Senators Collins, Romney, and Murkowski ask about how to consider mixed motives

"President Trump had more than one motive for his alleged conduct, such as the pursuit of personal political advantage, rooting out corruption, and the promotion of national interest"

Today, the Senators are posing written questions to counsel for both sides. The first question came from Senator Collins of Maine, who asked the question on behalf of herself, Senator Murkowski of Alaska, and Senator Romney of Utah. (You can find the clip at about 1:16 p.m ET). Here is my rough transcript:

Collins: Mr. Chief Justice, I send a question to the desk  on behalf of myself, Senator Murkowski, and Senator Romney.

Roberts: This is a question for the counsel for the President. If President Trump had more than one motive for his alleged conduct, such as the pursuit of personal political advantage, rooting out corruption, and the promotion of national interest, how should the Senate consider more than one motive in its assessment of Article I.

Senator Romney also tweeted this question (#2 on the list):

The questions I have submitted for the Q&A period of the Impeachment Trial: pic.twitter.com/JTHlKJfcNN

— Senator Mitt Romney (@SenatorRomney) January 29, 2020

This question echoes my writings on Article I.

The President's lawyer, Patrick Philbin, responded that an action with mixed motives "could not possibly be the basis for an impeachable offense." If there is both some "personal" motive and some "legitimate public interest" motive, it could not be impeachable. He asked a hypothetical about what the relevant standard is to impeach: is it "48% legitimate, and 52% personal"? He added, "you can't divide it that way." The House must establish "there is no public interest at all."

The next portion of Philbin's answer is very, very similar to the argument I advanced in the Times, which Alan Dershowitz quoted from. Here is my rough transcript:

If there is something that shows a possible public interest, and the President could have that possible public interest motive, that destroys their case. So once you are into mixed motives land, it is clear that their case fails. That can't possibly be an impeachable offense at all. All elected officials to some extent have in mind how their conduct, how their policy decisions, will affect the next election. There is always some personal interest in the electoral outcome of policy decisions. And there's nothing wrong with that. That's part of representative democracy…If you have some part motive for personal electoral gain, that will somehow become an offense–it doesn't make any sense. That is totally unworkable. And it can't be the basis for removing a President.

Philbin concluded that the issues that President Trump discussed with the Ukrainian President "raised some public interest." It was "at least worth asking some question about it."

H/T to Peter Hurley for pointing out this exchange. I was on the road today and did not catch it live.

Comments

[Sarcastr0]

So anything a President does to get reelected is in the public interest. Not presumptively but rather definitionally.

This is not an argument that belongs in a republican form of government.

[Brett Bellmore]

No, the point is that democracy functions by aligning personal interest and the public good, by making advancing the public good politically beneficial.

A prosecutor cracks down on gang crime in a city, that he’s in part doing this to win reelection is no big deal.

You can’t demand that politicians may only act where doing so isn’t politically beneficial, that’s mad.

[David Nieporent]

You’re getting the equation backwards.

“If I do this thing, it will benefit the country and people will like that and so it will help me get reelected” is fine.
“If I do this thing, it will help me get reelected, and that’s automatically good for the country” is not fine.

[Brett Bellmore]

That’s true, but unlike you, I don’t think this was necessarily the latter case, rather than the former.

This was a case of a virtuous confluence of interests: Trump could advance his own interests by going after corruption. Going after corruption is good, even if it is politically advantageous to Republicans. Though I can understand Democrats not being enthusiastic about it.

Our government has grown horribly corrupt, and worse, we’ve gotten used to it. We’ve gotten used to the idea that the children of “important” people get highly remunerative jobs with no qualification but their family name.

We shouldn’t be used to it, we should be horrified by it, and cheer anything that threatens this cozy practice. I am happy if Republicans expose Democratic corruption, and I am happy, (Though you may not believe it.) when Democrats expose Republican corruption.

I’d be even happier if Republicans were willing to expose Republican corruption, and Democrats were willing to expose Democratic corruption. But such is not the world we live in, and I’ll be glad for second best when it happens.

[Joe_dallas]

“Going after corruption is good, even if it is politically advantageous to Republicans. Though I can understand Democrats not being enthusiastic about it.”

The bigger issue isnt that a large swath of the democrats are oblivious to the corruption, is that those pressing for the impeachment condone the corruption.

[David Nieporent]

This was a case of a virtuous confluence of interests: Trump could advance his own interests by going after corruption

Except that Trump wasn’t going after corruption. Nothing he did is consistent with that. He was going solely after a political rival. He likes corruption.

Our government has grown horribly corrupt, and worse, we’ve gotten used to it. We’ve gotten used to the idea that the children of “important” people get highly remunerative jobs with no qualification but their family name.

Even if that were an accurate description of what happened, that’s not corruption. (And certainly not government corruption.)

[Joe_dallas]

Another one – oblivious to the involvement in the corruption by the biden family.

[rsteinmetz]

One positive reason I’ve never heard mentioned is that by mentioning Little Biden it demonstrates that the US does not shield prominent political families from the law.

[Brett Bellmore]

Well, theoretically we don’t.

[Pacific]

Absolutely! The Trump is certainly not shielded from the law. Haha haha

[Brett Bellmore]

“Except that Trump wasn’t going after corruption. Nothing he did is consistent with that. He was going solely after a political rival. He likes corruption.”

Well, that’s the case you’d have to make to convict him. You don’t seem to be making it very well.

“Even if that were an accurate description of what happened, that’s not corruption. (And certainly not government corruption.)”

I think you’ve just made my point.

[Sympatico]

That’s is nonsensical. What if for some reason Biden was ineligible to run for President…. would that affect your analysis?

Suppose it wasn’t Biden, but Elon Musk, and he promised a $1 billion car factory to Ukraine, and ht was seen on C-SPAN making the same claims about firing the prosecutor that happened to be investigating his son on the board of Burisma. Trump sees the video, and that sticks in his mind as an example of a powerful American engaging in corruption which results in the same sequence of phone calls and events. Would that be impeachable?

[Joe_dallas]

the primary difference is that US taxpayer money is not involved with the corruption.

[Sympatico]

Can you clarify what you mean by that? Would that mean that if a president sells high-level meetings and photo-ops with undeserving world leaders in return for cash, that would not be impeachable since no US taxpayer money was at issue?

What if a president proposes a budget with a tax change that financially benefits the president or his family, and he argues publicly for the bill and signs it. Is that impeachable?

[Sebastian Cremmington]

Plus we have proper channels to further public interests. Everyone in the proper channel didn’t believe there was any public interest in what Trump was doing which is why Giuliani and Sondland were called in and why Yovanovitch was recalled.

[Michael Ejercito]

The President is the proper channel.

[OtisAH]

“ We shouldn’t be used to it, we should be horrified by it, and cheer anything that threatens this cozy practice. I am happy if Republicans expose Democratic corruption, and I am happy, (Though you may not believe it.) when Democrats expose Republican corruption.”

Said by a person as he consistently defends and excuses the actions of a corrupt administration. You are so full of shit you can probably get money from the Superfund account.

[NToJ]

“Our government has grown horribly corrupt, and worse, we’ve gotten used to it. We’ve gotten used to the idea that the children of “important” people get highly remunerative jobs with no qualification but their family name.”

Who are we talking about right now???

[Sympatico]

That can’t be right. Suppose the president thinks Roe v. Wade is good for the country, but, to enhance elect-ability, appoints justices who he knows will reverse Roe. But that is entirely in his power, and certainly not impeachable.

The difference is with Roe, there are reasonable people that think it is bad for the country, and similarly reasonable people that think it is good for the country.

For that reason, I think the test for impeachment should (must) be a) that no reasonable person would believe that the act is good for the country and b) the President receives a significant benefit, and not just some possible or de minimis benefit.

[santamonica811]

Sym
“For that reason, I think the test for impeachment should (must) be a) that no reasonable person would believe that the act is good for the country and b) the President receives a significant benefit, and not just some possible or de minimis benefit.”

Just a clarification. Surely you mean, under (b), that the President IS ATTEMPTING to receive a significant benefit, right? You seemed to write that the President did not actually receive a significant benefit, and so it does not matter (for impeachment purposes) that he *attempted* to obtain that benefit.

[Sympatico]

Yes, but both elements must be present. Attempted receipt of even a significant personal benefit is not impeachable where a reasonable person could construe the acts taken (or withheld) as for the benefit of the country or taken for a legitimate purpose (think about a trade deal provision that happens to help his hotel businesses… but is also a good policy for others too). The Marc Rich pardon is an example I think could meet that burden, but even that is fairly close IMHO and I’d be willing to consider an argument that it was done for a legitimate purpose.

[Dilan Esper]

“If I do this thing, it will help me get reelected, and that’s automatically good for the country” is not fine.

I don’t know about “fine”- I’d rather, in a perfect world, politicians don’t think this way- but in the real world, this is literally how all politicians who are seeking reelection work. It’s why members of Congress site things in their districts that don’t need to be there; it’s why presidential candidates and possible presidential candidates all push for subsidies for Iowa corn; it’s why Obama bailed out the auto industry (in electorally crucial Michigan) and not other industries.

I can think of lots of plausible interpretations of what constitutes political corruption, but the ordinary and banal use of government resources to get reelected, which runs from major policy initiatives all the way down to the congressional franking privilege, is simply not plausibly among them.

[Sympatico]

Good points.

[NToJ]

You’re confusing David’s example. The point of the two hypos (if public benefit, I get elected) and (if elected, public benefit) is to demonstrate that the legal argument is a denial of the antecedent of (if public benefit, I get elected). In your examples, there is a public benefit to some constituency–(1) siting things in districts benefits the members of that district (2) subsidizing Iowans benefits Iowans (3) bailing out the auto industry helps people in Michigan. That does not mean that every act that improves a candidate’s chances of winning, benefits the public. Having a hit man kill Joe Biden may improve the President’s chances of winning, but there is no public benefit involved. (If you think there is a public benefit, because you think Joe Biden shouldn’t be President, then there are no impeachable offenses that a President can commit against his political opponents.)

[Calvin]

In fairness, that’s not quite right. Anything he does that’s otherwise within his legitimate authority. Perhaps that still a debatable proposition, but it’s proper proposition to debate.

[Josh R]

I agree that is the proper framing of the issue. Does using Giuliani, rather than a government official, imply Trump’s actions were not within his legitimate authority?

[Bob from Ohio]

Presidents have been using “off label” diplomats since Washington sent Jay to negotiate with the UK.

[Josh R]

Have any been their personal attorney?

[Bob from Ohio]

I don’t know.

Edward House was a business man who was Wilson’s chief political advisor. Made many foreign trips for Wilson including the Paris Peace Conference.

[Leo Marvin]

More to the point, did any of them announce they were representing exclusively the interest of the president in his personal capacity, not that of the Presidency or US government?

[Rossami]

Would your opinion be any different if it had been his personal barber? Or doctor? Why, precisely, does profession matter when choosing an “off label” diplomat yet it matters not at all when hiring the “on label” diplomat?

It also doesn’t seem to matter when the chosen “off label” diplomat is the President’s spouse.

[Josh R]

Any off-label diplomat whose job is to represent Trump’s personal interests is a big problem.

[Rossami]

That’s moving the goalposts, Josh. Your original complaint was the Trump used his personal attorney. I challenged that point and only that point. Now you’re arguing about personal interests. That has nothing to do with the profession of the representative.

[Josh R]

I didn’t move the goalposts. I thought it was self-evident that the problem was the “personal” part, not the “attorney” part.

[FlameCCT]

IIUC Josh doesn’t agree that the President should have a personal attorney doing an investigation while the entire US government is using tax payer money to pay an entire team of attorneys and investigators, both civilian and gov’t, during the Mueller Russian Collusion Delusion?

Is that correct Josh?
Orange man bad so no Due Process, No Attorney, No Constitutional Rights?

[David Nieporent]

Well, for one reason, because Giuliani had a professional ethical obligation to advance Trump’s interests. If there’s a conflict between Trump’s interests and the country’s, Trump’s barber can pick the country. But Trump’s lawyer cannot.

[Sympatico]

You talk like Trump’s interest cannot be consistent with national interest… and that Giuliani has to personally divine and personally decide what is in Trump’s interests. Rather more likely is that Trump set Giuliani on specific tasks specified by Trump defining for Giuliani what Trump wants, and thus what Trump’s interests are.

Personally I think making an example of high-level Washington elites like the Bidens is wholly in the national interest. Send a message that meal time at the public teat is coming to an end.

[Rev. Arthur L. Kirkland]

That final point, from a Trump supporter, demonstrates a striking lack of self-awareness and a strong stupid streak.

[David Nieporent]

and that Giuliani has to personally divine and personally decide what is in Trump’s interests.

I mean, yes, literally, that’s exactly what he has to do as Trump’s lawyer.

[Rossami]

Actually, no. Giuliana only has the ethical obligation you describe when he is serving as counsel. He holds no such obligation in the performance of other duties.

Assume for the moment that you and I were personal friends. You agree to represent me to fight a traffic ticket. Being friends, we also sometimes help each other out with home repairs. Your work for me in court creates no ethical obligations while we’re fixing some pipes in the basement.

[FlameCCT]

So David,
The President is not allowed an attorney while many attorneys and investigators, both civilian and federal government (FBI, DOJ, etc.), are investigating the President during the Mueller Russian Collusion Delusion?

[David Nieporent]

Of course he is allowed an attorney. Where in what I said did you see a suggestion to the contrary? He just can’t use his personal attorney to conduct government business.

[Sebastian Cremmington]

Actually everything Giuliani did was fine. The issue is the White House visit along with withholding funds.

So as someone that has conducted opposition research my issue with Giuliani’s actions is how reckless and haphazard they were because the first rule of oppo research is no blowback on the candidate because inherent in oppo research is that it is 100% about making your opponent look bad while having no impact on your candidate. So what Giuliani did made Trump look bad which undermines oppo research…but for the fact Trump’s voters simply don’t believe anything negative about Trump.. in fact Trump remarked he could shoot someone on 5th Avenue and his voters would still strongly support him.

[Sympatico]

I don’t see it as oppo research…. Ukrane, Romania, and other European countries are rife with severe corruption. Of all things that hold back a country, pervasive, systemic corruption is the worst. Where a prominent American is credibly alleged to be (and openly brags about it) participating in that corruption, a President is justified in raising it with that country and investigating it himself.

[FlameCCT]

Again, you assume it is opposition research. While all evidence shows that Giuliani was investigating for the defense of the President during the Mueller Russian Collusion Delusion investigation.

[David Nieporent]

No evidence shows that, because how could investigating Joe Biden, Hunter Biden, or Burisma be in defense of the president wrt the Mueller investigation?

[Alpheus W Drinkwater]

I’m not sure Chief Justice of the United States qualifies as “off label.”

[Bob from Ohio]

Negotiating a treaty is not a judicial function. Jay was not a member of the Executive Branch either, obviously.

[Calvin]

I think it could – I’m not sure about the contours of the law and practice concerning such things. Giuliani’s name has been dropped a lot, and I expected at the beginning of this process that those arguments would be fleshed out in clear terms; instead, the Ds seem to be using it solely for vague optical purposes, and the Rs have responded by giving it the back of their hand. I suspect that if Giuliani’s role were clearly improper, that case would have been clearly made as part of an article. To the extent that’s wrong and the Ds simply haven’t developed the issue, I personally would be open to considering it as part of a separate article (or even just a well-developed political argument).

[Sarcastr0]

I don’t think a limit that does not include corrupt motives makes any sense.

Particularly so given the modern Presidency’s power.

A President could declare an opponent a foreign threat and have them imprisoned as part of his national security authority. Under your framing, that’d be fine, since the President thinks they’d do a better job on national security.

Seriously, this is Banana Republic logic at best.

[Calvin]

I’d rather have that debate turn on whether there was a legitimate basis for the imprisonment than on whether the president was motivated by what he thought was one.

[Sarcastr0]

You mean like the debate here?

Purpose turns on intent.

[Sympatico]

“Intent” or state of mind can’t be the test for political acts. Assume you had a machine that can 100% accurately read the president’s mind, and he 100% believes a preemptive nuclear attack on China would be good for the country. Then it would not be impeachable of a state of mind test. It must be a “resonable person” standard.

[Sarcastr0]

It can be both.

But the question here is specifically whether intent cannot matter, rendering the President above oversight for all wrongdoing that turn on a mens era elements.

So much for checks and balances.

[FlameCCT]

Like jailing a YouTube video maker to cover up the failure to protect an Ambassador and others killed in a terrorist attack?

[Sarcastr0]

Your complete inability to answer the topic at hand is how I know you have nothing.

[TwelveInchPianist]

“So anything a President does to get reelected is in the public interest.”

That’s a willful misinterpretation of the claim.

There’s a possible public interest in knowing whether Biden was engaged in corruption. It’s also in Trump’s personal interest. That’s your mixed motive.

[Sarcastr0]

No, it is not. This is the scope of the argument being put forth.

That you need to scope it back down to the case at hand should tell you something both about the argument and about why defending the case at hand requires such sweeping ridiculousness.

[Joe_dallas]

Serioulsy – are you oblivious to the corruption involving the Biden’s

[Sarcastr0]

That’s off topic. Tellingly so.

I don’t care about the Biden’s, but I’ve seen no evidence of corruption. Just lies. Easily debunked lies.

[Brett Bellmore]

Look, you don’t actually get to chose what’s off topic. I know you’d like to have that power, but you don’t.

[Sarcastr0]

Wtf does Biden have to do about this general question about the important of intent in Presidential action?

[Pacific]

Well under the new rules, corporate directors must have actual “expertise” or be deemed “corrupt.” This will he welcome news to corporate counsel around the world as well as to D&O insurers. Let’s start with Boeing and Nikki Haley! Automatically “corrupt!”

[FlameCCT]

Or NetFlix and Obama?

[David Nieporent]

Obama is a director of Netflix? Really?

[KevinP]

Hunter Biden got a million dollar a year board position in a Ukrainian energy company despite having no expertise in energy or the Ukraine.

He got this position ONE MONTH after Joe Biden became Obama’s point main on Ukraine.

If you think this is fine and dandy, then absolutely nothing else needs to be investigated.

Oh, and the Ukrainian prosecutor Viktor Shokin is intending to fight Joe Biden about his being fired:

Shokin demands SBI bring Biden to criminal liability – statement
https://en.interfax.com.ua/news/general/638150-amp.html

[Sarcastr0]

Investigate corporate capitalism.

The Shokin statement’s timing and contradiction by those both internal and external to the Ukraine means nothing to you, it seems.

[awildseaking]

Conversely, anything a President does to fulfill the duties of his office is for personal gain. Not presumptively but rather definitionally.

This is not an argument that belongs in a republican form of government.

[Sympatico]

Everything a president (or at least a first-term president) does has a component of political purpose since everything he or she does (or chose not to do) has ramifications for reelection… and that is not necessarily congruent with what is good or bad for the country. And while we are on that point, who decides if something was “good” or “bad” for the country? It is not too hard to conceive of a set of circumstances where preemptive nuclear strike on a foreign superpower and starting WWIII would be in the country’s “best interests.”

[David Nieporent]

And while we are on that point, who decides if something was “good” or “bad” for the country?

In the short term, Congress; in the longer term, the voters.

But your question misses the mark. That a particular act was bad for the country is not by itself grounds for impeachment; that would be the proverbial “policy differences” Trumpkins are talking about. That a particular act was not taken to advance the country’s interests at all is the grounds for impeachment.

Trump’s tariffs are stupid, economically illiterate, and awful for the country, but he shouldn’t be impeached for them. But if he slapped tariffs on a particular product or company for the purpose of harming one of his political opponents, that would be impeachable.

[Sympatico]

“But if he slapped tariffs on a particular product or company for the purpose of harming one of his political opponents, that would be impeachable.”

I agree with that. My point is the standard to measure it by. If it is based on the president’s state of mind, he or she could be 100% doing it for policy reasons and the injury to an opponent is merely incidental. Or the opponent injury could be a minor element… or a large, but still less than predominate purpose…. or a predominant purpose but not 100%. You see where this leads.

And just because some act turns out (with hindsight) to be “bad” for the country, doesn’t make it impeachable.

[Sarcastr0]

Now we’re getting to dumb tautology zone.

Don’t we all do things cause we want to, man?

[awildseaking]

The corollary isn’t dumb. The point was that practically everything a President does could be argued as personal gain, not in the sense of “I wanted to do it” but in the sense that it benefits them outside of the acceptable boundaries of self-serving politics.

I don’t think anyone here takes issue with a politician tooting their own horn or pursuing policies that they believe look good and will secure them re-election, future book deals, speaking arrangements, board appointments, etc. but I think some of us here have argued that Trump intentionally damaging Biden’s campaign is both a personal gain and impeachable. I take issue with the nuance. If I sincerely believed that Trump used his office specifically to hurt Biden, I would definitely take issue with what he did, regardless of whether the act was legal or not. But I don’t believe that argument in the slightest. Trump doesn’t need to hurt Biden. He has an extremely easy avenue to hurt him, which he was already partaking in. Trump repeatedly brought up ongoing allegations and court proceedings regarding Hunter, he always talks about Joe’s CFR panel where he infamously bragged about firing the prosecutor, Joe exemplifies “foot in mouth” on a daily basis, now we have the Schweizer book, and Joe isn’t even a front runner in any meaningful sense of the word. Why would Trump take such a substantial and easily proven risk to damage such a weak opponent?

The core issue here is that the pro-impeach crowd is asking me to believe Trump’s intent was corrupt. Regardless of whether they convince me or not, the impeachment is dealing not with a factual crime, but an interpretation of intent. That’s why we have nothing but second and third hand witnesses. We’re all arguing about what we thought someone did, not realizing how futile such a question is and how the Founders did not want us analyzing such things for the purposes of impeachment.

[Sarcastr0]

Crimes turn on intent all the time.

The Founders would be sickened by your defense of naked authoritarianism.

[awildseaking]

Begging the question here. The underlying wasn’t a crime. It doesn’t matter if you think it was done for corrupt purposes. Go make a law if you think Presidents should never be able to delay aid for any reason. Stop trying to impeach someone for doing something they were permitted to do.

[Rev. Arthur L. Kirkland]

‘ “a possible public interest” is plenty for us’

Credulous clingers gotta credulously cling . . . they’re still awaiting vindication on birtherism.

[Joe_dallas]

Rooting out corruption inherently has mixed motives, It is in the national interest and will be in the president’s interest since he will get positive credit for rooting out the corruption. Except in the case of rooting out corruption by democrats since that is solely for his personal benefit. Therefore investigating corruption by a democrat becomes and impeachable offense.

[Krayt]

A fake investigation to embarrass or drive away support from another politician is wrong.

Investigating actual corruption is in the national interest. I wish there were a hell of a lot more of it. So many who mysteriously get rich over the years, and their relatives and friends. So many. Yet something wrong is almost never found.

To push a whattabout button, Hillary profits on 30 of 32 IPOs, a success rate the WSJ said neither they nor God had ever seen. Yet nothing wrong was found.

Insert your favorite pol from either party here.

[bernard11]

To push a whattabout button, Hillary profits on 30 of 32 IPOs

Curious about the data here.

[OtisAH]

“If there is something that shows a possible public interest…”

Maybe the gop can subpoena witnesses and other evidence that supports the “public interest” claim? And maybe the White House, in the interest of helping the senate reach a fair conclusion and of exonerating the president, could provide those witnesses and evidence? Or is speculating that there might sorta might be such a reason just as good?

[Ben of Houston]

They really don’t have to. Investigating corruption is a self-evident interest. It’s clear. It’s obvious. It’s the explicit reason to ask for someone to be investigated for corruption. That question is like asking if water is truly wet.

It’s on the part of the prosecution to prove the there wasn’t a public motive. While that has been asserted repeatedly like it’s a fact, it just doesn’t make sense. People have repeatedly claimed that Trump wanted an announcement but not an actual investigation. Why would anyone think that? How would that benefit him? If he wanted to do that, he could just have put out a tweet. It doesn’t pass the most basic test of believability.

So, please. Explain to me how investigating the apparent corruption of high ranking former government officials is NOT of public interest. I’ll wait.

[Josh R]

An announcement from Ukraine would have more credence than a Trump tweet.

Of course investigating legitimately suspected corruption of Biden is in the public interest. The problem is the evidence (I’ve listed in other threads) leads us to conclude that’s not what motivated Trump.

[Michael Ejercito]

So you are implying there was no probable cause?

[David Nieporent]

People have repeatedly claimed that Trump wanted an announcement but not an actual investigation. Why would anyone think that? How would that benefit him? If he wanted to do that, he could just have put out a tweet.

No, he couldn’t.

“My opponent so-and-so in the election is corrupt” and “Police are investigating so-and-so for corruption” are not equally persuasive to the public.

[FlameCCT]

IOW Otis expects the Senate and Chief Justice to do the work that the House didn’t do? Seriously? Or didn’t you notice how House impeachment rules made sure the GOP was not allowed to subpoena witnesses, ask questions, etc. that could exonerate the President during the House impeachment sham? Not to mention the House couldn’t be bothered to get WH witnesses and documents because they would have to defend their subpoenas to the 3rd co-equal branch of government, the Judical.

[David Nieporent]

IOW Otis expects the Senate and Chief Justice to do the work that the House didn’t do? Seriously?

Yes. Seriously. Why would you think that the Senate is supposed to do the same work that the House already did? The House is supposed to decide whether there is sufficient evidence to justify impeaching an officeholder. The Senate is then supposed to hold a trial. Trials do not involve arguing about the indictment; they involve witnesses and evidence.

Or didn’t you notice how House impeachment rules made sure the GOP was not allowed to subpoena witnesses, ask questions, etc. that could exonerate the President during the House impeachment sham?

That is 150% false. The GOP was allowed to subpoena witnesses and ask questions. You can look at the transcripts and see that they occasionally asked questions (though usually just spent their time making speeches glorifying their Dear Leader).

(They were not allowed to ask questions designed to reveal the identity of the whistleblower, because that was completely irrelevant and was for the sole purpose of allowing retaliation against the whistleblower.)

[apedad]

Pubs have been crying that criminal trial standards should be used – but then they come out with this garbage.

“Sure I robbed the bank but I didn’t take ALL the money.”

[Bob from Ohio]

Yawn. Like it matters what the answers are.

[santamonica811]

It’s a terrible argument, if only for the sake that, in just about all situations, one can, after-the-fact, manufacture *some* national interest rationale.
This Republican senate would never have voted to convict Prez Nixon. “Sure, he was behind the break-in at the Watergate, and sure, he tried to cover it up.” But he firmly felt that his upcoming election was critical to our country’s future well-being, and his defeating the Democrat nominee–even in sleazy and unethical ways–was in America’s interest. Therefore, I/we vote to acquit.”

It is such a dangerous precedent that the Republicans are actively trying to set . . . it frankly astonishes me. Because, of course, it would apply equally to future Democrats. If I were a Republican leader right now, and I thought that–as a whole–politicians from my party were more honorable and ethical than politicians from the Democrat/Democratic party; then I would want to make sure the precedent set was *more* restrictive, rather than a complete abandonment of restrictions. (“If future presidents have carte blanche to extort or induce foreign countries to tarnish their political opponents, I’m confident that we Republicans are honorable enough to not take advantage of that unethical opportunity. But those rascally Dems–that’s just the sort of underhanded mischief they’d stoop to.”)

[Josh R]

That’s a fair point. But, Blackman has a fair one too. There are slippery slopes on either side of this hill.

In this case, I believe the evidence is so overwhelming that Trump acted out of a corrupt motive, Trump can be removed from office without risking Blackman’s slippery slope. But if Trump is acquitted, it is hard to see how we avoid your slippery slope.

[Bob from Ohio]

“But if Trump is acquitted, it is hard to see how we avoid your slippery slope.”

Get ready to go down the hill because acquittal is coming this weekend.

[BadLib]

Indeed. If the Senate were to convict Trump and remove him from office, imagine the disruption that would result.

The House would then, under the newly established TDS Doctrine, have little choice but to impeach Obama with the goal of the Senate convicting him and subjecting him to “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” in the future for his assurances to Medvedev that “after my election I have more flexibility” with respect to international affairs.

Whatever actions Obama thought were in the best interests of the country surely would not be more beneficial if delayed. The only reasonable explanation is that Obama was corruptly delaying actions that he felt would be in the best interests of the country in order to increase his chances of reelection.

This impeachment is a “matter of principle”, not a “matter of necessity” as no discernible harm came from Trump’s actions which are under review (and an investigation of Obama may show that actual harm to the country came from the corrupt delaying of action) and the underlying request was to investigate corruption (not unreasonable given the incredible coincidence that the son of a powerful ex Senator and Vice President rose to positions of commercial influence that seem completely beyond the son’s experience and demonstrated capabilities). I’m sure no one on either side of the aisle would argue that such a principle should not be applied uniformly.

(And, no, I didn’t vote for Trump and almost certainly will not in 2020 – unless, possibly, if Sanders or Warren is the alternative and there is any realistic chance that the Democrats would take control of the Senate while retaining control of the House.)

[Josh R]

Perhaps you missed my comment that evidence is overwhelming in Trump’s case, which would not extend to Obama or any other past case?

[Brett Bellmore]

Evidence that is only persuasive to people already biased against the person accused is, more or less by definition, NOT overwhelming. Literally nobody is being overwhelmed by it, all you’re looking at is confirmation bias.

[Josh R]

Plenty of people who are open to either outcome, including myself ( I thought the Mueller report cleared Trump of any impeachable offense), think the evidence is overwhelming.

[santamonica811]

Josh, give Brett a break. He’s not a lawyer, and since he does not even understand the meaning of the word “literally.” Instead of picking on him, maybe do the Christian thing; give Brett an encouraging pat on the head and be polite enough to–when you roll your eyes–do it out of sight of Brett, so he does not feel too humiliated.

[KevinP]

Obama was recorded talking to Medvedev on a hot mike. Is that enough evidence for you?

Joe Biden is on video bragging about how he pressured the Ukraine to fire their prosecutor. Is that enough evidence for you?

Shokin demands SBI bring Biden to criminal liability – statement
https://en.interfax.com.ua/news/general/638150-amp.html

Quote:
Shokin said he agreed to resign as prosecutor general of Ukraine due to Biden pressure.

“During the last months of 2015 and the first of 2016, Joseph Biden, using his official position, personally paid official visits to Ukraine several times with the aim of holding negotiations with the state leaders on my removal from my post. As a result, he curtailed an objective investigation criminal proceedings on the facts of unlawful activities of persons associated with the company Burisma Holdings Limited (Cyprus), including the son of the specified high-ranking official,” Shokin said.

Shokin said Biden demanded that he be fired in exchange for the unhindered provision of Ukraine with a U.S. state guarantee in the amount of $1 billion.

[FlameCCT]

I doubt you have any clue, what constitutes “evidence”.

[Bob from Ohio]

“This Republican senate would never have voted to convict Prez Nixon. ”

Nixon had 59% GOP approval right before resignation. Trump is at 90%.

Trump at 59% with his own party’s supporters is a different ball game.

[Brett Bellmore]

Nixon’s popularity among Republicans went into a free fall when he was found to have acted criminally. As in, objective criminality, not to sort of criminality that relies on assuming bad motives.

Prove that Trump ordered the DNC burglarized, and you’ve got something. That he sat on some money and then released it before it was due isn’t going to offend anybody who’s not looking for an excuse to be offended.

[captcrisis]

Nixon’s crime was obstructing justice, namely, agreeing to an aide’s suggestion that the CIA lean on the FBI to stop the Watergate investigation. If Nixon had actually sacked L. Patrick Gray to stop the investigation, and then bragged about it on national TV, well, that’s Trump sacking Comey and admitting it to Lester Holt.

[Josh R]

I have no doubt that Trump obstructed justice as much as Nixon did. But, Nixon’s obstruction rose to the level of impeachment because he was motivated by covering up a crime. Trump’s obstruction doesn’t rise to the level of impeachment because he was motivated by ending the narrative the Russia interfered on his behalf.

[captcrisis]

The name of that crime is “treason”. A little worse than in the case of Nixon (burglary).

[Josh R]

I’m not following how you concluded Trump’s firing Comey amounts to treason.

[M L]

Obstruction requires a corrupt motive. Essentially the intent to cover up wrongdoing. It would be pretty hard to find that without some kind of underlying crime.

[David Nieporent]

It would not. Obstruction requires the intent to interfere with an investigation, which one can easily do without an underlying crime.

If it were otherwise, then successful obstruction of justice could almost never be prosecuted, since the very act of successfully obstructing justice prevents the government from proving the existence of an underlying crime. Only incompetent obstruction could be prosecuted under your theory. But that’s not a correct theory.

[Sarcastr0]

Did you forget all of law school? People get convicted for obstruction with no crime all the time.

It’s why you should never talk to cops without representation.

[Mike Hansberry]

Coppers: we are looking for a bucket of blue steam, which way did it go?

Mr Sarcrappo: Sure mack, it is right over there,…no there. Well it was there a minute ago.

Coppers: Oh, a wise guy, eh? you are under arrest for obstructing our search.

That about sums up Mueller’s claim of obstruction.

[awildseaking]

“I’m the better candidate” and “this guy was corrupt and sold his office to foreigners while VP and he’s seeking election again” are two completely separate arguments and comparing them is disingenuous. Under no circumstances would the former justify national interest, whereas the latter should, under ALL circumstances, justify national interest. This shouldn’t even be controversial or difficult to understand.

[Armchair Lawyer]

Let’s change the situation slightly. Let’s say that instead President Trump invites a whole bunch of Ukrainians over to the US for an anti-corruption training seminar with some anti-corruption folks in the US.

And when they’re at this meeting, discussing tactics how to fight corruption, it comes up that what the US team is really pretty interested in is this one US Citizen in Ukraine who is closely associated with a major US Presidential Candidate in the upcoming election. And the US team presses pretty hard that they’d like any information Ukraine had about corruption from this person. And there’s a gentle reminder of the large amount of US grant money to Ukraine.

Would that all be OK? Or is that an abuse of power worthy of impeachment?

What if later, a more direct threat is made, “make good on your anti-corruption, or else you lose the money”? What then?

[Mike Hansberry]

Careful, the CJ might hear you.

[mse326]

Has any Senator asked what the statutory or constitutional basis of his authority to withhold for any reason is? That is one thing I still haven’t seen.

[santamonica811]

Authority to withhold what? I’m not understanding the question. And when you say “his authority,” are you talking about the Senator’s authority? Trump’s authority? Or that of someone else???

[Brett Bellmore]

I think he’s talking about the President’s statutory or constitutional authority to withhold the military aid to Ukraine.

The question, of course, is whether the funding was in any legal sense “withheld” given that it was paid before it was due. The Impoundment Act, which the GAO claims the administration violated, seems on the face of it to apply to cases where a President refuses to spend money appropriated, not cases where he’s simply not in a hurry to spend it, but does spend it by the time it’s due to be spent.

[captcrisis]

Attempting to commit a crime is in itself a crime.

[awildseaking]

Failing to commit a crime is not the same as not committing a crime. Just because a crime didn’t result in the end doesn’t make the two analogous.

[Sarcastr0]

Attempt does not encompass only failure. It can also be standing down.

Also here there is no doubt it is a failure stemming from getting caught.

[awildseaking]

Can’t stand down if you never tried in the first place.

I have serious doubts that a delay was initially devised as an outright refusal to pay, especially given how blatantly illegal the latter is.

[Sarcastr0]

LOL.

[awildseaking]

And that’s what everything boils down to. You want it to be true. You really don’t care for the facts, otherwise you wouldn’t be able to shut up about how Pelosi is part of the coverup by ramming this through to the Senate instead of taking their time to go through the courts, get the info necessary from the executive branch, and actually seriously examine why Trump did what he did. Not some political pundit bullshit, not third hand opinions from CIA analysts that never even meet with him, but actual first-hand knowledge witnesses.

[Brett Bellmore]

But if the crime is not paying the money by the time it’s due, and he paid it by the time it’s due, can you even establish that there was an attempt?

[Alpheus W Drinkwater]

Yes. It’s called evidence. The kind of evidence that gets sifted and analyzed in a fair trial. Recorded phone conversations or transcripts. Testimony from people with first-hand knowledge. Perhaps we should be looking for such things and hearing from such people.

[David Nieporent]

Exactly. Also, as Brett has repeatedly been told, he didn’t pay it by the time it was due.

[FlameCCT]

I suggest you look at the Act as well as how many times a transfer of funds hasn’t occurred before the end of the fiscal year.

Seriously, do you have any idea how many times appropriations are not spent before the end of the fiscal year? Not to mention this is why the federal government does reconciliation in September of every year for every federal agency. As an example, a DOD agency orders furniture but part of the order is on backorder so they do not receive the invoice until after September 30. Technically, the fed gov’t should lose the funds although there is a process to keep the previous fiscal year funds for the outstanding account.

[David Nieporent]

Brett: He paid the money before it was due.
Me: No, he didn’t.
You: Well, that happens sometimes.

Do you see how your comment is in no way responsive to what I said?

Brett: It wasn’t a hit-and-run accident; he never touched the other car before he drove off.
Me: Yes, in fact he did hit the other car before he drove off.
You: Well, there are lots of fender-benders.

[awildseaking]

https://www.nytimes.com/2020/01/07/us/politics/trump-ukraine-aid-fact-check.html

Even NYT doesn’t agree with you, although I have to admit it’s really funny how they print the facts here and then draw a wildly incorrect conclusion that isn’t even supported by their own facts, but that’s another issue. All funds were released 16 days prior to the deadline. The Pentagon was not able to disburse all the funds in that time period. Note that “unable to disburse” and “refusal to disburse” are not the same thing. The deadline extension was filed, just like it always is.

So, show me the legislation that states all funds must be spent by the initial deadline and extensions are not permitted. Because I see some pretty solid testimony from an OMB employee who confirmed that extension filings are legitimate.

[jjrzw72]

If there was a plan to not pay the money when it was due and a concrete act taken in furtherance of that plan, that’s attempt. That’s hornbook law.

[awildseaking]

So any delay of payment is an attempt to NEVER pay the money and warrants investigation. Have fun selling that argument.

[captcrisis]

Of course there was an attempt. He backed off only when he was caught.

[FlameCCT]

IOW Trump failed to make a payment immediately but still made the payment before the due date.

[David Nieporent]

Those are IOW, but they are false ones.

[grb]

Is there anyone here who truly believes Trump was concerned over Ukrainian corruption, aside from his own private benefit? He brought much more dirty dealing to that country than anything he was attempting to “expose”. Just look at the people he put on this scam and consider their motives and actions.

Gordon Sondland’s remit had zero to do with Ukraine; he was just brought on board as a yes-man who’d do whatever he was told. He spent his time using every possible lever to extort a campaign commercial from the Ukrainian president in the form of a (public) announcement of a (phony) investigations.

Rick Perry joined the scam to secure a Ukrainian energy contract for one of his choice campaign contributors. He achieved that thru personal intervention with Zelensky and then Perry wasn’t heard from again.

Giuliani was neck-deep in sleaze. For Trump he was trying to sell assistance to the most corrupt figures in Ukraine in exchange for Biden dirt. This included Shokin, Lutsenko, Poroshenko, and Firtash. Yep, Trump’s “campaign against corruption” allied itself with the sleaziest people found in the country. And at the same time Rudy was peddling himself to this crowd as Trump’s personal representative, he was simultaneously selling his “services” to the same bunch. Just try and work out the corruption ramifications of that….

Sometimes it gets confusing. Take the case of Ambassador Marie Yovanovitch. The sleazy Ukrainian officials above wanted Yovanovitch gone because of her anti-corruption campaign. Giuliani wanted Yovanovitch gone because he was selling his influence to those officials, and as barter for Biden dirt. Parnas & Furman wanted Yovanovitch gone because they were trying to horn into the Ukrainian energy market, and thought she was in the way. And Trump? Anyone above just had to tell little Donnie the Ambassador was saying meanie things about him, and he’d be screaming to “taker her out”. Because he a moron. And corrupt one to boot.

[Calvin]

First, I’m wagering an educated guess here – and I have a hard time with that as a basis for an impeachment that turns on motives. But to answer the question, my best, honest guess Based on what I currently know is that (1) Trump Was motivated primarily by a desire to clear his name with respect to 2016 and would have sought the same investigations whether or not Biden was running (set aside whether this would have actually had that effect – remember, we’re talking about the mysterious mind and prickly demeanor of Trump), and (2) he believed as a determining factor that there was a legitimate public interest in investigating these things, even though he was not primarily motivated by that believed-by-him fact. Maybe I’m right or maybe I’m wrong, but that’s my honest best guess. Do you impeach if I’m right? Do you impeach if there’s a reasonable possibility I’m right? Or does it come dow to whether I’m wrong?

[Josh R]

I agree it is reasonable to conclude Trump would have sought the Crowdstrike issue with or without Biden, and conditioning the security assistance on that item is not an impeachable offense because what Trump sought doesn’t threaten the legitimate operation of our government.

I vehemently disagree with you that Trump was primarily motivated by Crowdstrike, and instead wanted both Crowdstrike and Biden. Because the latter threatens the integrity of the next election which in turn is central to the legitimate operation of our government, we have an impeachable offense.

[Calvin]

I don’t think he was primarily motivated by Crowdstrike. I think he was primarily motivated by a desire to show who’s “really” corrupt and who should “really” have been be investigated – i.e., the “real” bad guys and not him. But the broader point is that I don’t really know and hesitate to draw conclusions in support of impeachment where his actions are justifiable apart from his “true” mix of motives as within his legitimate authority.

[Josh R]

When partisans say Trump might have had a legitimate motivation I am saddened but not surprised. When people like you reach the same conclusion in the face of overwhelming evidence to the contrary, I’m stunned.

[Calvin]

That’s fair. I have the skeptical mind of a civil defense attorney. Probably why I’ve never made it onto a jury.

[Calvin]

That said, please just consider that even minds different from mine, but still non-partisan, could reasonably guess differently on this. And consider the challenges that raises – and boxes it opens – in the unique context of an impeachment trial. I’m fine not changing your mind, and I get that lots of smart people see it your way, including an unknown proportion not motivated by partisan considerations or Trump hatred. I’ve just long agreed with what Blackman has been arguing so want to keep it (or at least some version of it) present in the thread for consideration.

[Josh R]

I remain stunned. In contrast, Orin Kerr (perhaps the best of the non-partisan Volokh Conspiracy bloggers) had it correct:

The facts about what Trump did and why he did it are remarkably clear, with most of the evidence coming directly from Trump himself, Trump’s White House, Trump’s appointees, and Trump’s lawyer.

[Rev. Arthur L. Kirkland]

Non-partisan Conspirators don’t seem to be welcome much around here any more.

Prof. Somin’s continued contributions? Genuine libertarians are well known for poor detection of social signals.

[FlameCCT]

I find it amusing that assumptions have become facts for those that oppose Trump. Truly sad when supposed lawyers fail to uphold little things like the Rules of Evidence, Constitution, etc.

[Sarcastr0]

You post this in a thread about an argument not about evidence, but that the corrupt intent isn’t a thing for the President, because however he acts is in the best interests of the country.

In other words, “L’État, c’est moi”
Maybe check your own side’s fidelity to the Constitution.

[David Nieporent]

and conditioning the security assistance on that item is not an impeachable offense because what Trump sought doesn’t threaten the legitimate operation of our government.

This may well be true, but I need to stress that Trump didn’t have any authority to condition the security assistance. Period. Congress appropriated the funds.

[grb]

Calvin : “Trump Was motivated primarily by a desire to clear his name with respect to 2016….”

Oh really? But Trump was already cleared, wasn’t he? You can pick any of several points to mark Trump’s public vindication as the Special Counsel’s investigation wound down, but probably the most significant was Mueller’s testimony before Congress on 24 July 2019, when he stated his investigation found no evidence Trump colluded with the Russian effort to aid his election.

The next day, 25 July, Trump attempted to extort collusion from a foreign government to aid his reelection. Of course attempts to strong-arm the Ukrainians had been underway for for over a year before that, but the juxtaposition between those two days is still pretty stark. It’s also strange evidence of Trump attempting to “clear his name”. How? By committing the EXACT same offense he had been accused of, only with another country?

Isn’t Trump’s arrogance as a more likely explanation? He obviously thought he could get anyway with anything. Kind of like using your charitable foundation to buy oil paintings of yourself, or pay the kid’s seven dollar Boy Scout sign-up fee. Arrogance, shamelessness, and something else more: The working of a criminal’s mind. Leave the courthouse one day and start a new scam the next……

[Calvin]

I get that people can disagree, and I’m not pretending to know. I’m just projecting my experience of various types of people over the years into what I’ve seen of him and the other facts I know. The question to me is whether it makes sense to impeach or not based on that exercise.

[captcrisis]

There was no “mixed motive” here. In no way can what Trump did be connected with a desire to “root out corruption”.

[awildseaking]

Tell me how investigating someone who appears to have sold their office and is seeking office isn’t rooting out corruption. Thus far the argument your side has regurgitated is that the claims against VP Biden are illegitimate, but that’s a pretty shitty argument. We should dismiss his suspicious circumstances and not ask questions because we don’t have all the facts right now? Do you even realize that’s the same logic you’ve been using to justify the FISA warrants, the Special Counsel, and now this impeachment trial as well?

[Alpheus W Drinkwater]

1. The President wasn’t asking for an investigation, but the announcement of an investigation.

2. It’s entirely beside the point anyway, because no matter what corruption was there, it doesn’t justify the actions alleged against the President. It’s just an attempt to distract.

[Ben of Houston]

That’s stupid. If I talk about my sweet new wheels, do you presume that there is no vehicle holding them up? That is literally the level of your argument. He wanted them to announce starting the investigation. There is literally ZERO evidence that he ever said “but make sure they don’t actually do the investigation” which is what would be necessary to hold up your line of logic.

Saying “it wasn’t his top priority so it wasn’t a real investigation” makes zero sense. It’s also a catch-22, as if it was his top priority, you would be calling it a witch hunt.

[captcrisis]

He didn’t say, “investigate corruption”. He said “announce about the Bidens”.

[Josh R]

Of course Trump never said “make sure they don;t actually investigate” for I have no doubt he would prefer that they also investigate. But that conclusion does not negate the claim that he only required an announcement to release the security assistance.

[David Nieporent]

Oh, I don’t think he preferred that they investigate. He wanted to smear Biden as corrupt; an actual investigation wouldn’t advance that goal further than the announcement would. Now, maybe he wanted them to “investigate,” but not investigate.

After all, if he believed that Ukraine was corrupt, why would he think an investigation would lead to a legitimate outcome?

[awildseaking]

Because he would have them on the record?

Imagine how bad it would look if Ukraine actually announced a Biden investigation and then didn’t do a good job. Or just reneged entirely.

[David Nieporent]

How bad it would look to whom? For what?

All Trump needed was for Biden to be said to be under investigation for corruption until November 2020. Investigations take time; they didn’t have to claim that their investigation was over before then. And after then, it wouldn’t matter.

Equally good for him would be if the Ukrainian government issued a press release before November 2020 saying that Biden corruptly obstructed justice in Ukraine to protect his son. What does it matter if it came out after November 2020 that they hadn’t done a good job in the investigation?

[awildseaking]

It would look horrible for everyone involved. Trump can’t get an ally to assist with a corruption investigation involving a previous admin even though everyone else is looking into Biden, Ukraine won’t investigate corruption either, not partaking in a real investigation makes it painfully obvious that the act was politically motivated and destroys any future for Trump or Zelensky, etc.

Literally all you would have to do is have Acosta or someone ask Trump every day about how that Ukraine investigation is going and he would probably end up getting impeached during his second term if he didn’t go forward with it at that point. Once the investigation starts, two things will happen. Either he exonerates Biden or he doesn’t. If there’s no corruption, great for Biden! It will help him a lot in the polls; he needs it. If there’s actual corruption as suspected, then you really should apply your principles equally and just be happy that we found out. It’s not like the corrupt beginnings of anti-Trump spying haven’t born fruit, but you don’t seem too concerned about FISA fraud and Executive-orchestrated spying on political opponents when it results in, worst case scenario, the same thing AFTER he assumed office. Interesting how nobody has brought that one up, starting pre-emptive investigations and presuming guilt.

[awildseaking]

1. Pure sophistry. You have assumed that asking for an announcement was coupled with an express request not to start an actual investigation. Logically, requesting an announcement and making it part of the public record means holding Zelensky accountable to actually conduct or assist with said investigation.

2. I hope you realize that by saying everything predating the July call is a distraction, you’re basically saying that it’s acceptable to concoct conspiracies with disinfo, trap someone in said conspiracies, and then when called out for starting them, say “well it doesn’t matter, you’re just distracting from the conspiracy…I mean facts.”

[captcrisis]

P.S. At 1:32 p.m. in response to Josh’s last post, I noted that he hadn’t mentioned his NY Times op-ed in 18 hours and he’s due for another post on it. Tick, tick . . . exactly one hour later, we see this!

[Beldar]

I call BS on this entire argument.

This argument would turn the flimsiest fig leaf into a full set of clothes. It allows wrongdoers to cloak themselves with immunity with the flimsiest of cloaks. Factfinders can and do reject pretextual defenses in the courts in the real world every damn day, and there’s no reason senators cannot do so as well if they so choose.

[FlameCCT]

Factfinders can and do reject assumptions, accusations, gossip, etc. in courts in the real world every damn day. They also reject prosecutors that haven’t done their job and cases that have no basis in evidence.

[David Nieporent]

Courts normally don’t tell prosecutors that they aren’t allowed to call witnesses because those witnesses didn’t testify before the grand jury.

[David Bremer]

I’m glad someone finally brought this up. How is this any different than any other case where what we essentially have is an agency problem?

Say a lawyer hires an expert/vendor that regularly offers the lawyer tickets to sporting events. Now, did the lawyer select the vendor/expert exclusively because they provided the best service, or did the free stuff influence the decision at least a little. Certainly the latter. That is, after all, why companies offer such perks. And if the expert/vendor is relatively competent, nobody will say much.

But now let’s say that the attorney goes to the expert/vendor and says that his client will select that person, but the attorney would really like to have tickets to the Superbowl. And let’s say that the attorney tells the client that he’s evaluating different options and is going to wait to select an expert/vendor until Monday, February 3. Suddenly, circumstances tell us that it’s no longer about acting in the client’s interest, but that the attorney was seeking a kickback.

Sure, there’s some mixed motive in both cases. But at a certain point, it’s pretty clear that the attorney is being motivated by self-interests, not the client’s.

Applying the same calculus here, America has an interest in rooting out Ukrainian corruption, just like the client’s interest is in selecting a good expert or vendor. But, given the history, it didn’t have a particular interest in pursuing (and especially not in just announcing, whether or not carried out) this one specific investigation. But Trump did.

[OyVey!]

Under Professor Blackman’s position, if Trump ordered the IRS to audit all the Democratic presidential candidates, this would not be impeachable. After all, there is a public policy purpose in increasing tax revenue to reduce the deficit. However, using government power to target political opponents undermines democracy. People are less willing to speak out in opposition to the government if they know the government will use its power against them for doing so.

Unfortunately, the House described the problem with Trump’s demand that Ukraine announce an investigation of Barisma as being that he took a government act for personal gain. The real issue is that he is targeting political opponents. It is sad how many libertarians, who were correctly outraged by the fact that the IRS disproportionately investigated conservative IRC 501(c)(4) groups have no issue with Trump’s conduct, simply because he is a Republican.

[Calvin]

Not quite true. There would need to be a basis for that order, within the scope of the President’s legitimate authority. I can think of few if any realistic circumstances in which such an action could be justified apart from any consideration of motives.

[awildseaking]

No, that’s not how his logic would apply. If there was good reason to believe that a Democrat candidate under-reported or was beholden to foreign monetary influence and that such influence would result in a Manchurian Candidate, then yeah, an audit would be justified.

I don’t know why we’re framing things as black and white false choices, but both concerns are true. Using government to target political opponents undermines democracy. Using politics and becoming a political opponent to avoid investigation also undermines democracy.

[Sam Gompers]

Rudy was over in the Ukraine and back before Biden announced.

That’s the problem with your theory.

[Mike Hansberry]

Hmmm… Trump is a Republican, the House managers are all Dems.

Does that mean the House managers should be booted from office? Or does the door swing only one way?

Nancy sent me a real nice picture, but I really wanted one of those pens. Not for myself mind you, but for the children.

[Ilya Shlyakhter]

Trump’s personal lawyer sought the investigations; our public lawyer (AG Barr) didn’t. That means no mix: personal motives only.

[Calvin]

Is that actually true? I seriously wonder about this. If president disagrees with an exercise of prosecutorial discretion that has national political and legal implications (say, based on a view that investigations into former office-holders are for prudential reasons best avoided all else equal) and takes some action based on that disagreement, is that ipso facto wrong? What are his options in that scenario?

[Ilya Shlyakhter]

“What are his options in that scenario” — to fire the Attorney General who won’t do his bidding, nominate someone who will, and hope the Senate confirms the replacement. If the Senate does, and the new AG endorses the president’s order, that’ll mean the order was in the public interest.

[Calvin]

Could Trump have ordered an AG to investigate the Bidens, or direct a JF task force to do so, or seek approval of AG who could firmed that he or she would?

[Ilya Shlyakhter]

“Could Trump have ordered an AG to investigate the Bidens” — if he ordered _and_ AG agreed, there’d be a case that investigations were sought for public purpose. As things stand, there isn’t.

[ReaderY]

There is a big difference between “personal political advantage,” which most politicians probably pursue in most decisions, and corrupt motives.

Part of what is being alleged was that the President was engaging in a kind of fraud: he was trying to pressure the president of Ukraine to claim an investigation was going on when one wasn’t and didn’t need to be.

If the President can establish that there was a real need for a real investigation, this would likely be a defense to the charge.

Establishing whether this is the case or not requires evidence, witnesses and documents.

[Sam Gompers]

It’s obvious there was a real need for an investigation.

[Josh R]

Given in all this time there has been no investigation from the Justice Department, State Department, Ukrainian government, and not even the Republican-controlled Senate, don’t we already have the evidence that the investigation is not justified?

[Ben of Houston]

No. Any small child hearing of the Hunter Biden situation would think that it needs an investigation. I’ve said on multiple occasions that it would be rejected from any publisher if included as fiction as being too on the nose.

The fact that there has been no investigation despite this is clear evidence that one needs to occur.

[captcrisis]

Republicans knew about this for five years. And I’m still waiting for even the allegation of corruption.

[Josh R]

I guess the Justice Department, State Department, Ukrainian government, the then Republican-controlled House, and the then-and-now Republican-controlled Senate all 1) have less intellectual capabilities than any small child and 2) are part of a conspiracy that makes it clear an investigation needs to occur.

[Ben of Houston]

Or this sort of corruption is just accepted as common part of life among the elites. That seems to be the simple answer.

[KevinP]

Viktor Shokin is demanding an investigation of Joe Biden. Does that satisfy your thirst for evidence?

Shokin demands SBI bring Biden to criminal liability
https://en.interfax.com.ua/news/general/638150-amp.html

Ukrainian ex-Prosecutor General Viktor Shokin has demanded that the State Bureau of Investigations (SBI) open criminal proceedings against former U.S. Vice President Joseph Biden for illegal influence on him as the prosecutor general of Ukraine.

“I ask you to register a criminal offense against me in the Unified Register of Pretrial Investigations by a U.S. citizen, Joseph Biden, which happened on the territory of Ukraine and abroad, namely, interference with the activities of a law enforcement officer…

[Sarcastr0]

Yeah, this seems super legit.

Who in the world do you think this will convince that you spam it all over this thread like some kind of bot?

[Liberty Lover]

So you should ignore outright corruption if it would held you out? No, never.

[Ilya Shlyakhter]

Who said ignore? Refer it to the U.S. Attorney General: if it’s “outright corruption” he’ll surely investigate.

[FlameCCT]

Yet that is exactly what Trump said on the call transcript. Any results from the Ukrainians that associate US persons in Ukraine investigations should go to AG Barr.

I would also note that this was the new Ukrainian President speaking with the US President. New Ukrainian President that had been elected on a platform of going after corruption over the corrupt previous President.

[David Nieporent]

Yet that is exactly what Trump said on the call transcript. Any results from the Ukrainians that associate US persons in Ukraine investigations should go to AG Barr.

We do not know “exactly” what Trump said, but that’s not what the not-a-transcript says that he said. Have you not read it or are you dissembling?

[JohnSteed]

Did not President Obama temper his response to reported Russian interference in 2016 because he thought Clinton would win, and didn’t want Trump to be able to claim the election was rigged? Partisan considerations trumped national interest. Did not President Kennedy shape his actions concerning the Bay of Pigs invasion and US policy in Vietnam based on fear the Republicans would make him look “soft on communism”? Personal political gain over national interest. Did not President Clinton fail to send armored units to Somalia because he feared Republican reaction?
If the Obama administration strong-armed Ukraine into firing a prosecutor in order to cover for Hunter Biden (or if Joe Biden did it without authorization) don’t we have a clear national interst in finding that out — especially if Biden might win the nomination?

[Alpheus W Drinkwater]

Absolutely. Run a legitimate investigation of what the Bidens did in Ukraine if you think there is probable cause. There exist organs of the federal government available to any president to perform such a task. It makes one wonder why this President chose not to do that.

[Sam Gompers]

Why on Earth do you think President Trump can trust the FBI on anything involving Democrats? Or anyone at the DOJ for that matter.

Those institutions have demonstrated their lack of trustworthiness.

[Sarcastr0]

Sounds like Trump is powerless before his own administration.

Maybe not a great guy to be President.

[Sam Gompers]

As we have plainly seen these past three years, the Deep State holds the keys to the kingdom.

[Rev. Arthur L. Kirkland]

How many FBI directors have been Republicans and how many have been Democrats, you bigoted rube?

[awildseaking]

Wilson!!!!

[Sam Gompers]

The premise of your question is that political affiliation must matter to how the DOJ operates.

I agree with your premise.

[FlameCCT]

So the investigation concerns actions in another country yet you believe the “organs of the federal government” has jurisdiction in another country? Or does that require high level discussions between the two countries including Head’s of State?

[David Nieporent]

It requires that the US AG contact the Ukrainian prosecutor general’s office. It’s laid out right there in the MLAT between the two countries.

[Sarcastr0]

Temper
Soften
Fail to

These are tellingly distinct from Trump’s specific and affirmative actions via another country’s government and US $$.

[OtisAH]

Partly, yes. Another part was when he took the information to McConnell and requested a joint statement against the Russians. McConnell told him to piss of and, if Obama made any statement on his own, McConnell and the rest of the flying monkeys would screech and howl about Obama maliciously attempting to influence the election.

[Sam Gompers]

How is it appropriate for Roberts to be censoring questions from the Senators? (re: Paul’s questions regarding the whistleblower for the House managers)

[santamonica811]

1. Well, there is a whistleblower law, and I guess that, as Chief Justice, he has a role in ensuring that the law’s protection’s remain in effect. So, Roberts doing this seems appropriate to me.
2. I think the rules of the Senate allow 51 senators to overrule the CJ on pretty much everything he does during this trial, right? Not sure of the backstory–as to why Moscow Mitch (or other Rep. senators) did not call for such a vote in this case. It’s my sense that (aside from a hugely partisan matter like impeachment of a Rep. president) protecting whistleblowers is a bipartisan issues…after all, whistleblowers squeal on just as many Dems as Rep’s. On just as many “liberal” companies as ‘conservative’ companies.

[David Nieporent]

How is it appropriate for Roberts to be censoring questions from the Senators? (re: Paul’s questions regarding the whistleblower for the House managers)

He’s presiding over the trial. As such, he decides — subject to review (in this case, by the Senate as a whole) — what questions are appropriate to ask.

Why not ask how it’s appropriate to ask about the whistleblower? The whistleblower is utterly irrelevant to these proceedings.

[FlameCCT]

You base an entire case on the accusations of the whistleblower yet claim the whistleblower is utterly irrelevent to the case?

Seriously David, what happened to you?

[captcrisis]

The whistleblower’s allegations have been corroborated by the other witnesses.

Even if still relevant, the whistleblower’s name is protected by statute, for obvious reasons.

[Sam Gompers]

No it isn’t.

Further, it’s incredibly important to dig into whether or not Schiff coordinated with the whistleblower’s filing.

[David Nieporent]

It’s incredibly unimportant. It doesn’t matter if they wrote the filing in collaboration. It doesn’t matter if the whistleblower is an actor that Schiff hired to play the part, and Schiff actually wrote the complaint all on his own.

None of that is even a little bit relevant.

[David Nieporent]

You base an entire case on the accusations of the whistleblower yet claim the whistleblower is utterly irrelevent to the case?

The case is not based, entirely or in any part, on the accusations of the whistleblower.

The whistleblower, as Trumpkins pointed out at the outset, has no firsthand knowledge. He was not a witness and was not called as a witness.

If someone runs out of a bank and calls out to me, “That bank’s being robbed! There are men with guns and they’ve got hostages!” and then I call 911 and say, “Someone just told me that the bank is being robbed! Send the police right away!” my call may have sparked the law enforcement response, but I would not be a witness and my testimony would not be relevant to the later prosecution of the robbers.

[Stephen Lathrop]

David noticed, as Trump’s supporters ought also to notice, that none of the evidence presented by the House is attributed to the whistleblower. Every bit of it comes from other witnesses. Trump supporters’ rage is the sole thread which connects the whistleblower to the case. That is textbook-grade irrelevance.

[Stephen Lathrop]

Confusion among the comments. I suggest the confusion might recede after better defining which interests a president has a duty to defend. If it is said to be the national interest, then a zillion various and conflicting possibilities arise. If the problem is defined as impermissible pursuit of personal interest, then people struggle to understand what to make of mixed motives.

Maybe impeachable conduct might instead be more clearly recognized in terms of harms to the sovereign interests of the People. Conduct which impairs the operation of the People’s constitutive power, or which disrupts machinery for controlling the People’s government, or which tends to encourage or empower rivals for the People’s sovereignty are examples. Each of those is something any President ought to avoid at all times, regardless of what other objects are pursued. Each of those is consistent with the explicit prohibitions of treason and bribery.

Recognition of those kinds of violations is made easier because most of the needed standards are to be found among the People’s few principal enabling documents: the Declaration of Independence, the Constitution, and perhaps the Federalist Papers. Those, of course, will still leave plenty of room for disagreements, but not nearly so much disagreement as the nation suffers when the whole corpus of legal procedure, and of the laws themselves, common and statute, is also dragged into the mix.

Also, defining impeachable conduct in terms of protecting sovereign interest makes it easier to understand the impeachment process itself—as an exercise not of government power, but of sovereign power, being wielded in defense of the People’s joint sovereignty. The entire set of methods and constraints pertinent to impeachment can fairly easily be defined by that concept, and with fewer internal contradictions than the present muddled understanding serves up.

Best of all, the notion that impeachment is done in defense of the People’s sovereignty is coherently defensible in originalist terms. I suggest that is because the founders understood it that way in the first place.

[David Nieporent]

I suggest that is because the founders understood it that way in the first place.

Yes, but you also think weather patterns and the results of the Nickelodeon Kids Choice Awards can be understood simply by chanting the word sovereignty a lot.

[Michael Ejercito]

Remember that Stephen Lathrop claimed that the House could imprison people without judicial recourse because ‘sovereign power”.

[Stephen Lathrop]

It is an originalist argument, Nieporent. The reason I bring it up a lot is because it has been forgotten a lot—resulting in a great deal of confusion about the meanings of founding-era documents. This thread—and the entire impeachment debate in the Senate—is steeped in that very confusion.

Read up on it. Start with Edmund Morgan’s great history, Inventing the People. It explains how for 150 years prior to the founding, the English-speaking world had been pickled in politics centered on the question of sovereignty. Until a student of politics understands the central role of that experience during the founding era, he will be doomed to a present-minded interpretation of that history—in your case inflected by legal training involving concepts which evolved post-founding, in response to the Constitution, and which are thus of less use than you suppose in understanding the founders.

Events and opinions which came after cannot logically or reasonably interpret the meanings of what came before. Those latter developments were unknown before, and thus without the influence which present-minded interpreters ascribe to them. The supremacy of a rights-centric interpretation of the DOI is an example of that kind of misinterpretation—and a mistake no less often invoked in these discussions than I mention sovereignty. That is not a coincidence. As often as the confusion comes up, I mention the corrective.

Reading Morgan would put you in a position to discuss the issue without resorting to irrelevancies. Then we could start reading and interpreting relevant writings of the founders themselves, to better understand the role the notion of sovereignty played in America’s founding. After that, you might be in a better position to assess whether strict adherence to originalism is as supportive of your arguments as you seem to suppose.

[ReaderY]

1. Real questions are asked to the other side, to find out information or probe weaknesses in positions. What’s going on for the most part is not real questions, but same-team set-ups.

2. There’s a lot of conflation of concepts going on. Professor Dershowitz argued that maladministration and abuse of power are exactly the same thing. Any sober person, not drunk on power, could see the difference.

3. Socrates’ vision of a world run by rhetoric, not logic, where people use words solely to persuade, never to understand, seems to describe us perfectly.

4. It’s as if education never happened. That which, since Socrates, education is supposed to give people an ability to see through, people don’t have the ability to see through.

5. In an even moderately educated society, it’s not that people would be ashamed to be behaving like this. It’s that people would see through them and wouldn’t allow them to use stupid kids’ tricks to get into power.

[Michael Ejercito]

1. Real questions are asked to the other side, to find out information or probe weaknesses in positions. What’s going on for the most part is not real questions, but same-team set-ups.

That was what went on twenty-one years ago.

[awildseaking]

Knock it off with the grand narrative nonsense. There’s no practical difference between persuasion and understanding. The facts needed to persuade you are the facts you don’t understand. The understanding that you have is based on certain faulty assumptions and implicit bias.

Can’t believe the gall of some people to start rattling on about how the world is and ought to be just because someone disagreed with them in an internet discussion. And on a supposedly libertarian-leaning blog at that.

[ReaderY]

After the naval battle of Arganusae in 406, the generals stopped to rescue the sailors from the wrecked ships rather than immediately pursue the defeated enemy, letting them get away. At their trial for maladministration, Socrates, who was the foreman of the jury, stopped the trial by refusing to call for a vote.

Now, whether what they did was punishable maladministration or not, it clearly illustrates the difference between maladministration and abuse of power. Maladministration means making bad calls or neglecting duties in pursuit of the public’s objectives. Abuse of power involves using power for ones own ends.

[Michael Ejercito]

Democrats excused committing perjury against Paula Jones.

Democrats excused suborning perjury against Paula Jones.

[Sarcastr0]

Maybe stick to the OP. Else people might think you have no actual argument but still want to whine.

[santamonica811]

Have you never seen prior posts from M.E.??? Off-topic whines are one of his specialties, after all.

[M L]

On July 22, three days before the Ukraine call, the Washington Post published an article: “As vice president, Biden said Ukraine should increase gas production. Then his son got a job with a Ukrainian gas company.”

The lengthy profile of Hunter Biden, written by four reporters, including one based in Ukraine, reported:

“From the moment Hunter Biden took the job in 2014, Republicans have said it presented a conflict of interest for the Bidens. Joe Biden, then the vice president, was the point person on Ukraine policy in President Barack Obama’s administration. Biden offered U.S. aid to Ukraine to increase gas production, which could benefit the Ukrainian energy industry.

…

Just a few weeks after his father’s visit to Ukraine, Hunter Biden joined the board of Burisma Holdings. His friend and business partner, Devon Archer, also joined the board, saying the company had the potential to be another ExxonMobil. Archer did not respond to requests for comment.

…

As prosecutor general, Shokin’s office opened one case involving the gas company but only under pressure from the Ukrainian parliament.

In an email interview with The Post, Shokin said he believes his ouster was because of his interest in the company.

“Are you asking me about the motives of Joseph Biden?” Shokin wrote. “I will answer that the activities of Burisma, the involvement of his son, Hunter Biden, and the [prosecutor general’s office] investigators on his tail, are the only, I emphasize, the only motives for organizing my resignation.””

[M L]

Just three days later, Trump told Zelensky, according to the call transcript, “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that.” They certainly did; those “people” included a full team of investigative journalists at the Washington Post.

[M L]

This is dead on:

The Democrats’ dirty secret? They don’t want witnesses

https://spectator.us/democrats-dirty-secret-dont-want-witnesses/

[David Nieporent]

You can tell, by all the evidence the author musters in support of his claim about what the Democrats “really” want.

Given that his legal analysis is incompetent, I certainly can’t see any reason to trust the rest of his piece. (If Bolton is subpoenaed, it won’t be tied up in court. He has said he’ll testify. Trump can yell and scream and stomp his feet and cry executive privilege, but none of that actually prevents Bolton from appearing.)

[M L]

Even if you’re correct that the WH can’t do or file anything to prevent or delay Bolton’s testimony or documents (and I’m mildly skeptical), the political analysis is astute, and you’re missing the point.

Bolton isn’t going to be subpoenaed and testify alone. The defense will be allowed witnesses, for the first time, and the people they want have indicated they will defy a subpoena. So these things are tied together. You would have the fight over the previous testimony of Michael Atkinson, and so much more.

[santamonica811]

THE SENATE CAN ALL ANY WITNESSES THE REPUBLICANS WANT! There are 53 of them, so they can easily call Joe and Hunter Biden, and Hillary Clinton, and Gavin Newsom’s nephew’s best friend’s hairdresser . . . it only takes 51 votes. Relevance be damned.

Senate committees can call those same people. Republicans are in the majority, they have control over every single Senate committee, and maybe we should be asking, “Why on earth has the Republican Senate had zero interest in getting to the bottom of all Biden’s (or Bidens’) bad acts?”

[M L]

Right, but Biden said he would defy a subpoena. And the never Trumper Romney, and certain other R Sens are more interested in Bolton than defense witnesses.

To your question, this Senate impeachment trial is not the right place, in fact its the most wrong place conceivable, to “get to the bottom” of the Bidens’ various issues. These issues are only relevant to the extent of showing the very, very low threshold of a probable cause or reasonable suspicion justifying a minimal level of inquiry or investigation. But in this proceeding, it would be impossible to contain these inquiries as each proceeds to fully litigate and prosecute these issues. Hence why Senators have said it would be a “circus.”

[Rev. Arthur L. Kirkland]

It might be better to let the information be revealed over time — the likelihood it will be concealed much longer is remote, as more than 100 people start talking and providing documents and recordings for various reasons — and stain in several doses those who enabled Pres. Trump to avoid accountability, with the problems developing closer to elections and when Trump appointees are no longer occupying investigative and prosecutorial offices.

[M L]

Very good, embrace the bargaining stage.

[NToJ]

“If you have some part motive for personal electoral gain, that will somehow become an offense–it doesn’t make any sense. That is totally unworkable. And it can’t be the basis for removing a President.”

This argument is at war with itself. He says there is always a personal electoral gain associated with public motives, which means there can never be a situation where there it is 100% personal gain, and so there can never be impeachment even if political goods are used (in part) for personal gain. But if his position is that you must prove zero personal gain, that just means there’s never going to be an impeachable offense.

It cannot be the case that 99% is not-impeachable–you can’t even ask the question–but 100% is impeachable. The threshold isn’t 99%. It’s whatever a Senator is willing to take. If President Trump testified “I cared very little about corruption in Ukraine, but more than none. What I really wanted, more than anti-corruption, was to undermine the Joe Biden candidacy because he was beating me in head-to-head polls” that apparently would not be impeachable, since “more than none”. Even if the President testified “I knew that Joe Biden had done nothing wrong, but I wanted the Ukraine to announce an investigation, mostly to undermine the Joe Biden. But I wanted to undermine the Joe Biden campaign because I’ll make a better president for the public” that apparently would be insufficient under this new test, too.

If this is not the argument, somebody else will have to explain it to me. If there are always mixed personal and public motives, you have to investigate to determine the driving animus. I can imagine a Senator who thinks 51% personal gain is too much. (I can imagine some who would put it at 60%.) I cannot imagine there is any Senator who would consistently apply 100% only.

That is aside from, even if 100% is the test, how the fuck would you calculate 100% versus 99% without hearing testimony from the President.

[santamonica811]

It’s confusing me as well. Trump’s attorneys are arguing that a mixed motive means that it’s okay. Trump’s accusers are saying that a mixed motive is absolutely not okay. The latter makes sense to me . . . for the obvious reason that (since 99.9999999% of fact patters will allow a president–after the fact–to manufacture *some* plausible non corrupt motive, in addition to the corrupt one) it means that there are essentially no guardrails on what a president (or other politician) can do to steal a future election. Especially if that person is amoral enough to also say, “We’re not gonna cooperate with the investigation, and we’re gonna drag it out until after this future election has taken place.”

Next year (if Trump does win this November), when evidence starts coming out about how Trump continued to cheat all through 2020 to win, let’s not pretend to act the least bit surprised. And why on earth should he stop his unethical behavior? Now that he knows that the Republicans in the Senate are moral and intellectual whores, it would be only logical to do even more extreme things in order to get reelected.

[Bubba Jones]

Does this logic not apply to the entire proceeding?

Democrats did not pursue an impeachment that just happened to align with their political motives. They abused the power of their office to pass articles of impeachment with only a fig leaf of public benefit.

I honestly can’t see how Trump’s actions are worse than Pelosi’s. In both cases they are using the power of their offices to seek political benefit through actions that are plausibly in the public good. Ironically they both seek to root out corruption.

[Sarcastr0]

Faction motives are not the same as personal motives. On accounta how persons can become dictators a lot more easily than a faction can.

[Stephen Lathrop]

Can House lawsuits held up in the courts survive the end of the congressional term, and get decided during the next congress? If not, would that mean that legal action by the House is time-constrained, but in the Senate it is not?