The Supreme Court Opines on the Impeachment Trial, Two Months Too Late

Kelly v. U.S. distinguished between property-based fraud and abuse of power

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On January 14, the Supreme Court heard argument in Kelly v. U.S., the so-called "Bridge-Gate" case. Two days later, President Trump's impeachment trial began. Two weeks later, the President was acquitted. And two months later, the process has entirely faded from contemporary discourse.

But for some time, we had extensive conversations about articles of impeachment concerning President Trump's conversation with the Ukrainian President. My colleague Seth Barrett Tillman and I weighed in on those debates. I also wrote a widely-discussed op-ed in the Times:

The House seeks to expel Mr. Trump because he acted "for his personal political benefit rather than for a legitimate policy purpose." Mr. Trump's lawyers responded, "elected officials almost always consider the effect that their conduct might have on the next election." The president's lawyers are right. And that behavior does not amount to an abuse of power.

Politicians pursue public policy, as they see it, coupled with a concern about their own political future. Otherwise legal conduct, even when plainly politically motivated — but without moving beyond a threshold of personal political gain — does not amount to an impeachable "abuse of power."

Fast forward to today. The Supreme Court ruled for Bridget Kelly, 9-0. Justice Kagan wrote the Court's unanimous decision. And there are several indirect references to the impeachment trial in her opinion.

Here, Kelly used her official authority to help promote her boss's political prospects:

And Bridget Anne Kelly was a Deputy Chief of Staff to Governor Christie with special responsibility for managing his relations with local officials. She often worked hand-in-hand with Baroni and Wildstein to deploy the Port Authority's resources in ways that would encourage mayors and other local figures to support the Governor. The fateful lane change arose out of one mayor's resistance to such blandishments,

Blandishment refers to "something that tends to coax or cajole." Justice Kagan used a fancy word so she wouldn't hint at Quid Pro Quo!

In 2013, Governor Christie was up for reelection, and he wanted to notch a large, bipartisan victory as he ramped up for a presidential campaign. On his behalf, Kelly avidly courted Democratic mayors for their endorsements—among them, Mark Sokolich of Fort Lee. As a result, that town received some valuable benefits from the Port Authority, including an expensive shuttle-bus service.

Imagine that! Politicians use their official powers in exchange for political support. But the plan didn't work.

But that summer, Mayor Sokolich informed Kelly's office that he would not back the Governor's campaign. A frustrated Kelly reached out to Wildstein for ideas on how to respond. He suggested that getting rid of the dedicated Fort Lee lanes on the Bridge's toll plaza would cause rush-hour traffic to back up onto local streets, leading to gridlock there. Kelly agreed to the idea in an admirably concise e-mail: "Time for some traffic problems in Fort Lee."

Then, Kelly made up a "sham" justification for the closure:

To complete the scheme, Wildstein then devised "a cover story"—that the lane change was part of a traffic study, intended to assess whether to retain the dedicated Fort Lee lanes in the future. Id., at 264. Wildstein, Baroni, and Kelly all agreed to use that "public policy" justificationwhen speaking with the media, local officials, and the Port Authority's own employees. Id., at 265.

The results of the "study" were "discarded":

And the information that the Port Authority's engineerscollected on this singular occasion was mostly "not useful"and "discarded." Id., at 484–485 (Patel testimony). Nor did Wildstein or Baroni show any interest in the data. Theynever asked to review what the engineers had found; indeed, they learned of the results only weeks later, after a journalist filed a public-records request. So although the engineers spent valuable time assessing the lane change, their work was to no practical effect

Kelly also had to hire another toll collector to make the scheme work:

So Wildstein went back to Baroni and Kelly and got their approval to keep one lane reserved for Fort Lee traffic. That solution, though, raised another complication. Ordinarily, if a toll collector on a Fort Lee lane has to take a break, he closes his booth, and drivers use one of the other two lanes. Under the one-lane plan, of course, that would be impossible. So the Bridge manager told Wildstein that to make the scheme work, "an extra toll collector" would always have to be "on call" to relieve the regular collector when he went on break. Id., at 303. Once again, Wildstein took the news to Baroni and Kelly. Baroni thought it was "funny," remarking that "only at the Port Authority would [you] have to pay a toll collector to just sit there and wait." Ibid. Still, he and Kelly gave the okay.

The scheme may have had life-or-death consequences:

The plan was now ready, and on September 9 it went into effect. Without advance notice and on the (traffic-heavy)first day of school, Port Authority employees placed traffic cones two lanes further to the right than usual, restricting cars from Fort Lee to a single lane. Almost immediately, the town's streets came to a standstill. According to theFort Lee Chief of Police, the traffic rivaled that of 9/11, when the George Washington Bridge had shut down. School buses stood in place for hours. An ambulance struggled to reach the victim of a heart attack; police had trouble responding to a report of a missing child.

The Mayor tried to contact the officials, but they ignored him. Politics.

Mayor Sokolichtried to reach Baroni, leaving a message that the call was about an "urgent matter of public safety." Id., at 323. Yet Baroni failed to return that call or any other: He had agreed with Wildstein and Kelly that they should all maintain "radio silence." Id., at 270. A text from the Mayor to Baroni about the locked-in school buses—also unanswered—went around the horn to Wildstein and Kelly. The last replied: "Is it wrong that I am smiling?" Id., at 990 (Kelly text message). The three merrily kept the lane realignment in place for another three days. It

It was a "perfect" decision! Like the transcript.

Here, I see several parallels to allegations in the articles of impeachment. (I will assume for purposes of this post that the allegations in the articles were accurate.)

First, in both cases, government officials used their official power to help re-election prospects. Kelly punished the Mayor Fort Lee for not supporting Governor Christie's re-election. Trump (allegedly) threatened to withhold funding from Ukraine if the President failed to investigate Joe Biden's son, in an effort to help Trump's re-election.

Second, in both cases, government officials cooked up "cover stories" to shield the real motivations behind their actions. Kelly made up a "sham" traffic study, but didn't actually care about the results. Trump (allegedly) demanded an investigation into Burisma corruption, but only cared about the announcement; not the actual results.

Third, in neither case was there a traditional quid pro quo for money or property. The only benefit was political. In the Times, I explained this precise dynamic.

President Trump did not stand to receive any money or property from the Ukrainian president. (The House wisely chose not to charge Mr. Trump with bribery.) As a policy matter, I disagree with Mr. Trump's decision to ask for an investigation of the Bidens. Even if warranted, it should have been avoided at all reasonable costs. The Republic would have been fine if we never learned more about Burisma. But receiving a "personal political benefit" does not transform an otherwise legal action — requesting an investigation — into impeachable conduct.

Fourth, in both cases, government resources were used to pursue the scheme. Kelly had to hire another toll-collector. Trump (allegedly) used State Department resources to withhold the aid. But both uses were "incidental"

By contrast, a scheme to usurp a public employee's paid time is one to take the government's property. But Baroni's and Kelly's plan never had that as an object. The use of Port Authority employees was incidental to—the mere cost of implementing—the sought-after regulation of the Bridge's toll lanes.

Fifth, in both cases, the government officials were exercising a "quintessential exercise of regulatory power." For Kelly, realigning the lanes. For Trump, his Article II powers over foreign affairs.

But that realignment was a quintessential exercise of regulatory power. And this Court has already held that a scheme to alter such a regulatory choice is not one to appropriate the government's property. …

The analogies between the conduct are not perfect, but they work. What differs, of course, is the relevant charges. Kelly was charged with "property fraud," a special type of the all-encompassing wire fraud.

The Government in this case needed to prove property fraud. The federal wire fraud statute makes it a crime to effect (with use of the wires) "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U. S. C. §1343. Construing that disjunctive language as a unitary whole, this Court has held that "the money-or- property requirement of the latter phrase" also limits the former. McNally v. United States, 483 U. S. 350, 358 (1987). The wire fraud statute thus prohibits only deceptive"schemes to deprive [the victim of] money or property."

President Trump was ultimately not charged with wire fraud. But the House Judiciary Committee report recommended an article based on wire fraud.

Justice Kagan did seem aware of the trial going on across the street at the Capitol. At several junctures, she referred to "abuse of power"–the gravamen of the second article of impeachment. Why did she discuss this issue that was not at all relevant to a property fraud prosecution? Who knows for sure. But she did draw a distinction between property-based fraud and the more nebulous abuse of power.

Consider this passage:

To borrow Cleveland's words, Baroni and Kelly exercised the regulatory rights of "allocation, exclusion, and control"—deciding that drivers from Fort Lee should get two fewer lanes while drivers from nearby highways should get two more. They did so, according to all the Government's evidence, for bad reasons; and they did so by resorting to lies. But still, what they did was alter a regulatory decision about the toll plaza's use—in effect, about which drivers had a "license" to use which lanes. And under Cleveland, that run-of-the mine exercise of regulatory power cannot count as the taking of property.

Here, she suggests that lawful actions, take with a corrupt motive, would not be property fraud. But it could be something else? She writes in the Intro:

The question presented is whether the defendants committed property fraud. The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power. But the federal fraud statutes at issue do not criminalize all such conduct. Under settled precedent, the officials could violate those laws only if an object of their dishonesty was to obtain the Port Authority's money or property. The Government contends it was, because the officials sought both to "commandeer" the Bridge's accesslanes and to divert the wage labor of the Port Authority employees used in that effort. Tr. of Oral Arg. 58. We disagree. The realignment of the toll lanes was an exercise of regulatory power—something this Court has already held fails to meet the statutes' property requirement. And the employees' labor was just the incidental cost of that regulation, rather than itself an object of the officials' scheme. We therefore reverse the convictions.

My friend Yaakov Roth, who argued this case, specifically parried property fraud with abuse of power. He argued:

What we have here is an abuse of power, a political abuse of power, and—and that's—if anything, again, that sounds in honest services fraud, which this Court has limited, due to vagueness concerns, to bribes and kickbacks.

And Kagan quoted that line:

As Kelly's own lawyer acknowledged, this case involves an "abuse of power." Tr. of Oral Arg. 19. For no reason other than political payback, Baroni and Kelly used deception to reduce Fort Lee's access lanes to the George Washington Bridge—and thereby jeopardized the safety of the town's residents.

And what is the remedy for a "abuse of power." Kagan writes:

The upshot is that federal fraud law leaves much public corruption to the States (or their electorates) to rectify.

In other words, let the voters decide.

Jonathan Turley also drew some parallels between Kelly and the impeachment trial. I agree with his conclusion:

Similar arguments were made by experts that Trump clearly could be charged with wire or mail fraud for controversies ranging from the Trump Tower allegations to the Ukrainian allegations.

None of this matters.  The media is unlikely to note that these theories were proven not just wrong but rejected unanimously by the Court.

BTW, kudos to my friend Yaakov for winning his first Supreme Court case, 9-0, against the federal government. With a pithy Kagan opinion no less! I'll read this Trump tweet as a thank you note.

Update: In response to co-blogger Ilya Somin's post, I do not think Kelly vindicated Trump, at all. At most, it cast doubt on a property-fraud theory article of impeachment. Justice Kagan, quite deliberately, distinguished this ground from "abuse of power." I agree with Ilya, and have for months, that an "abuse of power" need not be liked to any specific statutory offense.

NEXT: Justice Thomas Expresses Doubts About the Overbreadth Doctrine

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  1. While the underlying legal theory between this case and the Ukraine issue are similar, this case has very little to do with the impeachment trial. The impeachment trial was a political trial, not a legalistic one, the courts have zero role in it. While this legal issue was at play in the trial, the opinion of SCOTUS is not relevant. If Trump were prosecuted in federal court over Ukraine, then this would be a relevant case, but he is not, so it is not relevant.

    This is a very misleading article header.

    1. Did you even read all the way through?

    2. Great comment. Trump attempted to cheat in the 2020 election so obviously the Democrats had to do something about it and right there in the Constitution is the Impeachment Clause! So there was literally a constitutional remedy for Trump attempting to cheat.

    3. The rather significant difference here is that they apparently had actual evidence of improper motive in the Bridge case, while in Trump’s case it was merely asserted.

      1. Yes, merely asserted… by Trump, Giuliani, Mulvaney, Sondland, and numerous others.

        1. I guess when you’re hearing voices in your head, there’s nothing more to say.

        2. So you have direct citations from each one?

          1. Well, Trump was so cowardly so that he managed to block pretty much all of them from testifying. Totally the actions of an innocent party in a non-criminal matter. But I’m sure in your mind that nothing can be read from those (legal) acts of obstruction.

            As Brett eloquently puts it: When the other person is clearly hearing voices in her/his head, there’s nothing more to say.

            1. Is pleading the 5th legal obstruction of justice?

              1. Pleading the fifth means you don’t testify; it does not mean that you prevent others from testifying.

            2. Sounds like a no.

              But given the Obama DOJ/FBI actions in the Flynn escapade, the correct thing for innocent people to do is say as little as possible.

              Did you see the Flynn escapade and what an abortion of justice its become?

              1. Actually it was Bush loyalists that are to blame for the Flynn debacle.

              2. Armchair,
                Yup. Absolute abortion of justice. Another convicted felon who will get away with really serious felonies. (Following in the honorable footsteps of Ollie North, convicted perjurer.). Flynn did multiple felonies, ADMITTED THEM, and you have Barr whoring himself (for, what, the 20th time?) and excusing Flynn. Okay, that is bad enough.

                But today, you had Trump saying that Flynn never lied. THE VICE PRESIDENT said that Flynn lied to him (and to other White House admit folks). Was Pence lying when he told about Flynn’s lies? It absolutely defies common sense…that Trump would lie so blatantly. But then, he’s never paid a political price for his own lies, so why not excuse Flynn’s lies. Hell, I think Trump should give the middle finger to America and hire Flynn again…and do it before the election. I hope Trump has the balls to do that–just to watch liberals and independents (and conservatives with integrity) have their heads explode on cable news. (It goes without saying that it’s close to 100% that Trump will bring Flynn back if Trump wins a second term.)

                1. as YOU prove Gruber’s point about husseinbots

                2. Santa,

                  I sincerely wish that McCabe, Comey, and Strzok were subjected to the same “justice” that they subjected Flynn to. Here’s how it goes.

                  First, watch and spy on McCabe for a week or two, recording everything. Then, a couple of McCabe’s old FBI friends meet McCabe at a bar. They start talking, chatting like old friends, having a couple beers. McCabe’s FBI friends casually slip in something like “We were interviewing this subject, and of course you know that lying to the FBI is a federal crime, so we’re interrogating him”….more chatter job talk for 15 minutes or so. Then they get McCabe to say something not quite true. Something minor, they’re just talking, maybe mistaking a date, maybe saying “Did you go anywhere else”, and McCabe answers “no.” Don’t correct McCabe, don’t give him a chance to refresh his memory, and maybe say “well I’m not sure”…Get him to say anything that isn’t true, even if McCabe is just mistaken.

                  Then, write up the 302 interview document. Then heavily edit the 302 interview document, and “lose” the original. Bring him up on charges of “Lying to the FBI.” Force him to spend a small fortune on lawyers, to the point of bankruptcy. Then, threaten his family with additional prosecution if he doesn’t plead guilty. The FBI can always find something to charge them with. Then, if that’s not good enough, find something on McCabe’s lawyers, some conflict of interest that could put the lawyers themselves in legal threat of criminal charges. Use that leverage and conflict of interest to convince McCabe’s lawyers to work with the FBI, and influence McCabe to plead guilty.

                  So, then McCabe’s own lawyers are telling him to plead guilty (because the lawyers are being told to by the Feds, otherwise the lawyers will be charged on something else), McCabe will be bankrupt, his family will be threatened with additional prosecution if he doesn’t plead guilty and “cooperate” (By flipping on Comey and others).

                  Sounds like Justice. If only because that’s exactly what McCabe and his “friends” did to Flynn.

                  1. You know what? This is the FBI’s SOP (minus some dumb editorializing). Getting someone to either verify damning info or lie about it. This is why you should never talk to the FBI without a lawyer.

                    And this is how we want it – this is how the relevant statute about lying to the FBI and the regs about whether the FBI can lie (they can).

                    Feel free to inveigh about how unjust that is – because that’s correct.

                    But this outrage? This is special pleading. You’re only unhappy in order to defend your guy.

                    The FBI sucks. That doesn’t mean you get a special case.

                    1. No. This was not the FBI’s SOP. On multiple levels.

                    2. Do tell.

                      Defense attorneys think otherwise.

                    3. Since you asked….lets just focus on the 302 form, and the FBI’s SOP with them. Just for the record here, the 302 form is the official document for what occurs in an FBI interview. It’s supposed to accurately summarize the interview, from the view of the agent taking the notes. In terms of irregularities here…

                      1) SOP is for the 302 to be submitted within 5 days. It took 3 weeks.
                      2) SOP is not for the 302 to be labelled a “Draft document” which requires rewriting and resubmission.
                      3) SOP is not for FBI supervisors to rewrite other agent’s 302 forms.
                      4) SOP is not for an an FBI employee NOT PRESENT AT THE INTERVIEW to be editing another agent’s 302 form.
                      5) SOP is for the 302 original form to be used to support the prosecution, not a “recollection of the 302 form” 6 months after the fact.
                      6) SOP is not to forward the 302 form up to the deputy director for his OK, making sure it’s “good” before formally submitting it….

                      That’s just some of the items that were not “SOP” for the FBI, but mysteriously happened during the Flynn episode.

      2. My attitude is simple: If this was acceptable, then the Mayor could have have had his police officers arrest all port authority employees on his city streets. Deny them phone calls, they just disappear.

        This is how things are done in 3rd World countries, and I don’t think we want that here. SCOTUS is wrong here.

        1. “Not forbidden by these two specific statutes” ≠ “acceptable”. Your example, for instance, is clearly forbidden by 18 U.S.C. §  242.

        2. as husseinO made America a third world country during his reign of terror…………soooo, the MAGA man gotta clean up

          1. “I served with Jack Kennedy. I knew Jack Kennedy.”

      3. Facile. This wasn’t ‘merely asserted’ it was a very reasonable surmise from the fact that, of all the possible targets of ‘corruption’ associated with Ukraine, only Trump’s chief political rival was repeatedly singled out.

        1. so, asserted.

  2. Three points :

    (1) It’s good to see that one of Trump’s most ardent defenders finds his conduct analogous to the grotesque corruption of Bridgegate.

    (2) The SCOTUS decision found the corruption and “abuse of power” of Bridgegate wasn’t covered by the law Kelly was charged under. Fair enough. But isn’t corruption and abuse of power acceptable grounds for political process of impeachment?

    (3) And then there’s the question of degree. Using the foreign policy favor of the United States to extort personal gain seems especially impeachment-worthy to me. Rather more serious than a few extra traffic cones, ya think?

    1. I’m not sure that Josh Blackman would see himself as one of Trump’s “most ardent defenders.”

      1. Like all TDS sufferers, if you are not 100% on his side, you are with the enemy.

      2. How he sees himself is irrelevant. How he behaves is.

      3. Really? Almost everything I’ve seen from him is pro-Trump to the extreme. He has an administration job in his future.

        1. Pacific,

          You clearly haven’t read everything that Blackman has written. He is not a Trumpster.

    2. gotta be tough living on your knees in front of your democrat masters………..new kneepads?

  3. The problems I see are:

    1. Unlike this criminal trial, the grounds for impeachment were not limited to obtaining money or property; and

    2. Kagan expressly noted that this sort of corruption could be criminalized (and, that in New Jersey, it was).

    So to the extent that this comparison even makes sense (and I think it probably doesn’t), these distinctions tend to under one (impeach?) your analysis, not support it.

  4. Let me see if I’ve got this straight: because *Federal* fraud laws don’t criminalise this kind of abuse of power, you think the Senate was right to acquit Trump?

  5. Judging from all the comments, it seems obvious that if you include the word “Trump” in an essay or op-ed, people just can’t read past their outrage and animus.

    Josh Blackman is not a Trump “defender.” I’ve been following Blackman for several years, and he just goes where the law goes, folks.

    1. Too many people arrange their entire corpus of outrage around Trump alone. Nothing else matters.

    2. The problem isn’t Trump: it’s Blackman.

      I’m actually sympathetic to a lot of Blackman’s points on the merits of the articles of impeachment. But this decision doesn’t have anything to do with that issue. It’s just another way for Blackman to engage in his own brand of nauseating and shameless self-promotion. (Seriously, his for “a widely-discussed op-ed” is… his own blog post about his own op-ed. Give me a break.)

    3. Michael W. Towns : “I’ve been following Blackman for several years, and he just goes where the law goes, folks”

      So what’s your opinion on Blackman’s flimsy argument here? Do you really think it’s where the law brought him? Or is a different explanation needed ….

      1. grb,

        Blackman doesn’t offer “flimsy” arguments. They might be arguments that you vehemently disagree with, but they are not “flimsy.”

    4. “Trump” has driven the media response, the public response and outrage over the past two months in this pandemic nonsense. And not for the good of the country.

  6. I don’t get it. Politicians aren’t supposed to do the things that constituents want?

    1. Not only are they supposed to, democracy relies on it.

      In the immediate case, though, it’s dubious her boss’s constituents wanted a traffic jam. She was just punishing somebody for not endorsing her boss.

    2. That depends on what it actually it is that their constituents want, and I very much doubt that Governor Christie’s Fort Lee constituents wanted their bridge lanes shut down.

    3. Certainly, gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

      1. FWIW I have never really bought that.

        In reality, politicians endorse stuff they think is stupid because the voters like it all the time, and Madison, as he often was, was full of crap.

    4. Sure, constituents want Republican supporters/donors punished, Democrat politicians should push for them to be so!

      You agree?

  7. The Supreme Court is right here – even with the rather ridiculously broad wire fraud law, this wasn’t in it.

    But this has nothing to do with Trump. The main arguments were not about wire fraud. Blackman is straining.

    And those supporting him are just reaching for TDS table pounding without much else, which should tell them, him, and the rest of us something.

    1. Fake news.

      Blackman isn’t “straining.” Consider:

      Justice Kagan used a fancy word so she wouldn’t hint at Quid Pro Quo!

      It was a “perfect” decision! Like the transcript.

      Why did she discuss this issue that was not at all relevant to a property fraud prosecution? Who knows for sure.

      In other words, let the voters decide.

      That’s not straining. That’s dousing himself in the gasoline of partisan hackery and gleefully striking the match.

      I used to be prepared to be annoyed to read Blackman because of his endless self-aggrandizement. I also disagree with him about everything. But this post pretty much slams the door on me taking Blackman seriously in the future.

      1. I suppose it’s barely possible Kagan was getting in a subtle dig. Possible. So far from established, though, that I hardly see the point in speculating.

      2. Hey. Time may be running out on that judicial appointment Blackman so blatantly is after.

        Maybe a few more kisses will move him up on the list.

        1. If you know Trump’s sexual preferences, you’d know that Blackman would not be on the ass side of Trump. But, yes; he would be on his knees.

          1. Your comment is utterly despicable.

            1. True. And accurate.

  8. The cold, hard reality is that an impeachable offense is whatever half the House and 2/3 of the Senate thinks is an impeachable offense. If Trump had had the same Congress Nixon had, he would have been out of office. If Nixon had had the same Congress Trump has, he probably would have finished his second term.

    1. Ford also happen to be hand picked by Republicans in Congress and maybe they believed with him as president he would have an advantage in the 1976 election. The reason Ford lost was because Carter ran the Southern Strategy and picked off the South that went upwards 75% for Nixon.

      1. carter won cuz the democrooks had their corrupt election scam down and the other side caught on to late to hold it in check for THAT election

      2. The ’76 election was the first where I was actually paying attention to politics, I missed being old enough to vote in it by a year.

        Part of the reason Ford lost was that even a lot of Republicans thought the pardon stank, that it was the result of a corrupt trade.

        1. I would agree with that. A certain headline in the New York Post that said “Ford to City: Drop Dead” didn’t help either.

        2. Sorry, it was the New York Daily News. My bad.

  9. What any court has to say about what constitutes an impeachable offense could not matter less. Nor is Blackman’s attempt to graft a criminal requirement onto impeachment even sensible, let alone required by anything.

    Beyond treason and bribery, the right standard for impeachable conduct by a president is that the offense be action which notably contravenes or damages the constitutional basis for America’s system of government. Or that the president undermines the People’s sovereignty, or encourages rivals to contest the People for sovereignty.

    That makes impeachment about protecting the system of government itself from abuse by the president, not about punishing crime. Some impeachable offenses may also be crimes, many others would not be. At least in principle, not all criminal offenses need be impeachable.

  10. This is a ludicrous post. Blackman again twists himself into a pretzel to defend Trump.

    He starts by claiming that the

    He quotes Kagan:

    The evidence the jury heard no doubt shows wrongdoing—deception, corruption, abuse of power.

    And then himself, approvingly, of course:

    Mr. Trump’s lawyers responded, “elected officials almost always consider the effect that their conduct might have on the next election.” The president’s lawyers are right. And that behavior does not amount to an abuse of power.

    Under no circumstances?

    Wow. Blackman has his tiongue up trump’s ass even further than I thought.

    Was it abuse of power or not? Anyone not blinded by Trump-worship would see it that it was. And abuse of power is impeachable

    1. and Gruber luvs YOU ……… good job proving his point

    2. “Blackman has his tiongue up trump’s ass even further than I thought.”

      You’re a troll.

  11. The Supreme Court did NOT find that the Bridgegate defendents did not commit a crime. It merely found that they did not commit the specific crime that they had been convicted of.

    In doing so, their decision was based very closely on the specific language of the statute, the meaning of money or property.

    The decision in no way suggests that abuse of power without personal financial gain cannot be punished under some other statute, nor that the only remedy for such abuse is the electorate.

    1. Not really. The statute says “Whoever, having devised or intending to devise any scheme or artifice to defraud, OR for obtaining money or property by means of false or fraudulent pretenses.” The court held that the scheme to defraud MUST be for money. If that was the case, why didn’t Congress write “AND?”

  12. Moreover, because States are sovereign, the federal government is limited in its ability to punish state officials for bad government without a federal hook, such as a commercial transaction or a violation of constitutional rights.

    There might have been such a hook here under an appropriate statute, as the conduct clearly interfered with interstate commerce Under even a very narrow definition. But there won’t be in every case.

    But Congress is not so limited in dealing with federal officials. The two situations are not comparable.

  13. On twittter, Bernstein is out there saying Kelley was innocent. FBI entrapment and all.

    Randy Barnett is full on Trump or die now.

    It’s not even a changing of the guard, it’s full on transformation of intellectuals into pure partisans.

    Tribalism is a helluva drug. I’m glad my tribe doesn’t make me do stuff like this.

  14. The President allegedly withheld funds in order to extort a future benefit; the staff of the Governor of New Jersey allegedly acted to punish past disloyalty, without expecting a benefit from the action. These are very different propositions.

    Gaining the Presidency (or any office of public trust, unlike early modern days where Sheriffs had to be bribed to take the job and Speakers of Parliament dragged into their chair) is a property interest more than “incidental to the regulatory act.”

    Mr. D.

  15. If you say this: “(I will assume for purposes of this post that the allegations in the articles were accurate)” you don’t need to keep saying “allegedly” with every allegation.

  16. Really amazing that the only time SCOTUS can manage to make unanimous rulings is when they are ensuring that corrupt government officials can act with impunity. In any case, I thought the proper charge for their behavior was the civil rights charge that the 3rd Circuit absurdly dismissed. If there isn’t a right to cross an interstate bridge without politically motivated interference, what rights are there?

  17. The Clinton impeachment was ridiculous on its face at the time, and looks even more craven and ridiculous as the years pass. There might be a disagreement between Somin and Blackman but they agree that there is an impeachable universe and what Clinton did was nowhere near it.

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