Further Rejoinder on Why the First Amendment Does not Constrain Impeachment and Removal of Presidents

A further rejoinder to Josh Blackman and Seth Tillman.


In their latest post on the subject of impeachment and the First Amendment, Josh Blackman and Seth Tillman somewhat belatedly acknowledge the Supreme Court's longstanding jurisprudence on the free speech rights of government employees. As numerous critics of their earlier posts have pointed out (e.g. - Jonathan Adler, Andrew Koppelman, and myself), the First Amendment  does not protect senior government employees in policy-making positions from being removed from their positions. Indeed, such officials get fired because of their speech on a regular basis - including by Donald Trump himself!

To their credit, Blackman and Tillman acknowledge this, and do not claim that high-level government officials have any general constitutional right against being removed for their speech. But they claim that presidents are different from appointed officials because the latter are subordinates of the president, while the president himself has no superiors, except for the voters during an election year:

Senior appointed policy-making executive branch officers are removable by the President. If they lose the confidence of the President, for whatever reason, even for otherwise lawful speech, he can remove them. Absent constitutionally valid congressional tenure protections, these positions are at will….

The President's relationship to his subordinate executive branch officers is one of a superior to inferiors. The President is elected; the senior officers are appointed. The President can nominate his senior officers. He can direct them. Generally, he can remove them at will….

By contrast, the President is not a cabinet member, who works for a superior—other than the People who act through elections. Nor is the President a GS-15 who can be disciplined for speaking at a political rally. Treating the President as an appointed officer or a civil servant would eliminate the President's ability to act like a politician and party leader.

Blackmand Tillman go on to argue that Congress is not the president's "superior" and therefore doesn't have the power to remove presidents for their speech, in the way that the president himself can remove his own high-ranking executive branch subordinates.

The problem with the Blackman-Tillman theory is that they overlook the reality that one branch of government can remove members of another even if they are not otherwise the superiors of the latter. The whole point of impeachment is to give Congress the power to remove legislative and judicial officials who abuse their power, commit crimes, or otherwise create a menace to the political system. Congress can also, if it wishes, bar such officials from holding office in the future.

While, as Blackman and Tillman note, "the people" are the ultimate superiors of the president, they also cannot remove the president between elections, even if he severely abuses his power, and they also cannot sanction him for crimes and abuses perpetrated during the "lame duck" period after an election (as in the case of Trump). Impeachment is intended to fill this gap in the constitutional structure. To put it in Blackman and Tillman's terms, Congress is indeed the president's superior for the limited purpose of removing him and barring him from future office-holding in response to certain types of illegal or abusive activity on his part. That is perfectly consistent with their not being his superior in various other ways. In a complex system of checks and balances like that established by the Constitution, it is often the case that one branch of government can constrain another with respect to some matters, but not others.

As I pointed out in my first post in this exchange, exempting the president from impeachment for speech acts that are protected from criminal and civil sanctions under the First Amendment would have absurd and dangerous consequences. Nothing in the text, original meaning, and history of the clauses of the Constitution governing impeachment mandates such an exception to the impeachment power.

The Blackman-Tillman approach would also have the dubious consequence of enabling Congress to impeach lower-level officials for various kinds of speech, but barring them from impeaching the president when he engages in the exact same conduct; this, despite the fact that the impeachment standard for both is actually the same: they can all be impeached, removed, and barred from office-holding in the future if they commit "high crimes and misdemeanors."

As for the argument that impeachment for speech acts would create a dangerous slippery slope preventing the president from functioning as a politician and party leader, I preemptively addressed it here:

[S]lippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.

The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president's own party vote to convict him….

Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified.  But the threat of impeachment for abuse of power can at least help at the margin.


Finally, Blackman and Tillman again cite the precedent of some senators raising the First Amendment as a defense for President Andrew Johnson during his impeachment trial in 1868. I am happy to rest on the points I made against that argument in my previous post in this exchange. For those interested, that piece also contains links to the earlier posts in our debate, as well as commentary by others.

NEXT: Why do different positions in the government receive different types of free speech rights?

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  1. "The problem with the Blackman-Tillman theory is that they overlook the reality that one branch of government can remove members of another even if they are not otherwise the superiors of the latter."

    Ummm, no.

    The people can remove the President -- but for the fact that the election was rigged, they did.

    This is NOT a parliamentary system of government where the legislature can remove the Prime Minister and call for new elections. And Trump can't remove Nancy Pelosi for the same reason.

    Impeachment was intended for extreme circumstances, like Article 5 Convention of the States -- and for 230 years, that worked....

    1. keep pretending the election was rigged, it helps sort out the stupid

      seriously fact free entertainment

      1. Republicans should begin imitating the neo-Marxists to prevent our becoming a permanent one party state as are Cuba, Venezuela, China, and California.

        At 3 AM, after the adverse results are known, back up the trucks with the unfolded ballots still warm from the printers, with only the Presidential choice marked. Force poll watchers to go home. Keep them 100 feet away.

        1. I'm just waiting for the rural counties that have maybe 5000 registered voters to start turning in 50,000- 100,000 vote returns.

          And the response being "well, we have bigger ballot boxes, they hold more..."

          1. If any Democrat squeals the election is stolen, scream racist voter suppression. It works in California, now a permanent one party state, like Cuba, Venezuela, and China.

    2. "Impeachment was intended for extreme circumstances"

      Like responding to an election loss with an unprecedented months long campaign of tossing one after another of patently silly, hyperbole filled allegations about a 'rigged' election and trying to put into action several plots to thwart the results of that election from being confirmed?

      1. What if YOU thought the election was rigged?

        1. What's the purpose of that hypothetical? No sane person thought that. There's not one scintilla of evidence for it. As the courts kept saying in response to months of such claims.

          So if your argument is that Trump is mentally ill — well, actually, it's hard to argue with that. But I don't think it's really a good argument against impeachment.

          1. Turnout exceeding 100% has been happening since 2012.

            1. No, it hasn't. You've been buying lies. Or at the very least passing them on.

              1. No, it has happened in small precincts on occasion, not on any large scale. Generally explained by last minute registrations or address changes.

                It's always in need of serious investigation, though, when it does happen, because anomalously high turnouts are one of the possible consequences of some kinds of election fraud.

                1. So it's true but not in any way relevant.

                  That's still a lie in my book.

                  1. There's a huge amount of disinformation flying about on the internet. In fact, there's a whole industry devoted to manufacturing it. That's why I try to be extremely skeptical when each new claim comes along. Like working out whether Benford's law really applied to voting numbers. (It doesn't.)

                    I'm a bit disappointed when people buy into something without subjecting it to critical analysis. Ed does this a lot, sadly.

                    But don't think this is solely the province of the right. If anything, it might be worse on the left, because you've got the media gladly amplifying it, and lending it credibility.

                    For instance, how many left-wingers think Trump really dissed the troops in Germany, despite everyone who was present going on record to say it was a lie? Or think he called white supremacists and neo-Nazis "fine people" in Charlottesville? Gross lies, but they're believed.

                    You've got your Eds, Sarcastro, we read their comments every day here. So show some understanding.

                    1. I'm curious how "Trump officials deny on the record that they heard him say something" somehow proves that Trump didn't say that thing.

                      As for the Charlottesville thing, no sale. He called white supremacists and neo-Nazis fine people. That doesn't rely on the media; that relies on his own words. He started by bothsidesing Nazis, condemning the "egregious display of hatred, bigotry and violence on many sides, on many sides."

                      After a backlash, the next day he said, "Excuse me, they didn’t put themselves down as neo — and you had some very bad people in that group. But you also had people that were very fine people on both sides. You had people in that group – excuse me, excuse me. I saw the same pictures as you did. You had people in that group that were there to protest the taking down, of to them, a very, very important statue and the renaming of a park from Robert E. Lee to another name."

                      Did he then add, "and I’m not talking about the neo-Nazis and the white nationalists, because they should be condemned totally"? Yes, he did. Does that mean that he didn't say that there were fine people on both sides? No, it doesn't. And since the only people at that rally were Nazis, all that means is that he contradicted himself, not that he didn't call Nazis fine people.

                      Did he later try to retcon his comments to claim that he was talking about people on both sides of the nation's statue debate? Yes. But the actual words he said at the time were about the rally. "I saw the same pictures as you did." (He later in the speech said, "There were people in that rally, and I looked the night before. If you look, they were people protesting very quietly the taking down of the statue of Robert E. Lee.") And the only pictures that he saw the night before were of the neo-Nazis in the infamous tiki torch "Jews will not replace us" march.

                      There was no separate group of very fine pro-Robert-E-Lee-but-not-white-supremacist statuary protesters at the rally in Charlottesville. There were Nazis and counterprotestors. That's it.

                    2. David, cut the crap. He clearly said that the people protesting the removal of the Confederate statues were fine people. Not the neo-Nazis.

                    3. David, cut the crap. He clearly said that the people protesting the removal of the Confederate statues were fine people. Not the neo-Nazis.

                      The people protesting the removal of the statue were neo-Nazis. (Like, you know, you.)

    3. It says right there in the Constitution that the legislature can remove the president. The check on it is the 2/3 requirement and pressure from the people. But it’s solely up to Congress whether he should go or not.

      And the illegitimate election stuff if way past the point of ridiculous.

      1. I really have a hard time engaging with calls for unity while that nonsense remains out there and endorsed by a nontrivial segment of the GOP in Congress.

        1. Exactly, along with the fact that HALF of the impeachments in the 232 year history of our Constitution have occurred in the past 13 months. Ummm....

          1. Half of the *presidential* impeachments, you mean?

            Well, that might give you some food for thought. I'm not sure what's so absurd about the idea that Trump was a uniquely aweful president who was uniquely prone to doing impeachable things. In fact, I think he clearly got impeached for only a fraction of the things he could have been impeached for, because pragmatic considerations also play a role.

            1. The move to impeach him started 5 years ago.

              1. Technically, 4 years and a few weeks; Nadler waited until February 10th to file the motion to begin an impeachment inquiry. Before that it was just talk.

                1. Nope. It was not a motion "to begin an impeachment inquiry." (The word impeachment is nowhere in there.) It was a resolution asking the A.G. to turn over certain documents to the House.

                  Also, how did this resolution perform in Congress?

        2. S0,
          No unity can happen without good will and there is precious little of that on either side.

          1. Eh, we've had a lack of good will off and on in this country since it's founding.

            It's the excursion from reality that's driving it, and that is being enabled by GOP top brass. That needs to end.

          2. Senator Romney said it best. The problem is that a lot of people are being told things that are not true. You are not doing those people any favors by lying to them. That's true on the left and the right, but the solution is not to both sides things. Instead, the solution is to stop telling people things that are not true.

          3. You know what, Don?

            You can't expect "unity" when a big chunk of the Republican Party won't accept that Biden won the election legally, legitimately, honestly, despite the fact that there is no evidence otherwise.

            You can't expect unity when many of the party's leaders, including, notably, Trump, continue to refuse to acknowledge that, and instead want to spread more lies about fraud, and Hugo Chavez, and Dominion, and who knows what else - to the point they encouraged a mob to help them, and .

            They tried to intimidate Pence first, of course. It's good he didn't go along, but you know, he actually consulted Luttig as to whether he could or not. IOW, he wanted to subvert the election - there is no other word for it - as did Cruz, Hawley, etc.

            So here's my response to the assholes like Graham and others calling for "unity." Show some unity yourself. Show some integrity. Stand up and tell your people that the election was fair and legitimate, that Trump is full of shit, and that it's well past time to face that. Until they do that they can shove their appeals up their collective ass.

            And as for the Republicans who accept reality, I'd encourage them to try to convince their colleagues, and if they can't then maybe it's time to desert the party and seek their political fortunes via different paths.

  2. Congress has the power of removal, it make Congress, in that instance, superior to the President

    The Supreme court can rule laws unconstitutional, making them, in certain circumstances, superior

    Pretending this is not so is foolishness

    Russia please bomb New Yok now!

    I will pardon anyone who kills Negros this weekend

    Things A private citizen can say, that are impeachable offenses

    1. While the Supreme Court has said they are the supreme branch, the Congress can impeach and fire every single member of it, and every other Federal Court.
      The Congress can also impeach every Presidential Appointee, and fire them, including the entire cabinet and everyone else the President has appointed.
      If there is any branch that is supreme, it is Congress, when it gets itself together. Being a being with 535 heads, that is an unlikely prospect in the best of times, at present, it is even less so.

      1. That's why they get Article I.

    2. Trump did not say those things. He said, protest the cheaters.

    3. "I will pardon anyone who kills Negros this weekend"

      "I will [give something of value to] anyone who kills Negros this weekend"

      I don't think that's permissible speech...

  3. Blackman and Tillman's arguments are, as Somin and others have pointed out, almost embarrassingly poor.

    Supporters of the Cult leader would just do better to say he lost and suddenly now he's going to go away so impeachment is not a warranted step. Of course, it's hard for many of them (not Blackman and Tillman though) because they're so invested in the months long efforts to deny he lost and the undemocratic schemes he pushed to upend it.

    1. Blackman and Tillman’s arguments are, as Somin and others have pointed out, almost embarrassingly poor.

      I mean, that doesn't really narrow down the topic.

  4. To someone like me who is not of either side, you look like every bit the stupid partisan hack as Ed is. That should make you feel dumber than a fence post, but since you are you won’t.

    1. Fenceposts are way smarter than I am.. 🙂

    2. If you read the OP and think prof. Somin is a "stupid partisan hack", that says more about you than about prof. Somin. Just because you called Ed a partisan hack in the same breath, doesn't mean you aren't one yourself.

  5. I think Ilya has come down on the side that he thinks Trump should be....what the fuck can you even call it? Removed? Nope. Beats me.

    Anyway, Ilya is playing his cards close to the best but reading the body lean I think he wants Trump gone. Wait. He will be gone. Gone squared?

    And you probably ought to go back and do Nixon too. He did bad shit and we never sent the message that we wouldn’t put up with it.

    1. Nixon resigned, no President has ever done the same. So it can be argued impeaching him after the fact wouldn't have been as important.

      1. No. He made the choice.

        WE must make the statement that similar behavior will not be tolerated. Nixon has to go.

        1. Pretending like a President resigning wasn't and isn't something I'm going to base my views on this current controversy on but YMMV.

          1. wasn’t and isn’t a big deal isn't

      2. Nixon ought to have fought it and cleaned out a lot of corrupt Dems in the process.

        1. Nixon wasn't going to clean anybody out. They had him dead to rights, he should have been thankful they let him resign instead of being impeached.

          It was a stupid thing to do, having the opposition headquarters broken into, even if he did think it would uncover shady dealings.

          I was seriously pissed when Ford pardoned him.

    2. Ilya wants to send Trump to the Gulag.

    3. Nixon should have been impeached after Ford pardoned him, if only for the symbolic value of barring him from future office.

  6. The standard is 'high crimes and misdemeanours'. When Congress says that something is a crime (or misdemeanour) they have to do so subject to the First Amendment. When someone fires a subordinate due to dissatisfaction with his job performance they don't. Why is it not that simple?

    1. Because the term you point to was not meant to limit it to things in the criminal code.

      1. But the 1st Amd was intended to limit the Article I powers of Congress, so why not this power too?

        1. Make no law.

          Impeachment isn't a law. You can tell because it doesn't need to be presented to the President.

          1. The 1st amendment has long been interpreted to extend to actions that don't involve the presentiment clause, so don't over-state your case. I agree the 1st amendment doesn't protect him here, because impeachment is an unreviewable exercise of raw political power.

            In any case other than impeachment, the fact that they hadn't technically passed a law wouldn't mean that much. For instance, that FB and Twitter deplatformed Trump after being pressured to do so by members of Congress does start to have 1st amendment implications.

            1. "For instance, that FB and Twitter deplatformed Trump after being pressured to do so by members of Congress does start to have 1st amendment implications."

              "does start to have 1st amendment implications"? Ok, don't leave us hanging. What sorts of "implications"?

              1. Oh, there have been plenty of cases where the courts have said private actors can't abridge speech, if they are pressured by government officials.

                Take the case of local officials threatening to change the local government publisher, if they also publish ads for opposing candidates. The local candidate could sue both the publisher and the local officials if they can provide evidence of the collusion.

                1. "Oh, there have been plenty of cases where the courts have said private actors can’t abridge speech, if they are pressured by government officials."

                  Ok, provide me the citations to some of the cases you have in mind.

                  "Take the case of local officials threatening to change the local government publisher, if they also publish ads for opposing candidates."

                  I can't tell if you're treating this like an actual case or a hypothetical. If it's an actual case, I'm interested in the cite. If it's a hypothetical, it's not entirely apples to apples since it involves a government contractor limiting speech as a government contractor. (Twitter and FB run their platforms privately, not at the behest of any governmental entity.) It also involves the government limiting speech, as opposed to a wholly private platform limiting speech. You threw out "collusion" to complicate things, but sure, if you think the manner in which Congress "pressured" private companies amounts to "collusion", maybe you can make some hay with it. To the extent the "collusion" involves speech or debate on the floors of Congress, you're going to have a hard time overcoming Art. I, Sec. 6.

            2. In any case other than impeachment, the fact that they hadn’t technically passed a law wouldn’t mean that much.

              Nope. You're an absurd results formalist every other time on this blog. You don't get to take refuge in functionalism now. I take that blatant double standard as an admission you've got nothing.

              1. You aren't really asserting that he's not right about that are you? Just that he's not allowed to make that argument?

                Of course he is right, take the absurd 1st amendment decision over Trump's Twitter account, which of course was not a law or even a regulation. Which looks even more ridiculous now that Twitter has banned Trump.

                1. I'm asserting Brett is making arguments Brett would not make.

                  As to the substance of the argument, what exercises of the legislative power that are not laws are you thinking of?

                  As to your Twitter example, the decision was about Trump's actions. He made his account a conduit for government policy, not Twitter. And he needs to act accordingly; he cannot bind Twitter.

                  It's a silly little decision without much real-world effect but with amusing academic hypotheticals. It's certainly not relevant to Brett's kind fascistic argument that Twitter is bound by the 1A.

  7. Though people often say it, we do not actually have co-equal branches under the Constitution. We have a mild case of legislative supremacy. (Somewhat muted by legislative indolence.)

    So I don't find the "not a subordinate" argument persuasive, while technically not a subordinate as such, the President IS to some degree inferior to Congress as a whole when exercising its full powers. Vetoes can be overridden, Presidents and judges impeached.

    The real reason Trump should not be impeached is factual innocence. He simply did NOT incite that attack in any meaningful sense. He no more incited that attack than Bernie Sanders incited the House baseball shooting, and to a far lesser degree than many Democratic politicians incited the riots of last summer, which were far more violent.

    But enough House members didn't care and impeached him, and if enough Senator don't care, he will be convicted. That it would be an act of raw political power, not justice, doesn't matter: They do have that power.

    1. The Article of Impeachment is not just about Trump's single speech that day absent the context of his month's long campaign to reverse the election results.

      1. Yes, I'm aware that they're pretending that challenging the election results, not just that anodyne speech, was meaningfully incitement of that attack. That's why I compared the case to Bernie and the attack on the House baseball team. Saying bad things about somebody, even really bad things, is not meaningfully incitement, or else there are a LOT of current office holders who desperately need removal from office. A lot more than Trump does, for sure.

        1. It wasn't bad things about somebody, it was consistent bad things about the most important aspect of our democracy. It was recklessly done.

          1. Remember, you're a pretty extreme guy in your views. And yet you yourself said here that election challenges should have stopped when the state electors cast their vote. Well, Trump, who is the sitting President (that kind of person has a duty not to be *more extreme* than someone like yourself) kept it up for a month after that. And he didn't just keep it up, his charges and allegations and strong arming got not only more embarrassingly silly but also more directly challenging the basic aspects of a main feature of our democracy. What he did was entirely unprecedented, nothing comes close.

          2. Recklessly? Knowingly and intentionally, I think you mean. (Aside from that quibble, yes, well said.)

        2. Brett Bellmore : "....I’m aware that they’re pretending that challenging the election results...."

          You can tell this is the issue Brett is running from. His insistence the other side brings it up only as a "pretense" is so obviously weaseling.

          No, Brett, we are not "pretending" to be outraged by Trump's two month campaign to sabotage the presidential election he lost. We are not pretending anger over a systematic campaign of lying incendiary propaganda reminiscent of Soviet Russia. We are not pretending to be upset about Trump pressuring state officials to alter vote numbers. We are not pretending anger over Trump's grotesque demand of Pence. It's you who are pretending. Every time you pretend this is just about a handful of words spoken at a rally it's a lie.

          We get it : Brett Bellmore thinks he can defend Trump as long as it's restricted to only that. If the rest of DJT's campaign to subvert democracy is walled-off from that short speech, you're able to cover for him without losing too much more dignity.

          Brett doesn't miss the forest for the trees; he misses the forest for a single grain of sand at the foot of one tree. That's what it takes to defend Trump here. Almost everything has to be ignored to pull it off....

          1. I know the outrage isn't pretended.

            As I keep bringing up, a solid majority of Democrats have favored Trump's impeachment from the first poll I've found, weeks after he took office. Democrats started talking about impeaching him even before the election!

            So the outrage is real. What is isn't, is a response to events. Events just serve as excuses to seize upon.

            1. Events just serve as excuses to seize upon.

              Telepathy again.

            2. "What is isn’t, is a response to events. Events just serve as excuses to seize upon."

              Yes, as the facts development, the willingness to impeach increases. Which is why this impeachment, as an example, was bipartisan.

              1. Yes; this is a bizarre (though not new) line of argument from Brett (and not just Brett).

                They wished all along that they could impeach Trump. But they didn't do it; they waited until there was a strong argument in favor of impeachment. And this somehow proves… that the argument isn't strong?

          2. Look, I'm not saying I like everything he's done, I thought he should have conceded on 12/14, when the electoral college voted. I don't blame him for being mad at losing under these circumstances, but you have to know when to stop and move on.

            I'm saying that, if this is the bar for impeachment, there are a lot of people who need to be removed from office.

            I know you're violently allergic to context and single standards, but the House baseball team got shot up by one of Bernie's supporters. Did you blame that on Sanders? He does say uncomplimentary things about Republicans, you know, and speech has consequences, is he not responsible for them?

            Cities were burning last summer, Republicans were being attacked in public, and it didn't happen without a fair degree of Democratic officeholder incitement, often much more direct than anything you can honestly claim Trump did. Do none of those Democrats need to be taken out of office?

            Pick one standard, and stick to it.

            1. Your comparison, once again, shows how different Trump's actions are.

              The close connection both temporally and in theme between Trump's speech and the insurrectionist actions, in addition to Trump's follow-on actions bear zero resemblance to anything Bernie has ever done.

              Democratic officeholder incitement, often much more direct than anything you can honestly claim Trump did
              This remains bullshit.

              1. "The close connection both temporally and in theme between Trump’s speech and the insurrectionist actions, "

                Yes, he said to go protest peacefully in close proximity to people who'd preplanned violence getting violent. How incriminating!

                "in addition to Trump’s follow-on actions bear zero resemblance to anything Bernie has ever done."

                Oh, you mean the tweet telling the protesters to be peaceful and go home, that Twitter took down as incitement? Or maybe you're referring to those anonymously sourced fantasies about him giggling over the Senate being invaded?

                "This remains bullshit."

                You're so deep in denial you're risking nitrogen narcosis if the crocodiles don't get you. Democratic politicians didn't just incite violence last year, they aided and abetted it, provided material support.

                It wasn't just inaction, ordering police to stand by as the rioters rampaged. In Portland the local government actually supplied the criminals occupying the "autonomous zone" with materials to build illegal barriers.

                1. "Oh, you mean the tweet telling the protesters to be peaceful and go home..."

                  I think he meant more what is it you think Bernie Sanders did, exactly, to promote the baseball assassination? I'm prepared to believe that Bernie Sanders should be impeached (or at least not seriously considered for the Presidency), and that others may be similarly situated. Let's hear your case.

                  1. Nothing materially different from what Trump did,is my answer. He talked in a fashion which inspired violence by almost but not precisely zero people. Called Republicans "the party of death", maybe you recall? Among other things.

                    The shooter was literally one of his campaign workers.

                    That's a weak case for imposing consequences on Sanders, but it's roughly comparable to the case for Trump.

                    For Democratic mayors of cities where the rioting took place, (IS taking place still!) the connection is more direct. They've not just used inflamatory rhetoric, and stuck with it after the riots started, they ordered the police to let the rioters commit crimes without arrest, and even supplied material assistance used in criminal acts. Now we're getting into impose consequences territory, but none of them have been brought up on incitement or conspiracy charges, either.

                    1. "He talked in a fashion which inspired violence by almost but not precisely zero people."

                      How can I evaluate if his speech is identical (or not "materially different") than the weeks of speech the President engaged in, if you won't tell me what it is Bernie Sanders said that you found objectionable in the first place? I can't find the Bernie Sanders quote "party of death" but if you link it, along with the "Among other things" you found scary, I'll consider your argument.

                      Which mayors said and did what, specifically? I think you'll find me relatively easy to persuade that mayors of some uber liberal city deserve censure for being asleep at the wheel or worse. But I need you to show me specifically what you think they did but shouldn't have done, or what they should have done but didn't.

                2. It took him 50 minutes to write that single tweet, Brett.

                  Why are you an enemy of the constitution? Why debase yourself for a tv host?

                3. "Yes, he said to go protest peacefully in close proximity to people who’d preplanned violence getting violent. How incriminating!"

                  Disingenuous hack.

            2. Brett Bellmore : "Democratic officeholder incitement, often much more direct than anything you can honestly claim Trump did"

              Oh? Did those Democratic officeholder try to subvert an election? Did they attack the very foundation of democracy itself - elections and the peace transfer of government power? You're so full of shit, Brett. You cling to a handful of words in the park and ignore the 500lb gorilla of Trump's actions these past two months. You ignore a pattern of words and actions that are a corrosive assault on the core principle of our constitutional system. It seems all your supposed reverence for the rule of law & constitutional limits means nothing if your cult god is determined to sabotage the election he lost.

    2. Brett Bellmore : The real reason Trump should not be impeached is factual innocence.

      I find this a good description why Trump should be impeached. Jason Lee Steorts, at the National Review :

      “Trump has made a sustained effort to shred our nation’s lawful and established mechanisms for selecting a president and transferring power. He has manipulated millions of voters and radicalized an unknowable number of them with his endless, lying claims of widespread election fraud. He has tried to badger and threaten Georgia election officials into committing election fraud. And all of this, culminating in his January 6 speech to the crowd that became an insurrectionist mob, knowably undermined confidence in the election and raised the possibility of political violence”

      “Trump’s misdeeds have made a formerly unthinkable disregard for the Constitution something real at the highest level of our politics. They did not enable him to seize power, but who is to say that future conditions will not allow another president to use such tactics more successfully? It’s shocking how much of our public life Trump’s failed effort at election-stealing has managed to corrupt. Would you have thought, six months ago, that more than half of the House Republican caucus, including its leader, would object to congressional certification of the Electoral College vote on no factual basis whatever, as if it were their duty to entrench the delusions of their constituents rather than tell the truth to them? Would you have predicted that a former national-security adviser and retired lieutenant general would call for declaring martial law, having the military seize voting machines, and rerunning the election? And if that happened this time, what might happen next?

      Trump laid down an arrow that, if followed, would lead to tyranny. Impeaching and disqualifying him would be the best way to reverse that arrow”

      1. I've said this before: It isn't difficult to identify a case for impeaching Trump that persuades people who already wanted him gone.

        But the measure of an argument isn't whether people who started out agreeing with you still do after hearing the argument. It's the extent to which you can change minds.

        In January 2016 NR ran a special issue, "Against Trump". Last October.

        The place is a nest of NeverTrumpers, they ranged from "Hang him high!" to barely tolerating him, and that started during the primaries.

        Don't expect anybody to be impressed that you persuaded somebody at National Review.

        1. I notice that you did not, and never do, address the complaint of Trump that he attacks a cornerstone of our deomcratic republic: transfer of power through elections.

          Calling people "Never-Trumpers" is not an argument. It is an admission that you are an intellectually lazy, self centered, anti-constitutionalist that has about as much regard for western enlightenment values as a Russian peasant pining for a strongman leader in 1917.

          1. I don't address it because it's silly.

            He wasn't attacking transfer of power through elections. He was contesting who won the election.

            Long after any reasonable person would have realized it was time to stop, yes. But reasonable people don't wake up one morning and think, "My first venture into politics should be running for President."

            At a stage that should be purely ministerial, yes, and I'm not very happy about that, though it wouldn't be the first ministerial action that's been corrupted into a policy making opportunity. And at a stage where Democrats have, three, count 'em, three times, tried to reverse election outcomes themselves.

            Was that outrageous enough that they thought the members who did it should be sanctioned? Nope. So why should Trump be sanctioned for just asking Republicans to do what Democrats thought was OK to do?

            Still, no excuse, he should have stopped on the 14th. And I don't like this trend: 2 House members in 2001. 31 House members and 1 Senator in 2005. I think it was 10 House members in 2017. Last week, 138 House members and 7 Senators.

            Four years from now? Probably going to be really ugly if it's a close election, but let's get this straight: Democrats started this crap, Trump's sin is that he wasn't better than them.

            1. You are ridiculous.

              Tell me which democrat ever lost 62 election court challenges, and insisted without evidence that there was a massive fraud including 90 judges, GOP politicians, and 10,000's of individuals?

              Tell me which democrat spoke to a crowd of people who then committed sedition en masse?

              Tell me which democrat then watched the mob credibly threaten the lives number 2 and number 3 in succession from his bedroom window, and failed to even send out a mild tweet for almost an hour?

              1. How could there be evidence when the Democrat machine made it impossible for there to be any?

                1. How convenient and perfectly circular your logic is!

            2. He wasn’t attacking transfer of power through elections. He was contesting who won the election.

              No. He wasn't. In fact, the crazies of the Kraken litigation have a better claim to that than he does. Powell, Wood, et al. were arguing that Trump votes were switched to Biden via a conspiracy led by dead Hugo Chavez — so, insane, but actually claiming that Trump won.

              Trump, in contrast, was arguing that the election results should be thrown out and he should just be declared the winner.

            3. At a stage that should be purely ministerial, yes, and I’m not very happy about that, though it wouldn’t be the first ministerial action that’s been corrupted into a policy making opportunity. And at a stage where Democrats have, three, count ’em, three times, tried to reverse election outcomes themselves.

              No. Those were protest votes. Stupid and inappropriate ones, but just protests. We know that because (a) they said so, and (b) the Democratic presidential candidates themselves did not support those efforts. The candidates had already conceded, were not yelling that the elections had been stolen, were not firing up a mob to storm the capitol.

        2. Brett Bellmore : Don’t expect anybody to be impressed that you persuaded somebody at National Review.

          You're still running like crazy from the substance of Trump's words and actions over these past two months. Deflection seems to be your only tactic:

          "Trump tried to steal an election" Brett : The words in the park weren't that bad.

          "Trump bullied state election officials" Brett : The words in the park weren't that bad.

          "Trump asked Pence to take an unconstitutional act" Brett : The words in the park weren't that bad.

          "Trump has tried to subvert an election" Brett : A few people wanted to impeach him in '16

          “Trump’s misdeeds have made a formerly unthinkable disregard for the Constitution something real at the highest level of our politics. (Steorts) Brett : The National Review betrayed Trump.

          Why not stop running, Brett? Try to address Steorts' argument above. See if you feel comfortable doing so. I'm guessing you find it easy to abet lying & constitutional sabotage because you always evade the substance thru misdirection. Why not attempt to respond to the argument above? See if you can live with what you have to say.

  8. Hi, Ilya. The Democrats do not want to face Trump in 2024. That is reason for his impeachment. He said nothing wrong. He had no control over anyone inside the Congress. He did not suggest they break in. He suggested they protest.

    All pretextual lawfare should be criminalized, with the penalties of perjury. The lawyers are lying to a tribunal. All nitpicking should be criminalized. All investigations that would not have been started if the official had lost the election should be criminalized. All prosecutions for paper work offenses of political opponents should be criminalized.

    Remember, this proposal is for your benefit. Legal liability replaces endless cycles of violent vengeance. These cycles make life unlivable. Trump is supported by 65 million gun owners of 300 million guns. I pray, legal liability is not replaced by violence. The latter would be justified in formal logic by the lack of legal recoruse for the 72 million supporters of President Trump.

    You refuse to understand the Trump henomenon, and I do not care.

    1. All one needs to know about the Trump henomenon (sic) is that it draws persons like yourself.

    2. This impeachment is not about one speech on Jan 6. It is about:
      Repeatedly, publicly, and loudly lying about voter fraud for over two months.
      Telling his supporters that the election was stolen from him/them
      Pressuring the various legislatures to overturn the will of their voters and give him the election.
      Pressuring the GA SoS to fraudulently fund votes and declare him the winner.
      Pressuring Pence to unconstitutionally throw out EC votes.
      Telling his supporters to gather in DC on Jan 6 and be wild.
      Along with others, inciting a riot on Jan 6.
      After his supporters entered the Capital, not doing anything to stop it.
      All of this adds up to clearly impeachable conduct.

      1. Half the country disagrees with you. Not the Republicans. The independent half.

        Does that not make you question your thinking at all?

        1. Disagrees with what? That he did those things?

          1. “clearly impeachable conduct”.

            1. That is because the Rs over the last four years have argued that almost nothing is impeachable (not helped that the Ds argued that perjury is ok). But from an objective perspective what he did is impeachable.

              1. You didn’t even read what I wrote and you have no idea what an objective perspective looks like here.

                Yes, the Rs have set the bar high as to the impeachable threshold. And the Rs can correctly point out that prominent Ds were talking about impeaching Trump prior to his inauguration. I know it’s shocking, but the Ds and Rs almost seem to have made up their minds regardless of the evidence.

                So you gotta look at the Is. Saw an NPR poll yesterday that said that independents were opposed to impeachment by something like 34% for, 47% against. Those numbers might not be exact, but the difference was double digits.

                You can’t really sustain this with those numbers. You don’t do this without the country firmly behind it. Doesn’t matter how obvious you, a D, think it is. The swing voters are strongly against it. Unless they make a more persuasive case, the Ds are playing with explosives here.

                1. Impeachment is not a plebiscite, and those are all informal polls, we do not have formal polls in this country outside of elections, and we can not base if to impeach or not based on private polls of 1000 people. The Senate has the sole power of conviction or not. And since at lease some of what he did are crimes (pressuring the GA SoS) then it is not even a first amendment issue.

                  1. But pressuring the GA SOS was not an article of impeachment

                2. bevis the lumberjack : "independents were opposed to impeachment by something like 34% for, 47% against"

                  And if there's actual evidence this time, where do you think those numbers go? Let's say the Michigan state legislators testify on Trump's demands when he summoned them to the White House. Or maybe that elections investigations chief for Georgia, who Trump contacted directly, bypassing the state's Secretary of State (the man's boss).

                  Personally I think some of the most effective testimony will be on Trump watching the riot on TV while refusing to take calls from congressional leaders trapped inside the building. Per accounts I read, Trump was initially proud - until he decided the rioters were so low-class they dragged down his brand. DJT's aides had to beg him to do something, and then beg even more to add the word "peaceful" to the inevitable tweet.

                  A good dramatic recounting of that might well bridge some of your independent's gap, bevis. People willing to excuse Trump for the violence might reconsider hearing he cheered the mayhem at first.

                  Of course the holy grail would be testimony by Trump himself. Imagine the befuddled incoherence of the Georgia call, but with a prosecutor on the other end, not a state official just trying to survive an excruciating experience.

                  1. "Personally I think some of the most effective testimony will be on Trump watching the riot on TV"

                    Anonymous account. To get testimony you'd need to find a face to put to the words. Under penalty of perjury.

                    1. Ben Sasse is on the record claiming this too. That's a name.

                    2. OK, that is a name. Get him under oath and you've got something.

                      Got a link to what he actually said? I'm curious.

                    3. Happy to oblige. This was on the Hugh Hewitt radio show.
                      Transcript follows:

                      HH: Now I am curious about the word incite. It has a legal meaning. I know you’re not a lawyer, but incite means to act with the purposeful intention to cause. That’s why I asked you the question I did. Do you think he intended the mob to break into the Congress?

                      BS: You are right that I am not a lawyer, so there probably are 15 sub-definitions of incite. But the President had a rally hours before this happened where he is telling them to go to the Capitol and to go wild. This is a part of a pattern. The guy is addicted to division. This is a deep brokenness in his soul. You and I have talked about it multiple times. Donald Trump is a guy who hurts. And I hurt for him at an anthropological and a human level, but at a level of his oath of office to the Constitution, the duty of the president of the United States is to preserve, protect and defend the Constitution. And the President is addicted to social media and to television, and to division, and he’s been lying to the American people for eight straight weeks and planned it long before. No matter what was happening in any state, he was going to say the election was being stolen, and the people needed to rise up.

                      HH: So Senator…

                      BS: But Wednesday morning, he said repeatedly to go wild when you get to the Capitol. And they went to the Capitol, and well, let’s be clearly, Hugh, there are 30,000 people here. The vast majority of them are honorable, freedom-loving people. The vast majority of them, but not all of them.

                      HH: Do you, I’ve got to land the plane, though, Senator. Do you think he intended for the riot and the occupation, the insurrection to happen?

                      BS: I think Donald Trump wanted there to be massive divisions, and he was telling people there was a path by which he was going to stay in office after January 20th. That was never true. And he wanted chaos on television. I don’t have any idea what was in his heart about what he wanted to happen once they were in the Capitol, but he wanted there to be chaos, and I’m sure you’ve also had conversations with other senior White House officials, as I have.

                      HH: I have.

                      BS: As this was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.

                      HH: That said…

                      BS: That was happening. He was delighted.

                      HH: That’s it. Should he be impeached and removed?

                      BS: I think that there are a lot of questions that we need to get to the bottom of about why the National Guard was not deployed, why was it delayed. So that’s what I’ve been working on last night and this morning. I want to understand more about why the National Guard wasn’t deployed when there had been clear calls for it, and then why that delay happened. So there are more things that I need to understand before I get to a conclusory judgment about that. But I think that the question of was the President derelict in his duty, that’s not an open question. He was.


                    4. "and well, let’s be clearly, Hugh, there are 30,000 people here."

                      OK, that's a bad start, I've seen crowd photos, and that is a gross underestimate.

                      "BS: As this was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was as you had rioters pushing against Capitol Police trying to get into the building.

                      HH: That said…

                      BS: That was happening. He was delighted."

                      OK, you've got one guy. Now what do you need?

                      1) Establish that he was a direct witness, that this is not hearsay.
                      2) He needs to be more specific. What exactly did Trump SAY to give him that impression?
                      3) He needs to be under oath.

                      And then we'll see if other people present agree with him.

                    5. Also note something: You say that Trump was excited watching the "riot", but Sasse is talking about him being excited before the riot. Did you not notice that?

                    6. I’ve seen crowd photos, and that is a gross underestimate.

                      Full circle here.

                      And had rioters pushing against Capitol Police trying to get into the building is part of the riot - there was a concerted attempt to target and bring down the police. You really need to read the journalism being done on what went down.

                3. Is this the poll you were talking about? If not can you provide a link of the one you were thinking about?

      2. You describe no crime, let alone a high crime. You describe partisan politics. You want the loser prosecuted.

        1. DaivdBehar just admitted that the President lost the election! Checkmate.

      3. Trump saying he believes there was election fraud is NOT "lying". To lie one must actually know the truth and then intentionally deceive others to prevent them from knowing it, too. Trump cannot possibly know the truth of how Georgia, or Pennsylvania, or Michigan counted their elections. He is therefore expressing his opinion of what happened.

        So stop right there, do not pass Go, do not collect $200. No political hanging for you. You can't just make up definitions of woTrump saying he believes there was election fraud is NOT "lying". To lie one must actually know the truth and then intentionally deceive others to prevent them from knowing it, too. Trump cannot possibly know the truth of how Georgia, or Pennsylvania, or Michigan counted their elections. He therefore can only be expressing his opinion of what happened.

        So stop right there, do not pass Go, do not collect $200. No political hanging for you. You can't just make up your own definitions of words.

        1. No need to know the truth to lie, which Trump does know anyway. If you assert a thing is as you say without really knowing, then you are lying if it is not as you say, regardless of whether you know.

        2. First, Trump did know the truth. Second, your definition sucks. “DaveM is a child molester” is a lie. It is not “NOT lying” merely because I have no way to know that it’s not true. It’s the fact that I’m making an express assertion with zero evidence that makes it lying.

        3. As Daniel Patrick Moynihan famously said, one is entitled to his own opinion, but not to his own facts. Whether Trump won or lost the election is a matter of objective fact. He lost.

    3. DaivdBehar : The Democrats do not want to face Trump in 2024

      Trump probably won’t run in ’24 and wouldn’t be a factor if he does. That's near certainty and here’s why :

      Leaving the presidency, sitting out of power four years, and then returning to win a party nomination is almost unheard of. For Trump to succeed, he'd need to make a focused & disciplined effort to keep himself a political force. This is more than the noise which comes easy to him. It's beyond the WWE-style entertainment he provides his cult base.

      There's zero chance Trump could pull it off. The man barely had the discipline to appear presidential while in the office, with an army of aides to prod him to his duties. He preferred TV binging to classified briefings; his policy positions changed daily by whim; the hard work of the position infuriated & bored him.

      An ex-president voted out of office always looks like someone whose time has past. This process will occur twice as fast with Trump - and to twice the degree. Trump will appear ludicrous when emerging from long periods of golf & lassitude to rant incoherently. He'll be an irrelevance long before four years passes.

      1. No one in the Republican Party has his celebrity and charisma. The Republican nomination is his for the asking.

        In 2024, the Republicans should be ready at 3 AM election night, with the truckloads of warm ballots fresh from the printers. They should do it right, with millions of them.

        1. I don't think so. Trump caught the GOP establishment by surprise in 2016, he won't catch them by surprise in 2024, they have plenty of time to rig things against him, and both the MSM and the social media platforms that are permitted to exist to help them.

          He should forget about running for further office, and concentrate on finding a good way to bypass the MSM, and head hunting good candidates to pass the torch to.

          Might be worth talking about running, though, just so the guy he picks take them by surprise.

      2. I like your optimism. Personally, I fully anticipate Trump to keep standing in front of cheering crowds giving incoherent speeches as long as audiences will turn up to hear him. And his 2024 run will be the exact excuse he needs to keep giving the speeches and for the audiences to keep turning up.

      3. It's not just the need for 4 years of discipline. He'd be doing it in the face of a continual assault by a media that's now in full partisan censorship mode.

        I don't think it's doable, even by somebody better than Trump.

  9. I will return to a question I asked here months ago: does the modern Commander in Chief continue to have the power of surrender?

    When reading the Washington Post today, I note that the term "civil war" is used in two "article" captions and the term "purge" is used in two more. I agree that Democrats invited -- and now have -- civil war and that their technology allies have initiated a purge (which, as the Post notes, has operated to the benefit of those being purged and to the detriment of those desiring "cleanliness"). I also agree that those Democrats who initiated civil war must now use multiple means -- razor wire atop steel barricades around the capitol, bridge closures, train track barriers, etc. -- to protect themselves. Such wartime measures are proper.

    But what does the end of modern civil war look like?

    Does the Duty to Retreat apply to each Marylander during time of civil war? Is it proper for a President Trump to uphold his oath to protect the freedoms of speech and assembly of those on one side of the war? Is it proper for a President Biden to surrender in order to spare the lives and property of those he swears to protect?

    What does the end of modern civil war look like? Or have those who speak of pardons not looked that far ahead?

    1. "I agree that Democrats invited — and now have — civil war and that their technology allies have initiated a purge "

      You're a nut. You lost an election. You're not being oppressed in any meaningful way. Put on your big boy pants and deal with it.

      1. He did not lose an election. He lost a nation to a neo-Marxist, permanent one party state as they have in Cuba, Venezuela, China and California. All the reforms of California will be nationally enacted by the Democrat Congress, and that will be the end.

        65 million gun owners of 300 million guns support Trump. Remember the DC sniper? A guy and a kid brought the town to a standstill. Our pro-Democracy patriots bust a few windows, and chase a guard up some steps, sit in Pelosi's chair, hopefully after Fabreezing it. Now 25000 soldiers are posted to stand about staring at no one there. That was not an insurrection. That was the pro-Democracy patriots invading the Parliament of Hong Kong to protest the Chinese Communist Party. Insurrection looks like Beirut after 20 years. How many American lives are worth the prevention of a neo-Marxist takeover?

        1. “He did not lose an election. He lost a nation to a neo-Marxist, permanent one party state as they have in Cuba, Venezuela, China and California.”

          So, to be clear, what you’re saying is: he lost an election.

  10. Once again, the standard for the President or a designee firing ordinary government workers is totally irrelevant to the standard for impeachment. The standard for impeachment is directly in the constitution. That standard is “high crimes and misdemeanors.” It is a much higher standard than mere negligence, inefficiency, not getting along, policy disagreements, etc. for which ordinary workers or senior subordinate officials can be fired by the President.

    It is that standard and only that standard that is relevant here and that needs to be construed.

    In my view “high crimes and misdemeanors” imply criminal conduct. If the constitution prohibits making something a crime - whether or not you can fire someone over it - it also prohibits making it a high crime or misdemeanor.

    Professor Somin is wngaging in wishful thinking, taking a body of law he thinks institutes the right policy and simply applying it, completely ignoring the question of what body of law actually apply. It’s like someone who scours the law for a way to speed up executions, comes up with Terry stops based on reasonable suspicion, and makes a policy argument that the two are similar and this ought to be the standard to execute somebody, completely ignoring the specific text the Constitution has about capital cases that make them different, including the rights to a jury, a lawyer, etc. This is exactly the same kind of reasoning.

    The articles accuse the President of instigating the insurrection. If he directed his followers to storm the capitol, this behavior is conduct, not speech, outside the protection of the First Amendment. I think this is a far firmer basis for proceeding. I think the standard for a president can be lower than an ordinary citizen. A president has a duty to preserve the peace and protect the seat of government from harm. He can violate that duty merely by acting recklessly, engaging in behavior a reasonable person would think likely to lead to the outcome.

    1. This weekend I happened to watch some films of the violent protests against Pres. LBJ in 1967and '68. noting their size and ferocity, Nancy and Ole White Joe have forgotten what insurrection looked like.

      1. Don Nico, did you see me in those protests? I participated in many of them. You are right about the size, but wrong about ferocity. Ferocity came from the other side. Time after time, it was the same story. That's why the Chicago response was afterward labeled a police riot. The term stuck because it was true.

        My goal was to do what little I could to make it politically impossible for LBJ to continue the war. That is politics, not insurrection. The overwhelming majority of the folks there were doing as I was.

        A very small minority of anti-war activists—the Weathermen, for instance—were committed to insurrection. Ordinary protesters like me shunned them.

        Of course, right wingers then, and still now, condemned all anti-Viet Nam War resistors as traitors. Is that you?

        1. So, why can't you see that something similar happened here?

          Huge peaceful protest, and a tiny minority that came intending violence. The larger group stupidly, stupidly, were not prepared for provocateurs, and some of them got suckered into providing cover for the violent group. Experienced protesters might not have fallen for that.

          The rally organizers were seriously derelict, no question about it. But that doesn't make them co-conspirators with the tiny violent group.

          1. The departed five would disagree with you about the violence.

            1. Two of the dead were Trump supporters who died of natural causes. Proof of nothing but that humans are mortal.

              One was a Trump supporter who was trampled to death. Horrible tragedy, and this happens occasionally at sporting events or concerts. Not premeditated, just tragedy.

              Another was a Trump supporter shot by the Capitol police while entering through a broken window. A violent death, to be sure, but it's a stretch to blame it on Trump, or the crowd generally being violent.

              That gets us down to the one death of deliberate violence committed by a rioter. Brian Sidnick. Struck by a thrown fire extinguisher, though some reports called it "beaten to death", which is language intended to conjure a somewhat different image.

              Yeah, find the guy responsible for that one death, and hang him high.

              A quarter million protesters. How many of them needed to be violent to throw that fire extinguisher?

              1. "Yeah, find the guy responsible for that one death, and hang him high."

                A few more than one.

                Trump, Rudy, Trump Jr., and then the guy who tossed an extinguisher.

                1. You're not interested in finding out who set the bombs? Just want to get that one guy, and then arbitrarily toss in a few political enemies?

                  1. You might want to look up "arbitrarily".

                    And this is the first mention of the pipe bombs in this conversation, but thanks for the red herring. Delicious.

                    1. The pipe bombs are proof of substantial premeditation on the part of the violent few, and substantial premeditation on their part means you can at least retire the claim that Trump's speech that day incited things.

          2. Hey, Brett, good one. I admire your new, get-rid-of-anything rhetorical technique. It's trending now on the right, and you're getting the hang of it. Arrived just in time, too, what with whattabouttery all worn out. I suggest we call this new one, "denominatory."

            Here's how denominatory works. In politics, unwanted statistical instances turn up—or the problem could just be newly-noticed egregious allies. What to do? Easy! Create a binary class—if you've got bad-thing, then there must be the counter-class, not-bad-thing.

            Instances of bad-thing could be imposingly numerous, of course. But how bad each instance is will matter. Deadly disease, for instance, or criminal insurrection—both pretty bad—don't have to be overwhelmingly common to be politically poisonous, if you're side is the one causing them.

            When your side gets associated with stuff like that, it's an emergency. You need a tool, and it has to be one you don't have to think about much.

            Not to worry. Bad-thing is widely noted, and easy to count. It's an attention getter, after all. But like most negatives, not-bad-thing is hard to quantify. Nobody notices each instance of something that doesn't happen. Who knows how many there are!

            So that's your tool. Just make not-bad-thing arbitrarily large—as big as needed. Bad-thing shrinks down to a negligible fraction. That way, maybe the problem isn't gone, but hey, it's time to move on.

            Got thousands of right-wing insurrectionists mobbing the Capitol? Very bad. But hey, just think how many right-wingers didn't mob the Capitol. Must be millions. Not bad at all. Time to move on.

            Denominatory. Trending on the right. Works wherever lying is accepted.

            1. So, you've invented something new to go along with "whataboutism", to divert attention from true points. Great.

              1. Why won't anyone give Trump credit for all the MILLIONS of people who haven't died of COVID?

    2. In my view “high crimes and misdemeanors” imply criminal conduct.

      Area man... etc

    3. "That standard is “high crimes and misdemeanors.” It is a much higher standard than mere negligence, inefficiency, not getting along, policy disagreements, etc. for which ordinary workers or senior subordinate officials can be fired by the President."

      I think you're wrong. So did Thomas Jefferson.

  11. There are a few problems with this entire line of reasoning on Ilya's point. Let's start with a simple reminder though.

    1. Congress can impeach people for any reason that it wants, whether it's considered a crime or not. It can impeach the president because the president talks funny, if Congress so desires. The question is "should they" or should they wait for an actual crime.

    With that out of the way, in regards to the first amendment and free speech rights for government employees, what is important to understand the following.

    1. Government employees enjoy the full protection of the first amendment if they are speaking as private citizens.* If it is the context of their public duties, they don't have that protection, and can be fired. The same is true of most private businesses and their employees. Notably, they can say certain things and lose their jobs, but it still wouldn't be a crime.

    2. If a government employee is speaking as a private citizen on a matter of public concern, their speech "may" be protected, and they may be able to be not fired due to this. The government's interest is weighed against the private concerns under the following.

    1. Whether the speech would interfere with the employee’s responsibilities;
    2. The nature of the working relationship between the speaker and those at whom the criticism was directed;
    3. Whether the relationship between the speaker and the person criticized was sufficiently close that the speech would create disharmonious relations in the workplace;
    4. Whether the speech would undermine an immediate superior’s discipline over the employee; and
    5. Whether the speech would compromise the loyalty and confidence required of close working employees.

    These are classic tests designed so that some free speech is protected, while not allowing a government employee to be able to verbally abuse others and destroy work relationships with their public speech (while still maintaining their job). Again, the comparison can be drawn to private employers, and where such speech in public may prove detrimental to the workplace environment. "The penalty" here is the loss of employment, not a crime.

    These laws and comparisons were put into place for GS employees and other federal and state officials whom have substantial labor protections, and typically NOT for elected officials.

    With that in place, we need to think about the "free speech" rights of the President and other Elected officials, including Congressmen. In consideration of the above protections, it's pretty clear that just about every Congressman and Congresswomen has violated at least one of the bits above, especially given the "harsh" language they have used in public about people they need to work with. So, they could all be removed from office.

    The question here is..."should they?" My answer is no. If you're going to use impeachment, it should be used for actual crimes. Not for a public verbal disagreement with other members of Congress.

    Likewise, if you're going to impeach the president for his speech, it should be for an actual crime. Not for verbal disagreements in public. The part of a law Ilya is using was designed for GS employees who had extreme labor protections. These don't apply to at will employees, nor elected officials. There are other ways to remove these officials. To use it to remove the president opens the door to using it to remove Members of Congress as well, or SCOTUS judges. And that just opens the door for further abuses of power.

    1. Would you agree with rhe following three statements.

      1. If, tommorrow, the Supreme Court were to declare the 13th Amendment unconstitution and declared slavery lawful, its action would be completely unreviewable.

      2. Because nobody will review if it did, it can do it it.

      3. If it can do it under the constitution, its action is necessarily consistant with the constitution. Therefore, if the Supreme Court re-instituted slavery tomorrow. it would not be violating its oath of office.

      Agree? It would seem to follow from your item 1.

      1. The Supreme court wouldn't do that. They'd invent some nonsensical meaning for the 13th amendment, and then tell us all it had always had that meaning, and we just had somehow never noticed.

      2. 1. Could the SCOTUS declare the 13th amendment unconstitutional? In practice, likely yes.

        The most likely path would be redefining what slavery meant, so that actual slavery wouldn't be found unconstitutional. Alternatively, the use one of the later amendments to nullify the 13th amendment, or using the existing text of the 13th amendment to justify slavery (IE everyone is guilty of some crime which we will convict them of, en-masse, so we justify.... )

        The hardest part there is declaring an amendment to the Constitutional as unconstitutional. That's tricky. But with the 13th Amendment, there were enough shenanagins around the vote and ratification (Bribery, military coercion, look it up) that you could see a revisionist SCOTUS look back at the vote, and say the Congressional vote and/or ratification had been illegal.

        2. In practice, Congress can review it and pass new laws/amendments to change the process.

        3. Yep

  12. I swear yall are talking past each other.

    Blackman et all pointed out that saying the president has lesser freedom of speech rights than other people is flat out wrong in terms of determining punishment. That seems correct. Certainly you cannot punish Trump in a court of law under Brandenburg for "incitement."

    However, others are saying that high crimes and misdemeanors, as an originally matter, could be as simple as "I dont like you." Maybe somewhat more substantive than that, but barely. So the impeachment is not unconstitutional for it.

    In the case of Andrew Johnson, I mean, it was clear, at least when I was taught it, that the entire basis was completely made up and congress simply hated Johnson. With good reason, but Johnson didn't actually do anything illegal. He violated the tenure in office act, which was made up to entrap him! And was unconstitutional.

    However, as a public matter when selling the impeachment to the public, it does matter whether Trump did something illegal! If political questions doctrine has any validity at all, it means that even though the courts won't review it Congress should still evaluate, on their own, the constitutionality of their actions. Even though the courts won't review it, a senator has the right to say I think this is unconstitutional because the courts are not the sole arbiter of what the constitution says.

    Congress can do whatever it wants on the basis that certain actions are unreviewable. But that doesn't mean it should.

    I dont quite understand the back and forth. Yes Congress can impeach over incitement. Its a job loss, not a court action. No the incitement case would hold up in court here, but that doesn't mean Congress can impeach over it. Should it is not a legal question. So I dont see how anyone disagrees here.

  13. Trump pressuring the GA SoS to change the votes is a crime, very possibly clear enough for a criminal conviction, but defiantly more then enough for a Senate conviction. Putting that in the context of the two month great voter fraud lie just makes it all worse.

    1. Pressuring is advocacy. Advocacy is not a crime. It is immunized political speech.

      1. DaivdBehar : Pressuring is advocacy.

        Does that include pressuring Pence to steal an election?
        Even when the pressure includes a mob howling murder?

        (You never know how the cult will answer questions like this)

    2. Study up on means rea and get back to us.

      1. Mens rea is from the medieval Catholic catechism. 1) It is Latin; 2) it is supernatural mind reading; 3) it establishes Catholicism in the legal system. For those reasons, it violates the Establishment Clause. To the credit of the Medieval church, its faith told it to believe God would read and judge the intent of a person who committed a mortal sin after his death. Not even the Medieval Church believed men could read minds, as the dumb ass lawyer scumbag does.

        I do not understand why law students of other religions do not attack the professor teaching this nonsense, and force him to wear a dunce cap and to stand in the corner. This stuff was reviewed in 10th Grade World History, under Scholasticism.

      2. Go ahead and explain why a crime is not a crime if someone doesn't think it's illegal because mens rea or something.

        (For future reference, it is a massive self-own to spell mens rea wrong when you tell someone to study up on mens rea.)

        1. There are plenty of crimes that aren't crimes without mens rea.

          Structuring, for example. "No person shall, for the purpose of evading"; It's only a crime if you did it with the purpose of evading reporting requirements.

          Had to read up on this when I was executor of my sister's estate, because I was disbursing funds that were skating pretty close to the limits.

      3. 1) Do you think the President did not have the mens rea needed to convict? What's the factual basis for your belief?

        2) Even if you believe the President did not have the mens rea, how does that typically get resolved in criminal cases? The defendant just says so? Or does it go to a jury?

    3. The House has not charged DJT with that offense

      1. President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to "find" enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.

        1. All you have to do is read the call transcript to see what BS that is. He didn't ask Raffensperger to find anything.

          1. “ And you are going to find that they are – which is totally illegal – it is more illegal for you than it is for them because, you know, what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk. But they are shredding ballots, in my opinion, based on what I’ve heard. And they are removing machinery, and they’re moving it as fast as they can, both of which are criminal finds. And you can’t let it happen, and you are letting it happen. You know, I mean, I’m notifying you that you’re letting it happen. So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state.”

            “So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.”

            “So tell me, Brad, what are we going to do? We won the election, and it’s not fair to take it away from us like this.”


            1. "I just want to find 11,780 votes"

              He was claiming Raffensperger was standing idle and permitting destruction of evidence he needed to prove his case. And asking for access to prove his claims, which he thought would change the legal count by enough that he'd win. He wasn't asking Raffensperger to manufacture votes, just to let him look for them, and to stop evidence of fraud from being destroyed.

              It doesn't matter that you think there was nothing for him to find, that's what he was asking for: A chance to look for it, without everything he thought he'd find being destroyed before he could look.

              1. "He was claiming Raffensperger was standing idle and permitting destruction of evidence he needed to prove his case."

                That's what you think. I'm sure there are 12 less gullible jurors who might reach a different conclusion.

                1. That's what he freaking SAID. Of course I think he said what I read on the transcript, short of evidence that it was a fake transcript.

                  Since the transcript was leaked by people hostile to Trump, I tend to doubt it was faked to make him look LESS guilty.

                  1. Another way to interpret "what he freaking SAID" is that the President was being disingenuous about his concern for fraud, was in fact using that as a pretext for threatening something that was "a big risk" to a person the President had caused to be sued, and that maybe the "big risk" would go away if the person would just find some votes that existed. He wasn't asking for the stars, just the moon. It's 11,000 votes between friends. Go find them, right? It's damning.

                    The claims of fraud re: Georgia were implausible on their face since the whole state is run by Republicans anyway. That's why they couldn't even muster one Senator to object to the results.

                    1. Yup, back to reading into, instead of reading. Once you start doing that, it hardly matters anymore what anybody actually said, guilt is inevitable if that's what you want to see.

              2. You are interpreting meaning into that call that goes far beyond the words used.

                1. No, I'm refusing to apply the 'presumption of evil' that TDS sufferers use in interpreting everything Trump says.

                  Trump and English grammar has a spotty acquaintance, but I bet you could parse that transcript as well as I can if you weren't so eager to see a confession.

        2. So what. It was not an article of impeachment.

          1. I'm not trying to be mean, but are you a fucking moron? That's literally a quotation from the article of impeachment, which I linked to in an apparently unsuccessful effort to make it idiot-proof.

  14. What almost every posters seems to be ignorant about is the low standard for impeachment and the high standard for conviction.

    Every successful impeachment has been associated with an underlying crime; and many times conviction for that crime in a criminal court. Of the previous presidential impeachments only Nixon was associated with a real crime; and that is often described as a third rate break in.

    So far I have seen nothing Trump has done that would succeed in a criminal court. Not saying he has not made some bonehead moves; just that bonehead moves are not a crime.

    As I have asked many times before in previous threads 'who are the 17 pub senators who will vote to convict?'. Ilya and all his flunkies have all FAILED to even attempt to answer this question.

    I am guessing Romney will probably vote to convict but I am not sure about anyone else and I would bet even Money Machin will not vote to convict.

    Bottom line is Ilya and his ilk have been involved in mental masturbation dreaming about something that will never happen.

    1. ragebot, no point in pretending their is any kind of crime requirement. It isn't true. If that became a standard de facto, it would be unconstitutional. It would constrain the houses of congress more than constitutionally permissible.

      As for the number of senators? The more who will not vote to convict, the more there will be to hold politically accountable at election time. By which time, there will be even more evidence, and worse evidence, of an attempted coup. Mitch McConnell did not suddenly suffer an attack of brain static. He heard something so appalling—coup complicity among senators and representatives would be my guess—that to survive politically he had to put distance between himself and Trump. McConnell has long been my go-to expert for practical judgment about what's about to happen politically.

      1. For, "worse evidence," please read, "more imposing evidence,"

      2. STEPHEN LATHROP reading comprehension is your friend, I never claimed a real crime was a requirement; rather that a real crime has historically been associated with a conviction after impeachment. I know impeachment is a political act but am not sure the House can pass articles of impeachment and then later add to them. I do think the House can impeach Trump for a third time with additional evidence of other acts but I suspect even the most rabid dems would not do that.

        While it is never a sure thing that history will repeat itself I would point out that the party in power loses seats in midterms. All the speculation I have seen is the dems will suffer losses in 2022. Biden is facing a fractured party with the far left wanting things like the Green New Deal, more 2A restrictions, easier govt subsidized abortion, and easier immigration and a path to citizen ship for illegal aliens; all things that Biden was very wishy washy about before the election but more to the point very unpopular in places he narrowly won. The smart money is on dem pols being held accountable for a bait and switch. And don't get me started on court packing and state hood for places that would add dem senators.

        Bottom line is your 'pie in the sky by and by' more pub senators will come around is just silly and there is no way to sugar coat it.

        I love watching dems go to extreme lengths to avoid answering the question of who are the 17 senators who will vote to convict. But I do give you credit for at least trying to evade the question since it is more than any of the other fraidy cat dems are able to do.

        1. "all things that Biden was very wishy washy about before the election but more to the point very unpopular in places he narrowly won."

          It largely doesn't matter if entrenchment legislation would have been politically unpopular enough to lose you an election, if you actually do pass it and entrench yourself. Adding 10-20 million new citizens, a couple of new states, and a few other things they're talking about would render basically irrelevant whether they piss off the electorate of 2020.

        2. "I love watching dems go to extreme lengths to avoid answering the question of who are the 17 senators who will vote to convict."

          The first five are easy: Romney, Sasse, Murkowski, Toomey and Collins.

          The real question is whether McConnell decides he's better off without Trump haunting the Republican Party going forward and votes to convict. If he does, then a large part of the rest of the caucus will pile on. Remember that only seven Republican senators actually voted against certification.

          1. Murkowski has never said she would vote to convict when asked directly and other than Romney none of the others have said anything one way or the other about how they would vote. Both Murkowski and Toomey are from states where oil and coal are a major job source and let's not forget Biden said he was for fracking (in his usual wishy washy but not on federal land sense) and both would lose lots of support if they voted for a Green New Deal guy; not to mention 2A problems in both states. Sasse is a possible but again lots of what Biden is proposing is not popular in his state. Collins is a wild card and I am calling bullshit on claims that McConnell would vote to impeach.

            Again more 'pie in the sky by and by' claims about phantom votes to convict. Not to mention Pelosi is still not coming clean about when the article of impeachment will be transmitted to the Senate. The fast track it was voted on was justified by the dems by the claim the danger was immediate but if she sends it to the Senate it will jam up Biden's first hundred days which is why Clyburn has said the article will not be transmitted for a hundred days. If there is a delay in transmitting the article it will likely result in many of Biden's unpopular agenda policies coming to the forefront and making it more unlikely of pubs being turncoats.

        3. Ragebot, you think withholding judgment about an uncertain future is, "trying to evade?" I think that's why odds-making is a thing.

          I concede it's more likely that Republicans will not vote to convict than otherwise. I suspect my judgment puts odds of conviction higher than your judgment does. So what? If I knew who you were, we could bet on it, but you would have to give me odds.

          But try to notice. Whichever way Republican Senators vote, it's probably bad for them. That's a pickle Trump put them in, and they may want to get out. Not being there for the vote might look like a way out. That could affect the outcome. Of course, you would have to give me odds on that one, too.

          If you wanted a bet that would reduce your downside risk somewhat, we could try house seats in 2022. If it weren't for the fact that Democrats suck at practical politics, I might even give you a slight odds advantage on that one (I don't expect it to be a typical year). But I won't, because I know Democrats, and they will screw it up if they can.

      3. Coup??? LOL, sure thing Viking man was going to take over right after he stopped posing for pictures

    2. "Of the previous presidential impeachments only Nixon was associated with a real crime; and that is often described as a third rate break in."

      You're remembering it wrong, there were several real crimes involved in the Clinton impeachment, too. They just weren't prosecuted for political reasons, but he lost his law license over it.

  15. Yeah impeaching a guy because you don't like what he said is really going to end well for libertarians...

  16. There is a lot of skepticism of the Trump impeachment, but did anyone read what Trump has actually been saying?

    As pointed out in the impeachment charge, public officials are subject to Section 3 of the 14th Amendment, which inter alia disqualifies officials from future office-holding if they engage in "insurrection" against the Constitution.

    Yet here is Trump before the election encouraging ongoing rioting:

    "They’re not gonna stop […] this is a movement I’m telling you, they’re not gonna stop. And everyone beware, because they’re not gonna stop, they’re not gonna stop before election day in November, and they’re not gonna stop after election day […] and everyone should take note of that on both levels, that they’re not gonna let up, and they should not, and we should not."

    1. Yeah? Where's the insurrection in that?

      1. There isn't, but it's comparable to Trump in that it was a rabblerousing speech which she knew would be encouraging rioters, despite her peacefulness disclaimers.

        Incidentally, I made a slight error, it wasn't Trump it was Kamala Harris.

  17. Yes, the pro-democracy protes will not stop. You want to prosecute the liser. Trump decided to not prosecute Clinton. You want to suppress dissent from the neo-Marxist dictatorship being imposed. You said nothing about leftist destruction. You are just biased, without being aware of that.

    1. This is just bad faith, AtR. You know there are lots of other videos in the capitol showing much more violent stuff.

      1. I repeat: A small number of people doing really violent stuff is not inconsistent with most of the people not doing violent stuff.

        There were two groups. Again, if you can insist that somebody standing next to an Antifa arsonist trying to set an occupied building on fire is a peaceful protester, why can't you admit that?

      2. Sarcastr0 ... this is CNN-edited footage from the New Yorker. I suspect they have every incentive to find the most damning video possible, no?

        1. That's another thing you're wrong about.

          1. I am impressed by your eloquence ... who needs and argument or support, when one has brevity?

            1. Thank you for your invaluable contribution.

      3. This actually got a laugh from me. Aren't you the guy that spent all summer and fall downplaying the riots and supporting the main stream medias efforts to avoid showing the violence while characterizing the rioters as mostly peaceful ? So doing exactly what the progressives have been doing for the last bunch of months is suddenly "bad faith" huh ?

        What a hack. Is there anything you accuse others of doing that you are not one of the worst offenders ?

        1. I did not downplay the riots; I did not care for people saying the protests were mostly riots.

          1. No, we were saying the riots were riots. There were also protests going on, but we weren't talking about those.

            Here's a clue: If you've got people throwing lit bottles of gasoline, it's not a protest anymore. And if they've been doing it every night for a month, the people who show up at the same time and place aren't there for a protest.

          2. Which is exactly what you are doing here. Consistent principles are not exactly your style and inconsistent demands for rigor are pretty much your world. Somehow, when it is violent leftists that burning and looting these are isolated incidents and don't reflect on the movement as a whole. They are mostly peaceful. How dare we blame Democrats for violent insurrection ! When the shoe is on the other foot, the most anecdotal of evidence may be used to demonstrate that it is a violent bloodthirsty GOP mob and suddenly the same hack is utterly OK with anecdote. You do in fact take hackery almost to an art form.

            .. and I note the original point. The same hack that is historically up in arms about being accused of acting in bad faith accuses someone else of acting in bad faith for something he would do routinely.

            1. Were I saying everyone wearing a MAGA hat in DC on the 6th was an insurrectionist, you would have a point.

              But I'm not, and never have.

    2. It looks just like the pro-democracy movement invasion of the Hong Kong Parliament.

  18. The presidency has become far more powerful than the founders envisioned.

    That makes impeachment and removal even more justifiable now than it was in 1789. We need to worry about abuse of power far more than abuse of impeachment.

    1. The federal government has become far more powerful than the founders envisioned. That makes state nullification even more justifiable now than it was then, and it was viewed as the rightful remedy then too.

  19. "Congress shall make no law..."

    Neither impeachment nor conviction is a law, and the process does not happen under a law passed by Congress. End of question.

    Mr. D.

    1. A state isn't Congress either.

      1. True, but although a constitutional mandate can be incorporated against the states by means of the Due Process clause or the Equal Protection clause (and the difference does matter, though no court has yet said so), and there are ways of arguing that state conduct implicates federal legislation, you can't use similar logic to incorporate rights against the federal government, especially when its conduct doesn't implicate its own legislative fiat.

        The Framers didn't state that there was a right to free speech that shall not be abridged, they said that the laws can't be passed to abridge the freedom of speech. And although courts have extended that principle to say that government actors can't abridge the freedom of speech when acting under the color of state or federal legislation, no such principle exists to inhibit an enumerated duty under the Federal Constitution. The High Court of Impeachment is not prohibited by the Federal Constitution from reaching a verdict (or passing a sentence) that abridges the defendant's freedom of speech.

        But it might be in for mitigation.

        Mr. D.

  20. Does Somin endorse the view that the President can be impeached for the stated reason that the President is a Muslim?

  21. Can we impeach Obama ? Lets see he lept to conclusions about the Michael Brown incident, and Ferguson burnt.

    1. Of course. In fact members of the House spent 8 years attempting to impeach President Obama, for such crimes as being born outside the United States (false), allowing people to use bathrooms based on their gender identity, Benghazi, and his enforcement of immigration laws.

      Interestingly, despite all those apparently horrible things he did, and despite the fact that the House was controlled by Republicans for much of President Obama's tenure, he became the first President since Jimmy Carter to not have articles of impeachment referred against him to the House Judiciary Committee, primarily because John Boehner was not a fucking moron.

      1. Pretty piss poor attempt, that never got beyond a committee hearing more than once. Aside from that it was just talk.

        1. Whether because there is a better case here, or because Trump is more hated than others, the case here does not seem to be causing a political fallout like the more outlandish scenarios about Obama or Clinton Trump supporters are trying to parallel.

          1. Could you clarify that remark?

            1. wreckinball tries for an argument ad absurdum about whether Obama could be impeached.

              But legally viable is not the same as politically viable. And it is the second that distinguishes impeaching Trump and Obama. Though the GOP is welcome to test that proposition if they really want to.

              There's a symbolic attempt to impeach Biden on day 1 that the GOP leadership is rightfully smothering because they know it's a political loser even as some symbolic nonsense.

  22. These exchanges are getting tedious. I guarantee you each party would be arguing the other side if a Democrat president were being impeached in the same circumstances.

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