Impeachment

A Senatorial Impeachment Two-Step?

The Senate should bifurcate its impeachment inquiry: Remove from office now, Disqualify from Office-holding later

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My initial instinct, when discussions began in earnest about a second impeachment proceeding in the immediate aftermath of the attack on the Capitol—was it really only one week ago?!—was to dismiss the prospect as too blunt and unwieldy for the task at hand.

There can be no question that President Trump committed impeachable offenses in connection with the events of (and leading up to) Jan. 6. But the Senate can only remove a president from office after it has convened a "trial"; the Constitution uses the verb form, giving the Senate the power to "try," not to "decide" or to "hold hearings" or to "consider," impeachment. And it seemed to me, as a matter of fundamental due process to which even a president who has committed impeachable and perhaps even criminal acts is entitled, that a "trial" requires giving the defendant adequate notice of the charged offenses, allowing the defendant time to prepare a defense, allowing him to present evidence and to question witnesses, etc. etc.

All of which would clearly be impossible to achieve before Jan. 20, when the primary object of such a proceeding—the removal of President Trump from office—would already have occurred.

But Ilya Somin's post (The Case for a Swift Impeachment), and some additional reflection and study, has convinced me otherwise. It's true that the Senate must conduct a "trial," but as Ilya points out, that hardly requires the sort of full-blown due process protections that would be required in a criminal or quasi-criminal proceeding.

Donald Trump surely has a constitutional right not to be deprived of his life, his liberty, or his property without the full panoply of due process protections, including the right to an attorney, to confront witnesses against him, etc.

But removing him from office is not such a deprivation. He does not have a constitutional right to exercise presidential power, which was bestowed on him by the American people, and which can be taken away by their elected representatives in a constitutionally-sanctioned impeachment proceeding. Given the threat his continued exercise of that power poses to the nation, I see no reason why it cannot be taken away from him via some sort of summary Senatorial proceeding.

Removal from office, of course, is not the only post-conviction remedy available to the Senate in an impeachment proceeding; it may also impose a "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States."

Disqualifying Donald Trump from future office-holding would be a significant step forward in the process of healing the many wounds he has inflicted upon this country. It would allow—not guarantee, but allow—the Republican Party to reconstitute itself as a voice of principled conservativism, rather than of slavish devotion to whatever whims had seized Donald Trump that morning.

Disqualification, however, changes the due process calculus rather substantially.  Donald Trump, like any other "natural born Citizen … having attained to the Age of thirty five Years," does have a constitutional right to run for and be elected to the Office of president, and depriving him of that right via some sort of summary proceeding strikes me as constitutionally improper.

The solution seems pretty straightforward: A bifurcated impeachment proceeding.  Remove him from office immediately and summarily; then, in Part 2, consider whether the charges warrant disqualification from future office-holding in a more extended proceeding that gives (ex)-president Trump the opportunity to defend himself.

Indeed, the Senate can make its final judgment contingent upon the completion of a full-blown Part 2 impeachment trial, as a way of reassuring any Senators who might be uncomfortable denying the President his "day in court" in a Part 1 summary proceeding. The Senate's Part 1 judgment, ordering the President's removal, could include a provision to the effect that the judgment would expire, and would be expunged from the record and of no further force and effect, unless the Senate convicts in a full-blown Part 2 proceeding within __ months. [by which time, obviously, his removal from office would be a literal fait accompli.]

Now that Vice-President Pence has stated that he will not invoke the 25th Amendment, this would seem to be the one remaining route to accomplishing a very important goal: Removing Donald Trump from office and preventing him from using the final days of his presidency to inflict further damage on the republic. The days leading up to and including Inauguration Day could well be very difficult ones, and he has amply demonstrated that he should not be entrusted with the powers of the presidency during such times.

 

NEXT: The 14th Amendment Disqualification Gambit

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  1. “There can be no question that President Trump committed impeachable offenses in connection with the events of (and leading up to) Jan. 6.”

    So we can skip the hearings and just go straight to the punishment, right?

    1. Yes. The last senate impeachment trial was bereft of witnesses or evidence, so there’s your precedent.

    2. It’s not punishment.

    3. Bingo. These articles are pretty amazing in there tone deafness.

      1. Not really. Leftists don’t actually believe in any of those rules or norms. They only use them to level attacks at others who do believe them. It’s Alinsky rule #4.

        1. “They only use them to level attacks at others who do believe them. ”

          Like the much vaunted norm follower Trump and his followers, amirite?!?

          1. Pretty childish. You could do better if you had any ideas to express instead of inarticulate jeering.

            1. I’m sorry you couldn’t grasp the idea I expressed. I could spell it out more clearly for you: Trump and his followers have for four years, and particularly (if such a thing can be said about him/them) for the past few months, reveled in breaking ‘norms’ and ‘unity.’ Remember what preceded 1/6 to take one example: for months Trump focused and expressed himself in the most hyperbolic ways about some incredibly silly conspiracy theories that the Republic was being destroyed by a nefarious, coordinated ‘steal’ of the election by Democrats and many Republicans. Local election officials were defamed on the silliest of arguments and evidence, state-wide officials were attacked as ‘stealing’ the election (Democrat officials were attacked using Trump’s usual over the top rhetoric, any GOP official who dared not ‘find’ Trump the votes he needed were castigated in ‘norm’ and ‘unity’ smashing ways regularly). In unprecedented fashion Trump and his surrogates urged outrages on the democratic process such as 1. the Vice President should literally throw out the electoral votes of states giving the election to Biden, 2. the Congress should object to the votes, and that those in his own party (and even his own VP!) who did not were showing weakness, a lack of patriotism, courage and wisdom that would mean all Trump voters were ‘disenfranchised’ and that the country would be ‘lost’ to them forever.

              Now, this was just business as usual for Trump and his followers.

              Look, one could say with a straight face that Trump was a norm and unity smashing figure nearly unmatched in our political history but that his approach was somehow necessary to fight the good fight or whatever. That at least passes the smell test. But for Trump supporters to suddenly on the evening of January 6th to discover the value of norms and unity and plead for mercy for Trump based on them, well, that’s like a flunky for Hugh Hefner arguing that a girlfriend has done him wrong because of the importance of monogamous values.

              It’s laughable. You don’t have to be laughable, the guy is not worth it.

                1. “You could do better if you had any ideas to express instead of inarticulate jeering.”

                  Just a barrel of bad faith. This is your Trumpista, people.

                  1. I didn’t say I was interested in your angry blathering. Why would anyone be?

                    1. Ben: Leftists don’t believe in norms!

                      Me: Yeah, like Trump and his rightist supporters did.

                      Ben: Pfft, that’s not an idea.

                      Me: OK, here’s what I meant by that in detail.

                      Ben: I didn’t read it, it’s long.

                      Me: Yeah, you never meant the thing about the idea, just like you never meant the thing about norms.

                      Ben: You’re dumb!

                      He’s a Trumpista, folks, what more do you expect?

                    2. How about going away? Or at least stop replying to me. Most people would get the hint.

                    3. Oh don’t worry, we get it.

    4. An “impeachable offense” means one which constitutes a basis for articles of impeachment.

  2. Overturn the American people’s choice with a “summary proceeding”? Business as normal for our new Democratic overlords!

    Seriously, why do people not see how far they are going to destroy our country’s norms?

    1. Oh, FFS. Now you’re concerned about violating our country’s norms?

      Give me a break. It’s the “norm” that you don’t send a mob to attack another branch of government. It’s also the law. And as it attacks the foundation of our government, those responsible must be called to account and face the consequences.

      1. Oh, FFS. Give us a break. If you’re going to post fiction, do it somewhere else. You and your type have been lying about Trump for five years. It’s time to stop, and to seek help.

          1. Wow, someone casually reading the flow of the thread might reasonably think your link had something to do with “send[ing] a mob to attack another branch of government.”

            Instead, SQUIRREL!!!!1!

            Bored again today?

            1. Nope, just responding to persistent whataboutism with some whataboutism of my own.

      2. How long does it take you to walk 1.2 miles, Clem?

        And if the alleged insurrection occurred before anyone listening to Trump could get there, how could he have caused it?

        1. You’re not keeping track: They’ve moved on from claiming that particular speech was the incitement, to claiming that contesting the election was the incitement.

          1. No, *the manner of contesting the election* was part of the incitement.

            1. Damn, lawsuits are incitement to insurrection now?

              The lawyers on this site are in deep trouble.

          2. Brett Bellmore : “….. to claiming that contesting the election was the incitement”

            Well, sure : Two months of crude lying propaganda coupled with hysterical rhetoric about stolen elections was part of the incitement. How could it be otherwise?

            Also, all the other attempts by Trump to subvert voting results are part of the charges, given Trump’s riot was his last & ugliest attempt to overturn the election.

            1. “Well, sure : Two months of crude lying propaganda coupled with hysterical rhetoric about stolen elections was part of the incitement. How could it be otherwise?”

              Well, as a legal matter, incitement has to be to imminent violence, that is there must be a close temporal relationship between the alleged incitement and the violence. The rhetoric about stolen elections from months, weeks, or even just days ago, doesn’t qualify.

              Even a delay of hours can be enough to defeat a criminal incitement charge.

              1. The argument is the incitement is impeachable, not criminal.

                1. Right, but you keep using the terms of criminal law to describe what you’re impeaching him for. You say “incitement”, when that’s got an established meaning that doesn’t fit.

                  Maybe you should impeach him for being a demagogue? A rabble rouser? It would have the advantage of not being provably wrong.

                  The problem is, you can read the House impeachment resolution, and they ARE accusing him of inciting the riot with that speech. The riot that was, so far as we can tell, already planned by others before the speech, and was initiated by people who weren’t present while he was speaking, before anybody could have walked from his speech to the Capitol.

                  So, as a strict matter of the meaning of the words, he didn’t incite the riot, there’s no direct causal relationship between the speech they’re complaining of and the event.

                  1. The word “riot” is not used in the articles. It’s inciting insurrection. Setting aside your unnecessary pendatry, do you agree or disagree with the following:

                    “President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.”

                    1. As a good Southern boy I would say, did he rile them up? I mean, over the past few months? Brett himself, who is certainly an extremist, thought Trump went too far here (for a month!). He riled them up. There’s a reason why Romney or Hillary’s supporters didn’t do anything like that, because they didn’t rile them up with a totally unprecedented and goofy months long campaign that even Brett admits was, for a month, futile.

                      And then Brett feigns ‘why in the world do people think he did something out of the ordinary here?’

                  2. Incitement is not as term limited to criminal law.

                    1. Even not in a criminal context, stuff from months ago does not qualify as incitement of something that happened today.

                    2. I disagree. The cumulative effect over time can incite.

          3. Brett, you’re on record here as saying Trump would and should concede back in December when the various state electors met and voted. I’m guessing your thinking was ‘how could he still contest the election after that point?’

            Now, I’m hoping you can entertain the following idea: you are to the right of a lot of America. Even for a conservative Republican you have some ideas that would be considered…extreme (perhaps extremism in the defense of liberty is no vice or whatever, this statement is meant to be empirical, not judgemental).

            Now if *you* thought it was and should be over back then, can you see how Trump’s pushing it *far* after that point, and I mean *really* pushing it, he was obviously working long hours on varying fronts to still contest the election, that it was *extremely* unprecedented, divisive, norm-smashing, etc.. It was, to use a word, way out there, and it was being done by a sitting President (I mean, if Lin Wood only did this, well, there’s always that kind of thing).

            So, if you can get all that, perhaps you can see how when his final push ended in our nation’s capitol being overrun during what’s always been a ceremonial step in the transition of power, that it’s seen as, at the least, a very *extreme* outlying act.

            1. What I can see is that the overrunning was conducted by people who’d independently planned it, and had nothing to do with his speech on the Mall. He didn’t even organize that rally, you know, he just volunteered to speak at it. Maybe if he’d organized it, it would have had better security.

              So any charge of “incitement” in a legal sense is bogus. The connections between what he did and the attack range from indirect to fictional.

              That leaves us with figurative “incitement” of a much more nebulous nature, his refusal to concede the election. The problem is, by that standard, you should have held the DNC responsible for the riots at his inauguration, Sanders responsible for the House baseball shooting, you should have held many figures in the Democratic party responsible for the large scale and destructive riots of last year. (Which aren’t over, by the way, they just dropped out of the news.)

              The argument proves enormously too much, IOW.

              I did say that he should concede on the 14th, because that, the electors voting, was the last point at which you could really say the election wasn’t over yet. It would be an abuse of a purely ministerial role to refuse to certify the count without some official dispute, and none of the states were officially disputing their slate of electors.

              I think much less of him for continuing past that point, it’s great that he’s a fighter, but you really need to know when to stop.

              But, they’re not impeaching him for refusing to concede, or even for attempting to get the Senate to refuse to certify the count. They’re doing it on a combination of inciting the attack, and a really bizarre misreading of his call to Georgia.

              1. “who’d independently planned it, and had nothing to do with his speech on the Mall.”

                He called for his supporters to come there on the 6th, promising a ‘wild time.’ Was that responsible in your opinion (remember you thought he should have called it a month before)?

                “the problem is, by that standard, you should have held the DNC responsible for the riots at his inauguration,”

                Do you believe this nonsense? The DNC didn’t ask VP Biden to throw out Trump electors. And launch hyperbole that he was weak and a traitor if he didn’t. The DNC didn’t ask people to march on the certification. They didn’t call on Congresspersons to object to the certification. They didn’t call election officials and tell them to find the votes to put Clinton over. Etc., Etc. I mean, there’s just so much disanalogy that when you invoke it I have to ask, are you for real on that?

                “t would be an abuse of a purely ministerial role to refuse to certify the count without some official dispute, and none of the states were officially disputing their slate of electors.”

                And he violated that principle, for Months. is it not important to you? Can you at least see how so many other people might see what you think is unjustifiable as unconscionsable (given, again, you’re pretty far right)?

                “a really bizarre misreading of his call to Georgia.”

                Do you think the call to Georgia was OK? That a sitting President should call a state official and, for an hour, ask him to ‘find’ the votes he needs to overturn the certified results? That he should appeal to their common party on that?

                Jesus Christ.

              2. Brett, there is now lots of reporting about Trump’s words, your ignorance at this point is pretty inexcusable.

                1. He’s not showing much ignorance, while you are showing a great deal of dishonesty.

                  Trump’s speech does not qualify as “incitement”.
                  Trump’s lawsuits do not qualify as “incitement”.
                  If long-running “baseless” claims of elections being stolen is “incitement” then we’ve got a bunch of other people – including Nancy Pelosi! – that have performed the same acts.

                  This impeachment is even more a farce than the last one, a last hurrah by TDS suffering politicians, joining together to scream out “Orange Man BAD!” one last time (and maybe censor a few competitors in the process) .

      3. The dishonesty of Trump supporter’s current arguments are palpable and par for the course. Could they really be so lacking in self awareness to believe that Trump, Donald freaking Trump, needs to get dealt with with kid gloves because norms and unity are so important? It’s amazing how they just realized the value of those things on the evening of January 6th.

        1. Like the Burn, Loot, Murder thugs?

          1. What is this supposed to mean? I’d like you to spell it out.

    2. They do see. It makes them happy. Absolute power is on the horizon for them.

    3. Overturn the American people’s choice

      TF does that even mean?

  3. One wrinkle that seems to be missing from Post’s analysis is that it only takes a simple majority to impose part 2 (barring Trump from holding office) so I’m not sure how his contingency idea makes much sense – if the Senate can find 2/3 majority to convict it should be very easy to find a simple majority to bar him from running again.

    What am I missing here?

    1. That nobody really takes seriously this idea that they can just pass a bill of attainder under the pretext of enforcing section 3.

      It’s basically impossible to exaggerate how insanely delegitimizing that would be. Northern Ireland’s “troubles” is the best case scenario if they do that.

      1. Section 3? That’s 14th amendment, not impeachment.

        You are hopelessly confused.

        That said, your threats of violence against the US government duly noted.

        1. I assumed you were talking about section 3, because it takes a 2/3 majority to convict in the Senate. You can’t convict him with just removal, and then add disqualification afterwards on a majority vote, doesn’t work that way.

          1. It absolutely does.

            1. Are you mad? Traditionally, the penalty for impeachment is set in the bill of impeachment. You then get a Senate trial on that bill, and if convicted get the penalty the bill called for. A new bill of impeachment requires a new trial.

              What you’re suggesting is that they could vote out a bill of impeachment that just specified removal. Then after conviction in a pretend trial, they could by majority vote amend the bill of impeachment to specify disability, too.

              That’s like trying somebody for assault, convicting them, and then changing the charge to murder 1, and saying, “No need for a new trial, he’s already been convicted!”

                1. As in they’ve never done it any other way.

                  I told you it was a bad idea to change election rules helter-skelter right before an election, without even bothering to go through the legislature. You didn’t listen. And you probably think that had nothing at all to do with Trump being taken seriously when he claimed the election was stolen.

                  Now you’re good with changing the way we do impeachments, just to get at one guy. And I bet you think that won’t have consequences, either.

                  Anything goes, so long as it gets you what you want.

                  1. you probably think that had nothing at all to do with Trump being taken seriously when he claimed the election was stolen.

                    I bet he does think that. So do I.

                    Trump made it clear for a long time that he would regard the election as illegitimate if he lost, period. And of course he would have.

                    Go ahead with some BS denial of this. Be right up there with your claim that his calls to the GA officials were wholly innocent, “perfect,” he might even say.

                    1. President Trump said the primary he lost to Ted Cruz was improper and a sham and illegal. He says it every time he loses. He said the election he won was filled with fraud, because he didn’t win the popular vote.

                  2. Your argument is handwaiving, not facts.

                    I told you it was a bad idea to change election rules helter-skelter right before an election, without even bothering to go through the legislature. You didn’t listen.
                    Your dumbness and wrongness being joined by violent idiots doesn’t really make you correct…

                    Now you’re good with changing the way we do impeachments,
                    Each impeachment is it’s own thing. There isn’t some giant impeachment body of law.

                    And I bet you think that won’t have consequences, either.
                    Screw your threats. You’ve got nothing but them now, and the more you try and act them out the more you will marginalize yourself.

                    1. “Now you’re good with changing the way we do impeachments”
                      Each impeachment is it’s own thing. There isn’t some giant impeachment body of law.

                      Actually, there is, notably Nixon v. United States, 506 U.S. 224 (1993) The question the court answered was did the Senate have the sole power to try impeachments, and it said it did. But it didn’t address the 14th Amendment issues of the Senate being arbitrary or capricious, with four concurrences raising that point.

                      Play dumb games and win SCOTUS suits…

                      “And I bet you think that won’t have consequences, either.”
                      Screw your threats. You’ve got nothing but them now, and the more you try and act them out the more you will marginalize yourself.

                      In “A Man for All Seasons”, the hero says that the laws are like trees, and if he chops them all down to chase the Devil, what tree would he have to hide behind should the Devil turn on him?

                      What the academic left fails to comprehend is that while they have run and controlled their little bubble of academia for the past 40 years, they neither always have nor always will. They aren’t old enough to remember what college was like in the 1950s.

                    2. Ed, you cited the case that establishes that Each impeachment is it’s own thing.

                      Ed, you are the one endlessly talking about right-wing violence. Trying to pretend you’re a fan of rule of law is laughable.

                    3. Ed, you cited the case that establishes that Each impeachment is it’s own thing.

                      A SCOTUS case may have more than one aspect, moron.

                      Ed, you are the one endlessly talking about right-wing violence.

                      Warning about something does NOT mean advocating it. Or do you believe that your local police chief supports car theft when he says “lock it and pocket the key.”

                    4. So is yours.

                    5. In “A Man for All Seasons”, the hero says that the laws are like trees, and if he chops them all down to chase the Devil, what tree would he have to hide behind should the Devil turn on him?

                      I mean, that’s as accurate as your Yeats quote.

                2. Look, the second of Post’s “trials” does nothing more than apply a retributive penalty which is only a subset of the actual penalties prescribed under the felony offense in the US Code.
                  If anyone truly believes that Mr Trump committed this felony s/he should prefer a real trial in conducted by Federal prosecutors under the US Federal judiciary. Anything less is a mockery of the rule of law.

                  1. I don’t understand you use of ‘only’ in your first sentence. It’s also an actual penalty attached to impeachment.

                    Insisting that a criminal trial is required for impeachment is very much against the state of the law, and the text of the Constitution.

                    1. “Only” means that barring from future office is a subset of the penalties under 18 U.S. Code § 2383.
                      I did NOT insist that a criminal trial is required for impeachment. Where did you read that?
                      I did imply that a impeachment after Trump is out of office for a charge fully covered by 18 U.S. Code § 2383 has the appearance of being merely vindictive and does not deliver the appropriate punishment for a serious criminal action.

                    2. His action is monstrous based on his leadership position, but a closer question criminally.

                    3. Not the first time I have asked how many successful convictions for impeachment did not have an underlying criminal charge.

    2. He seems to be saying that the due process owed in a trial leading only to removal is less than in a trial leading to disqualification. If you buy in, it implies that a summary proceeding could accomplish a quick removal, but if so a second trial and conviction under more stringent conditions would be due before issuing a sentence of disqualification.

      1. But the kangaroo court would have already established his ‘guilt’ at that point, and the Republican Senators would have already incurred their political damage, so the second trial would really be a bit of a farce, with a pre-determined conclusion.

        It’s really just a plan to ease the GOP into impeachment by pretending it’s just about whether Trump leaves on Monday or Tuesday. Then the political dead men walking would have no further reason to vote no, might as well be hung for a sheep as for a lamb.

        It also establishes the legitimacy of removal with a farcical trial, a pretty nasty precedent to set.

        Just say no to kangaroo courts, the sentence imposed is NOT the point here.

        1. “Just say no to kangaroo courts”

          “Lock her up!” Suddenly Trumpistas discover due process….

          1. When was she charged with anything, much less locked up, for her crimes?

  4. “There can be no question that President Trump committed impeachable offenses in connection with the events of (and leading up to) Jan. 6.”

    Only because anything a majority of the House thinks is impeachable is impeachable. So it’s tautologically true.

    “It’s true that the Senate must conduct a “trial,” but as Ilya points out, that hardly requires the sort of full-blown due process protections that would be required in a criminal or quasi-criminal proceeding.”

    So, you’re cool with a fake trial.

    Let me repeat that: You’re cool with a fake trial.

    AND you think he could get a fair trial on the disability after having been railroaded on the removal.

    You’re insane. Certifiable.

    1. Fake trial?

      The Senate can make any rules it want when they try anyone for impeachment Nixon vs US (1993).

      So, no fake trial.

      1. Post admits that there’s no time for a real trial before Trump is out of office anyway. So, yes, fake trial.

        1. Again, a “real trial” is whatever the Senate decides.

          So how can there be a fake trial using the rules the Senate decides?

          Admit it – you’re just butt hurt and are grabbing a strands of nothing.

          BTW – I do agree nothing will happen in the Senate and they will not hit the 2/3 provision.

          1. By that standard, every third world tinpot dictator conducting a trial conducted a “real” trial, because they decided it.

            You people are dangerous.

            1. It’s in our freaking Constition!!!!

              Grow up.

              1. Our system embodied a set of ideals, not just black letter law. Apparently, you people don’t care about ideals, as long as you can grab naked power.

                1. You mean ideals like:

                  Forming a more perfect Union
                  Establishing Justice
                  Insure domestic Tranquility
                  Provide for the common defense
                  Promote the general Welfare
                  And secure the Blessings of Liberty to ourselves and our Posterity

                  Then I’m all onboard.

                  But tell us which of these liberal ideals you disagree with.

                  1. I support all of those. But “ourselves and our posterity” did not mean “every third world savage who has been dumped here.”

                2. Aktenberg78 : Our system embodied a set of ideals, not just black letter law.

                  Says a Trump supporter!

                  Pretty rich, that. Trump never missed a week these past four years without wiping his lard butt on the office of the presidency – and his supporters cheered every instance of brat-child behavior. Now he’s disgraced himself in a way that can’t be ignored or excused? His supporters suddenly appreciate norms again.

                  1. Suddenly, on the day their guy got caught in the whorehouse with the dead boy hooker, they discovered the importance of monogamy (don’t tell his wife, it would shatter their marriage!).

                3. So just tell us what you think is necessary for whatever you or Brett thinks is a real trial?

                  1. I’m not going to speak for Brett, but for starters, the fact finders wouldn’t include retarded apes like Nancy Pelosi or James Clyburn.

                    1. 1) Nancy Pelosi and James Clyburn are Representatives. Impeachments are tried in the Senate. It is already the case that any “trial” to impeach the President will not include Nancy Pelosi and James Clyburn as fact-finders.

                      2) However, ordinary due process does not have a requirement that the fact finders be intelligent. The requirement (for criminal trials, which this isn’t) is a jury of your peers. But peers doesn’t mean “peers” it means people qualified to be in jury pools. Nancy Pelosi and James Clyburn are as qualified as anyone else, because they have, I guess, driver’s licenses or some shit. Maybe you don’t understand real trials and due process as well as you think?

                      3) Are you a lawyer?

                    2. 1) They’re still making factual determinations.

                      2) As currently envisioned, yes. But it’s not what the founders intended. There is no way the OJ jury, full of 85 IQ blacks, were peers of OJ, or me.

                      3) Yes.

                    3. @Aktenberg78,

                      1) So are you. Does that mean you are the fact finder in a trial in which the President is the accused? There is no constitutional, common law, or sensible requirement that all fact finders (so broadly defined) be someone other than Nancy Pelosi and James Clyburn. However, the Constitution does require that articles of impeachment be decided by the House, and Nancy Pelosi and James Clyburn are representatives in the House.

                      2) OJ was tried under state law so whatever you think “the founders intended” is irrelevant. And it wasn’t “full” of black people. In any case, peers doesn’t have an IQ requirement (either under original intent or current law), but even if it did, it is apparent that a person with 85 IQ, regardless of race, is your peer.

                      3) Well you fucking suck at it.

                    4. 1) If we had reasonable restrictions on voting, people like Pelosi and Clyburn could never be elected.

                      2) The OJ jury had 9 blacks. The founders recognized the mental inferiority of the African race. You should too.

                      3) I don’t practice law anymore, but I’d put my skills against yours any day.

                    5. “ 3) I don’t practice law anymore…”

                      Wow I’m super surprised based on your comments

      2. When the offense is a serious felony under the US Code, anything less than a full prosecution in the Federal courts is a star chamber proceeding.
        If you want him legitimately barred from future office, prosecute.
        He’ll look nice in an orange jumpsuit

        1. If you think being removed from office is the same as being locked up in a US prison, I really don’t know what to tell you.

          1. Martin,
            What is the matter with your reading skills? You grossly distort what a person said and then you respond in a flip fashion to what you made up.
            Trump is NOT going to be removed from office before his term expires.
            And the penalty for the US Code violation includes being barred from any future office. So what is the point of the Phase II senate proceeding except to be vindictive and to state that the Senate does not trust the US Court system.

            1. Barring someone from future office is also an allowed penalty of impeachment. It would not require a criminal trial at all.

        2. So, if a President were, say, to be found to have taken an obvious bribe for an executive act, you would argue they shouldn’t be impeached because they could be prosecuted under a federal bribery statute and if convicted be disallowed from office under the felony conviction? Given that a long running defense of Trump has been ‘you can’t impeach for something that is not an actual crime’ this stance seems…strange.

          1. Your problem is the “obvious”. You keep treating the charges as though they were self evidently true, and our demands that you prove them as absurd.

            1. If someone is making an argument against impeachment not on the evidence but on a principle it’s fair to ask about a case where the evidence is obvious to elucidate the principle.

      3. Why are you afraid of a real judicial trial after Trump leaves office?
        Even if the Senate removes him, he is still liable for criminal prosecution.

        1. Because not all impeachable offences are also crimes.

          1. One more time has there ever been a successful conviction for impeachment that did not has an underlying crime.

            1. Yes, John Pickering was successfully impeached, convicted, and removed for “drunkenness”. West Hughes Humphreys was impeached, convicted, removed, and disqualified for (sound familiar?) “publicly calling for secession”.

    2. It isn’t even that Brett, everyone is misreading the Constitution:

      (Article I, section 3, clause 7″ “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.” [emphasis added]

      To understand what this means, one needs to realize that under the English Common Law, “judgement in cases of impeachment” could include imprisonment and even execution. Hence this was intended to be a limit on the powers of the Senate and not some bizarre way to avoid that little part about bills of attainder.

      There’s nothing here about authorizing two different “judgements” and notwithstanding Nixon v. US, I’m inclined to believe that even the late RBG would agree — and it only takes 5 votes.

      The other thing is that even if he were disqualified to “hold and enjoy” the Presidency, there is nothing that would prevent him from running for it. Which he well might do out of spite — so they aren’t going to silence him…

      1. Also, has impeachment *ever* extended to disqualification? It didn’t with Alcee Hastings, who is now a Congressman.

        If the Senate never imposed that in 232 years, in the impeachments (of Federal judges) that it has done, could there be a “penumbra” of the bill of attainder clause that precludes it?

        1. The only people who have ever been convicted on impeachment have been judges, where disqualification from (elected) office makes less sense. Nevertheless, allow me to introduce you to Robert Wodrow Archbald, who was disqualified from office in 1913:

          https://en.wikipedia.org/wiki/Robert_Wodrow_Archbald#Impeachment

          1. Continuing in a separate comment to avoid landing in the spam filter.

            In case you think that precedent is too old and doesn’t count, Thomas Porteous, a Clinton-nominated Judge of the United States District Court for the Eastern District of Louisiana, was removed from the bench and disqualified in 2010.

            https://en.wikipedia.org/wiki/Thomas_Porteous

    3. Totalitarians love fake trials.

      Is it insanity or malevolence? Ultimately it doesn’t matter. The result is the same.

      1. The ‘Lock her Up’ crowd laments fake trials (I guess because they’d skip them entirely if they could). The bad faith reeks.

        1. The “lock her up” crowd conducted exactly zero fake trials, attempted exactly zero fake trials. She was not, in fact, locked up. Nor was she ever in jeopardy of it.

          But keep falsely pretending words are actions to justify your own evil.

          Meanwhile, here’s a Good media leftist fantasizing about kidnapping children and putting them in re-education camps. And cheering Covid deaths in red states:

          https://www.projectveritas.com/news/pbs-principal-counsel-lays-out-violent-radical-agenda-says-americans-are-f/

          That’s them when they think they’re talking to allies.

          1. “attempted exactly zero fake trials”

            Hmm, I seem to remember a political party asking the FBI to conduct a special investigation on this. When the investigation (led by a life long GOP hack) didn’t give them a suggestion for a grand jury they lost their collective shit. And then when the other side won the guy who won pushed for prosecution (and this is apart from all the very public rhetoric of leading and nodding to chants of ‘lock her up’ even *four years* after the person had been defeated.

            People like Ben only discover due process when their cult leader needs it.

            1. Thanks for telling everyone you don’t care about due process

              1. I know you are, but what I am! Well, he is a Trumpista, why would anyone expect more?

            2. An FBI investigation is not a trial, fake or otherwise.

              1. “attempted exactly zero fake trials”

                It’s the necessary step to a trial. And remember the furor when a trial was not recommended…I mean, what’s your ultimate point here, that the ‘lock her up’ crowd wanted a trial but did not get it and were mad (‘attempted) or that they wanted to skip the trial and wanted a result (her ‘locked up?’)?

                1. “I mean, what’s your ultimate point here, that the ‘lock her up’ crowd wanted a trial but did not get it and were mad (‘attempted) or that they wanted to skip the trial and wanted a result (her ‘locked up?’)?”

                  My ultimate point is that no trial happened, and what the “lock her up” crowd did or did not want is of less than zero relevance.

            3. Which, if successful, would have led to a non fake trial, you realize. Not a fake one.

    4. Does anyone remember Brett complaining that the senate conducted a fake trial in the last round of impeachment because it refused to hear from witnesses?

      1. Dismissing the charges without hearing witnesses is hardly unheard of. But I would have been fine with witnesses. I wanted to see the Democrats’ case fall apart in detail, not merely be dismissed. So did Trump, he thought a trial would actually clear him.

        I believe McConnell’s argument was that the House should have had their witnesses lined up when they brought the case, instead of demanding to be permitted to develop a case after bringing the charges to the Senate.

        But, again, I’d have been fine with witnesses. In fact, McConnell was working against Trump, who actually wanted a full blown Senate trial.

        “Republican leaders appear determined to conduct a relatively brief impeachment trial of President Trump in the Senate next month, possibly without calling witnesses, overruling the president’s push for a weeks-long spectacle to seek political retribution against Democrats.

        The internal tussle pits Trump’s delight in a bare-knuckle public fight versus the backroom style of Senate Majority Leader Mitch McConnell (R-Ky.), who has utilized intricate Senate procedures for decades to advance Republican goals.

        “At this moment, almost nobody thinks there is advantage to a long, drawn-out process — except the president,” said one Senate Republican who was granted anonymity to speak candidly.”

  5. There can be no question that President Trump committed impeachable offenses

    What a silly claim. Of course there can be a question. That’s why there is supposed to be a trial. They should not remove officers without giving them a chance to defend themselves.

    1. “No question” is like using “clearly”, its a sign there is in fact a question.

      Trump filed some failed lawsuits and made a speech at a protest rally. Some, but not most, of the speech attendees rioted.

      Some, but not most, of the attendees at BLM protest rallies rioted. Harris and others made speeches encouraging the protests. I think thee is no question she should be impeached for that.

      1. ” Some, but not most, of the speech attendees rioted.”

        In fact, the people who did anything that could reasonably be called “rioting” were already at the Capitol building when Trump was speaking. And the ones who did anything violent had clearly planned to in advance.

    2. Trump ought to have been able to defend himself in the House before they vote on the impeachment.

      Even if this doesn’t provoke a nasty terrorist incident — and I’m starting to think that is what the Dems are hoping to do — it will have irrevocably burned a hole in our nation’s soul. It’s one thing to take power, it’s another to attempt to destroy half of your countrymen.

      1. Because it is customary for defendants to defend themselves in front of the grand jury?

        1. Grand jury here is the House.

          Senate is a trial jury under this comparison.

          They do in fact have a standing rule that allows the accused a defense.

          1. Yes, and Ed said that Trump should have been able to defend himself in the House.

    3. What’s Trump going to do, claim that it was his doppelgänger saying these things? The facts are undisputed. Nobody is basing the impeachment on any secret conspiracies that Trump was involved in. (Though obviously if he actually was making arrangements behind the scenes for the coup, that would be ultra impeachable.) Just on the public record.

  6. I have appreciated the gradual evolution of comments involving 1/6. They say that the test of a first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function. If that’s the case, then it appears that the ability of the Ed/Dane/Behar/Bellmore contingent (and company!) on VC are Galactic Brains, given their ability to hold at least 20 different positions at the same time, including:
    1. 1/6 was a hoax by the MSM.
    2. 1/6 was just a college festival.
    3. 1/6 wasn’t violent at all.
    4. 1/6 was violent, but it was just a fringe element …. not real Trumpists.
    5. 1/6 was violent, but only because of ANTIFA who are behind everything bad.
    6. 1/6 was violent, but BLM!
    7. 1/6 was or was not violent, but even though they were in the US Capitol trying to find Pence and assorted Congressional leaders … it wasn’t, you know, political or insurrectiony or anything.
    8. 1/6 was totally a warning about how terrible the election rigging was, and if you don’t take us seriously, we will get so much more violent and make you sorry for ignoring our threats!

    I have to admit- I have trouble maintaining even one thought, especially before coffee, so I am impressed. Maybe not so much about the continued not-veiled threats of violence, but still!

    1. The evidence available has evolved, why wouldn’t the evaluation of what happened evolve, too?

      1. Don’t recall ever saying it was a hoax.
      2. Most of the people who went into the building did nothing particularly violent, that hasn’t changed.
      3. The reporting of actual violence took a while to surface.
      4. Yup, a fringe element. Still is.
      5. It was reasonable to initially suspect Antifa was involved, and there does seem to have been at least some minor involvement, but clearly SOME of the perps were not Antifa.
      6. What, are you claiming BLM isn’t violent?
      7. Again, most of the people involved weren’t violent, there were a few that were, maybe a half dozen.
      8. Yeah, I think we have a problem with our elections.

      1. “The evidence available has evolved, why wouldn’t the evaluation of what happened evolve, too?”

        Well, it’s certainly a good thing to see that you’re a stan for evolution. You had me worried.

    2. I haven’t checked how many commenters who support an insurrectionist veto today have criticized cancel culture and the heckler’s veto in earlier posts but I expect a significant overlap.

      1. How many commenters have supported your “insurrectionist veto”?
        Maybe that Pavel-troll guy? I don’t read his comments, so I don’t know. Can you tell me if he does?

    3. It is a good thing that we have some honest commentators.

    4. Even if 1/6 was an attempt to overthrow the government (which is laughable) how the hell do you conclude that Trump was responsible?!?

      He encouraged people to “peacefully and patriotically” petition their government for redress of grievances. Unlike abortion, that’s a right that is actually stated in the Constitution.

      He didn’t sponsor any (of the FOUR) rallies that were in DC that day — and from which rally did the trespassers originate?

      There were documented Antafa activists involved — one was interviewed on CNN — while I doubt they will be criminally prosecuted, if those who are get fair trials and counsel (and I’m not sure the cancel culture will permit the latter) it will be interesting to see them subpoenaed as witnesses.

      How fast can you walk 1.2 miles. In a crowd of people.
      How does Trump instigate *anything* when it happens before the people who can hear him speaking weren’t able to get there by the time it did?

      Not that you are confusing yourself with facts.

      1. Woah. It is rare, indeed, to so quickly have the exact proof of a post.

        But one can always count on Dr. “Galactic Brain” Ed to provide. You know, you might want to spend more time canvassing your house, and less time on the internet. Word is those antifas can infiltrate your property … and some of them look like chairs, lamps, and pesky appliances that don’t work quite like you want to.

        Truly, is there anything that those rootless cosmo… sorry, ANTIFA … cannot do?

        1. My favorite Dunesbury cartoon involved the following:

          “I need armor-piercing ammo because I never know when a burglar might hide behind my refrigerator.”

    5. Yeah, not worth feeding the troll.

      1. Oh no!

        How long are you fasting for? Or is it a hunger strike on yourself?

        I don’t think starvation will improve the quality of your posts, but … whatever you think will help. 🙂

    6. It was a mostly peaceful protest.

      Hardly even comparable to the vicious murder, assault, arson, and theft sprees of the Democrat’s shock troops this year.

      1. You forgot, “Chinese Communist Party Controlled Shock Troops.”

        C’mon, M L! You can do better!

        1. It was a mostly peaceful protest though, on that we can agree, right?

          True, the CCP is more and more influential here. Heck, they’re even getting to see their own Joe Biden, Xi’s “old friend” installed as President. https://www.youtube.com/watch?v=aeegrkPx0xE&ab_channel=GrandView

  7. This approach doesn’t make sense to me.

    In an ordinary trial, the main question is the defendant’s guilt or innocence. Sentencing is usually a subsidiary matter that relies mostly on the evidence presented at trial.

    A capital trial, where the life interest creates a more rigourous sentencing proceeding which is essentially a separate trial, would seem the closest analogy.

    But combining a summary or even pro forma proceeding for finding guilt with an in-depth proceeding for determining sentencing doesn’t seem to me to be workable. Why wouldn’t Mr. Trump be entitled to revisit the underlying question of guilt?

    1. Their position is that since impeachment isn’t really a legal matter, forget due process, they can do anything they feel like.

      1. No, that really isn’t anyone’s position. #strawman

          1. That comment doesn’t say that “impeachment isn’t really a legal matter”. The reason why the Senate can organise its trial in whatever way it likes is because there is no possibility of review, not because an impeachment trial isn’t a legal matter. And apedad didn’t say otherwise.

            1. But he will still be liable for prosecution. So why not prosecute. Unless one is afraid that the result will be “wrong.”

              1. Or because you want to impeach him for something that may or may not be a crime, or which you may or may not be able to prove beyond a reasonable doubt. None of this is difficult.

                1. But in this case it is a felony with explicit penalties. And why are you afraid of the trial in Federal Court?

                  1. “You can’t prosecute him for crimes while he’s in office; that’s what impeachment is for.”

                    “You can’t impeach him with a year to go in his term; that’s what elections are for.”

                    “You can’t impeach him for trying to violently overturn the election; that’s what federal courts are for.”

                    1. What if there were something else that a person could do besides obsessively trying to get Trump?

                    2. David,
                      I’d say let the US Attorney make that assessment. Even if you’re a clever lawyer, I’ll trust the judgement of the US Attorney more.

                    3. What if there were something else that a person could do besides obsessively trying to defend Trump?

      2. It’s not criminal. That’s not the same as not being legal.

      3. Actually Brett, that’s the Constitution’s position.

        No one is making it up.

      4. It’s entertaining when they argue you’re wrong and you’re making it up and yeah, you’re right, so what at the same time.

        They’re smart. And The Good Guys.

    2. Why wouldn’t Mr. Trump be entitled to revisit the underlying question of guilt?

      In lawyer terms, because you’d be applying two different standards of proof. Balance of probabilities to kick him out of office, and something closer to beyond a reasonable doubt to disqualify him.

  8. This is very disturbing. First, we saw an effort to convert the 25th Amendment from a means of dealing with a disabled president into an impeachment shortcut controlled by the person who becomes president if the actual president is removed. (No danger of a conflict of interest there, right?) Now we are converting impeachment itself from a means of removing a miscreant president or other civil officer from office into a tool for preventing people we don’t like from running for or holding office in the future. And according to Somin, we can do this to people even after they no longer hold office.

    What an extraordinary idea that would be! A Republican Congress could retroactively impeach former Secretaries of State John Kerry and Hillary Clinton, as well as former Vice President Al Gore, to prevent them from ever holding federal office again. Democrats could respond by retroactively impeaching former Trump and Bush Administration officials to bar them from holding office. We would succeed in turning the impeachment process into a tool of political vengeance and for neutralizing possible rivals. That is nothing like what the Framers intended.

    As I have said earlier, it is time to put emotion aside and reflect carefully before we once again overreact and take an action we will regret in the future.

    1. That is nothing like what the Framers intended.

      They also didn’t intend for there to be political parties, or for black people to vote. Things change, go with it.

      And, as many others have said, if you’re not going to impeach the president for this, what would you impeach him for? Impeachment seems like the opposite of overreacting.

      1. Black people who happened to not be slaves actually did vote at the time, some places in the North. It wasn’t the rule, but neither was it unheard of. Taney really re-wrote the history of slavery in the US in the Dred Scot decision.

        Anyway, if you’re not going to impeach the President for contesting an election and giving speeches the opposing party doesn’t like, what are you going to impeach for? Oh, I don’t know, maybe actual crimes? Deliberate and knowing constitutional violations?

        I’d have been good with impeaching Reagan over Iran-Contra, much as I liked him. That was real impeachment material.

        Clinton was properly impeached over destruction of evidence and subornation of perjury in a legal proceeding, because he used government resources to do it.

        Obama publicly stated that he didn’t have the constitutional authority to impose DACA, then went ahead and did it. A knowing constitutional violation. He violated the war powers act, rationalizing that it didn’t apply to kinetic actions. And he had American citizens extra-judicially killed outside of war zones, too. All of those could have been reasonable basis for impeachment.

        Trump? Democrats were so hostile and in a hurry to impeach, you didn’t bother finding a case against Trump anybody who didn’t already hate him could take seriously. I’m sure you could have found something legit otherwise. Heck, you could have impeached him over the wall, while he had a legal leg to stand on, this was genuinely a case of a President pursuing a policy Congress had explicitly rejected.

        Presidents seldom get through a full term without doing SOMETHING legitimately impeachable, given the extent to which the executive branch has usurped legislative power.

        But, no, you had to pick farcical reasons to impeach, because you didn’t care if you persuaded anybody on the other side.

        1. I’m surprised you are not more excited about Liz Cheney taking back the GOP and returning the party to its roots of slaughtering babies in Iraq, shipping jobs to China, turning Mexicans into Americans, and making a pedo House Speaker?!?

          Btw, did you support Baltimore removing Taney’s statue from in front of its courthouse??

        2. Dred Scott reversed a Massachusetts SJC decision and a SCOTUS justice whose name I forget resigned in protest of the Dred Scott decision.

          1. This has been another special episode of Dr. Ed’s Unique History.

      2. Good way to miss the point.

        I did not say that there are no grounds for impeachment. I am arguing that “impeaching” someone who is already out of office, or will be before the impeachment mechanism can be completed, solely for the purpose of not having them hold office again is a bad idea that can result in abuses far worse than the evil you are purporting to cure.

        1. Yes, you were saying that the US government should succumb to the pressure of terrorists and bullies.

          1. Not so; it seems that prosecution by the US Attorney for DC is a perfectly fine option.

    2. You think the resolution in the 25th was an attempt to bind the Cabinet?

      Y’all are welcome to try and impeach Obama and Kerry.

      1. No, I was addressing the argument in favor of using the 25th Amendment.

        1. The idea that Trump has become mentally unfit is rather baked into the legit scenarios that serious people from the military to Congress are talking about.

          1. By the way, S0, were you troubled by Pelosi’s call to the military rather than the civil leadership (Sec of Defense) to call for disobeying direct orders from the Commander in Chief. Fortunately our military leaders are more committed to civilian control than she thought.

            1. Yeah.

              I get where it came from, and I get why she talked to who she talked to versus an explicit Trump toady, but I don’t think it was needed. If the military was willing to carry out a bombing order from Trump, we’re screwed regardless.

              It was a bad impulse; Pelosi is bad in many ways and apparently not clear thinking in a crisis is one of them. But I also don’t think it did any harm to our republic. Which is more than I can say for the GOP even now.

              1. Bad impulses are bad especially when they are publicized. We should never be encouraging our military to cross that line.

    3. “We would succeed in turning the impeachment process into a tool of political vengeance and for neutralizing possible rivals.”

      Is anyone noticing how increasingly uncomfortable world leaders — many of whom don’t like Trump — are with all of this?

      What do they know that we don’t? If they are smarter than us, as the left would have us believe, then why not listen to them?

      The goal is to make Trump into a non-person, right out of the Soviet playbook which Europe does still remember.

      1. > Is anyone noticing how increasingly uncomfortable world leaders — many of whom don’t like Trump — are with all of this?

        [citation needed]

        1. World Leaders Oppose Social Media’s Trump Bans, but There’s a Catch

          They’re uncomfortable with the censorship, I’m not so sure they’ve commented on the impeachment threat.

    4. “What an extraordinary idea that would be! A Republican Congress could retroactively impeach former Secretaries of State John Kerry and Hillary Clinton, as well as former Vice President Al Gore, to prevent them from ever holding federal office again.”

      Of course. If Hillary Clinton did what President Trump did, wouldn’t you want to prevent her from ever holding federal office again?

      I don’t think it’s much of a defense to say “This will be used against you in the future!” That’s the entire point. The purpose of this impeachment is to set a precedent that modifies future behavior.

  9. This seems right. It’s not going to happen, but conceptually it seems right.

  10. As a practical matter, it looks like President Trump’s trial will not even start until after he has already left office. If that occurs, there is no reason to do a summary proceeding for guilt or to have a bifurcated proceeding. There is absolutely no reason not to have a traditional impeachment trial, the sort used in past Presidential impeachments, where Mr. Trump would get a substantial amount of time to prepare, present witnesses, make arguments, etc.

    I am not fully convinced by Professor Somin’s argument. Summary impeachment proceedings strike me as having dangerous implications. If the opposing party wins big in mid-term Congressional elections, perhaps it has the raw power to throw the other party’s entire leadership out of office on trumped-up charges and prevent them ever holding office again, for pure partisan advantage. But I would want the public to be able to see what is going on and hear the pleas that this isn’t fair. And hear the defendants’ version of the facts.

    A real trial, a real opportunity to present evidence and argument, provides a partial check on a partisan witchhunt bogus impeachment proceeding, at least an opportunity forvthe public to see and hear what is going on.

    A summary proceeding, which does not permit the defendant time to prepare and drastically curtails his ability to present and argue his own version of the facts, offers no such check.

    1. I actually think it’s better to have the trial after he leaves office, so he can’t claim the trappings of the office as a basis for not showing up. The most damning testimony of the President will come from the President.

  11. I’m a bit stunned by the expression of prejudice in these posts.

    There can be no question? Really? How about the perspectives of many people, like myself, who look at the record and in the end don’t see factual basis for the narrative that Trump promoted an
    attack on the Capitol?

    There can be no question is a pretty bold statement in the face of a record where the president explicitly demanded a peaceful response.

    Yes, you can argue that the President of the United States was transmitting secret coded messages that you could decipher, but to be blunt, that is certainly questionable.

    This there can be no question type of language is itself an impediment to the type of healing mentioned in the article. It’s amazingly lacking in self-awareness.

    1. People like you are represented in Congress just like rational people are. And with a requirement of a 2/3 majority for a conviction, there is very little actual chance that Trump will be convicted. So I’m not really sure what you’re complaining about.

      1. You stinking Democrat lawfare is wrong. It promotes Chinese Communist Party interest to destroy our country.

      2. Martin,
        If you believe all of what you wrote, you’d prefer a real prosecution by the US Attorney for DC

        1. Why not both?

          (But seriously, I agree with prof. Somin and others who’ve said that the House should not adopt an article of impeachment unless they believe they can actually get it past 2/3 of the Senate. And since I don’t think they could, I think that pragmatically impeachment is not wise at this point. But talking about impeachment probably is.)

    2. Do you agree that Biden won a free and fair election, Trump has been trying to steal that election since election day (and said he would do so even before the election), and he has fed the people who carried out 1/6 the lie that the election was stolen from him?

      Perhaps there is an argument about whether impeachment is the appropriate response to Trump’s actions, but I suspect the folks who object to impeachment are objecting to what I just claimed.

      1. I agree that he won the election. Not so much that it was free and fair.

        1. Well no. Like the man himself said, it’s only fair if Trump wins.

          https://www.youtube.com/watch?v=pAru83kBtnw

          1. No, I’m troubled by two things.

            The media censorship; I think Trump would have won if coverage of the Hunter laptop story hadn’t been spiked, to the point of deplatforming a major daily on Twitter.

            Similar censorship probably saved Warnock’s hide a few days ago.

            And the widespread extra-legislative changes to election rules. I don’t believe that executives and judges are actually entitled to change the rules for an election.

            1. Do you agree Trump tried to steal the election after election day and fed the people who carried out 1/6 the lie that the election was stolen from him?

              1. I can’t speak for Brett, but as to my own opinion:
                1. Legal challenges to the outcome of an election, even if meritless are not an attempt to steal the election, unless you have proof positive that Trump knew/believed they were meritless at the time.

                2. The Congressional challenges to specific EC ballots do not constitute an attempt to steal the election, unless you want to agree that the Democrats making such challenges in 2004 and 2016 were also an attempt to steal those elections.

                Note: I don’t thing the Electoral Count Act was intended to allow such challenges. It was passed in the wake of Congress being sent multiple EC ballots for individual states. I think the act should be amended to clarify that such challenges are only legitimate/allowed in the case of multiple ballots for a single state.

                3. Trump’s trying to get Pence to unilaterally reject EC ballots was an attempt to steal the election I would support impeaching Trump now, for that alone.

                1. #3 is at least something. And yet, all but 10 House Republicans couldn’t even agree to that (I will note that a few made decent arguments Trump is culpable, but impeachment is the wrong remedy).

                  The defense that Trump didn’t know his claims were meritless can only be supported by his being delusional. I do think the 2004 objectors were trying to steal an election.

  12. This convoluted scheme makes Rube Goldberg look like a linear thinker.

    1. Its David Post. Its his way.

  13. How about we just let Trump’s term expire and then somebody can prosecute him in court either DC or Federal to the extent it makes a difference. I doubt he can be convicted for his recent behavior based solely on the facts. It’s far more likely that New Your will try and convict him of some financial crimes.

    It seems to me that any action by the Congress short of Impeachment and Conviction by 2/3 vote of the Senate will inevitably trigger a long divisive chain of litigation, and however it turns out will damage the country and deep in the already deranged fringes at both ends of the political spectrum. A trial and conviction in the Senate with Chief Justice presiding will be legally unchallengable.

    Any action under the 25th amendment would also be subject to legal challenge as not based on inability.

    1. Generally agree that impeachment is non-reviewable by the S.Ct. under their own precedent. But given that a completed/final removal under Amd. 25, Sec. 4 requires a 2/3 vote in both the House and Senate, is there anything in particular that makes you think the S.Ct. would try to override that express grant of power by seconding guessing the Congressional determination? My take is that the S.Ct. would declare it non-justiciable, because it’s a procedure that the 25th puts solely in the hands of Congress.

      In other words, the 25th doesn’t say “Congress votes, then the [ex]-President can appeal”, and I doubt the current S.Ct. would try to insert that language.

      1. There would never be a final removal his term will expire before a 2/3 vote is needed.

      2. You also have the problem from the perspective of Democrats and “Never Trump” Republicans that removal under 25A does not bar him from running again in 2024.

    2. Just as “high crimes and misdemeanors” is whatever a majority of the House decides it means, Presidential inability regarding Section 4 of the 25th Amendment is whatever the VP and a majority of the Cabinet decide it means. The 25th Amendment didn’t define inability, it simply determined who gets to do so.

      1. Translation: there is no objective reason, just the reasoning a majority of people present at any given time.

        Where is AK when you need an actual appeal to real reason?

      2. I think that may be an issue for the courts, if a Vice President and cabinet were to conspire to remove a President with disputed disability, then I think the courts could decide if that action was legal.

        1. No. The 25th amendment expressly spells out the procedure if the disability is disputed. It doesn’t involve the courts. It involves Congress.

      3. What other words in the Constitution can Congress redefine as it sees fit?
        For example, can “Senators present” be redefined to include telepresence, virtual presence, or spiritual presence?
        Can “revenue” be redefined to only include certain types or levels of income? Maybe define it to only include monies that go into the general fund?

        1. Anything that falls fully within Congressional power, they get to define stuff more or less as they want to, subject to voters not liking them anymore.

    3. Actually, one could argue that the 25 amendment resolution fatally flawed the impeachment resolution as extortion is verboten and hence SCOTUS should throw it out.

      We are setting some very bad precedents here that the Dems will regret.

      1. Don’t forget the French Revolution — folks further to the LEFT may use these precedents to clean out the Dem bench in the future…

  14. The “Get Trump” people will stop at nothing with their unending rage and blind hatred of the man.

    1. If their actions stir people into acts of terrorism, the blood will be all on the TDS’ crowd’s hands.

    2. Yeah, you and Brett and Ed are truly the calm ones here.

      You know why we’re angry, but really would prefer to pretend it’s about the person not his actions.

      1. There’s no requirement we assuage your anger. You were angry long before Trump and we don’t care.

        1. All I know is the side that talks about political killings around here is not the liberal one.

          1. All I know is the side that talks about political killings around here is not the liberal one.

            On the other hand, the liberal side is certainly the one cheering on the political marginalization and cancellation that actually is happening and will continue to happen as long as people like you keep feeding the mob mentality.

            But keep on pretending that a handful of facially overblown rhetoric is the real problem. I suppose fig leaves like that at least make you feel better, even though we all understand they’re bullshit.

            1. You mean like the overly dramatic AOC saying “I thought I was going to die…” in her latest interview despite the fact she was protected in a secure area of the capitol and no one actually threatened her life…?

              1. No one threatened her life except Republicans with Covid refusing to wear masks in a tightly packed enclosed space.

              2. This dogged, pitch-perfect choreography and equally dogged breathless retelling and resultant histrionics contest currently being looped in the headlines reminds me a lot “The War of the Worlds,” but with much less pleasant-sounding voices.

          2. Trending on Twitter:
            #HangMikePence

            1. You…you think that’s liberals tweeting that?

              1. You…you think that’s liberals tweeting that?

                Why yes, yes, I do. Breathlessly obsessing on it. Clicky clicky on the live feed. And don’t forget the reading part.

      2. Maybe the fact that you are so angry is something you should look into by getting help. It isn’t healthy to be incoherently rambling mad like that.

        And there is nothing to get mad about here either. Just another event of civil disobedience much like all the broadly hailed activism this summer. The mostly peaceful sit-in on the capitol, which only lasted a few hours, was a great show of the First Amendment. People making their voices heard. We as Americans should applaud that.

        The few activists that committed crimes should be held accountable. But, the actions of the few should not ruin the patriotic actions of the about one million Americas who demanded more from their government.

  15. A question from a non Lawyer: Is impeachment a legal trial in the sense that it would prevent future charges covering the same circumstances in a court of law? I’m probably not phrasing that question right but you get the drift

    1. It’s a decent question.

      Impeachment is not criminal, so no, there is no double jeopardy here; if you get impeached for a crime you can then be out on trial for that crime.

      1. In fact, Artlcle 1, Section 3.7, of the Constitution expressly allows for criminal prosecution after impeachment. A party removed from office after impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

    2. It is an endless witch hunt and lawfare against the 72 million voters for Trump.

    3. It is a fine question, and the answer is expressly set forth in the Impeachment Clause (Art. I, Sec. 3, cl. 6&7), which provides:

      The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

      Impeachment is a limited political remedy, and the *only* penalties can be removal and disqualification. The last clause answers your Q, I believe: after an impeachment (successful or not!) the person impeached is still subject to the normal criminal process via indictment.

      1. I should have read further before posting my comment above.

    4. It’s also addressed in Federalist 65. Short answer- no. In fact, that’s one of the many reasons that the Senate, and not a court (or the Supreme Court) is the judge of impeachment.

      That way, if there is a later trial for any crime implicated in the impeachment, then the judges will not have pre-judged the action.

      Finally, it always helps to remember the opening:

      A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

      This is inherently a political process, designed to remedy injuries to society; we have a whole separate system for crimes.

    5. I’m wondering if it is REVERSIBLE by a future Congress. Every other political act is, and it’s a political act. So why not?

      1. “I’m wondering if it is REVERSIBLE by a future Congress. Every other political act is, and it’s a political act. So why not?”

        To the extent you care about the answer, it’s because you aren’t stating the issue correctly.

        The correct statement is that one Congress cannot bind a future Congress. But that’s both a powerful and limited statement, because it’s about the ability of a Legislature to act on its own policies (otherwise known as legislative retrenchment).

        For example, this Congress cannot pass a tax cut and say that it cannot be repealed ever. Of course not! A new Congress can always do that.

        However, there are always the ties that bind. Things like contracts with private parties … or that document called the Constitution. Now, imagine that the Congress, pursuant to the Constitution, admitted New Mexico as a state pursuant to the Admissions Clause. Because there is no particular constitutional ability for a later Congress to revoke that admission, then later Congresses are bound by the Constitutional process. They can’t just pass a law saying, “Nope.”

        Same here. There is a specified process for impeachment. It’s not a legislative act or a policy agenda. A later Congress could pass a resolution disapproving it, but there is no Constitutional process to undo it.

        1. OTOH, the clause does say that a 2/3 vote of both houses can undo the disability from holding office.

          Not that I’m saying that’s remotely likely. But it is expressly permitted.

          1. Yes. That would be the exact procedure.

            Well, that OR an amendment.

  16. When the Republicans retake the Congress, in 2022, good idea to prosecute the losers, and seek to preclude them from running again. Democrats are vicious competitors and evil. Trump did not proscute Clinton as he should have. In his place, I would have arrested Mueller, tried him, and had him executed in the court house basement for his insurrection to reverse the election of 2016.

    1. Every one of Trump’s State officials did exactly what Hillary did when they sent classified information over WhatsApp!! So Trump did attempt to prosecute Hillary but his appointees said she did nothing wrong. With respect to Mueller—Mueller’s actions made Trump president and Hillary was ecstatic when Trump fired him.

      1. ^^^I meant Comey—Comey and McCabe made Trump president…Mueller only had a job because the Trump appointee Rosenstein inexplicably appointed a Special Counsel when it wasn’t necessary. I think Rosenstein appointed Mueller because he had respect for his fellow Republicans Comey and McCabe.

    2. ” I would have arrested Mueller, tried him, and had him executed in the court house basement for his insurrection to reverse the election of 2016.”

      Trumpistas, folks!

  17. Seen a lot of dumb posts here and elsewhere on this issue but I knew I could count on David Post to exceed them.

    The Senate is not in session until the 19th, when I assume the House will deliver the article(s). The existing Senate impeachment rules say trial starts the next day at noon. How do you summarily remove someone whose term has just expired?

    Anything else going on 20th at noon in DC?

    Worst Post Ever!

    1. Of course, if McConnell agrees, then the Senate can re-convene.

      Because it only takes the consent of both the minority leader and the majority leader.

      And the House can transmit the articles to the Senate even when the Senate isn’t in session.

      That said, it is incredibly unlikely that even with the most summary of procedures in the Senate, that Trump could be removed prior to leaving office.

      Not impossible, but it would basically not just require McConnell’s consent, but his strong desire to get it done as well as the necessary 2/3.

      1. He could pull it off if he wanted to, since it doesn’t have to be 2/3 of the whole Senate, just 2/3 of those present, with a quorum present.

        In fact, from McConnnell’s standpoint, the ideal impeachment would be all the Democrats and 2-3 Republicans present, so that almost the entire Republican Senate caucus could claim to be blameless when the Republican base started planning their revenge.

        1. There are, I am sure many ways that McConnell could push it through (with Schumer’s help) if he really really really wanted to, and with the support or at least acquiescence of a sufficient number of Republicans.

          I just doubt that he would. I’m not sure why he is leaking his desire to impeach Trump and his disapproval (assuming it is him), but I don’t think he is going to act on it to force the issue before Trump leaves office on his own.

          1. Now that Br’er Rabbit is stuck, Br’er Fox ponders how to dispose of him. The helpless but cunning Br’er Rabbit pleads, “Do anything you want with me – roas’ me, hang me, skin me, drown me – but please, Br’er Fox, don’t fling me in dat brier-patch”, prompting the sadistic Br’er Fox to do exactly that because he gullibly believes it will inflict the maximum pain on Br’er Rabbit. As rabbits are at home in thickets, however, the resourceful Br’er Rabbit escapes.

      2. “his strong desire to get it done ”

        Its a divided caucus with the majority likely against. So pretty unlikely.

        Is there a political advantage to Mitch to remove a day or two ahead of term ending? Or is the sole possible advantage* the disqualification so he can’t run in 2024? Latter, right?

        {*leaving aside the question if it is in fact an advantage]

        1. Personally, I might think that the advantage to Mitch is to signal his strong disapproval, get the Democrats to impeach, and then tie up the first X days of Biden’s agenda with this in the Senate and draw it out as long as possible, both making Trump look as bad as he can, and ensuring absolutely nothing gets done.

          What do you think? Cynical enough for you?

          1. “Cynical enough for you?”

            Nothing is too cynical enough for me when politics is involved.

            Sure, I agree that tarnishing Trump but not convicting is the best political course.

            This poll seems to confirm it

            https://www.cbsnews.com/news/opinion-poll-impeachment-donald-trump/

            GOP voters still seem to be standing by Trump and 55-45 is not a horrible overall number.

            Be happy, decent chance Trump confirms he ordered the Code Red.

  18. David,

    There’s a good chance you don’t live where I live and don’t see the level of angry, well armed Trump support that exists. If you want radical violence – and it the kind of random violence we saw this summer but coordinated violence, make Trump a martyr for the cause.

    These people are at the end of their rope and many feel they have no other choice but rebellion. Impeaching Trump will continue to inflame his supporters.

    Remember the lessons or reconstruction and how the temptation to punish created a century and a half of pain.

    1. “Remember the lessons or reconstruction and how the temptation to punish created a century and a half of pain.”

      You know, I think you learned a very different lesson from reconstruction than others did.

      Because I have to wonder whose pain you are thinking about there, know what I mean?

  19. Everybody seems to just assume that an elected position like president is an office of honor, trust, or profit under the United States, and the Senate can disqualify someone from being elected to it. That’s far from a settled question. In fact, I believe the senate considers senators not to be such officers precisely because they are elected.

    1. That is not just a hot take, that is SCORCHING! Well done. 🙂

      “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present. Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

      So the answer to your question isn’t because Senators are elected, but because Senators aren’t removed by impeachment. Impeachment applies to the judicial and executive branch, and was well understood at the founding to include, inter alia, governors, and has been used to bar (under similar wordings for state constitutions) governors from being elected to that position of honor, trust and profit.

      But yes, Trump could be a Senator!

      1. What an absurd response. Whether the president is subject to impeachment says nothing about whether the presidency is an office under the United States, from which someone can be disqualified. If the president and vice president were civil officers of the United States, why would they need to be separately mentioned? I’m agnostic about it, but it is certainly an issue.

        1. Seriously, any moderately bright law student could craft an argument that elected positions are not offices under the United States, and that the only reason a president and not a senator can be impeached is because the president is specifically identified while senators are not. And your response would be a colossal failure to rebut that argument, notwithstanding how persuasive you think the “hot take” thing is.

          1. Well, then, I assume you failed to clear the bar of moderately bright law student, because you failed to craft an argument. 🙂

            1. It’s a Blackman/Tillman special. They made it here a year ago. Well, Blackman did; I can’t swear with 100% certainty that Tillman was his collaborator on that particular idiocy.

              According to Blackman(/Tillman), the founders wanted Congress to be able to bar a corrupt official from being the Assistant Deputy Undersecretary of Agriculture,¹ but the single most powerful position in the country, they shrugged and said, “Oh, well, if the guy wants to run for it, more power to him.” That’s plausible.


              ¹Yeah, I know it didn’t exist in 1789.

      2. “Everybody seems to just assume that an elected position like president is an office of honor, trust, or profit under the United States, and the Senate can disqualify someone from being elected to it.”

        Its an open question, mocking notwithstanding.

        Here is a brief article by someone who agrees with your conclusion but discusses the issues.

        https://www.pointoforder.com/2014/09/02/is-the-presidency-an-office-under-the-united-states/

        Its never been decided by the federal courts has it? Then state prcedents are useful but not conclusive.

        1. It’s not really an open question. That article was written as a rebuttal to a rather bizarre take by Seth Tillman, who… well, I’ll leave it at that.

          There are actual law review articles on this (not just the noodlings of a moderately bright law student) that go through the history, and it’s incredibly hard to contort yourself into a Tillman-shaped pretzel.

    2. Trump has done his dead level best to demonstrate that, notwithstanding what the framers contemplated, the presidency is not necessarily an office of honor or trust. Profit in this case is a different matter.

  20. So much for “peaceful transition of power” the left was harping on earlier. Guess that is only supposed to be a one-way street…?

    1. A peaceful transition of power would have been nice, but is now a literal impossibility after fascist thugs killed a police officer and injured dozens more.

      1. Yes the old “you did it, so now we are justified” argument….

      2. I guess we didn’t have a peaceful transition of power 4 years ago, either, given the riots at Trump’s inauguration.

        1. Why did you stop there and not also bring up the violence that occurred when Obama was elected?

        2. Silly Brett those were mostly peaceful protesters who had a legitimate grievance with the government. Just like what was said when libs took over the WI state capitol or at all the riots this summer. None of that applies when libs don’t agree with the position of the activist though.

        3. That comparison would have been more apt if anyone had actually interfered with Trump’s inauguration.

    2. Jimmy the Dane suddenly discovered the importance of the peaceful transition of power on the eve of Jan 6th, when three ghosts visited him…

      He awoke and ran to the window. “You, boy, what day is it?” The adult black man he yelled at looked around and said “wtf, are you talking to me? It’s Jan. 7th.” “Great! Go to the market, fetch me some due process, some unity and norms, and get some due process for yourself (not too much though, you look a bit foreign to me…).”

  21. Imagine an attorney, much less a legal scholar, claiming “there can be no question” about some arcane legal question with no precedent. The people pushing this impeachment are fundamentally unserious, but consumed by an unhealthy obsession with and a seething hatred for Donald Trump. Imagine if one of these clowns had the wherewithal to say, “We’re putting Trump in the rear-view mirror and moving forward with our vision of the future.” Of course, that won’t happen because, 1)as previously mentioned, they are clowns; and 2)such a statement would actually require a vision of the future.

    1. If you really think about it though, isn’t the fact that they are CLOWNS make them more dangerous?

      It used to be that the clowns would just be in the sewers, or the forests, killing people. Now … now they are in DC, tryin’ to stop our Trump!

      Can’t we just go back to the good old days of homicidal clowns?

    2. We do live in a clown world.

      1. Go back to 4chan.

        1. send in the clowns…oh wait they are already here…

          1. Indeed. The clowns are coming from inside the house.

    3. “Imagine an attorney, much less a legal scholar, claiming ‘there can be no question’ about some arcane legal question with no precedent.”

      You apparently have not read many legal briefs. I have seen attorneys claim “there can be no question” about assertions of law that at flatly wrong, let alone arcane unsettled questions without precedent.

      1. …ARE flatly wrong…

  22. ” It would allow—not guarantee, but allow—the Republican Party to reconstitute itself as a voice of principled conservativism”

    Sure, they could give that a try… nothing else they’ve done has worked well, so why not take a flyer on a lark?

  23. Disqualifying Donald Trump from future office-holding would be a significant step forward in the process of healing the many wounds he has inflicted upon this country

    Or it’d inflame his base [which is not so much “People In A Trump Cult Of Personality” as “People Who Wanted The Outsider Who LISTENED TO THEM and THEIR CONCERNS”; the GOP is awful at those two, which is why Trump won the primary despite the party machine hating him.

    If Trump *can win or be that influential*, “making it so he can’t actually win” just directs that energy to another candidate while making his base [see above] really, really angry at the political theater of “making sure he can’t ever win ever ever”.

    I don’t think “symbolism that really pisses off his supporters while making his opponents even more smugly gleeful” is a recipe for reconciliation, compromise, and healing.

    (And I do not take seriously the idea that it saves the GOP from his wicked influence; he’s a SYMPTOM, not the cause.

    The GOP might have learned the lesson of Trump [“actually listen to the voters, not just what the party insiders really like”, more or less]; if it has, his DQ does nothing there. If it has not, his DQ also does nothing there, except perhaps make it harder to learn?)

    (Disclosure: Didn’t vote for him in 2016, didn’t in 2020, think he’s kind of a shit, and is a salesman, not a statesman.

    But my opinion of him isn’t relevant to this.)

    1. Your note on unintended consequences may also apply to social media moves, as people are pushed to express their thoughts less publicly. Despite criticisms, at least talk on Parler was in the light.
      Regarding your last few lines, a major problem is how many people cannot separate their opinion of Trump and adherence to established process and liberal principles. As a third-party voter in the last two elections, I recognize that pointing out illogical partisanship brings hate from both sides.

    2. Bear in mind that Chair of the Republican Party is a private office and I think he would enjoy that more than President. So in addition to being a martyr, he’d also be a kingmaker — on a national level.

      He’s a salesman, not an executive — I think that became clear over the past four years, and hence would be much more suited for party chair. The Presidency is not necessarily the most powerful position in the country — the ability to decide who runs for all the offices is.

    3. “Or it’d inflame his base [which is not so much “People In A Trump Cult Of Personality” as “People Who Wanted The Outsider Who LISTENED TO THEM and THEIR CONCERNS””

      If they had rational concerns, more people might be willing to hear them out.

  24. This hate-driven rush to crush is exactly what America is opposed to.

    1. “This hate-driven rush to crush is exactly what America is”

      Period. Enter.

  25. Disqualifying Donald Trump from future office-holding would be a significant step forward in the process of healing the many wounds he has inflicted upon this country.

    Would Post identify Trump supporters, and send them to re-education, to achieve such “healing”? Crushing the opposition, imprisoning them, or worse, does not yield “healing”.

    Quite the opposite. That’s precisely the way you motivate armed resistance.

    1. He has learned about re-education and healing from Mr Xi.

    2. “Would Post identify Trump supporters, and send them to re-education, to achieve such “healing”? Crushing the opposition, imprisoning them, or worse, does not yield “healing”.”

      If you won’t stop this tantrum you can go to your room without supper.

  26. Depressing that so many lawyers and lawmakers have moved beyond any measured reason to decide that words be judged in hindsight of actions by the most unstable observers. Reminds me of a hecklers veto, albeit an unhinged supporters variant, where it is obvious that objective observers and the vast majority of listeners heard Trump’s words here, and earlier calls for attention to policing, as calls for lawful protest and systemic challenges. That impeachment is political does not mean that we should ignore how criminal courts would treat similar claims of incitement or insurrection, and how this could easily be used against other political movements and speeches. How often have Bernie and other Dems made fiery pleas for confrontation and change, and maybe used “fight” in a non-physical sense?

    1. ” How often have Bernie and other Dems”

      I suppose it’s just noise to you to point out that Bernie is not a Democrat.

      1. Valid point, though I’m a third-party voter who recognizes the de facto dichotomy where Bernie caucuses with and ran for president with Dems. Likewise, many Trump supporters are not ideological or actual members of GOP.

  27. First, this morning’s news. McConnell will not reconvene the Senate before January 19. Any Senate trial will take place during Biden’s term. So there is no “two-step.”

    Next, why convene a political trial with little chance of success when a real prosecution would do more and would likely be viewed as more legitimate?

    1. Because … I truly think that while McConnell does not like Trump, he views this as both an opportunity to air all the dirty laundry he can against Trump AND an opportunity to absolutely wreck the beginning of the Biden administration.

      It’s like Christmas for McConnell. It’s not so much that he’s happy, but think of how many different people he can make suffer!

      1. “Because … I truly think that while McConnell does not like Trump, he views this as both an opportunity to air all the dirty laundry he can against Trump AND an opportunity to absolutely wreck the beginning of the Biden administration.”

        If the trial is not held until Biden’s term in office, Mitch won’t be in charge of it. He’ll be off to the side, pouting and doing absolutely nothing.

    2. A criminal trial involves the Executive branch, and that decision will be made by the Department of Justice of the incoming administration. Prosecution and impeachment are separate matters, as the text if the Constitution expressly recognizes.

      1. they’ll first have to wait and see if either Georgia or North Carolina want to prosecute on solicitation of vote fraud charges in state court, assuming Trump doesn’t flee overseas to avoid prosecution.

  28. Some Conspirators are offering thoughtful, valuable words that acknowledge reality, value accountability, and propose solution.

    Others, I gather, will return to their keyboards, and to the lathering of partisan bumpkins, after cleansing blood from their hands.

  29. The second impeachment of President Donald J. Trump is being “managed” by a US Congressman who was compromised by, and probably sleeping with, a Chinese Communist Party spy.

    Definitely a clown world!

    The reality is that the United States government is a government that has obtained to much of its powers by mere usurpation over the centuries.

    And this government is operated chiefly by a permanent bureaucracy, rather than elected representatives. Elected representatives only manage to cause minor ripples to US government operations and policy every few years, as is intended by many of them.

    On top of this, the government is heavily influenced and largely controlled by special interests, namely Wall Street, lobbyists, big tech, other major corporations, and international organizations and interests. These interests are in substantial alignment against the American people and many of them are particularly in alignment with the Chinese Communist Party.

    1. So, M L, you and Behar been hanging out? Just … you know … checking on you.

      1. No, he’s right, they named Swalwell, of “Fang Fang” fame, as one of the impeachment managers.

        I’m not sure why Pelosi would be expected to care that he’d been sleeping with a Chinese spy. Feinstein had a Chinese spy for a driver for years. Then there’s that whole mess with the House IT administrator, Imran Awan, a Pakistani spy they kept on the payroll even after he was on the run from the feds.

        The Democrats just don’t care about that sort of thing.

        1. The enemy of your enemy is your friend, so the Democrats are cool with Communist China. Swimming pools of cash help too, see the Biden family.

        2. “The Democrats just don’t care about that sort of thing.”

          I’d believe you cared if you’d complained when an American politician was caught disclosing top secret information directly to the Russian ambassador.

        3. See, Brett, it’s a pack of lies. Dude had little contact, and cut it off when the FBI briefed him.

          The compromised by and sleeping with is just bullshit ML is serving up.
          With some thedonald.win meming about clowns thrown in.

  30. “There can be no question that President Trump committed impeachable offenses in connection with the events of (and leading up to) Jan. 6.”

    Um, literally anything is impeachable, so this statement is a tautology.

    1. “Um, literally anything is impeachable”

      Not unless at least half of the Representatives agree that it’s impeachable. they’ve even got some R-brand Reps on board this time around.

      1. Most people when they find a statement about the law to be trivial might check to see if it’s maybe actually about policy. Ought not is, you know.

        And then there’s ML…

  31. Really not seeing any response to this simple statement of Trump at the 1/6 rally:

    “…I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard…”

    https://www.rev.com/blog/transcripts/donald-trump-speech-save-america-rally-transcript-january-6 [time 18:16]

    Seems like a defense against incitement, especially considering the absence of specific words suggesting or promoting violent action at this specific event.

    Yelling ‘fire’ in a crowded theater is an issue, telling people to protest peacefully isn’t.

    1. “That’s a nice store. Would be a shame if something happened to it.”

      -See, the guy was just complimenting the store. In addition, he was really showing his concern! What a swell …. wise … guy. (ahem).

      “Won’t someone rid me of this troublesome Congress?”

      -I mean, he’s not advocating for anything. He’s just pointing out that Congress is really annoying, and that he really wishes that someone else would do something about it, like vote them out or something.

      “And Brutus is an honourable man.”

      Boy, that Marc Antony really loves Brutus! Look, he’s talking about how honorable he is!

      Words. Wow. They are so awesome! 🙂

    2. ” telling people to protest peacefully isn’t.”

      Stand by.

  32. Watching the impeachment proceeding , there are (as here) more victims of progressive educators present than ought to be permitted in one location.

  33. If you wondered how democracy dies, pay close attention to the happenings of the next few days. When your children will ask you what happened to America, you can tell them.

    1. “If you wondered how democracy dies, pay close attention to the happenings of the next few days.”

      This guy was whole hog on the ‘VP throw out the votes’ and ‘stop the steal’ Lin Wood as conducter train.

      Nothing they say is serious.

      1. Not the first time I have asked you and the other unhinged dems who all will go to any lengths to dodge the question.

        Who are the 18 pubs who will vote to convict?

        1. This comment is irrelevant to mine.

          1. CHICKEN.

            Why are you afraid to answer it.

            With no chance to convict any discussion of impeachment is mental masturbation. Given the time constraints you will not be able to do it much longer.

            1. Do you think any prosecution likely to fail is ‘mental masturbation?’ Everything is prudential, nothing on principle?

              Chicken indeed.

    2. “When your children will ask you what happened to America, you can tell them.”

      It was the Oompa Loompa, we’ll say. He broke it when we told him he couldn’t play with it any more.

  34. One more time cuz no one seems to want to address this issue.

    It is unlikely (but possible) Manchin will vote to convict so the dems need at least 18 pubs to vote to convict. I can name maybe two or three that would do it. Romney likely, Murkowski possible but not a sure thing, and maybe somebody else.

    So who are the other 15 pubs who will vote to convict.

    1. Well, I will give you my personal response. There are two scenarios that I see:

      1. Something happens in the next few days. I don’t know what it is, but … something. As the Article of Impeachment have already been transmitted to the Senate, McConnell and Schumer can quickly convene the Senate and ram through a conviction.

      I think that this is possible, but incredibly unlikely. That said, I do think that is a scenario that is being considered.

      2. More likely, this starts just prior to the inauguration (so the rules, etc. can get set) and drags into the Biden administration. McConnell can then use this as an opportunity to air as much dirty laundry against Trump as possible for weeks. This will both hamstring the new administration and build a consensus to convict. Once you start with Manchin and the usual suspects (Romney, Murk, Collins, Toomey, Ernst, Sasse), you’re left with needing 12. I think you could probably get 12, if he’s already out of office.

      1. Loki,
        You left out what I think is a more probable scenario.
        McConnell drives a hard bargain for power-sharing in exchange for his delivering at least 17 R votes to convict Trump.

        1. Eh, I actually don’t see that particular scenario happening. Possible? Maybe. Not likely.

          As passionate as the Trumpists are, Trump is the GOP’s problem after he leaves. Not the Democrat’s.

          I’m fairly certain that the Democrats would be fine just having the GOP either be for or against him on the record, and let him run again. It’s not a satisfying result, given what has happened, but that’s why we have state prosecutors for the other issues.

          On the other hand, I am always impressed by the ability of the Congressional Democrats to offer $20 if you could provide them $1, so who knows?

        2. Names.

          Manchin is up for reelection in 2022 and while he has been wishywashy his public statements have been against voting to convict. Lets not forget how big Trump won in WV. Same for Murkowski wishywashy. She was in a better position before Biden and the Green New Deal which would destroy AK oil industry and there is always the 2A mess the dems present her with. In fact all the other have issues with the dems stance on the Green New Deal, 2A stuff, and abortion.

          1. “Names.”

            Seriously? I just took the time to give you two scenarios. We don’t even know if the trial will occur while he is in office, and what will happen before that.

            If you had asked my 10 days ago if any Republicans would support a second attempt to impeach Trump, what names would you have had? If you had said even five days ago that McConnell was signaling his support (for WHATEVER reasons), wouldn’t you be saying, “But he needs KENTUCKY! He’d never do it!”

            Your wishforecasting as well as mine will have difficulties when it comes to reality and the quickly changing landscape.

        3. Could you tell me where to buy the good stuff you seem to be smoking.

        4. “McConnell drives a hard bargain for power-sharing in exchange for his delivering at least 17 R votes to convict Trump.”

          This scenario requires that Mitch DO SOMETHING. That’s not what he’s good at. No, look for him standing on the sidelines, pouting that Donnie cost him his cushy gig as Majority Leader.

    2. “It is unlikely (but possible) Manchin will vote to convict so the dems need at least 18 pubs to vote to convict. I can name maybe two or three that would do it. Romney likely, Murkowski possible but not a sure thing, and maybe somebody else.”

      Susan Collins voted not to convict last time but she was sure ol’ Donnie learned his lesson.

      How many of the R’s had to flee to “inspect” bunkers because they weren’t sure the rioters knew they were “team red”?

    3. I don’t think Democrats have the votes, and that’s why they shouldn’t impeach. It’s all a waste of time. But here is who I think could conceivably be convinced to impeach, with a real hearing, and after the President is out of office anyway:

      Mitch McConnell
      John Cornyn
      Susan Collins
      Lindsey Graham
      Chuck Grassley
      Pat Toomey
      Mitt Romney
      Ben Sasse
      Joni Ernst
      Rick Scott
      Mike Crapo
      Todd Young
      Jim Risch
      Cynthia Lummis
      Lisa Murkowski
      Mike Lee
      Thom Tillis

      I think there might be more. These are not likely, but possible.

  35. Keep in mind people that the House is trying to impeach the President because he gave a speech that was well received by activists. Then, in a carnival like atmosphere a few of those activists engaged in most peaceful protests which involved the short term sit in by a small minority of said activists. There was absolutely no serious attempt to overthrow the government. The end product was a Congress with a lot of egg on their face feeling bad they did not take voter fraud seriously.

    If you are fine punishing speakers for speech, then by all means get behind this. It will most likely be the end of the Republic, but guess that doesn’t matter as long as we finally “Get Trump”…

    1. “Keep in mind people that the House is trying to impeach the President because he gave a speech that was well received by activists. Then, in a carnival like atmosphere a few of those activists engaged in most peaceful protests which involved the short term sit in by a small minority of said activists. There was absolutely no serious attempt to overthrow the government. The end product was a Congress with a lot of egg on their face feeling bad they did not take voter fraud seriously.”

      In an ever-changing, incomprehensible world the masses had reached the point where they would, at the same time, believe everything and nothing, think that everything was possible and nothing was true. … [O]ne could make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism; instead of deserting the leaders who had lied to them, they would protest that they had known all along that the statement was a lie and would admire the leaders for their superior tactical cleverness.

    2. It’s not so much about “Get Trump,” it’s about deterring the next Trump. It’s about getting the boot up on the neck and face of the People ever more effectively. Never, ever again will a true outsider who asks the right questions get elected as President if they can help it. In the already-small universe of potential populist presidents, most of them won’t have billions of dollars to fall back on, which makes it very difficult and they need to be convinced that they’ll likely end up not just broke but in jail, which is true.

      On the other hand, it is of course “Get Trump” in the eyes of the whipped-up, useful idiot Democrat voter base.

      1. ” In the already-small universe of potential populist presidents, most of them won’t have billions of dollars to fall back on”

        Neither did this one. Buy my hat.

      2. “Never, ever again will a true outsider who asks the right questions get elected as President if they can help it.”

        What exactly where the “right questions” that the President asked?

        1. “How can I make some bucks off these suckers?”

      3. “It’s not so much about ‘Get Trump,’ it’s about deterring the next Trump.”

        Indeed. The next time we get some buffoonish oaf in the Presidency, they won’t be thinking they can do whatever the hell they want even after the voters have decided they’re done with him.
        We elected him President, not King, and not Supreme Dictator For Life. He got a little bit confused about this, now he’s being told. They delivered the empty moving boxes to the White House.

    3. “Keep in mind people that the House is trying to impeach the President because he gave a speech that was well received by activists.”

      You misspelled “rioters”.

    4. “If you are fine punishing speakers for speech, then by all means get behind this. ”

      Let’s see. If the speech has the effect desired by the speaker, but not by me, yep. Checks out.

      ” It will most likely be the end of the Republic”

      The lack of punishment for “the election didn’t go as we’d hoped. Let’s cause problems until they give us what we want anyway.” might indeed end the Republic, if we were stupid enough to choose that path.

    5. “If you are fine punishing speakers for speech, then by all means get behind this. It will most likely be the end of the Republic, but guess that doesn’t matter as long as we finally “Get Trump”…”

      I am fine with punishing a President who is attempting to end the Republic, in order to prevent any future President from attempting to end the Republic. The best way to prolong the Republic is to punish people who try to end it. And we can punish President Trump without implicating the speech rights of anyone, except future Presidents who attempt to end the Republic.

      1. No one tried to overthrow the government. It wasn’t even close. What happened was a simple activist event featuring civil disobedience. That is all.

        1. I’m not talking about a bunch of nerds LARPing unsuccessful revolutionaries in the Capitol. I’m talking about the President. Do you or don’t you think President Trump tried to have the election results overturned so that he would win instead of the person who won the election?

        2. “No one tried to overthrow the government.”

          Except for the ones trying to overthrow the government.

          “It wasn’t even close.”

          True of so many of Donnie’s endeavors.

          If (gasp) Donnie’s a private citizen, he can be sued in an American court, which means (uh-oh) his creditors can try to attach his assets in court. Once they take his $400 million in actual assets, he won’t be able to pretend to be a billionaire any more. Licensing of the Trump brand will plummet. AND he still has an unresolved current tax case

  36. Trump is always guilty until proven innocent. His speeches pales in comparison with those of Democrats who actually incite violence against whites and Trump supporters. Hypocrite.

    1. “Trump is always guilty until proven innocent.”

      That’s a good default assumption. It beats out “there’s a huge conspiracy against Donald Trump” on Occam’s Razor.

  37. The idea that this has anything to do with “healing” and not petulant revenge is risible.

    But “with malice toward none” has never been part of the ethos of the Democrat party. It’s credo has always been closer to “forget nothing, learn nothing.”

    1. “The idea that this has anything to do with “healing” and not petulant revenge is risible. ”

      Perhaps he should have conducted his business in such a way as to not provoke anyone to petulant revenge.
      the old saying “Be careful of the toes you stop on today, they may be connected to the asses you have to kiss tomorrow” wasn’t part of the Ivy League education Mr. Trump received, apparently.

  38. As comment #320, this is whistling into the wind, but this post is simply wrong. Arguing that there is no life, liberty or property interests at stake because the process is constitutionally sanctioned ignores that (1) rights are recognized by the Federal Constitution, not bestowed by them; (2) every process of depriving people of rights operates under constitutional procedures; (3) since the deposition of Richard II, the Anglo-American law has recognized that common law protections obtain in the procedures in the Upper Chamber.

    Common law protections were sought in Magna Carta because too often, justice was relegated to summary or invented procedure, Saxon procedures of trial by combat or compurgation or the ordeal, or simply arcane administrative procedures. The barons won the concession that if the king were to try them (and by implication, vice versa), there would have to be a trial at court.

    If the Senate invokes summary procedures here, it would amount to the highest court in the nation’s deprecation of the common law. Impeachment is political, but trial requires objective judgment by persons whose objectivity could not reasonably be questioned.

    Or, perhaps, this:
    https://youtu.be/RcIV5tU_Zik?t=899

    Mr. D.

    1. “Impeachment is political, but trial requires objective judgment by persons whose objectivity could not reasonably be questioned.”

      This is why the Constitution vests the decision in people who are not objective. The Constitution didn’t want a trial. This was too important. It needed to be decided by the people’s representatives.

      1. Right — the impeachment is decided by the people’s representatives. The trial, though, is conducted by the Senate, a body in continuous session at some distance from Madisonian faction and populist democracy.

        In England after the Conquest, it was initially thought that a king’s laws didn’t survive him unless they were made in concert with the magnates and great council, which afforded a continuity to the lawmaking. (This idea didn’t last, but it’s revealing.) In the American system, the trial that removes a President is conducted by the most august body in the state, and is presided over by the chief justice of the state. The Senate sits as a court, as the continuous authority that transcends individual Congresses. And they conduct a trial, one in which the common law protections are given to the accused.

        Mr. D.

        1. Thanks for the gibberish.

      2. “‘Impeachment is political, but trial requires objective judgment by persons whose objectivity could not reasonably be questioned.’
        This is why the Constitution vests the decision in people who are not objective. The Constitution didn’t want a trial. This was too important. It needed to be decided by the people’s representatives.”

        Impeachment and conviction are the method for removing executive power from a failed executive. Criminal trial is the method for punishing a person for criminal wrongdoing. You get both shows, potentially, for a President who is committing crimes. First, you strip away the executive power, then you drop the full weight of the law enforcement system on the bastard. Once the executive power has been stripped away, you can try the guy just like any other accused criminal. BEFORE you strip away the executive power, you cannot.

    2. I disagree. The common law precedents you cite all involved consequences qualitatively different than the consequences that would follow Trump’s impeachment (removal from office ONLY), and are not on point. If 2/3 of the Senate believes, as I do, that he is a menace to the nation while he wields presidential power, and that he sat by, watching television, while armed rioters stormed the Capitol in an attempt to overturn the certified election results, I don’t think that 14th Century procedure forbids them from doing so. POTUS is not a king or a baron – removing him from office in order to keep the country safe does not impose ANY civil or criminal disability on the president, and I see no reason why due process requires a full-blown trial.

      1. ” POTUS is not a king or a baron – removing him from office in order to keep the country safe does not impose ANY civil or criminal disability on the president, and I see no reason why due process requires a full-blown trial.”

        Once he is no longer President, he can be called to account for his crimes. That process, requires a full-blown trial. But that process still can’t start until Thursday morning.

    3. ” this is whistling into the wind, but this post is simply wrong.”

      And yet you went to the trouble of typing it all in.

      “(1) rights are recognized by the Federal Constitution, not bestowed by them; (2) every process of depriving people of rights operates under constitutional procedures”

      Somebody needs to take the time to explain to you the true nature of rights. You have exactly those rights that someone else is prepared to extend to you, and nothing more. When the mugger catches up to you outside the ATM and demands your wallet or your life, you can try impressing on him the nature of your right to retain your property as well as your right to life, but neither right is likely to prevail and he’s going home with what used to be your wallet. If you go home without your wallet, count that as a win. the other alternative was you lying in the street, sans wallet AND sans life.

      You can easily disprove your point #2 by reaching for a firearm after being pulled over for driving while black.

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