the hope that, in so doing, you’ll get re-elected is not bad at all.

    In fact, it’s good.

    Fighting corruption and fighting election interference are both very good things.

    Doing good things as a means of getting re-elected is also good.

    Doing bad things to get re-elected is bad.

    Doing bad things is bad.

    When you’re being investigated, if someone wants information you don’t want to give they can issue a ‘subpoena’.

    This means that they have asked a judge to compel you to hand over the information. And most of the time, people obey the subpoenas at this point.

    But if you think that they, and the judge are wrong, you can dispute the ruling and a second judge–or, in the case of a President, the Supreme Court, the highest of all courts in the country, can review the case and decide. And everyone has to abide by what they say.

    But the Democrats didn’t want to wait and withdrew those subpoenas. Which they are allowed to do.

    But then they charged the President with Obstruction of Congress. And that was bad.

    Because it was their choice to not go to the Supreme Court–not the Presidents’.

    They obstructed themselves and blamed it on the President.

    And blaming others for something you did is ALWAYS bad.

    It is bad to try to get someone in trouble for trying to do something good. And it is bad to try to blame someone else and get them in trouble for something you did.

    The Democrats in Congress, most of them anyway, have been very bad.

    Okay. That’s written at about a second/third grade level. Maybe you’ll understand now.

    And then it’s upstairs to brush your teeth and get in bed, Reason, it’s almost 8 o’clock. Bedtime.

    1. Well said.

      What’s also interesting, people here are taking issue with how this went down and what do they get in return?

      They get called ‘Trumpistas’ when in fact they’re pointing to all the bull shit and if there’s ONE thing libertarians are good at it’s sniffing out bull shit and remaining true to the principles they hold true.

      I think the people here have displayed a much more nuanced view; if not uncompromising and relentless refusal to accept this bad behaviour more than the Reason staff who seem to be okay with giving the Democrats a pass for their shenanigans.

      1. Shenanigans, perhaps. But at least there’s No Malarkey.

  18. Wow. Can’t blame these two. What an awesome gig they have going. They just show up and do this act or whatever it is.

  19. Like any of this had anything to do with truth, justice, democracy and principles.

    Sure. Because Schiff and his Democrat thuggish cohorts exude such values.


  20. The whole impeachment is incoherent.

    1. I will bet $100 dollars that a new investigation begins by 9AM Thursday, EST.




        1. It’s obvious bribery: if you elect me, I’ll keep the economy humming and I’ll keep appointing Constitutionalist judges.
          Quid Pro Quo!

          1. He should actually use this strategy to mock them.

            Heads would explode.

            1. Make that tactic.

  21. McConnell is absolutely RIGHT!

    What’s that Obama use to tell the world! … Oh yeah, “I’ve got a pen, and I’ve got a phone” I can use to “obstruct congress”. If there was EVER a president that obstructed the Constitutional Checks and balances it was Obama! Thankfully — President Trump has white-out to fix most of those Obama-pen-scratch obstructions.

    If the left won’t call Obama an “obstruction of congress” they have 0-credibility in calling Trump one.

    1. Remember when Obama adhered to the constitution and the War Powers Act and sought out action from the congress before attacking other countries?

      Yeah, me neither.

  22. McConnell lies nonstop and will say and do anything to further conservative hegemony.

    He loves to talk about what the American people want, but when the American people put Barack Obama in office he didn’t care what the American people wanted. He made it his mission from Day 1 to nullify his presidency anyway he could.

    1. That is kind of the job of the opposition party. Notice the GOO never impeached Obama, despite the IRS scandal, fast and furious scandal, and now we are finding out about the illegal FISA warrant scandal. McConnell should have tried harder to nullify the election, it would have benefitted the country it seems.

      1. Bombing Libya without a declaration of war should have been a call to arms… .but that ship sailed years ago when they decided to go with the War Powers Act. But when Obama thumbed his nose at the War Powers Act, that would have been a good time to impeach. That’s pretty much the only remedy for taking the country to war without authorization. But congress punted.

  23. Is Reason now the work of the Democratic Communist Party?

  24. Justice requires a just process. I am ever increasingly thinking Trump may have done something wrong. I’m not sold that he did… just that the needle is moving ever so much in that direction. I would like to have had heard from Bolten and the rest. I would like to know the truth as far as it can be discerned. HOWEVER… it was the House’s duty and obligation to hold a thorough AND FAIR investigation before deciding if they thought Trump did anything wrong. Justice requires that a man who has not been proven guilty be treated as innocent. And the House has not proven it. Maybe Teump didnt do anything and the result we are getting is what should have happened anyway, but it is too late to know in a fair manner. Leaks and info may come out now showing Trump is even more crooked than the Dems claim… but in a rush to injure Trump they failed to exact justice and we may all pay for it. That is 100% on them.

    Their charges are spurious at best, full-on made up at worst (and certainly made up re: Obstruction of Congress).

    The fact they wanted more witnesses one is proof that the case they made was insufficient and an acquittal due. If they proved their case, what is the point of more witnesses other than grandstanding (which isn’t justice)? If they didnt prove their case and need more info… that is their failure which we may have to live with. If there is amy cosmic justice, the House Dems and their supporters will wither away and be forgotten.

  25. I’m a Never-Trumper who most often votes Republican. Didn’t vote for Obama, didn’t vote for Hillary.

    I watched the whole impeachment thing in both the House and the Senate from start to finish and followed all the analysis closely on a wide spectrum of internet sources; right, leftm and everywhere in between and beyond.

    The President has clearly abused his office and violated the law. He should be booted from office. But then, so should Bill Clinton have been booted from office, IMO. So …..

    1. Too bad you can’t actually name the statute that you claim he violated.

  26. This is all just a bullshit debate, and everyone knows it. Congress can impeach and remove a president for any conduct they like. That was the case and it continues to be the case.

    The Senate has decided that Trump’s conduct didn’t rise to a level that justfies removal, and that’s that.

    I don’t don’t think a crime is needed, and I can certainly envision a case in the future where we have a president with a 15% approval rating that is just plain incompetent getting impeached for no other reason than the opposition hates him and his own party doesn’t want to be dragged down with him.

    I can certainly envision, that Trump could have been removed from office for this conduct if he was incompetent, which he isn’t, and his approval rating was 15-75 approve-disaprove.

    But fear of him being re-elected because the country is doing so well under him is not sufficient grounds.

    1. That’s basically it: Schiff as much as said that Trump had to be impeached because otherwise the American people might decide to reelect him, damn them.

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  29. “a criminal violation should still be present for a valid impeachment”

    My god you are dense. I don’t know how many more times you need to hear it before it sinks in, but that it not what Dershowitz nor anyone has suggested. Their criticism of the charge “abuse of power” is that it is too vague and meaningless. In order to abuse power, that abuse has to enable something. Like “spying on a political opponent.” There is an underlying act that, if proven, can turn an otherwise legal action into an abuse of power. But you can’t just charge someone with abuse of power outright. Because the charge was abuse and not the underlying action and purpose of the abuse, Ds were able to constantly shift the argument. Oh, it’s about soliciting foreign assistance. No, it’s about spying on Biden. Never mind, today it’s about violating the public trust.

    Ds went with a vague charge because it was harder to disprove. Their case wasn’t remotely factual so there was never any chance to prove it to begin with, but their shotgun argumentation allowed them to move the goalposts. They were throwing shit at the wall and seeing what stuck.

    To reiterate,
    What Dershowitz means: there has to be a a real, underlying action. This action does not need to legally be a crime at the time, but it needs to be distinct and provable.
    What you think Dershowitz means: if the action was not a crime at the time, impeachment cannot occur.

  30. One thing I’m not clear on is this: Are the Senators voting on guilt or innocence of the charges brought by the House, or are they merely voting on whether the offenses are serious enough to remove him from office? In a normal trial, the jury are fact-finders, and only vote on guilt or innocent. They don’t get to decide whether the charges should have been brought.

    1. They will say either “guilty” or “not guilty” when they do a roll call vote for each charge. But it is widely understood that the implication is actually “guilty of something warranting removal” rather than “guilty of doing the act in and of itself.”

    2. Well, they do, but they have to avoid admitting that’s what they’re doing.

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