Impeachment

Can a Former President Be Prosecuted for Conduct for which He Was Impeached but not Convicted?

A 2000 OLC memo suggests the answer is "yes."

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In his remarks defending his decision not to vote to convict Donald Trump in the just-concluded impeachment trial, Senate Majority Leader Mitch McConnell said:

President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run, still liable for everything he did while in office, didn't get away with anything yet – yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.

This raises the question of whether a former President may be criminally prosecuted for the same conduct for which that President had been impeached, but not convicted. As it happens, the Department of Justice Office of Legal Counsel examined that question in 2000 (when Bill Clinton was still President) and concluded that the answer was "yes."

Here is the memo. Clocking in at 46 pages, it is quite substantial. Here is how the memo begins:

We have been asked to consider whether a former President may be indicted and tried for the same offenses for which he was impeached by the House and acquitted by the Senate.1 In 1973, in a district court filing addressing a related question in the criminal tax evasion investigation of Vice President Agnew, the Department took the position that acquittal by the Senate creates no bar to criminal prosecution. A 1973 Office of Legal Counsel (" OLC" ) memorandum discussing the same question adopted the same position. As far as we are aware, no court has ever ruled on this precise issue. During the impeachment of Judge Alcee Hastings in the late 1980s, though, a district court and both the House and Senate passed on the related question whether an acquittal in a criminal prosecution should bar an impeachment trial for the same offenses. Each of those bodies concluded that the Constitution permits an official to be tried by the Senate for offenses of which he has been acquitted in the courts. Although we recognize that there are reasonable arguments for the opposing view, on balance, and largely for some of the same structural reasons identified in the United States's filing in the Agnew case and the 1973 OLC memorandum, we think the better view is that a former President may be prosecuted for crimes of which he was acquitted by the Senate. Our conclusion concerning the constitutional permissibility of indictment and trial following a Senate acquittal is of course distinct from the question whether an indictment should be brought in any particular case.

Here is the conclusion:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

As the length of this memorandum indicates, we think the question is more complicated than it might first appear. In particular, we think that there is a reasonable argument that the Impeachment Judgment Clause should be read to bar prosecutions following acquittal by the Senate and that disqualification from federal office upon conviction by the Senate bears some of the markers of criminal punishment. Nonetheless, we think our conclusion accords with the text of the Constitution, reflects the founders' understanding of the new process of impeachment they were creating, fits the Senate's understanding of its role as the impeachment tribunal, and makes for a sensible and fair system of responding to the misdeeds of federal officials.

Whether the full course of the President's conduct as it relates to the January 6 Capitol riot could meet the standard for incitement set by Brandendurg is a close question. As I discussed on the Smerconish show this past Saturday, the case that Trump committed incitement on January 6 is far stronger than the claim he incited violence at a 2016 campaign rally for which he was sued civilly (unsuccessfully).

While I suspect a civil suit related to the January 6 events would be possible, it would be more difficult to make a criminal prosecution stick, and I suspect that is among the reasons an indictment is unlikely. If Trump is not prosecuted, however, it will not be because it is unconstitutional to do so.

NEXT: Today in Supreme Court History: February 15, 1790

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  1. Give it a freaking rest. This blog has been overrun with Trump pieces for over 4 years. It’s been painfully boring for so long, just let it go,

    1. If you don’t like it I’m sure prof. Volokh would be happy to give you your money back.

    2. Amen! The Orange Asshole is gone. Move on. There are more important things to worry about.
      Moreover, no one’s opinion here, “yea” or “nay” is worth a damn. It all depends on what the US Attorney for DC thinks about the probability of winning a prosecution for insurrection

      1. You know, it’s been pointed to you several times that there are many other actions at play right now (state prosecution in GA and NY, several civil suits in various jurisdictions). At this point it seems strange for you to keep repeating your ‘it’s federal prosecution for insurrection or bust’ line you trotted out a while back.

        1. The White House [and therefore DOJ] ain’t letting the Trump Circus back in town.

          No federal prosecution anywhere.

          Georgia is the new Mueller investigation as well.

          1. Witch Hunt Georgia Edition!

            1. Persecution is expected when diverse Democrat lawyers take the reins of power.

              1. “when diverse Democrat lawyers”

                Key and Peele wink you know what I’m talking about!

                Trumpistas, folks.

                1. These people have no grace, and show no quarter. The same should be done when payback comes around.

              2. “Persecution”. Lol.

                It’s a fair question whether Trump committed a crime when he arm twisted the Georgia SOS.

                I think probably not because he really believes he won the election so no intent to commit fraud.

                But then, could he really be so detached from reality to believe he won? So, I don’t know. Call Mueller whatever you want, this isn’t persecution. “Find me 11,000 votes” merits investigation.

                1. bevis the lumberjack : I think probably not because he really believes he won the election so no intent to commit fraud.

                  You really believe that ?!?

                  Alright, answer this if you will : Sometime after the recession of ’09, Deutsche Bank asked Trump to repay an outstanding loan of forty million dollars. In response, DJT sued the bank claiming : (1) The recession was an “act of God” which canceled the debt, and (2) The bank’s request for payment had injured Trump’s reputation, requiring damages of three billion dollars

                  Think Trump really believed that gibberish? Or was it huckster snake oil from a conman looking to invalidate a debt? Well, guess what: Trump’s two-months screaming “voting fraud” were never anything more than huckster snake oil from a conman looking to invalidate an election.

                  Months before Election Day, Trump told supporters he would claim fraud if he lost. Think he know back then he would “believe he won”? If so, the premonition didn’t translate to any special effort towards voting security or ballot count monitoring. But why expect it to; it was only talk. Trump was prepping his marks for the con to follow an election defeat.

                  Give the man credit for the only thing he’s good at : Grifter Scams.

                  1. grb – I honestly don’t know, which is what I said. I mean, I see your point.

                    But on the one hand Trump has shown plenty of episodes in which he seems to have no comprehension with reality. He might actually believe it. In the private conversation with the Georgia officials he was adamant that he won, although there was really no reason for him to be so if he didn’t really believe it.

                    On the other hand, it’s hard for me to see how he could actually believe he won the election. In a landslide no less. So it’s entirely possible he knows better and was trying to cheat.

                    Your DB example from earlier isn’t a good example. Force Majeure arguments are not unheard of in legal disputes, even though nothing is almost ever FM. Seems like a stretch in this example, but it’s common for lawyers to make arguments that are way outside the box because sometimes that’s all they’ve got.

                    I don’t know what’s in Trump’s head, so I said I don’t know. My point was that the fact that he’s being investigated for the Georgia call doesn’t mean he’s being “persecuted”. It’s a legit thing to look at in which he quite possibly could have committed a crime.

                    1. I think he believes he won the counterfactual election where all election laws were impartially enforced as written. And that “fraud” is a reasonable shorthand for “departures from election laws as written”.

                      I’m certain he believes he won by a landslide the counterfactual election where that happened AND he wasn’t faced with an utterly unprecedented level of coordinated media censorship of his campaign, going so far as deplatforming a major daily newspaper that dared to try to report on his October surprise.

                      Does he believe he won by a landslide the election that actually happened, election law violations and all? Probably not.

                    2. Positing that it’s just that Trump is ignoring the judicial branch does not make Trump look better, Brett.

                    3. I’m pretty sure he wasn’t so much “ignoring” the judicial branch, as “complaining about” the judicial branch.

                      And I’m not particularly trying to make him look good to you, an obviously hopeless task. I’m trying to evaluate what he probably is actually thinking: That he won the honest election we didn’t have, even if he lost the rigged election we did have.

                      His thinking that doesn’t require that YOU think the election was rigged, or that he’d have won an honest election.

                      All through last year I kept saying this: Making all those last minute changes to election procedures, without bothering to actually change the laws that said to do something else, was going to leave anybody who wanted to doubt the election was honest with enough of an excuse to do it.

                      Well, Democrats insisted on doing it anyway, and you got what I think you were looking for: An election where the loser would be able to credibly, so far as his supporters were concerned, claim to have been robbed.

                      40K votes cast differently in key locations, and it would have been Biden claiming he’d been robbed, with the media backing him up, instead of dismissing the idea as mad.

                    4. Per his words on the call with Raffensperger, Trump believes he won Georgia and Pennsylvania in a landslide in the election that actually happened

                      We won very substantially in Georgia. […] 250-300,000 ballots were dropped mysteriously into the rolls. […] 50s of thousands— and that’s people that went to vote and they were told they can’t vote because they’ve already been voted for. […] In Pennsylvania, they had well over 200,000 more votes than they had people voting.

                2. “I think probably not because he really believes he won the election so no intent to commit fraud. ”

                  He believed it so hard, he started believing it before the election even took place, and declared victory as soon as polls closed.

                3. “It’s a fair question whether Trump committed a crime when he arm twisted the Georgia SOS.”

                  No question at all he solicited voter fraud in North Carolina, when he asked his supporters to try voting for him twice.

                  1. Suggested in a public speech?

                    That’s going to be hard to spin into a crime. It would be like trying to charge Abbey Hoffman for being an accessory if someone actually stole his book.

                4. I think probably not because he really believes he won the election so no intent to commit fraud.

                  Let’s say that you really believe you have $10,000 on deposit in a bank. The bank claims otherwise. You walk into the bank, point a gun at the teller, and demand that she give you $10,000. Is it a defense to bank robbery that you “really believe” the bank owes it to you? (Would it be a defense even if the bank actually does owe it to you?)

                  1. Of course not because the gun is a threat. What is the analogy to the gun in Trump’s conduct?

                    1. He threatened criminal charges against Raffensperger if the guy didn’t help him find votes.

                    2. Well, sure, and if you believed you had $10,000 in the bank, and walked in and threatened to report them to the authorities for embezzling your money if they didn’t hand it over, would THAT be a threat that would make it robbery?

                      Suppose he threatened criminal charges against Raffensperger because he thought he was legally entitled to the help he was asking for, and it was a crime not to give it?

                    3. Suppose he threatened criminal charges against Raffensperger because he thought he was legally entitled to the help he was asking for, and it was a crime not to give it?

                      And now we’re circling back to pointing a gun at a teller because he thought he was legally entitled to the money.

                    4. Only without the gun, critically.

                    5. Trump had the DoJ at the time. That’s makes a threat of criminal charges nontrivial.

                    6. I think you will have a very hard time convincing a jury these words are a threat comparable to a pointed gun

                      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. […] You know, and I watched you this morning and you said, uh, well, there was no criminality. But I mean, all of this stuff is very dangerous stuff. When you talk about no criminality, I think it’s very dangerous for you to say that.

            2. “Well, I’d like to see ol Donny Trump wiggle his way out of THIS jam!

              *Trump wiggle his way out of the jam easily*

              Ah, Well. Nevertheless,”

              @BronzeHammer October 1, 2016

              1. Trump hasn’t wiggled his way out of anything without someone helping him, ever in his life, “easily” or otherwise. By “helping him”, I of course mean “doing it for him”.

            3. Queen — Windham, NH happened because the DEM candidate requested a manual recount, and it was found that all four Republican state rep candidates had been undercounted by 3%.

              Same machines as in Georgia….

          2. Bob from Ohio : Georgia is the new Mueller investigation as well.

            Gee, Bob, I thought you wanted election fraud prosecuted? Telling someone how votes to manufacture & add to the certified totals is clear cut voter fraud. You’ll never see it clearer.

            I just wish we could get voter fraud investigations into Trump’s attempts to muscle state officials in Michigan, Arizona & Pennsylvania. Remember when he called a trio of Michigan officials to the White House? Whatya wanna bet there was some attempted voter fraud at that meeting….

            1. The election was over.

              1. Yes, that’s what would make it fraud. If the polls were still open or yet to open, then Trump would just be asking people to vote for him.

              2. Bob from Ohio : The election was over.

                Wow! Nailed it in one, Bob : The election was indeed over.

                Which makes Trump’s request that Georgia state officials produce 11,780 votes out of thin air an attempt to suborn election fraud. (which is illegal, ya know)

                1. It’s not illegal when Bob’s people do it.

                2. The counting was over, it was certified and the electors had already voted. Nothing Trump could do or ask could have any impact.

                  There was nothing on-going to “suborn”.

                  1. Bob’s take: “Well, it doesn’t hurt to ask.”

                  2. What you are saying might be true, but that does not explain what Trump was up to. Trump was attempting to get Georgia officials to declare that the count was wrong and that Trump won in order to induce the Georgia governor to somehow get the state legislature to rescind the certification of Georgia’s electors and appoint a slate of electors pledged to Trump and, I suppose, get those electors to vote and follow the procedure for getting those electors to transmit those votes to Washington. Its not clear how Trump thought he could be successful in this endeavor as Georgia, by itself, didn’t matter. That is why many suspect that Trump was trying to wedge open the electoral vote certifications in other states. Consider that strange voice mail that Rudy tried to leave for Mr Potato Head but left for Utah Senator Lee instead. He was trying to get the count (not certification, but count) extended as long as possible for some reason. Seems likely that Rudy and Trump were strong-arming officials in various states with the hope of generating enough chaff so that Pence would agree to halt the count and throw the whole thing into the House where Trump may have been able to win the vote by states, though I’m not sure how they could actually get the House vote done over the strong objections of the Democratic majority.

                    1. Trump thought that an actual audit of election irregularities would produce enough votes that had been improperly counted to alter the result, and legally justify decertifying the election.

                      And if enough Biden electors were legally decertified by the states, the election result would legally be thrown to the House to decide.

                      It was a very aggressive strategy, but it was a legal strategy.

                    2. There were plenty of audits, though.

                      That’s not what Trump wanted.

                      Also, legal is not the same as unimpeachable.

                3. “(which is illegal, ya know)”

                  Wow…

                  It’s illegal for a frustrated victim to exclaim “at least deal with a FEW of the people stealing stuff from me” in a request to law enforcement to enforce the law?!?

                  Wow…

                  That’s like BLM saying “at least investigate a few of the police officers….”

                4. “Which makes Trump’s request that Georgia state officials produce 11,780 votes out of thin air an attempt to suborn election fraud. ”

                  That would have been, if he had actually made any such request.

                  1. Brett claims Trump sincerely believed “an actual audit of election irregularities would produce enough votes that had been improperly counted to alter the result”. He insists his cult god had real reasons to demand votes be manufactured to change the result. So we’ll try taking Brett seriously. Let’s review Trump’s grounds:

                    (1) It was the fault of someone named Ruby Freeman, who produced fake ballots from a suitcase. This idiocy had been debunked long before Trump’s call. The “suitcase” was an official absentee ballot carrier under full view of a 24/7 surveillance camera. There is video of the box being packed with arriving ballots. There is video of the box sitting undisturbed. There is video of it being unpacked.

                    Ah, but what about Ms Freeman…. “You know, the internet?” Trump asked, “You know what was trending on the internet? ‘Where’s Ruby?’ Because they thought she’d be in jail. ‘Where’s Ruby?’ It’s crazy. It’s crazy,” Trump said.

                    (fyi : She runs a mall kiosk selling handbags & lady’s accessories)

                    (2) It was the fault of dead people. “The other thing, dead people,” Trump said. “So dead people voted, and I think the number is close to 5,000 people. And they went to obituaries. They went to all sorts of methods to come up with an accurate number, and a minimum is close to about 5,000 voters.”

                    Nope; the minimum is close to 2. That’s the actual number.

                    (3) It was caused by mystery ballot drops. Trump: “We have at least 2 or 3, anywhere from 250 to 300,000 ballots were dropped mysteriously into the rolls,”

                    He produces no evidence of this (whatever “this” is).

                    (4) It was caused by Dominion voting machines. Trump claimed “that Dominion took out machines. That Dominion is really moving fast to get rid of their machinery”. He asked if the company “moved the inner parts of the machines and replaced them with other parts.” He said “we think we found tremendous corruption with the Dominion voting machines.”

                    But a hand count found the machine numbers correct.

                    (5) It was caused by shredding ballots. Trump : “In Fulton County and other areas — and this may or may not be true, because this just came up this morning — that they are burning their ballots, that they are shredding ballots, shredding ballots and removing equipment.

                    Note Trump spews out random trash here without any pretense he has checked its validity. This was what formed his justification for 11,780 special bonus votes.

                    (6) Maybe signatures were at fault. Trump : “We think that if you check the signatures — a real check of the signatures going back in Fulton County — you’ll find at least a couple of hundred thousand of forged signatures of people who have been forged.”

                    Signature were always checked twice – every ballot. The Georgia Bureau of Investigation did a further audit of 15,000 signatures and found no fraudulent votes.

                    Also : Fulton County had fewer than 150,000 mail ballots total.

                    (7) It was the fault of Ms. Abrams. Trump: “She got you to sign a totally unconstitutional agreement, which is a disastrous agreement. You can’t check signatures. I can’t imagine you’re allowed to do harvesting, I guess, in that agreement.”

                    Under the March settlement, officials must notify voters whose signatures were rejected within three business days and give them the chance to correct issues. It didn’t bar officials from verifying signatures. It didn’t allow harvesting ballots in bulk.

                    (8) It was caused by phantom voters. Trump : “In Detroit, we had 139 percent of the people voted. That’s not too good. In Pennsylvania, they had well over 200,000 more votes than they had people voting.”

                    In Detroit, 51 percent of registered voters and 38 percent of the entire population cast a ballot. The Pennsylvania number didn’t include several of the largest counties in the state.

                    So you can see Brett’s problem…. Trump quotes dreg nonsense & junk internet trash. He doesn’t pretend to care whether any of it is true or false. How can this be some call for justice?

                    He rushes from each conspiracy lie to the next, never pausing. It’s like someone throwing handfuls of shit at a pristine white wall, just to see which makes the biggest splotch. Given Trump didn’t bother taking his own spiel seriously, why does Brett?

        2. Again your hostility for no good reason at all.
          What is your problem?
          Adler’s talk article concern prosecution for insurrection, NOT what is being investigated in GA and NY. You bring those investigations up as if you are the only person who knows about this.
          There is ZERO point to discuss this topic here. Such discussion is meaningless and only engenders screeds and insults.
          The prosecutors will do as they will regardless of what you, I or anyone else says.

          1. The original comment in this thread was to the effect ‘why are we still talking about Trump’s potential culpability?’

            That ain’t just on ‘insurrection’ federal charges, now is it?

            Note, the GA activity was expressly named in the impeachment.

            1. “Note, the GA activity was expressly named in the impeachment.”

              Only as to it’s supposed effect in furthering the incitement of insurrection, not as an independent count for impeachment. However, in a criminal case over incitement of the Jan 6th riot/insurrection, imminence is required and the GA activity will be irrelevant.

              1. Not irrelevant; it speaks to intent.

          2. Don – Queen A does hostility. 365/24/7. It’s all he knows.

            He ain’t here to discuss, he’s here to argue.

            Your “better things to do” comment was dead on.

      2. Agree with move on. The probability of what we just saw yielding a conviction of a court of law is zero for incitement.

        If they do it exactly the same way there will be a prosecutor or two thrown in jail for contempt of court. You can’t present doctored fraudulent evidence in a real court.

    3. If you want less coverage of Trump then speak to the conservatives and the GOP and tell them to stop making the party all about ‘one weird dude’ to quote Sasse. It’s rich when one of our major parties transforms itself into a weird cult of personality about such a weird dude and then when the rest of the world notices it people like MachineGunBodine whine ‘why is everyone always talking about this weird dude?’

      1. Not to mention that it’s also a bit rich coming from the people who haven’t yet stopped talking about Benghazi.

        1. They still yell ‘Lock her up’ at rallies.

          See, I’ve noticed this thing about Trumpistas. Many of them don’t have working understandings of things like human decency, professional standards, etc. But, their news and opinion sources sometimes want to use concepts and terms that tested well with focus groups of more normal human beings in their arguments of the day. Things like denouncing hatred or talking about how unity is important or standards for professions. Now, they don’t care or understand such things, you can tell by how they don’t recognize the massive hypocrisy of their past comments extolling Trump, defending his nepotism or awful insulting rhetoric and such. But they’ve heard that these words are powerful and mean something. While they don’t get it exactly themselves they start tossing them around. But, it’s like a parrot, they can be taught to say words but have no idea what they mean.

          And so you get conservatives, who still talk about wanting to lock up Hillary, literally denouncing there being too much focus on Trump. They really don’t get what’s so un-self aware about that, they’re just parroting the words their side tells them are useful this week.

          1. “They still yell ‘Lock her up’ at rallies.”
            Ignore them. It is simple. Bill and Hil are gone.

            1. Again, see the comment starting this thread.

              1. Yup, you’re aching to pick a fight.
                I have better things to do with my time

                1. No, it’s hypocritical for people who are not criticizing the obsession with going after Hillary (who I don’t care for btw) to keep bringing up ‘why so much about Trump?’

                  1. Yup, you’re aching to pick a fight.

            2. “‘They still yell “lock her up” at rallies.’
              Ignore them. It is simple. Bill and Hil are gone.”

              Went away willingly after losing an election. Donnie the T doesn’t know how to walk away from attention.

              1. Yup, and they are gone, as previously stated.

      2. The schism among conservatives is actually more about policy issues, and Trump is the flash point for it, but there is an effort to obfuscate this by focusing on personality. Polls show Trump support is more about policy than personality (and that such support is given “despite” an admitted negative perception of personality). Meanwhile polls suggest Biden support, or perhaps more accurately Trump opposition, since a majority of Biden voters said they were voting against Trump rather than for Biden, is more about personality than policy. No judgment here – personality and policy are both important. Point is only that there is a substantive policy schism on the right, and this schism is the very reason and the only reason Trump was ever elected. To a large degree the schism is politicians and the political establishment on one side with the voters on the other.

        1. Nope. Even people with reliable conservative ratings are excoriated as RINOs for simply daring to criticize Trump.

          1. That doesn’t disprove what I said. “Reliable conservative ratings” is begging the question.

        2. M L : Polls show Trump support is more about policy than personality

          Oh really? Then explain the policy differences between Dear Leader and all those milquetoast Republicans the cultists loathe. Even where you can make a case there’s a little daylight between the two – say with trade or immigration – you discover (surprise!) that Trump’s “policies” were all surface glitter & theatrical noise. The man could have thrown darts or used a Ouija Board for all the strategy behind his tariff policies; and whether his immigration measures were ludicrous (wall), cruel (separating minors) or symbolic (travel ban), they were never about anything more than the next headline.

          Don’t kid yourself. MAGA support for a huckster conman was never about policy. It was always personality, and the entertainment value of President Troll.

          1. Trade and immigration are obviously Trump’s two signature issues and the sole reasons he got elected. On illegal immigration, for decades the Republican party paid pure lip service to the issue of illegal immigration, saying one thing and doing the opposite. R voters were hopping mad about this, hence Trump. Nobody lifted a finger to end our quasi-open borders policy until Trump came along with no-brainer changes like Remain in Mexico. Even Trump didn’t do that much, never pushed e-verify, did a terrible job of advancing legislative agenda, etc. Then you have legal immigration, where Trump was even more divorced from the establishment GOP in pushing the idea of legal immigration policy that puts American workers first rather than the Chamber of Commerce. On trade Trump was yet again even further apart from the establishment GOP. By all appearances the GOP never heard of a trade agreement they didn’t like until Trump came along, they just had some highly vague dogmatic platitudes about “free trade.”
            Relatedly – China. Nobody was talking or thinking about China. Everyone was happy to continue enriching the CCP (while Mitch McConnell’s marital fortunes, deeply invested in China also grew of course.) It was virtually absent from mainstream politics, and Trump changed that. Throw spending and social safety net type stuff in there, Trump again parted drastically from the GOP here. This is just a quick summary. The divide on the right is very much over policy.

            Of course, there are always plenty of voters in the thrall of the cults of personality, as with Trump and Obama both. But you have to be very, very out of touch not to realize that Trump support is overwhelmingly about policies and specifically despite personality, not because of it.

            1. “What exactly constitutes Trump’s political philosophy is hotly debated, with some people arguing he has none. But it’s actually very simple. Trump echoes almost exactly the 1990s politics of Ross Perot, Pat Buchanan, and the Reform Party. From Perot, he takes his skepticism on global trade, immigration, and foreign wars. From Buchanan, he borrows a unique and fearless willingness to fight against political correctness. These issues have always had a big constituency, just not previously one big enough to compete with the Democrats and Republicans. Now they are the Republicans.” https://thefederalist.com/2021/01/14/trumps-support-is-more-about-policies-than-personality/

            2. I agree the trade and immigration policies of Perot and Buchanan are now owned by Trump and are important to his base. But, why was Trump elected and not those guys? I think it is because of his charismatic populism combined with his being a reality-TV star. People viewed him as a legitimate anti-elitist, much more so than the intellectual Buchanan. Perot shares some of that charisma, but Trump stands alone in his no holds-barred, never-apologize, attack-at-all-costs, you-are-fired persona.

              1. Josh R : Trump stands alone in his no holds-barred, never-apologize, attack-at-all-costs, you-are-fired persona.

                I could point out that Trump seldom had the balls to face anyone he was firing (several victims learning only by tweet). But why bother? As noted above, there was never policy substance in any of Trump’s “anti-elitist” shtick. It was always just reality-TV show entertainment.

                And I don’t rely on Josh R’s support alone – you can find plenty of MAGA-types who freely admit they saw President Troll as a middle finger to everyone & anything. When your “no holds-barred, never-apologize, attack-at-all-costs, you-are-fired persona” consists exclusive of brat-child misbehavior, obviously the world of substance & policy has been left far behind.

              2. The anti-war shift is also a big one, at least so it seems to me as someone who was in high school in 2002.

                Why Trump was elected and not those guys? Because over time, Middle East wars have become significantly less popular. Over time, Ross Perot’s message on NAFTA and China and the like has become more popular as well as borne out by empirical data. Resentment at continued GOP double talk and neglect on illegal immigration has skyrocketed. Personality and charisma is always a part of elections and you’re right to say this played a role in Trump’s election. But Trump is just a symptom of the political shifts and the divide among the right wing, which is a divide over policy and culture war issues rather than the person of Trump.

                1. I think the “culture war” is anti-elitist populism. As such, I am not persuaded by your argument but open to see how a Bannon-style economic nationalist (I think that best describes the policy) who is a normal functioning adult member of the elite does in the GOP.

                  1. You raise an interesting point. How will other candidates fare under a similar policy platform of mild economic nationalism and populism? Such as a “normal functioning adult member of the elite.”

                    It’s extremely difficult, because as soon as any such candidate actually poses a credible threat of success, they are viciously libeled 24/7 by the lapdog media, not just as a racist Nazi but in every conceivable and possible way. They’re immediately faced with the forces the D.C. establishment of both parties, intelligence agencies and the entire federal bureaucracy, the Chamber of Commerce, Fortune 500 companies and below, every globalist think tank and international organization, and more arrayed in unity against them. They and all who work for them will be subject to millions of dollars in lawsuits and lawfare, threatened with prosecution and imprisonment, and every type of underhanded coercion and blackmail that someone way get their hands on. Their supporters will be attacked by violent goons if they dare to hold and attend public events.

                    For all the popularity and common sense of putting working Americans first in matters of foreign policy and immigration and trade, the agenda is viewed as “extremely dangerous” by those with a polar opposite agenda and by the globalist agenda of big business/capital. It’s plain to see they will stop at almost nothing to oppose it.

                    What this means is that among the group of people who decide to become politicians, the vast majority would either give in to self-interest or would buckle under the pressure and seem weak or otherwise unable to take it in stride, which would then cause them to fail electorally. To some degree, the policy and the personality type are intertwined in such circumstances.

            3. So much to respond to!

              On immigration, let’s consider Trump’s wall: he ignored it for two years, then agreed to a wall-less appropriation bill in the morning, took heat from Ann-Coulter-types in the afternoon, and reversed himself 180 by next morning.

              From that Ann Coulter-induced panic came the government shutdown & Trump caving, negotiations with Congress & Trump caving, then finally Trump looting congressional appropriations. All this resulted from Ann Coulter-induced panic – which is way beyond pathetic.

              Or consider Trump’s travel ban: To make a campaign applause line on banning Muslims into “policy”, Trump claimed the ban would be an immediate executive order to “protect the country” for six to seven months while new vetting procedures were implemented. Of course the order is held up in the courts two to three times the period it was supposedly needed, but still Trump fought on. About a year in, a curious judge asked how the procedures were coming along. They weren’t even started. It was still only a campaign applause line.

              As for China and the “thought” Trump put into that country, you seem to have forgotten a little history. For the first half of his presidency Trump alternated between flash-bang tariffs that accomplished nothing & mash-notes to Xi Jinping as gooey as anything Donny passed to Kim Jong-un. At this point, he explicitly said the U.S. wanted no part of the Uighurs catastrophe.

              You see, all Trump wanted a flashy trade deal that made him look tough (substance optional). It was only when Xi didn’t play along that Trump discovered our New Enemy China. Things then really accelerated when DJT needed a distraction from his own indifference to the pandemic.

              The most substantive measure Trump took towards China was a gift to the CCP delivered on a silver platter. Pulling out the Trans-Pacific Partnership was another headline move, but it ceded economic leadership of Asia Pacific to Beijing. China stepped into the void in November 2020, signing the Regional Comprehensive Economic Partnership with fourteen other Asia-Pacific states. That blunder was more consequential than all of Trump’s theatrical noise about the Red Menace.

              1. Yeah, Trump wasn’t very good at effecting the policy agenda that was responsible for his win. You can also have your argument that he never really cared about any of it, but only wanted to make himself look good and capitalize on the popularity and broad appeal of the policy agenda. None of that contradicts what I’m saying. Many people found his personality detrimental, believed he shot himself in the foot regularly, and noted that the ways in which he was ineffectual. Yet they voted for him anyway because they agreed generally with his policy positions and found him less bad than alternatives.

        3. “The schism among conservatives is actually more about policy issues, and Trump is the flash point for it, but there is an effort to obfuscate this by focusing on personality”

          Doesn’t add up, though. Trump’s policies are broadly against conservative values. He is a big spending, EO writing, deficit running, constitution disrespecting big government imperial president.

          The cult of personality around him also defies this supposed preference for policy. Personality cults are not borne from careful analysis of policy, but from the feelings people get when they think about their dear leader.

          1. Trump is more respecting of the Constitution than any President in the modern era. Which is not to say that he’s particularly respecting of the Constitution.

            You’re right about spending. From the beginning as a candidate, Trump made clear that he was a “deficit dove” if you will. But you’re helping to make my point. This is a divide between Trump and the old GOP. Call it the schism on the right rather than the schism among conservatives, if you like that better.

            1. The only president who has failed to divest from his international holdings in accordance with the interpretation of the emoluments clause used for all of his predecessors, and who was impeached once for withholding congressionally mandated payments (for the purpose of personal gain and against the interests of America) in violation of the constitution, and impeached again for trying to use a mob to prevent the constitutionally mandated tallying of electoral votes is somehow the most respecting president of the constitution?

              You are not rational. You are not living in reality. I thought progressives were supposed to be the ones who believed in relative truth vs absolute truth.

              1. Historically speaking, divestment is actually a very recent development, and almost all Presidents did NOT do it.

        4. Trump was elected largely because he was running against the most hated woman in the history of the world.

          1. Can’t really argue with that, (And it shows how out of touch the Democratic party establishment is that they thought Hillary was a good candidate to go with.) but it doesn’t explain how he won the nomination.

        5. The schism among conservatives is actually more about policy issues,

          The schism among conservatives is 1,000% about personality. The Republicans who supported impeachment were denounced as RINOs and traitors by state apparatchiks for disloyalty to Trump — not for their position on any issues.

          Polls show Trump support is more about policy than personality

          Polls show Trump support is only about personality. “At least he fights.”

    4. A civil suit against Trump for January 6th should scare the daylights out of the Dems because that means that they can all be sued by anyone harmed in any of the BLM riots — any of the businesses that were burned, etc.

      Those are real damages and throw in some creative forum shopping and people such as Pelosi and Harris could be looking at some very serious problems. Heck, why can’t insurance companies sue, in Connecticut Federal District Court as they are headquartered in Hartford…

      1. I truly believe Ed, that if you comment enough, someday you might actually be right.

        1. You are far more charitable and optimistic than I.

          1. Monkeys. Shakespeare.

            Though, on second thought, that’s not quite right. The monkeys are presumed to be typing randomly, whereas Dr. Ed’s typing is heavily biased towards idiocy.

            1. Ad hominem attacks are the last vestige of those who have nothing to say … what exactly do you find at fault with Dr. Ed’s point?

              1. Ad hominem attacks are the last vestige of those who have nothing to say … what exactly do you find at fault with Dr. Ed’s point?

                The fact that every single word he said was false. No, “the Dems” cannot “all be sued” by “anyone harmed in any of the BLM riots.”

                No, “Pelosi and Harris” cannot be sued with “creative forum shopping” in “Connecticut Federal District Court.”

                1. He didn’t say that Democrats could be sued by anyone harmed in any of the BLM riots. He said that, if Trump can be sued for January 6th, THEN Democrats could be sued for the BLM riots.

                  It’s pointing out an implication of thinking Trump could be civilly liable for January 6th.

                  You didn’t understand what he wrote because you’re so used to double standards that the idea of “If you were held to the same standard” just passes right over your heads.

                  1. Look, one can be James Pollock level pedantic and observe that in fact anyone be sued for anything; Brett Bellmore can be sued for the BLM riots too.

                    The question is whether the suit would be non-frivolous.

      2. Dr. Ed, were those unnamed Dems addressing angry mobs that they were trying to rile up?

        1. After months of working them over laughable claims of a stolen election.

          1. Yes, after months of working them over with laughable claims of fictional police abuses.

      3. ” civil suit against Trump for January 6th should scare the daylights out of the Dems because that means. . .”

        No, no it does not mean anything that you claim.

        If there are civil causes of action that anyone harmed as a result of the protests might be able to bring against Pelosi, Harris, et al, they do not depend on anything to do with Trump and the riots and insurrection that he successfully instigated on Jan 6. If the Democrats can be sued successfully, they can be sued successfully. Any suit against Trump changes nothing about the likelihood or possible success of such suits.

      4. But EV covered extensively the lawsuit over the BLM demonstration/riot blocking a freeway that allowed a cop to sue the organizer of the demonstration on the grounds that he should have forseen some of the participants becoming violent.

        The Supreme Court reinstated the lower court decision that said the suit was barred by the first amendment:

        “Though the culprit remains unidentified, Officer Doe sought to recover damages from Mckesson on the theory that he negligently staged the protest in a manner that caused the assault. The District Court dismissed the negligence claim as barred by the First Amendment.”

        The Supreme Court also noted that the vacated appeals court decision ignored
        “NAACP v. Claiborne Hardware Co., 458 U. S. 886 (1982), forbids liability for speech-related activity that negligently causes a violent act unless the defendant specifi-
        cally intended that the violent act would result.”

        I don’t think Trump has any concerns about civil liability over the riot, at least not unless they can prove a criminal case first.

  2. More lawfare by the failed elite. I oppose violence. It has full justifucation in formal logic. This lawyer profession is unbearable. This is fake legal analysis to prevent the Trump overwhelming election in 2024, after the agonies of the voter from the Biden administration.

    1. You have to love a world where Professor Adler is an elite but billionaire (and an heir to boot) former POTUS Donald Trump is not.

      1. You are a denier of the Trump Effect.

    2. If Hugo Chavez (1954-2013) could steal Trump’s votes in 2020, I suppose it’s possible that a memo from 2000 (written by a Clinton appointee but adverse to Clinton’s own interests) could have been written to “prevent the Trump overwhelming election” in 2024.

  3. Eventually, a new villain will be required. For all the bitching that is done about Trump, the people doing the bitching cannot think of anything else.

    1. And it’s apparent conservatives have just put him out of their minds, hey, he lost months ago, amirite?

  4. Can a president be impeached based on fake news?
    Answer: Yes.

    A large part of the issue with the Capitol Protests was the fact a Capitol Police officer died…apparently at the hands of Trump supporters due to a fire extinguisher being thrown. That “fact” was in the New York Times, and read into the Congressional record, as fact. No other sources confirmed that a Capitol Police Officer was killed by a fire extinguisher being thrown.

    Except the NY Times just retracted that story. AFTER the impeachment trial. And you gotta wonder…. How much more “fake news” was used to support the impeachment and impeachment trial?

    https://amgreatness.com/2021/02/14/the-new-york-times-retracts-the-sicknick-story/

    1. Meanwhile, genuine facts like tampered evidence like tweets and incorrect dates are ignored.

      1. Opinion noted, and dismissed.

        1. No, the defense actually proved evidence tampering.

          1. No they fucking didn’t Brett. They proved a mistake was made with a blue checkmark.

            Don’t be a dipshit. You cannot go take a screenshot of Trump’s tweets anymore, not even using the internet archive, because his account is suspended. In order to present his tweets as they would’ve appeared, and in a format familiar to everyone, they had to re-create them with graphic design.

            They made a fucking mistake when doing so, with having a BLUE CHECKMARK OMG when there should not have been one. The date was corrected before presentation. That the published newspaper photo still had the wrong date is not ‘evidence tampering’ you dolt.

            You don’t think that people make mistakes? Ask yourself whether you live in the “Unites” States of America.

            JFC.

          2. I bet you lapped up the “selectively edited video” argument too, right? But the Fight Club music video put out by the defense wasn’t “selectively edited” at all?

            Have some goddamn integrity and take off your leash.

            1. Also, I hate the phrase “selectively edited.” Of course they were selectively edited; all editing is selective. That’s the nature of editing!

              What people mean to accuse is that they were misleadingly edited.

    2. Armchair:

      Your conspiracy theories occupy the same plane as Linus waiting for the Great Pumpkin. The only fake news is coming from the right.

      1. You understand this isn’t a conspiracy theory, right?

        The NY Times actually did retract the story about how Officer Sicknick died. And the prosecution for the impeachment really did use that NY Times story as part of its justification for impeachment.

        You get that, right?

        1. Edit. They “corrected” the story….

          1. “Corrected”, whether in quotes or not, is probably more accurate.

            The American Greatness piece (by Julie Kelly) is entitled “The New York Times Retracts the Sicknick Story”, but later in the piece she states “essentially retracted”.

            Kelly seems to imply that it was irresponsible for the NYT to include, in the initial reporting, information from “officials close to the Capitol Police”.

            But such sources are used all of the time, both by the Trump Media and the non-Trump Media.

            Even if the officer didn’t die from a fire extinguisher blow to the head, he still did die. And someone did throw a fire extinguisher.

            1. “Even if the officer didn’t die from a fire extinguisher blow to the head, he still did die. And someone did throw a fire extinguisher.”

              It is an essential retraction. What makes the NYT story a story at all is that the bad bad Trump supporter threw a fire extinguisher, which killed a brave Capitol police officer. It’s the direct action results in death sequence.

              If a fire extinguisher is thrown, but it didn’t actually cause a death, who really cares? “Object thrown at riot, causes minimal damage” isn’t a big story. If the officer died of a stroke or pre-existing condition, it’s a tragedy, but it’s unconnected from direct action by the protestors.

              Only by keeping the direct “Thrown object results in death of police officer” story does it become a powerful storyline.

            2. “Even if the officer didn’t die from a fire extinguisher blow to the head, he still did die. And someone did throw a fire extinguisher.”

              But there is no evidence that Sicknick was hit by anything, no video, no witness, no medical evidence, and after the riot when Sicknick talked to his brother the only thing he complained about was being exposed to pepper spray.

              The claim about Sicknick being hit by a fire extinguisher was one of the impeachment counts, was it fed to the NY Times to railroad Trump’s impeachment?

              It also shows why the House rushing the impeachment and trying to get the Senate to rush the trial was inappropriate.

              I think there needs to be an investigation on how a false charge got into an article of impeachment, the Times needs to disclose it’s sources.

              1. I’m a little surprised the falsified evidence that was presented to the Senate has not become more of an issue. That is, a filing with the House Ethics committee, and the ABA. I thought that when prosecutors falsified evidence, it was a big deal. Why not now?

                Maybe Professor Adler can address that aspect in a future blog post.

                1. Because no one expects Democrats to have any standards.

                2. Oh my god! Don’t you people have better things to do with your time?

                3. It. Was. Not. Falsified.

                  It was wrong. No one has proven anything that would indicate intent otherwise.

                  FFS.

                    1. This source is too hysterical for me to parse very well.

                      But the whole tweet thing was obviously not material, and making a big deal out of this stinks of desperation.

                    2. Uh huh = This source is too hysterical for me to parse very well.

                      You lied, and I called you on it.

                    3. No, I didn’t. No falsified evidence was presented to the Senate committee.

                      You can be a pedant, but the Senate was not.

                4. As much as I hate to say it, what’s said on the floor of Congress is Sacrosanct for good reason. It doesn’t matter what the circumstances, we should not allow Congressmen to be punished legally for anything they say in debate. Punishments for falsification will almost inevitably turn into punishments for being wrong, and then punishment for having the wrong opinion. It’s bad enough when it happens out here, but if it happens in Congress itself, there might not be any turning back.

                  1. There are already constitutional provisions that protect congressmen from being investigated or prosecuted for any false statements whether intentional or not.

                    But there is not, nor should there be any protection from a congressional ethics complaint and investigation.

                    I’d like to know just how false evidence got introduced in a Senate impeachment trial. By the time the evidence about Sicknick was introduced it was already known it was without any foundation.

              2. The claim about Sicknick being hit by a fire extinguisher was one of the impeachment counts,

                False. In fact, there was only one impeachment count, so I don’t know what “one of the impeachment counts” would even mean.

                Now, to be sure, that one impeachment count does list, as part of the effects of Trump’s misconduct, that “members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.” (Emphasis added)

                I assume the italicized part is what you refer to, but you will notice that there is nothing about any fire extinguisher, and nothing “false” that has been “retracted.”

                1. Besides the wording in the actual count, the NYTimes story claiming Sicknick’s death was caused by an assault with a fire extinguisher was introduced as evidence as part of their pretrial brief by the House Managers.

                  To claim it was not part of their case is false. And by the time it was submitted to the Senate it was already known that it was a false narrative.

                  1. To claim it was not part of their case is false.

                    Who did that?

                    And by the time it was submitted to the Senate it was already known that it was a false narrative.

                    It’s not even known now that it’s false!

      2. Krychek_2, he’s right, you are wrong here. Do a little research.

        1. Publius, and Armchair, you’re both missing the point. The conspiracy theory isn’t that the NYT corrected a story; even the best journalists occasionally get stuff wrong. Especially when they’re on deadline. Stuff happens.

          Rather, the conspiracy theory is in writing it off to a grand anti-conservative, anti-Trump conspiracy rather than the fact that a reporter made a mistake. OK, a reporter made a mistake. That doesn’t mean there’s a sinister plot to take out Trump and his supporters.

          At the time the original story was written, the Times probably did believe he’d been killed, either because the reporter was given misinformation or because somebody didn’t fact check. It happens.

          1. “conspiracy theory” means strawman

            Someone, somewhere believes (or is trolling about) something not true, therefore everyone Krychek_2 doesn’t like believes crazy conspiracy theories. And anything anyone says can be dismissed.

            It’s totally cool that the left bases their wrath and hatred on provably false narratives. Because saying “conspiracy theory” is an all purpose get-out-of-reality-free card.

            1. Ben calling out wrath and hatred.

              Least self aware person in the world.

              1. No argument on my point then. Good.

                1. Least self aware person doesn’t get argument about un-self aware he is. I am Jack’s complete lack of surprise.

            2. Ben, except that most right wing conspiracy theories involve claims that are provably untrue. Like that Obama was born in Kenya, or that Hillary Clinton runs a pedophile ring, or that the 2020 presidential election was stolen.

              1. Notice Ben and the other Trumpistas don’t decry or disassociate themselves from the charge of conspiracy thinking, they just do a version of ‘just because we’re paranoid doesn’t mean someone isn’t out to get us’ routine. They know what they are.

              2. No argument on my point then. Good.

                1. Your point to the charge of being a conspiracy theorists which is ‘yes, but sometimes there is a conspiracy!’

                  Like I said, way to own it Ben. You be you.

              3. Krychek, what is the first documented instance of someone claiming Obama was born in Kenya?

                It was in a blurb written by Obama’s own literary agent. If Obama’s own PR flacks are claiming he was born in Kenya, you can see how the rumor can get started.

                1. Can you provide a citation for that?

                  1. Do you ever provide citations for any of your “facts”?

                    1. If asked to.

                    2. Citation needed

                    3. For which claim that I’ve made do you want a citation?

                  2. Jeez, it’s easy to find on Snopes:

                    Did Obama’s Literary Agent Say He Was Born in Kenya?

                    Rating: True

                    The promotion pamphlet was from 1991.

                    1. That’s not the claim birthers make. You’ve changed the scope.

                      I’m not going to assume you intended to lie here, but this is deceptive as hell.

                    2. “That’s not the claim birthers make. ”

                      ?? That’s exactly the claim birthers make.

                    3. Sarcastro, we are talking about the claim I made that Krychek asked for a cite for. And I substantiated it without any question.

                      I have certain Obama was born in Hawaii, at least since the Hawaiian Advertiser birth announcement surfaced in the 2008 campaign as a response to Hillary’s whisper birther campaign in the primaries, so don’t ask me to defend any of their claims.

                      My only point is that if the first recorded claim that Obama was born in Kenya came from Obama’s own PR flacks then it’s understandable how those rumors could get started.

                    4. It didn’t come from “Obama’s own PR flacks,” and the “rumor” [sic – it was just a lie] “got started” years before anyone ever saw that blurb.

                2. Although the booklet claiming that Obama was born in Kenya was published in 1991, it seems to have been totally unknown by the birthers prior to Breitbart writing about it in 2012. It had nothing to do with how the lie got started.

                  It was not written by Obama’s “literary agent.” It was written by Miriam Goderich who says she “was an agency assistant at the time.” How she happened to make the mistake is unclear but she says that it was a fact checking error on her part and not based on any information provided by Obama.

                  1. “it seems to have been totally unknown by the birthers prior to Breitbart writing about it in 2012.”

                    Or, to put it another way, “Proof that the birthers knew about it hasn’t been shoved in our faces, and we’re too lazy to go looking for it.”

                    1. Lets go defending birthers now, eh?

              4. And left-wing conspiracy theories claimed that the President was a Russian asset, the Rusians “Hacked” the 2016 election, and Sarah Palin incited the Gabby Giffords shooting.

                1. The first you’ll need to specify what you mean. The second isn’t a conspiracy.

                  1. The belief that Russians hacked into voting machines and altered vote tallies isn’t a conspiracy? OK, call it whatever you want.

                    1. Thanks for clarifying. Though not for pretending it was clear the whole time.
                      That is a conspiracy. And plenty on the left believe it, to their own detriment. But it is also not one promulgated by anyone in DNC leadership. Or even in mainstream media

                      Unlike the GOP President and even statewide parties with their birtherism and Seth Rich and the 2021 election being stolen and even QAnon with Kelley.

                    2. “And plenty on the left believe it, to their own detriment. But it is also not one promulgated by anyone in DNC leadership. Or even in mainstream media…”

                      Both the Democrats and the mainstream media claimed repeatedly that “The Russians hacked our election!” And most Dems believe that the Russians hacked into voting machines and altered the results. Are those two unrelated facts?

          2. The conservative movement has gone from a mainstream that wants limited government within our republican norms with a conspiracy theorist fringe who cares not a white about them to the other way around. Notice how our hard core Trumpistas relatively rarely talk about policy or ideas, it’s almost always about their scandal/conspiracy du jour.

          3. The NYT has assured us that their stories are rigorously fact checked before printing. And the cause of death was known for over a week, yet the NYT waited to correct the story.

            The sloppiness of the reporting on this story hardly speaks “best of reporters.”

            1. Yes, the Times is now staffed by a bunch of juvenile, politically biased nincompoops. That is not a contradiction to Trump being a criminal. The word AND is a very useful work in the English language.

              1. BL, Note my post only referenced the NYT because that was the subject being discussed at the time. Allegations of Trump’s guilt nor innocence were not mentioned.

                Was this a failed attempt at creating a strawman or just simply not reading the thread?
                The word AND is a very useful work (sic) in the English language, right?

                1. I was not necessarily responding to you. Just to many here who think that pointing out the flaws in much of the MSM somehow vindicates Trump.

                  And work was a typo. You may have heard of that.

            2. I’m not some huge fan of the NYT, but there’s a game that many conservatives play with professional journalists that should be recognized here. Unlike most conservative media outlets, which just peruse the original content (news stories) that professional journalists generate to find cherry picked examples and then place a slant on it and release it as their column or ‘article,’ most major professional journalist outlets have hundreds of people working under their years of training and experience to produce actual original content regularly. Times this by the number of outlets and you get lots of content. Of course it’s easy then to find one, heck one a day or week, that was ‘wrong’ and point and go ‘ha, more like LameStreamMedia, amirite?’

              But you know, even a great quarterback like Mahomes throws incompletes and interceptions. But you’d have to be odd to judge him based on those and ignore the bigger picture. If you look at the bigger picture he’s an amazing quarterback (I don’t even like the guy btw).

              And this is the essence of conspiracy thinking: cherry picking events and either spinning them or taking them as more regular than they are to imply something nefarious. Instead of thinking: well, there are so many journalists doing work daily of course there’s going to be a sloppy story almost every day or week, but given the former most of it must be on the up and up (replace journalists with scientists or politicians or academics or…etc and you get the conspiracy world that’s out there).

              1. Those who cannot do, teach. Those who cannot teach, criticize.

              2. “Of course it’s easy then to find one, heck one a day or week, that was ‘wrong’”

                Here’s today’s:

                NYT:
                “…James Damore wrote a memo arguing that the low number of women in technical positions at the company was a result of biological differences, not anything else..”

                Actual Memo:
                “Differences in distributions of traits between men and women may in part explain why we don’t have 50% representation of women in tech and leadership.”

              3. ” Instead of thinking: well, there are so many journalists doing work daily of course there’s going to be a sloppy story almost every day or week, but given the former most of it must be on the up and up…”

                “Capitol Police Officer Bludgeoned to Death with Fire Extinguisher”
                was a pretty important story to get wrong, no? If I you on Jan 10th that maybe nobody was bludgeoned to death with a fire extinguisher, but maybe journalists were just being sloppy, you would have called me the worst conspiracy theorist in the book.

                1. Counterfactuals don’t avoid your original conspiracy theory about intentional press lying.

                  1. “Counterfactuals don’t avoid your original conspiracy theory about intentional press lying.”

                    When did I say that the press were intentionally lying about this, Gaslightro?

                    Although they did intentionally lie about the NYT reporter doxing the other journalist.

            3. The NYT has assured us that their stories are rigorously fact checked before printing. And the cause of death was known for over a week, yet the NYT waited to correct the story.

              In fact, the cause of death still is not known, so you might want to fact check your attempted fact check of the NYT.

              1. According to Tucker Carlson there are no marks, wounds, or bruises on the body of Sicknick which indicate he was struck by a fire extinguisher or anything else. So at least it appears that his cause of death was not by violence.

                1. Unless Tucker provides sources, that’s not probative.

                2. According to Tucker Carlson

                  I was not aware that Tucker Carlson was a medical examiner.

                  Nor is he a journalist. So what I think you meant to say was, “Tucker Carlson relayed something actually reported by CNN that a law enforcement official said that medical examiners did not find evidence of blunt force trauma.”

                  (CNN also reported in that same piece that they are still investigating whether he (Sicknick, not Carlson) suffered a fatal reaction to being chemically sprayed by protesters. I — and the law — would call that death by violence.)

                  But the point is, none of this is official. We don’t know the cause of death. We think we know that he was not struck by a fire extinguisher in the same way that we thought we knew that he was struck by a fire extinguisher: from a source.

          4. Krycheck,

            Sure, reporters make mistakes. (Although they all seem to go one way with the NYT, but that’s a different issue) However….they are supposed to correct the mistakes where there’s evidence that goes the other way. That evidence came January 8th from conversations Sicknick had with his family….after he returned to his office….after he was supposedly hit with a fire extinguisher.

            But the NYT did not correct themselves. They didn’t do further investigation, in light of further information That’s a problem.

            What’s a bigger problem? Using this “reporting” as evidence in an impeachment trial. Which it was used. Repeatedly. You’re not under “time limits” here. Yet, the “mistake” continued. Why not pressure for the autopsy to get done. I mean an impeachment is a big deal, and perhaps a little pressure could be used to get it done in timely manner? But oddly…it wasn’t.

            Other sources say there wasn’t any evidence of blunt force trauma in the autopsy…which is a big problem if he was supposedly hit in the head. Yet none of this made it into the impeachment record. Just that uncorrected incorrect original story….almost a full month after the original story. And of course, the original story was very emotional and moving…it made impeachment so much easier when there was a clear victim.

            https://www.propublica.org/article/officer-brian-sicknick-capitol

            The “conspiracy” is not in the original story. It’s in the follow up (or lack thereof).

          5. “OK, a reporter made a mistake.”

            They reported the fire extinguisher incident based on anonymous sources. If that’s a mistake, it seems to be a mistake reporters make an awful lot.

            But they never seem to find anonymous sources with nice things to say about Trump.

            1. It’s hard to find someone smart enough to string together two coherent sentences with nice things to say about Trump.

              1. “It’s hard to find someone smart enough to string together two coherent sentences with nice things to say about Trump.”

                You don’t think journalists could have found two anonymous sources to say that the election was stolen? I’ll bet they could have. But that would be terrible reporting.

                And it’s still terrible reporting when they do it in other contexts.

            2. Do better than this confirmation bias crap, TiP.

              1. Confirmation bias? You’ve got a scenario where a bunch of people on one end if the political spectrum collect information, make inferences about the information, report the inferences and conceal the underlying data, and you harp on me about confirmation bias?

                No wonder you do that instead of make actual arguments.

                1. But they never seem to find anonymous sources with nice things to say about Trump.

                  This is confirmation bias.

                  Blowing up this anecdote into proof of deceitful intent is not confirmation bias, just conspiratorial telepathy.

                  1. “But they never seem to find anonymous sources with nice things to say about Trump.

                    This is confirmation bias.”

                    This is an observation.

          6. rather than the fact that a reporter made a mistake.

            But you’re conceding too much; as far as we know, a reporter didn’t make a mistake. He reported what he was told.

            1. “But you’re conceding too much; as far as we know, a reporter didn’t make a mistake. He reported what he was told.”

              That was the mistake.

              1. If he didn’t have multiple sources, you’d be right. But there is no evidence he departed from usual NYT reporting protocols.

                Off topic, but that is a lot better than the right-wing media, which has no protocols, and when checked in court, argues they are all entertainment, not news.
                We’ll see how that plays with Dominion.

                1. “If he didn’t have multiple sources, you’d be right. But there is no evidence he departed from usual NYT reporting protocols.”

                  Didn’t say he did. A reporter can get multiple source to say anything they want.

          7. Krychek, I would agree, except for the fact that it’s so consistent.

            EVERY, SINGLE Big-headline hate crime in the past several years has turned out to be deliberate fraud or an absurd misunderstanding.

            Jesse Smoulet. Hired his coworkers to fake a mugging.

            The girl that got set on fire? Police released the red light camera footage of her travelling home, not stopping at all. Rumor is that it was domestic violence, and she wanted to protect her man.

            The NASCAR driver who found a noose? It was the garage door handle which had broken off.

            All of these were announced in a shout and then retracted in a whimper, if they were retracted at all.

            Now, we have this story that was, at best, heavily exaggerated. It was also so on the nose. “What happened to blue lives matter?” was all over social media. Then, the correction was actively quashed. The correction should have happened when the medical examiner ruled no sign of head trauma, not weeks later after the political turmoil had passed.

            It’s not a conspiracy. It’s a pattern that is blazingly obvious.

            1. Well to be fair the medical examiners statement has not been released, so really the only thing actually on the record is Sicknick’s brother’s statement about their conversation.

              But obviously the fire extinguisher theory has been discredited.

    3. The largest part of the issue with the Capitol Protest is that a lot of people are interpreting it as an insurrection. An attempt to forcefully reverse the result of an election. He wasn’t impeached because of the death of the officer.

      Otherwise it’s just a run-of-the-mill riot. We’ve had plenty of those in the last year.

      1. The largest part of the issue with the Capitol Protest is that a lot of people are interpreting it as an insurrection. An attempt to forcefully reverse the result of an election.

        Which it manifestly was.

        1. Bernard, my statement was accurate. I did not state nor did I intend to state a personal opinion.

          1. I didn’t say your statement was inaccurate.

            I merely said that I am among those who interpret it as an insurrection. Person X is elected to some office. Before X is inaugurated some people attempt to violently disrupt the formalization of the result, with the intent of installing Y in office instead. Indeed, they are willing to commit murder to do this.

            Sounds sort of like an insurrection to me.

            1. Obviously. What is the counter argument? “He was just having a rally telling them they were “losing their country forever” if they did not “fight harder than ever” just as the electoral votes were set to be counted and his loss would be final and permanent was just a big ol’ coincidence.”?

            2. “Indeed, they are willing to commit murder to do this.”

              Who was willing to commit murder?

              1. Who was willing to commit murder?

                Those chanting “Hang Mike Pence,” for starters. Also those who wanted to kill Pelosi.

                1. So there were people willing to chant hyperbole?

    4. What I find more disturbing are the two officer suicides purportedly caused by this. Not the summer of violent protests, but this.

    5. It is true, there was a confused report, which the NYT corrected.

      One funny aspect of this – you know people like AL do, in fact, know when they’re lying – by the way that they latch on to facts like this, when they get them.

      The rest of the time, it is just fanboi preening for their ethnonationalist wannabe-king.

      1. Shorter: pointing out the truth to liars proves you’re a liar.

    6. Has the coroner report of that officer death been released?

      1. Remember that a large percentage of liberals still think Michael Brown was shot while his hand were up. They’ll probably continue to believe that Officer Sicknick was killed with a fire extinguisher forever as well. Fact isn’t as important as narrative to them.

    7. “Except the NY Times just retracted that story.”

      How can two anonymous sources be wrong?

  5. Wonder if the next Congress will impeach Biden on trumped (pun) up charges?

    1. As long as the Republican party can’t even decide whether they support Trump or condemn him, I very much doubt that they will have the votes.

      1. Why not both?

        I condemn Trump’s election falsehoods, but I still consider my self a supporter. I don’t want him to run again in 2024, but I don’t regret either my 2016 vote or 2020 vote. I also blame Trump’s rhetoric for costing us the Senate elections in Georgia.

        It’s not an either/or proposition.

  6. I didn’t read the whole memo, but how is this even a hard question?

    If Double Jeopardy were an issue, jeopardy would attach regardless of the verdict in the impeachment trial. It is uncontroversial that criminal prosecution is permissible after an impeachment conviction, so why would an acquittal be any different?

    1. Yup. Why it take 46 pages to reach that conclusion is a mystery. You did it in two sentences.

      1. Only thing I would add is that a Senate trial does not put the person in “jeopardy.” The Fifth Amendment states, in relevant part: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” All the Senate can do is remove the person from office and/or disqualify them from future office. That is not jeopardy, any more than a cop being removed from his position for misconduct is “jeopardy” that counts towards a later criminal prosecution.

        1. There is something else though — much as a criminal conviction under the higher reasonable doubt standard precludes a civil trial under the lower preponderance standard, couldn’t it be argued that a not guilty finding under the lower preponderance standard should itself mandate a similar finding under the higher criminal standard?

          In other words, while Alcee Hastings could be both criminally not guilty and Impeachment guilty, and OJ Simpson could be both criminally not guilty and civilly guilty, the converse of either is not possible.

          1. The surprise answer to your question, as usual, is “no.”

          2. It’s a logical argument that I would think reasonable to bring up in court as a supporting point, but I wouldn’t expect it to hold up on its own. It’s just not a terribly strong argument because you are comparing apples and oranges. Add in the fact that the impeachment was transparently political, and that throws an impossible monkey wrench into it. Closer to apples and orangutans.

      2. I agree, it’s a silly question to spend that much effort on. Yes, and obviously so.

        Now, can a failed impeachment where people had to continually point out that something doesn’t have to be a crime to be impeachable, be followed up with a successful criminal prosecution?

        Probably not.

        1. You are assuming that the articles of impeachment and the criminal indictment will be for the same thing. They won’t.

          1. I’m assuming that, if they had an actual crime to point to, it would have been mentioned in the bill of impeachment. Are you suggesting they took a dive, instead? Or just hoping that evidence of an actual crime will materialize at some point?

            Remember when Schiff claimed witnesses were testifying to proof of Trump colluding with Russia in the secret hearings? When the testimony was finally released, it turned out he’d been lying. You were being played then.

            You’re being played today by the folks claiming he’s a criminal. If they’d had evidence of that, they would have used it last week.

            1. Individual-1 has long been a criminal, as the evidence has shown.

              Michael Cohen took those actions which led to him being in prison under direct orders from Individual-1. There is no Cohen crime/conviction without criminality from Individual-1.

              1. Problem with this is Cohen said that while admitting to other crimes and some think it was done to get off easier.

                While Cohen can/may testify Trump broke the law that is not an established fact. In fact Cohen’s testimony will likely be challenged as to credibility.

                There is no question Cohen could have been charged with several other crimes and got off lighter because he implicated Trump.

                1. In fact, I believe the DOJ has a general rule against naming unindicted co-conspirators in situations like this.

                  9-11.130 – Limitation on Naming Persons as Unindicted Co-Conspirators

                  “In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments. The practice of naming individuals as unindicted co-conspirators in an indictment charging a criminal conspiracy has been severely criticized in United States v. Briggs, 514 F.2d 794 (5th Cir. 1975).

                  Ordinarily, there is no need to name a person as an unindicted co-conspirator in an indictment in order to fulfill any legitimate prosecutorial interest or duty. For purposes of indictment itself, it is sufficient, for example, to allege that the defendant conspired with “another person or persons known.” In any indictment where an allegation that the defendant conspired with “another person or persons known” is insufficient, some other generic reference should be used, such as “Employee 1” or “Company 2″. The use of non-generic descriptors, like a person’s actual initials, is usually an unnecessarily-specific description and should not be used.

                  If identification of the person is required, it can be supplied, upon request, in a bill of particulars. See JM 9-27.760. With respect to the trial, the person’s identity and status as a co-conspirator can be established, for evidentiary purposes, through the introduction of proof sufficient to invoke the co-conspirator hearsay exception without subjecting the person to the burden of a formal accusation by a grand jury.

                  The prohibition against naming unindicted co-conspirators should not extend to persons who have otherwise been charged with the same conspiracy, by way of unsealed criminal complaint or information. In the absence of some significant justification, federal prosecutors generally should not identify unindicted co-conspirators in conspiracy indictments.”

                2. And,

                  9-27.760 – Limitation on Identifying Uncharged Third-Parties Publicly

                  “n all public filings and proceedings, federal prosecutors should remain sensitive to the privacy and reputation interests of uncharged third-parties. In the context of public plea and sentencing proceedings, this means that, in the absence of some significant justification, it is not appropriate to identify (either by name or unnecessarily-specific description), or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue. In the unusual instance where identification of an uncharged third-party wrongdoer during a plea or sentencing hearing is justified, the express approval of the United States Attorney and the appropriate Assistant Attorney General should be obtained prior to the hearing absent exigent circumstances. See JM 9-16.500. In other less predictable contexts, federal prosecutors should strive to avoid unnecessary public references to wrongdoing by uncharged third-parties. With respect to bills of particulars that identify unindicted co-conspirators, prosecutors generally should seek leave to file such documents under seal. Prosecutors shall comply, however, with any court order directing the public filing of a bill of particulars.

                  As a series of cases makes clear, there is ordinarily “no legitimate governmental interest served” by the government’s public allegation of wrongdoing by an uncharged party, and this is true “[r]egardless of what criminal charges may . . . b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future.” In re Smith, 656 F.2d 1101, 1106-07 (5th Cir. 1981). Courts have applied this reasoning to preclude the public identification of unindicted third-party wrongdoers in plea hearings, sentencing memoranda, and other government pleadings. See Finn v. Schiller, 72 F.3d 1182 (4th Cir. 1996); United States v. Briggs, 513 F.2d 794 (5th Cir. 1975); United States. v Anderson, 55 F.Supp.2d 1163 (D. Kan 1999); United States v. Smith, 992 F. Supp. 743 (D.N.J. 1998); see also JM 9-11.130.

                  In most cases, any legitimate governmental interest in referring to uncharged third-party wrongdoers can be advanced through means other than those condemned in this line of cases. For example, in those cases where the offense to which a defendant is pleading guilty requires as an element that a third-party have a particular status (e.g., 18 U.S.C. § 203(a)(2)), the third-party can usually be referred to generically (“a Member of Congress”), rather than identified specifically (“Senator X”), at the defendant’s plea hearing. Similarly, when the defendant engaged in joint criminal conduct with others, generic references (“another individual”) to the uncharged third-party wrongdoers can be used when describing the factual basis for the defendant’s guilty plea.”

                3. In short, they’re almost categorically prohibited from arranging for somebody to implicate an uncharged individual in a plea deal. This is because doing so had an ugly track record of being used to slander people under the color of law.

    2. There’s one important part though…

      The actual article of impeachment that Trump was impeached on was…not a crime.

      You can’t criminally prosecute someone for something that isn’t a crime.

      1. That’s true, but the question is if he were prosecuted in the future going forward, would the Senate acquittal preclude that. Of course, and future prosecution has to be for a crime.

        I should add one other thing. Whatever the effect of the Senate result, it certainly would not preclude a State prosecution, because of the separate sovereigns doctrine. So Georgia without question could prosecute Trump. Which is what I hope will happen.

        1. We assume that the question was, “Can they be prosecuted for what they were impeached over?”, because the idea that acquittal would render a former president categorically immune to prosecution for anything whatsoever is too crazy to be taken seriously.

          But if they’d had a case for him being guilty of any crime, you’d think it would have been mentioned in the bill of impeachment.

        2. A wronged party, and his attorneys, can’t ask a state official to do his job?

          The other thing which should unsettle people is the growing Black/White nature of these “prosecutions.” The DA saying she is going to prosecute is Black (daughter of a Black Panther) and this could easily stir up racial stuff that we don’t need to stir up.

          1. “A wronged party, and his attorneys, can’t ask a state official to do his job?”

            Maybe in Humpty Dumpty land. In the world of reality, that is not what happened.

            If this gets to a jury, they will consider all of the tapes, and whatever defense The Donald wants to put on.

      2. The actual article of impeachment that Trump was impeached on was…not a crime.

        You can’t criminally prosecute someone for something that isn’t a crime.

        Incitement to insurrection isn’t a crime? Is that your expert opinion as a pretend lawyer?

        1. I think Brandenburg forecloses any thought about a criminal incitement charge for Trump.

          And NAACP v. Claiborne Hardware Co forecloses any civil liability.

          1. I think he fits well within the Brandenburg strictures. But the statement I was responding to wasn’t whether he could be proven guilty beyond a reasonable doubt; the question was whether incitement — what he was impeached for — was a crime and whether he could be prosecuted for it.

    3. If Double Jeopardy were an issue, jeopardy would attach regardless of the verdict in the impeachment trial. It is uncontroversial that criminal prosecution is permissible after an impeachment conviction, so why would an acquittal be any different?

      The impeachment clause contains an explicit authorization for prosecution following a conviction, but not following an acquittal.

      Then again, the protection against double jeopardy comes from an amendment, which presumably would abrogate that provision if double jeopardy were triggered by an impeachment trial, so I don’t think that changes the bottom line.

  7. Can a former attorney be criminally prosecuted for conduct for which he has already been disbarred? Of course. So wouldn’t the same principle apply here?

    Impeachment and criminal proceedings serve different functions. One is to remove from office someone who has demonstrated a manifest unfitness to hold it; the other is to punish someone for criminal activity. One has nothing to do with the other.

    1. But how many DAs would prosecute for something that the bar assn said wasn’t a crime — and what might the bar assn say to the DA about that?!?

      1. The bar association doesn’t have the authority to determine what is and is not a crime; only what is and is not a violation of attorney ethics. And while there is some overlap, not everything that’s one is necessarily the other.

      2. DAs prosecute cases that they think that they can win. It is pretty simple

  8. WHen police officers cannot be held accountable for obvious violations due to qualified immunity it seems unlikely anything woudl happen to a former president.

    If it did though it woudl come off as a political witch hunt rahter than a sincere pursuit of justice. In a world where so many lives have been impacted by police malfeasence Trump’s BS shoudl be allowed to fade into history while we focus on making substantive changes to both accountability and limits on power at all levels of government.

    1. QI is for civil, not criminal, liability. There is no QI in a criminal prosecution.

      1. (Un)Qualified immunity from criminal prosecution is known as ‘prosecutorial discretion’.

        They need civil immunity because us peons can initiate civil suits. They don’t need criminal immunity because we can’t initiate criminal prosecutions, and they generally have the prosecutor on their side.

        Isn’t that why the Supreme Court came up with the exclusionary rule? Because prosecutors reliably refused to hold officers responsible for criminally violating rights?

        1. Isn’t that why the Supreme Court came up with the exclusionary rule? Because prosecutors reliably refused to hold officers responsible for criminally violating rights?

          Uh, no.

          1. Pretty much yes. The exclusionary rule was instituted because prosecutors and police had no qualms about obtaining and using illegally obtained evidence, whether from forced confessions or illegal searches.

            But of course that doesn’t mean they would hold the police responsible, it just meant no commendation.

            1. Right, they came up with the exclusionary principle because you couldn’t vindicate 4th amendment rights by prosecuting illegal searches, (Which is the way it would originally have been vindicated.) because the prosecutor would refuse to prosecute. So they decided that throwing the evidence out after an illegal search was at least a way of enforcing the 4th amendment prosecutors couldn’t render moot.

              Then prosecutors came up with parallel construction…

      2. Noted, thanks, Since the potential for either was introduced though it doesnt really matter much does it?

        The root issue is that elected representatives are focused on crusifying their opposition rahter than taking care of real issues in the country like QI.

  9. Trump can be prosecuted — but what jury would convict him? Their names would be publicly plastered all over the right wing web and they would be targets for the heavily armed Republican (let’s finally admit it) base.

    1. Another reason to prefer a Georgia prosecution. The jurors there are likely also heavily armed.

      1. And then you get a race riot — a bloody one — and feel good about it?

        1. The governor of Georgia knows well how to put down a race riot.

    2. So what you are saying is that you think the Right will act like the Left already does?

    3. Looking at they real world, and what Trump’s impeachment lawyer went through, the jury would be in more danger if they acquitted.

      1. In the real world it was Trump supporters who broke into the Capitol shouting that Pence and Pelosi should be executed.

        And Republican Congressmen are on record stating that they were afraid to vote against Trump because they feared for their lives.

      2. Which of Trump’s lawyers are you talking about, and what exactly is it you imagine he “went through”?

    4. captcrisis — How many guns went into the Capitol?

      Do you not see the problem with calling this a coup attempt — when they didn’t bring any guns….

        1. Report does not say there were arrested inside the Capitol with weapons.

          No trespasser was seen on any video brandishing a gun inside the Capitol. If there was, the House managers video would have certainly shown it,

          1. Report does not say there were arrested inside the Capitol with weapons.

            Since nobody who has been arrested was “arrested inside the Capitol,” that’s kind of an odd argument.

        2. You win silliest post on the internet today claiming five weapons is enough to over throw the US government.

          And all it took was one shot from a LEO killing an unarmed protester on her hands and knees crawling through a window.

          Bonus question, how many guns did the LEOs have.

      1. Just WTF do you think they were trying to do? Why did they want to hang Pence, and kill Pelosi?

        Don’t give me any “tourist” crap. Tourists don’t break down doors and smash windows to get in, they don’t wear combat gear, and they carry cameras, not zip ties.

        1. Small point, but those were specifically flex cuffs, not zip ties. Flex cuffs are really only good for cuffing, whereas zip ties have many legitimate functions.

          I only correct because 35% of our country likes to latch onto pedantic points rather than face the main points, because of how dishonest and clearly wrong they are.

          1. As long as you’re pushing back on carefully-worded pedantic narratives, you might throw in the minor fact that they didn’t bring flex cuffs into the Capitol at all. They actually picked up flex cuffs apparently belonging to Capitol Police that were sitting on a table(!) inside the Capitol, as discussed, e.g., here and as evidenced by a DOJ memo walking through a video Eric Munchel himself took while going through the Capitol.

  10. Would it make a difference if the Not Guilty verdict were based on the predicate legal (not factual) issue of whether a President out of office can be convicted in the impeachment proceeding?

    Perhaps stated another way, based solely on the criminal analog, would an indictment put a defendant in jeopardy for double jeopardy purposes if the indictment is deficient (say like a failure to state a claim or charge upon which the requested relief (conviction in a criminal case) can be granted)?

    If the failure to convict Trump were based on the predicate legal issue of whether a President out of office can be tried and convicted for impeachment, would he be considered to be in jeopardy for double jeopardy purposes?

    I have not read the memo but will try to get to that today or tomorrow with this issue in mind.

    Any comment would be appreciated.

  11. No matter how or who pursues a criminal case, it is going to be viewed as an extreme act by partisan politicians to eliminate a threat to their power. Doesn’t matter one bit if it’s true, or any part of it is true. The Dem controlled House and Senate could tailor the impeachment hearings to their favor, but a criminal case in open court is going to open up a lot of questions that leading Dems will have to answer under oath.

    1. Two more reasons to prefer a Georgia prosecution. Which will be brought by Republicans. And there are no questions the Dems have to answer on that one. A Republican president made a phone call to a Republican officer of the State of Georgia to try to convince him to commit election fraud. Nancy Pelosi was busy getting her hair done and had nothing to do with it.

      1. The election was certified and the electors had already voted before the call.

        What was he interfering with?

        1. Lol, pathetic.

          He was pushing the idea that Pence could return the certifications to the state legislatures and then he’d win via anti-democratic means he was pushing.

          Don’t pee on our legs and tell us it is raining.

          1. “He was pushing the idea that Pence could return the certifications to the state legislatures and then he’d win via anti-democratic means he was pushing.”

            Don’t recall that as part of the Georgia phone call.

            Again, the call was after the election was over.

            1. The call was before the federal certification and Trump was plain about his plan (Pence would return the votes to the states).

              But it would have been nice if you had told Trumpistas for the months they contested it that the election was over.

              1. You were doing it so nicely, calling them Trumpistas and stupid.

                “Trump was plain about his plan (Pence would return the votes to the states).”

                Nothing to do with his Georgia call.

                1. “All I see are a bunch of cut up pieces of a picture! You said there would be a puzzle!”

        2. Why was Trump asking the Georgia Secty. of State to find more than 11,000 more votes? Was he planning to invite them for tea on the White House lawn?

      2. ” Nancy Pelosi was busy getting her hair done”
        Either that or another face lift.

      3. Need a fact check on party affiliation of the newly elected prosecutor Fani Willis, a Democrat.

  12. Of course, in a real trial, those pesky rules about truth, actual evidence, and due process come into play.

    1. Which is a feature. You don’t have all that political BS on both sides we had in the Senate.

      At the same time, in a trial you cannot just make things up, either. “They stole the election” is not going to work without some evidence. Of which there is none.

      1. Because 160-year-old voters are actually still alive….

        1. Since you obviously want to insinuate that somewhere, somehow, an allegedly 160-y.o. person allegedly voted:

          Citation required. Put up or STFU.

          1. My kingdom for one iota of intellectual curiosity. Clicky clicky here.

            1. And what does Occam’s Razor suggest about “160 year old voter, engaging in fraud that’s that blindingly, stupidly obvious” versus “single-digit numerical typo in a database having millions of entries”.

              C’mon. Do you expect us to take this as serious evidence that there was MASSIVE FRAUD!!1! and THE ELECTION WUZ STOLEN!!1!

              If so, can I have some of what you’re smoking?

              1. Nice emoting — that’s the typical sort of response I would expect from someone who haughtily pushed all-in on a subject they clearly don’t understand and ended up with egg on their face.

                But setting aside your tone, I see we agree that at least some electronic voting data is clearly not even sanity-checked and therefore subject to at least some error. That just leaves us debating the degree.

                So please present your evidence that the same error-prone system that produced measurably, demonstrably incorrect results in some instances nonetheless worked correctly for all other instances where the data is not demonstrably incorrect. I’ll wait.

        2. There were no 160-year-old voters. Why do you tell obvious and long-exposed lies?

          1. Someone clearly didn’t clicky clicky on the linky linky.

            Here’s another, this time from the 2020 election. Five 267-year-olds, and several others in their mid-200s.

            Expose away.

            1. The link does not show any 160-year old people voting. It shows people who voted for whom the birthdate field is wrong. As was explained in sworn affidavits in the Michigan proceedings, when the information was unavailable to the poll worker they were to put in a default entry because the field couldn’t be left blank. (My wife, whose professional work involves data quality, criticizes this software design, but they didn’t ask her when they designed this.)

              If a record says that a registered voter is 250 years old, one of the three things happened:

              1) It’s the record for a voter who actually registered in 1770.
              2) Someone fraudulently registered recently and listed his or her birthdate as 1770 on the registration form.
              3) It’s a data entry error.

              As should be obvious from anyone with more than 2 brain cells to rub together, #1 is not the case. When the computerized poll records were created, they did not have their election clerks go back to the parchment files in the historical archives and manually input the data from voters from the 1700s or 1800s to the voter rolls.

              It is also obvious to anyone who isn’t suffering from microcephaly that #2 is not the explanation; nobody would create a fraudulent record of an impossible voter.

              So the answer is #3: it’s a data entry issue.

              1. Sorry, I need to pedantically correct my comment. Obviously if he’s 250 years old he didn’t register in 1770; he was born in 1770. He’d have registered at least 21 years later.

              2. The link does not show any 160-year old people voting.

                Actually, the call was for a citation showing that “somewhere, somehow, an allegedly 160-y.o. person allegedly voted.” And that’s what I provided. Trying to flip it around to the rhetorical question of whether the person was actually 160 years old is pretty weak sauce.

                As was explained in sworn affidavits in the Michigan proceedings

                Interestingly enough, the links I provided were to North Carolina voting data.

                So the answer is #3: it’s a data entry issue

                The data is incorrect. That’s all we know. And if it was actually entered by hand that way by mistake, with no system capacity for the simplest of sanity checking and no cross-checking of the alleged voter’s existence and details of their identity afterward, that doesn’t exactly engender confidence in the overall quality of the data in the system.

      2. That’s a lie about there being “none”.

        1. You have to love a charge up the hill to set up the lowest bar.

          1. No argument on my point then. Good.

            1. Lol, no argument that there might not be something greater than ‘none’ that you’d regard as election fraud. Yeah Ben, you got me, dead to rights.

        2. I accept that there are at least two (2) known instances of Republican voters in Pennsylvania knowingly trying to falsify votes for Trump on behalf of a dead relative.

          I accept that two is greater than “none”. Because duh.

          So, now that your pathetic strawman is merrily burning, what else you got? Anything concrete that’s even in double digits? Not gonna hold my breath.

          1. So at least you aren’t lying and saying “none”. That makes one of many. Too bad so many others are happy to repeat lies.

          2. Wyndham, NH, among other places. There is PLENTY of evidence of vote fraud and a stolen election, it’s just that you and your ilk prefer the alternate (false) narrative. Biden would NEVER have one had it not been for mail-in ballots, not requiring signature verification or even postmarks, and manipulated vote tallying machines.

            1. Once again, bleating the words “PLENTY of evidence” is not the same as actual evidence. Put up or STFU. What are your numbers? How big is the alleged fraud? Is it really a handful of probable database errors, like the claims above about 160+ year old voters?

              No one with any nuanced understanding of election systems claims that there are zero point zero zero zero errors in a process involving hundreds of millions of people, and some of the more complicated database architechures on the planet. It’s a long way from there to “MASSIVE FRAUD!!1!”.

              Trump and the GOP have collected a quarter of a billion (with a “B”!) dollars, and counting, to search for vote fraud. That’s how many millions of dollars per problematical vote?

  13. As a side note for any defense lawyers: Assuming a criminal case is brought and Trump’s team subpoenas Pelosi, Schumer, etc. How do you think they would do under adversarial examination?

    1. I think the defense lawyers’ bigger worry will be how they can get Trump to take the 5th. Because his campaign team spent the better part of 2020 trying to get him to shut up, with no success whatsoever.

      1. The defense certainly will not call Trump as a witness. Of course the prosecution might and there’d be objections to that. Interesting case for that judge who draws that one.

    2. What potential criminal case are you talking about?

      If there’s one in GA or NY, Schumer and Pelosi will have nothing to do with it, so they won’t be involved at all.

      And if there is a federal incitement case it’s not clear what they would be testifying to other than the events of the day. Why that would present any sort of problem is mysterious.

      1. Well, they might testify to why security was so light. If they didn’t expect a riot, why is it so obvious Trump should have?

        1. Maybe he wasn’t worried about a riot, or was fine with same.

        2. If they didn’t expect a riot, why is it so obvious Trump should have?

          Because they didn’t know Trump was going to make an incendiary speech, whereas he did know?

          The security picture is a little muddled, admittedly, but what’s not muddled is Trump’s refusal to do anything at all to try to stop the riot. I personally agree with those who say there should have been a separate impeachment article of “dereliction of duty.” Kind of a slam dunk for anyone except cultists and the invertebrate wing of the GOP.

        3. If you’re defending a client for armed robbery, do you try to subpoena the bank president and ask why they had only one guard? Do you think that’s a convincing defense that demonstrates the purely innocent motives of the accused armed robber?

          1. Really scraping the bottom of the barrel for any sort of cover, aren’t they?

        4. Well, they might testify to why security was so light. If they didn’t expect a riot, why is it so obvious Trump should have?

          Why would Schumer have any insight into security arrangements at the Capitol? Did you perhaps mean McConnell?

          I don’t know what you mean by “expect”; that would be relevant if Trump were accused of negligence, not incitement. Also, Pelosi and McConnell didn’t have advance knowledge of the contents of Trump’s speech on 1/6; Trump did.

    3. And then prosecution quashes the subpoena attempt under FRE 401/402/403. Next silly question?

    4. As a side note for any defense lawyers: Assuming a criminal case is brought and Trump’s team subpoenas Pelosi, Schumer, etc. How do you think they would do under adversarial examination?

      I mean, I think just about any politician would perform terribly as a witness in any case of any sort, but what exactly is Trump’s team going to subpoena Pelosi or Schumer to testify about that would be relevant to any criminal prosecution?

  14. “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

    Interesting that the authors of the Constitution specifically said that “the Party convicted” is still subject to indictment, trial, judgement, and punishment…but said nothing about a party acquitted.

    I have not read the memo, but my understanding is that impeachment has no bearing on potential criminal charges, regardless of the outcome of the impeachment trial. But I can see how you could make a counterargument based on the Constitution specifically saying “the Party convicted” in the above clause.

    Of course, in the specific case we’re talking about, whether criminal charges would ever happen depends on whether Trump’s actions on January 6 were criminal…and they weren’t. And it would be pretty stupid politically for the DOJ to charge anyway and give Trump another acquittal.

    1. It depends on whether the prosecutor thinks that he could win the case

  15. It is not a hard question. You can be tried for the same acts in different jurisdictions (such as state and then again in federal court). The Senate is separate from both and thus fair game to try someone in federal or state court after a Senate trial. But they won’t go after Trump for this. His taxes and his call with the GA SoS are much more clear cut crimes.

    1. I agree with you, but this is not exactly a “different jurisdiction.” The Senate is acting as an arm of the United States, the same sovereign that prosecutes federal crimes. So I don’t think that argument works here, at least not for federal crimes.

      Otherwise, I am in agreement. As I indicated above, the Georgia prosecution is looking better and better, IMO.

      1. We also allow cases on the same facts in criminal and then again in civil cases. The Senate is also apart from both of those categories.

  16. “While I suspect a civil suit related to the January 6 events would be possible, it would be more difficult to make a criminal prosecution stick, and I suspect that is among the reasons an indictment is unlikely. ”

    Well, yeah, because you can’t point to any statute which would ensnare his actions…

    1. Conspiracy to commit acts in violation of 18 USC 1512

      1. Witness tampering?

        1. Keep reading. Sub (b)

          1. Excuse me, I meant sub (c). And then of course (k) for the conspiracy

            1. 18 USC 1512 (c) Whoever corruptly—
              (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
              (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, …

              No documents or records alleged to be involved so I’m not seeing (1) as applicable.
              (2) depends on the definition of “official proceeding” but from the surrounding context, that looks inapplicable as well.
              And, of course, (k) only applies if one of (a)-(d) applies – which you have not yet demonstrated.

              Would you care to make your argument more clearly?

              1. Are you saying that the certification of the EC vote is not an “official proceeding” of the US? That’d be curious, considering it’s in the constitution!

              2. And because I’m in such a good mood today, I did your homework for you!

                See 18 USC 1515(a)(1)

                Care to clarify your response :-)?

                1. Still looks like a stretch to me. None of the surrounding examples nor any of the case law seems to support that interpretation.

                  More specifically, your interpretation seems to depend on the “influences” language in 1512(c)(2) and on 1515(a)(1)(B) “a proceeding before Congress”. But that interpretation is so broad that it would outlaw all lobbying or other calls for Congress to do, well, anything. And that’s a nonsense result because the right to petition for redress is explicitly allowed under the Constitution. Since viable interpretations can’t reach nonsense results (the canon of constitutional avoidance), that can’t be a viable interpretation.

                  1. What case law are you referring to? Seems like EC certification is a proceeding before congress to me. The rest of your comment strikes me as non-sensical. Corruptly attempting to hinder or delay is not the same as petitioning.

                    1. All the case law I could find was about that law in the context of judicial or quasi-judicial proceedings. Application of that law to an EC certification is plausible under the wording but I could find no examples of anything like that actually being done.

                      The case you cite below alleges physical interruption of Congress’ ability to operate. It’s also still merely a charge at this point. The application of that charge in this context has not yet been upheld even by a trial court, much less an appeals court.

  17. If impeachment was “jeopardy” for criminal-trial purposes, the results would be nonsensical.

    If the President is accused of murdering somebody, you would get to *either* impeach them, *or* try them… not both. If they’re convicted, either you’d have to let them go with only a disqualification-from-office, or you’d have to imprison them *without* removing them from office.

    1. Under English law, Impeachment included execution.

      1. Yet under the United States Constitution, since 1788, Impeachment does not.

        Would you like a brief history of the last 233 years to bring you up to speed with reality?

        1. Nothing will bring Dr. Ed in touch with reality.

    2. No. The constitution explicitly states that one can be convicted in an impeachment, then prosecuted under normal channels.

  18. A Dem DA can indict him for misuse of hair dye, but it (a) will be a political show-trial, and (b) likely attract some of his 70M+ supporters to protest it.

    And the legal profession’s stature will collapse in the eyes of the public.

  19. With the lying media’s fabricated tale about one Officer Sicknick’s bludgeoning to death with a fire extinguisher by violent insurrectionists already revealed as wholly false, was anyone even seriously injured by these unarmed, mostly peaceful protestors who could have been mistaken for tourists?

    Who shot and killed an unarmed protestor named Ashli Babbit in the neck? Several officers who were guarding a door moved aside to allow the crowd to proceed through the door. The shooter was hiding around the corner waiting. The shooter was wearing a suit with french cuffs and cufflinks and looked like black leather gloves. Who was the shooter and what is the status of determining whether this shooting was justified?

    1. “who could have been mistaken for tourists?”

      Yeah, I know when I’m vacationing places I like to climb up the walls of places and through a broken out window and run around yelling about hanging government officials.

      Why don’t you start your comments with ‘I am a conspiracy nut not to be taken seriously and here is my comment?’ Saves time.

      1. Strange that you need this explained to you. “Most” generally means more than 50%. Mostly, they were peaceful protestors who could have been mistaken for tourists. So this would leave plenty of room for yahoos climbing walls and the like, including the many yahoos of the leftwing and rightwing and neither who were present.

        1. Again, notice the low bar the Trumpistas set for themselves.

          “Can you prove that 51% of those involved were violent, I thought not, so, non-problematic event!’

          It’s the tell.

          1. Notice the laughable strawmen that demented hacks set up for themselves.

            “non-problematic event!”

            It’s the tell.

            1. You’ve got that exactly in reverse. Notice ML says nothing critical or was wrong with what happened that day. He just says ‘hey, over 50% of it was OK!’

              So he knows there’s a sizable amount that he’s less interested in defending. Yet he elides this and says what he says.

              1. Changing the subject I see.

                1. ? not at all. please take this to its conclusion. What do you say about the other 49% (according to you)?

                2. Because she has no argument for your point. Congrats.

        2. ” Mostly, they were peaceful protestors who could have been mistaken for tourists.”

          Tourists who were there for the revolution.
          One of the video clips I enjoyed from the festivities involved an interview with a couple of people who’d fled the riot, amazed that they’d been pepper-sprayed by capitol police after they identified themselves as being with the “revolution”

      2. Now that is good stuff, had me rolling.

        Very few people criticize that shooting and rightly so. But there is a
        sizeable number of people who do not want individual citizens to have the right and the ability to defend themselves and their own homes to same degree that congressmen and women were defended. That is what strikes me as odd.

        1. I have no objection whatsoever to people with knowledge and skill defending their own home and property. But possession of deadly weapons is in no way limited to people with knowledge and skill.
          Cars are dangerous if used incorrectly. So every state requires would be operators of motor vehicles to pass a knowledge and skill test before driving themselves on the public roadways. Even after passing a test of knowledge and skill, mistakes happen and so all drivers are legally required to not just pass the tests but also carry liability insurance.
          People who enlist in the military forces of the United States may be asked to carry and use a firearm at some point during their service, so all of them are required to take and pass training on firearm use, even if they are not in a rifle-intensive branch of service, such as, say, the Air Force, that operates hundreds if not thousands of miles from where the active hostilities are being held. Admittedly, it’s a short course (four hours, plus a trip to the firing range) and a passing score on the firing range is 0 hits with 40 rounds from 4 positions, with no range safety violations, but every AF recruit did rifle training at basic military training.
          The reasons why we shouldn’t have “driver licensing” for guns include the fact that some firearm enthusiasts don’t want to, because they have paranoid fantasies wherein their handgun is the only thing keeping the government from oppressing the whole neighborhood.
          The reasons why you couldn’t have safe firearm handling class in high school is that teenagers are stupid, categorically, and you’d have accidents (most likely caused by students who were absolutely CERTAIN they already knew everything they needed to learn (this is based on watching people fail Air Force rifle training.)

          1. Every state requires a driver’s license before driving on the public roadways. I don’t know about other states, but California does *not* require a driver’s license before driving on your own property.

            The proper analogy would be that a license would be required for carrying a firearm in public. And indeed, most states require that.

            1. The difference being that a gun need not leave your private residence to hurt me over in my private residence.

            2. “driving on your own property.”
              That is because farm kids often drive a tractor on the family farm

              1. It’s because it isn’t permission to drive, it’s permission to drive on the government’s roads. Distinctions like that used to be important to governments that didn’t think they had absolute authority over your entire life, and needed some hook to assert authority over something. And still linger in the law.

          2. There you go again.

            Please, please, please lets treat guns like cars.

          3. You can count me as one of those who “do not want to” request permission to exercise my rights.

            Are there any other rights whose exercise you are willing to leave at the discretion of government?

    2. The Babbit shooting was completely justified. She was about to enter an area where members of the House were present. The mob was a clear risk to them. She knew that was an area she was not allowed into and was guarded by police.

      1. Is it akin to defending your home — you are pretty much justified shooting anyone who is breaking and entering or otherwise trespassing, no matter what? I note that there were no members of the House in the immediate vicinity of the hallway at the time of the shooting, but it looks like there were some moments before.

        The fact that police officers stood aside to let them through seems like a complicating factor.

        Over the summer we had at least 570 violent demonstrations/riots in 220 different locations, with such events occurring in 48 of the 50 largest U.S. cities. If someone had shot one of the store looters when they were breaking in, for example, would you say that was justified assuming there were people in the building?

        1. 1. Yes, if you have your door barricaded, and an intruder (with many more behind them) breaks a window a tries to enter your house, you would be justified in shooting them.
          2. While there are a few videos of the police not fighting the mob trying to enter the capital, is very wrong to say that the police let them in.
          3. From where the shooting was, there were no more barriers between them and the House members.
          4. Shooting while trying to protect property outside of your house has a different legal threshold.

          1. 1. Generally, you will be justified in shooting even a single intruder into your home and without any barricade. I don’t think a huge office building is the same as your home, though. This alone does NOT mean the shooting was unjustified.

            2. In the exact moment and exact location of the shooting, the officers had been guarding the door and preventing passage. They then relented and moved out of the way allowing the crowd to move through. Babbit was just the first person to cross the threshold. The shooter was around the corner waiting to kill the first person who came through.

            3. Does it matter that they were House members? What if the area was filled with kitchen wait staff, legislative assistants, and lobbyists? Presumably a violent mob may be a danger to anyone. I’m curious if you think there is some reason the law would necessarily place a higher value on the life of a Congressman in this scenario for purposes of justifying the shooting. I doubt it, though of course it could matter that they were House members after evidence showing this was somehow pertinent to the shooter’s reasonable state of mind.

            How about my question? 570 violent demonstrations by the left this year included breaking and attempted breaking into local police departments, federal buildings, retail stores, office buildings and others. If we assume a mob is breaking and entering into a building — any building — is shooting justified if there are people not part of the mob inside?

            1. ” I’m curious if you think there is some reason the law would necessarily place a higher value on the life of a Congressman in this scenario for purposes of justifying the shooting.”

              Uh, yeah. The law places higher penalties for crimes involving some crime victims than others. There are any number of examples.
              Threatening the fundamental pillar of Constitutional government is a bigger deal that threatening some random person on the street.

              1. “Threatening the fundamental pillar of Constitutional government is a bigger deal that threatening some random person on the street.”

                This point seems to allude them, rather conveniently for their thin arguments.

                Same phenomena with incitement and Trump’s 1a rights. They forget all about duties and responsibilities of being president when Trump says something traitorous.

              2. “Uh, yeah. The law places higher penalties for crimes involving some crime victims than others.”

                But that is not for the purpose of justifying the shooting. When a law enforcement officer or someone else shoots and kills someone, the question is whether that shooting and killing was justified. For instance, if the shooter reasonably believed it was necessary to avoid imminent death or great bodily harm to themselves or others. That question is the same whether the potential victim is a Congressman or a lowly peasant blue collar worker of the type Democrats and Never Trump Republicans say should just die and be replaced already.

                I assume you’re correct that there may be higher criminal penalties when a Congressman is in fact assaulted or victimized in some other way, as opposed to a lowly normal person. But that’s a different issue.

                1. “But that is not for the purpose of justifying the shooting. ”

                  Except when it is. Consider that to be justified, the killer has to reasonably believe that there was a risk to self or others, and just saying they were afraid it would happen is not legally sufficient. They nature of the “others” allegedly at risk is a factor to be considered if they were reasonably endangered.

        2. It’s odd isn’t it that they shot this woman? It’s also odd that they were much less forceful at other points?

          Conspiracy thinking 101, either way, it’s *odd,* isn’t it?

          Why not be the actual party of responsibility here? Eschew wacky conspiracy thinking. Say, hey, Trump wasn’t an experienced political operative, he got bad advice, he used some retrosepctively silly hyperbolic rhetoric, people got riled up and some did something dumb and abhorrent. I don’t think he warrants impeachment, he just lost as it were and he seemed somewhat chastened by how this played out.

          But no. They can’t Because at heart *they too love hyperbolic rhetoric and conspiracy thinking.* it’s their bread and butter. They can’t see anything wrong in Trump because he’s actually a mild version of an elite who talks and thinks the way they do. And asking them to do some introspection to pare away the wacky parts of their worldview while still preserving every value they have, is too much to ask. Instead, they dive right back in to yet another conspiracy theory. It’s like a drug.

          1. When a law enforcement official — or anyone else for that matter — shoots and kills a person, the ordinary course of events is to evaluate whether such killing was justified. Right?

            How bizarre that you will describe such a straight forward inquiry as “Conspiracy thinking 101.” Taking your comments at face value in good faith, I’m completely baffled trying to imagine what “conspiracy” you imagine I am imagining.

            1. Notice how he elides the second prong.

              Not honest.

              1. I’m not following. Which prongs are you referring to and what is the conspiracy you think I am theorizing?

      2. I’m sure the McCloskey’s will appreciate your support.

      3. So by your lights the federal agents guarding the Portland federal courthouse could have mowed down the Antifa insurrectionists that were trying to breech and firebomb the courthouse, using deadly force without warning?

    3. If you refuse to honestly describe the event in question, why would you presume anyone’s going to treat you as anything other than a partisan idiot?

      1. If you refuse to even identify what you are claiming to be false, why would you presume anyone’s going to treat you as anything other than a partisan idiot?

        1. The shooter did not hide. He even waved his gun a bit while shouting warnings before he shot. You can see two other people about to jump through the window turn away to retreat, and you hear them say “He’s got a gun!” Babbit then still mounts the window and is shot.

          https://www.washingtonpost.com/investigations/2021/01/08/ashli-babbitt-shooting-video-capitol/

          So yes, you are fucking lying. You are a liar and either a dupe or a traitor.

          1. Calm down. I just meant that he was taking cover in the room around the corner, you just see a gun and a hand sticking out from around the corner, until he shoots then leaves. You are quibbling over semantics, I’ll grant your criticism of the word choice but this isn’t “lying.”

            1. I will not calm down. 1/3 of the country is in rebellion while gaslighting the rest of us that they are not. It’s despicable. I swore an oath to the constitution and reaffirmed it several times. That means something.

              1. “1/3 of the country is in rebellion while gaslighting the rest of us”
                Horse hockey. Who poll did you use. Pew? Gallup? Or you own imagination?
                By the way partisans of all stripes have been gaslighting the country all year.
                You should calm down.

        2. Good try but these idiots can’t debate a lick. The response vs what if it was a BLM protester is the dead BLM protester would have been the only story. The cops name would have been all over the news and a lot of stuff would have been burned and looted.

          Has it ever been otherwise?

          She was the wrong color and wasn’t protesting the right thing.

          1. Heather Heyer doesn’t exist in the fun-house mirror version of reality you cultists occupy?

            https://www.npr.org/sections/thetwo-way/2017/08/13/543175919/violence-in-charlottesville-claims-3-victims

            And are rioters “protestors” now? I thought there was quite a lot of complaints coming from the cult when BLM marchers were called protestors, implying that they should all wear the title of rioter if any riot ever occurred at any similar event as theirs.

          2. You’re right of course wreckinball, and they know it too.

        3. If you ARE a partisan idiot, why would you care if people think you are a partisan idiot?

        4. At no time did officers move to “allow” anyone through the doorway. It was barricaded, and the windows were broken. Officers were in defensive positions on the other side of the doorway with guns already drawn and pointed. Permission was clearly not fucking granted to go through a barricaded doorway – that’s kind of the goddamn point of barricading a door.

          So yes, you are in fact a liar.

  20. “Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law”

    If conviction is no bar, why on earth would an acquittal be one.

    A DOJ lawyer got paid to write 46 pages on this two sentence topic. Impressive.

  21. Conspiracy to violate 18 USC 1512. No need to argue about incitement. Mike Lee really stepped in it the other day by providing phone records.

    1. Witness tampering? Could you be more specific?

      1. See above Brett. Subsection (c)(2)

        1. “(c) Whoever corruptly—

          (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,”

          I suppose you could try. Not much chance you’d succeed, it’s a bit of a stretch, as it rests pretty heavily on assuming the call was corrupt to begin with. And, what exactly did he say?

          1. Well there’s Rudy’s voicemail. And of course the 2:24 tweet on 1/6

            “ Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”

            1. hahahahahahahahahahahahahahahaha

              Or was this satire?

              1. Seems like attempting to influence an official proceeding to me. I don’t find it particularly funny but YMMV

                1. So providing his view point to Pence is influencing the proceeding. That’s allowed you know. Pence is part of his administration.

                  That is seriously your contention? Ridiculous thus my hope for you is that it was satire.

                  1. Yes. Asking VP pence to delay an official proceeding is attempting to hinder it. What am I missing?

                    1. That it’s not a crime to attempt to delay an official proceeding, unless you do so corruptly?

                2. And Rudy’s VM explicitly asked for a delay. That’s impeding. Without getting too far into principles of criminal conspiracy— if Rudy and trump were together all day, as has been reported…

                  Trump is right to be nervous about criminal exposure, if reportage along those lines is accurate.

                  1. We went through this before. Not a crime unless done corruptly.

                    Did he offer a bribe? Threaten the family? Or just suggest it was the right thing to do?

                    1. Like when he threatened the GA officials with prison time if they did not find his votes?

                    2. It’s defined in the statute as “acting with improper purpose”. His purpose was to delay an official proceeding. That’s improper. Cmon Brett.

                    3. Look, it requires that you, “with corrupt purpose”, that’s one element, ” otherwise obstruct[s], influence[s], or impede[s] any official proceeding, or attempts to do so”, that’s a second element.

                      You’re collapsing them into a single element, by presuming that impeding an official proceeding can only be corrupt. But the statute itself does not make that assumption.

                      The corrupt purpose is an actual, independent element of the offense, which you must prove, not merely assume.

                    4. I take it from this comment you’re conceding the first element here— that there was in fact an attempt to delay or obstruct. We can argue about subjective intent at trial. But Even if trump truly believed the election was stolen from him by the most massive undetected fraud in American history— it doesn’t transform his attempted obstruction into a “proper” purpose.

                      There’s also the potential for sub(k) liability connected to people who have already been arrested for the (c)(2) charge. Rudy at least was in direct contact with some of these people.

                      In any event, my original reply upthread stands— this is a criminal law you can plausibly point to as a basis for criminal liability. No incitement/whatabout maxine waters and BLM stuff needed.

                    5. “The corrupt purpose is an actual, independent element of the offense, which you must prove, not merely assume.”

                      the corrupt purpose is to prevent certification or recognition of someone who isn’t Donald Trump as the winner of the election.

                      Or am I incorrect in assuming this was Trump’s goal? (just because he said it was.)

                    6. “I take it from this comment you’re conceding the first element here— that there was in fact an attempt to delay or obstruct.”

                      I absolutely am.

                      But since it is actually legal for the EC vote count to be challenged or delayed, you actually have to demonstrate either a corrupt motivation, or a corrupt means. Not assume it, demonstrate it. Because it’s a required element of the crime.

                      Now, if you could prove that Trump organized a riot to delay the count, you’d be there, because that would be a corrupt means.

                      Or if you could prove that he wanted the delay to bribe some members of Congress.

                      Or could prove he believed he’d really lost, and was attempting to reverse a legitimate outcome.

                      But just trying to delay things, without any corrupt element, doesn’t get you anywhere.

                    7. I dunno Brett. Think about what you are saying in the context of a regular criminal case contemplated in 1512. It’s perfectly legal for a juror to find someone innocent, even to disregard the law in doing so (I.e. nullification). But the defendants subjective (or even potentially objectively true!) belief that she is innocent doesn’t allow her to call the jurors home urging juror to acquit. Furthermore, this conduct on its face goes beyond encouraging senators to vote a certain way. I might even be tempted to argue that any attempt to pressure members of congress to delay certification, regardless of the existence or not of fraud, would be improper— for the president. Admittedly that’s untested in court.

                    8. “Now, if you could prove that Trump organized a riot to delay the count, you’d be there, because that would be a corrupt means.”

                      Gosh, if only there was some way to prove that a riot happened, and that Trump was involved in it. Such as, say, video of Trump and his lackeys getting the mob fired up and sending them to the capitol. since there’s no possibility that THAT could happen, I guess we have to concede that Brett might be right on this one.
                      …or…
                      apply Occam’s Razor, and assume that it is possible the ardent partisan is filtering the evidence based on what he wants to see (or not see)

  22. In a rare exception to Betteridge’s Law, the answer is an obvious “yes”.
    Despite which, it would be a pretty stupid idea in almost all cases.

    1. It’s a pretty odd headline and post. Has anyone claimed otherwise? Seems like transparent trolling.

      “Can Biden be prosecuted for corruption? Could he be sentenced to life in prison if convicted? Click here to find out.”

  23. At the risk of being accused of racism (but who cares?), Trump is the GOP’s tar baby. The sooner they disentangle from him, the better.

    1. Trump, the Republican Party, White nationalists, conservatives, and other obsolete culture war casualties deserve one another — and everything that is coming to them in modern, improving America.

      Stick together, clingers . . . to the bitter end (which, for clingers, is inevitable).

    2. Despite being told in Disney’s Song of the South, the “tar baby” story predates that film by at least hundreds and maybe as much as a thousand years. It is an allegory about the entanglement that makes a bad situation worse by continuing to engage in it. The version of the story that Disney retold has been traced to African folklore, though variations on the story have been found in cultures all around the world.

      In short, there is nothing racist about it. Anyone who claims otherwise is a) displaying their ignorance of linguistic heritage and b) outing themselves as more interested in finding an excuse to be outraged than having a sincere discussion.

      1. I agree with you, but some have made that charge.

      2. “In short, there is nothing racist about it.”

        In short, there was ONE thing racist about it, the story was written down by a racist.

        1. James,
          And so? The entire point of the story has nothing to do with race.
          As people around here are won’t to say, “Stop lying.”

          1. To stop lying, I’ll first have to start lying.

            1. You do so most every time you post. You are as bad as Trump.

              1. Showing me how to lie? How helpful of you.

          2. ” The entire point of the story has nothing to do with race.”

            Someone told you it did? Maybe take your indignation to them.

    3. It appears Graham just can’t quit him (and I think Graham represents the majority of the GOP).

  24. As I discussed on the Smerconish show this past Saturday, the case that Trump committed incitement on January 6 is far stronger than the claim he incited violence at a 2016 campaign rally for which he was sued civilly (unsuccessfully).

    The case that Trump committed incitement is also far weaker than the case that Maxine Waters and Kamala Harris deliberately incited the six months of burning, looting, and murder by BLM/Antifa terrorists, but the corrupt media don’t want you to care about that. If you don’t, you are a sheep.

    1. If the law works differently in your partisan bubble, then don’t extrapolate how that law would apply out here. Bill Clinton eventually surrendered his Arkansas law license over the perjury that didn’t get him removed from the Presidency.

      Donald Trump was judged unfit for office by the only court that matters on that subject, the American electorate.

      1. No, he wasn’t. They had to cheat, as they’ve just admitted in Time magazine.

        1. Yes, he was. the insurrection failed.

          1. In other countries this was called a riot, not an insurrection.
            Whatever it was, I agree that it failed.

            1. “In other countries this was called a riot, not an insurrection.”

              It, uh, didn’t happen in other countries, Sherlock. It happened in this one.

              1. No, in other countries, newscasters did not have a propaganda point to make. Are you that dense or are you just a jerk?

                1. Sorry, a bit of a jerk. In future, I’ll try to be “that dense” instead, like you. Is it really blissful, like they say?

            2. In other countries this was called a riot, not an insurrection.

              As always, defenses of Trump are false.

              https://www.cjr.org/cjr_outbox/the-capitol-invasion-shown-around-the-world.php

        2. Nobody admitted any cheating anywhere, including in Time magazine. Reading is fundamental.

          1. When Donald said “2020 will be the most corrupt election in history”, it wasn’t a prediction, it was a promise.

    2. The incitement case is laughable. But the clowns have shown they will basically do anything.

      I think they will first try 14A, then criminally prosecute and then lawsuit.

      Commencing with losing both houses of congress and Joe eating his meals through a straw.

      1. ” the clowns have shown they will basically do anything.”

        The clowns thought the Vice President had an option to make the election go away. But he knew he didn’t. Bummer for the clowns. They weren’t able to suppress quite enough voters to change the outcome before the election.

  25. Can Andrew Johnson be dug out of his grave and put on trial in Impeachment 2, Cadaver Synod Bougaloo?

    1. If Jesus resurrects him, then He can also pass judgment. Substitute (any value) for “Jesus” if your religious sensibilities require it.

  26. “Can a Former President Be Prosecuted for Conduct for which He Was Impeached but not Convicted?”

    Why would the answer be “no”? I mean, if the conduct was criminal, then it can and should be prosecuted in criminal court. If it wasn’t criminal, then they should not be prosecuted. Impeachment has approximately nothing to do with it.

  27. Six months from today: “Can a Former President Be Civilly Sued for Conduct He Was Criminally Prosecuted For, But acquitted Of?”

    A year from now: “Can a Former President Be Shunned for Conduct He Was Unsuccessfully Sued For?”

    Five years from now: Can a Dead President’s Grave Be Desecrated For All The Things Nobody Was Able To Prove He Did?”

    1. Five seconds from now:
      Don who?

      (In a perfect world.)

  28. As a corollary, those who participated in the “irregularities” of the election can be — and are still being — investigated and prosecuted: this is the normal course of election fraud/tampering prosecution, wherein wrongdoers are punished two years after successfully corrupting an election.

    The mantra is along the lines of “Remember the Alamo! Remember the Maine! Remember ABSCAM! Remember ACORN!” Conviction of the Democrat 2020 wrongdoers won’t change the outcome of the past election but certainly will touch the 2022 and 2024 elections… and, as always, hubris magnifies the effect: as Time Magazine recently noted, the words of Democrats who now brag about “changing the electoral landscape” (a euphemism for “committing fraud”) are quite handy.

    1. I’m aware of two (2) Republican voters in Pennsylvania who were caught (hm, looks like the system worked) trying to cast a vote in the name of a dead relative.

      And Georgia reports on their official SOS web site:
      “Among the cases bound over for prosecution Wednesday were four incidents of felons voting or registering to vote, four cases of non-citizens voting or registering to vote and one case of misplaced ballots during the 2020 general election”

      But you seem to think it’s a big deal if it will “touch the 2022 and 2024 election”. So … how many prosecutions do you think there will be? Seriously, give us a number.

    2. “As a corollary, those who participated in the “irregularities” of the election can be — and are still being — investigated and prosecuted”

      Nah. Letting them stew in the knowledge that they were unable to change the outcome is probably enough punishment.

  29. 1. “Can a Former President Be Civilly Sued for Conduct He Was Criminally Prosecuted For, But acquitted Of?”

    Well, yeah. And not former presidents alone – ex-running backs too.

    2. A year from now: “Can a Former President Be Shunned for Conduct He Was Unsuccessfully Sued For?”

    Why bother to wait a year? McConnell on Trump :

    He fed his supporters “wild falsehoods” making him “practically and morally responsible” for Jan. 6, which was “a foreseeable consequence” of “false statements, conspiracy theories and reckless hyperbole” and a “manufactured atmosphere of looming catastrophe,” all “orchestrated” by Trump, who then “feigned” surprise about his mob’s behavior, as he “watched television happily.”

    And Mitch actually voted to acquit (bless his tiny little coward’s heart). There’s ain’t a lot of room to debate on Trump’s post-election conduit. You pretty much have to be a bootlicking cultist not to shun something so shun-worthy.

    3. “Can a Dead President’s Grave Be Desecrated?”

    I guess it depends on the security. Do they still bury prisoners within the walls?

    1. Spoiler: The answer to all those questions, like the one the OP asks, is “yes, but get a life.”

    2. “bless his tiny little coward’s heart”
      Did anyone really expect those who voted that the process was not constitutional to then vote to convict?
      Don’t be silly.
      (Yes, I know, 2 R’s changed their minds). Macht nichts

      1. They voted that the process was unconstitutional, and then stayed for the process long enough to vote on the verdict.

        1. All together now, “the acquittal is invalid, because the process was flawed and unconstitutional!”

      2. Just try doing the math : Calculate the ratio of Republican Senators with real constitutional reservations about post-presidency impeachment vs GOPers with tiny little coward hearts.

        My estimate?
        1:14, perhaps 1:20

        But that’s today’s republican party : Cowards. Cultists. Bootlickers.
        And all in thrall to a sleazy huckster buffoon. You could make this up if you tried.

        1. Of course they did.
          If you expected anything different you need meds.

        2. “But that’s today’s republican party : Cowards. Cultists. Bootlickers.
          And all in thrall to a sleazy huckster buffoon. You could make this up if you tried.”

          Apparently, the polling suggests that the R’s are prepared to tear their big tent in half so that both halves can go their own way, stomping and muttering the whole way.

  30. New York Times issues correction claiming capital police officer bludgeoned to death with a fire extinguisher by Trump supporter.

    “UPDATE: New information has emerged regarding the death of the Capitol Police officer Brian Sicknick that questions the initial cause of his death provided by officials close to the Capitol Police,” the Times wrote.

    “Law enforcement officials initially said Mr. Sicknick was struck with a fire extinguisher, but weeks later, police sources and investigators were at odds over whether he was hit,” the story now reads. “Medical experts have said he did not die of blunt force trauma, according to one law enforcement official.”

    Again, this whole tread is a dumpster fire because it’s based on such faulty premises.

    1. A coincidental stroke after a blow to the head.

      Much like a coincidental attack on the certification of electoral votes after a months long big lie campaign and an immediately preceding rally in which the big lie was given its most hyperbolic amplification.

      1. No proof of a blow to the head, either.

        1. Much like the coincidence of Trump believing there were precisely the number of un-counted Georgia votes as he needed to overturn the state election results!

          Much like the coincidence of Trump discovering a Veep can constitutionally reject election results right before Pence was about to certify DJT’s loss!

          Much like the coincidence of Trump maligning mail-in voting to his base month after month, and then there is a secret Deep State plot where more Democrats vote by mail than Republicans!

          Much like the coincidence of Trump warning his cult he would claim fraud if he lost and – six months later – discovering there actually was fraud!

          1. “Much like the coincidence of Trump believing there were precisely the number of un-counted Georgia votes as he needed to overturn the state election results!”

            When TDS and reading incomprehension meet, the results are hilarious.

            Anyway, there is, literally, no evidence Sicknick suffered a blow to the head.

        2. “No proof of a blow to the head, either.”

          do we even know if the guy is really dead?
          Crisis actors!
          CRISIS ACTORS!

          1. Look, this is really simple: The media ran with a rumor that he had been hit with a fire extinguisher. But at no point has there every been any evidence that it happened.

            No video footage or photos.

            No witness testimony.

            He never said anything about it happening himself.

            No autopsy results.

            A complete lack of evidence that it happened, nothing but an anonymously sourced rumor they reported as news.

            1. “Look, this is really simple: The media ran with a rumor that he had been hit with a fire extinguisher. But at no point has there every been any evidence that it happened.”

              dingus, somebody said that it happened. Witness testimony is evidence.

  31. The TDS people really need to seek mental help. The fact that they are still pining to “get” the man because of completely fictional justifications is going to tear this country apart. You want to see what happens – keep pushing people. There is one thing I can guarantee and that is the “woke” crowd ain’t going to be so happy with the results.

    1. You’re the minority, bitch. It’s gonna work out fine for everyone except cultists.

      1. To be fair the opposition is hiding in their house afraid of Covid.

        So boy we’re just terrified of the Karen and Ken crew LOL

        1. Yeah, you didn’t just lose the presidency and senate. Everyone is cowering under their bed except for the noble warriors of Trump, belching black smoke from unnecessarily modded trucks and flying flags. Not American flags, but flags with the name of their cult leader and demigod.

      2. Keep on telling yourself that….

        1. You did just lose every position of power you had before Trump. Not sure what more evidence you are waiting for, bitch.

      3. why is your slur okay? Clean it up

        1. Like your fellow misfits, you are selective with respect to which slurs are objectionable.

          1. RAK, your ad hominems are pathetic. Back under that rock, hater.

    2. “The TDS people really need to seek mental help. The fact that they are still pining to “get” the man because of completely fictional justifications is going to tear this country apart. You want to see what happens – keep pushing people. There is one thing I can guarantee and that is the “woke” crowd ain’t going to be so happy with the results.”

      conversely, the people brainwashed by Trumpism need to seek mental health assistance. Delusions just aren’t healthy. Such as the delusions that people are out to “get” Donald Trump because of completely fictional justifications. Then they start babbling vague threats. “You’ll be sorry when our messiah returns! mumble grumble”

  32. The conclusion that a criminal prosecution is not constitutionally barred by acquittal on impeachment for the same acts seems like the only logical conclusion. The two processes have completely different standards of proof, rules of evidence, level of impartiality, etc…

    If one assumes the opposite conclusion, imagine what that would mean. If a President had murdered millions of people via a criminal act and the President’s party had over 50% of the votes in the House and over 33% of the votes in the Senate, the House could impeach the President for those acts and the Senate could acquit on those charges — insulating the President from all future criminal prosecution for those acts. That’s a ludicrous conclusion, but a necessary one if acquittal on impeachment bars future criminal prosecution.

    If Biden’s DOJ does not prosecute Trump for the same acts he was impeached for, it suggests that the current Administration doesn’t believe that Trump committed a crime which seemingly puts the Administration on the opposite side of 100% of the Democrats in Congress and even some Republicans.

    On the other hand if they do prosecute Trump for those acts and, as is almost certain, Trump was acquitted by a jury of his peers, it would suggest that both the Democrats in Congress and the Administration’s judgement on the matter were wrong and politically motivated.

    Which is fine – after all, impeachment is (or at least has clearly become) a political tool where Congress seeks to override the judgement of the voters. This includes future voters decades from now who might otherwise vote for a candidate who had been barred from holding an office of honor or trust due to impeachment proceedings. One way to win if you can’t win at the polls!

  33. While I agree in general that a former president can be prosecuted for conduct he was impeached but not convicted of there can be specific cases where he can not be prosecuted.

    In Trump’s case there is a real question as to what he did was a crime; and maybe more to the point a crime where there is enough evidence to convict. Since everyone agrees the first priority of a DA is to keep his conviction rate as high as possible this is another consideration.

    As an aside Trump holds the record as the prez who has had the most speculation (along with the most talking heads claiming) he will be charged criminally. As far back as before the election there were claims he raped his first wife and would be charged with that crime; the first of many. So far I am not aware of any criminal charges against him and seriously doubt there will be any.

    1. ” So far I am not aware of any criminal charges against him and seriously doubt there will be any.”

      Before the 2016 election, he was undergoing a tax audit, and claimed that was why he couldn’t release his tax returns, as most candidates have done for decades. In 2020, that audit was still ongoing, suggesting either that they found something or that he really thought he needed an excuse to avoid releasing his tax returns last year, either.
      what he didn’t make clear for EITHER election year, is why having people see his tax returns might cause a problem for his tax audit. Clearly, he doesn’t want any potential fact witnesses to come forward.

      1. He never intended to make his returns public. That is obvious.
        His political opponents were fixated on them like a fetish, also obvious.

        1. What the village idiots here fail to realize is that no one has to make their returns public. BUT every return goes to that organization called the IRS who can challenge it if they feel it’s amiss.

          Its all part of TDS

        2. Agreed, he never intended to make them public. Saying he’d release them when the audit was done just guaranteed that, because he knew that, legally, the audit could never be done so long as he was President.

          1. Gee, if only the President had some kind of influence at the IRS, some way of saying “finish this up, eh?” that the employees of the IRS might listen to.

        3. “He never intended to make his returns public. That is obvious.”

          Sure. But did he never intend to make his returns public because A) they show criminality, or because B) they show that he isn’t as rich as he likes to tell his followers that he is?

      2. “In 2020, that audit was still ongoing, suggesting either that they found something or that he really thought he needed an excuse to avoid releasing his tax returns last year,”

        Heads up: 4.2.1.15 (04-23-2014)
        Processing Returns and Accounts of the President and Vice President
        “The individual income tax returns for the President and Vice President are subject to mandatory examinations and cannot be surveyed. See IRM 3.28.3.4.3, Mandatory Examination.”

        It means absolutely nothing that he was under audit continuously for the last four years, except that he was President.

        1. Your ability to rationalize knows no limit, does it?

  34. I hope the left tries to prosecute him. I’d love to see that be the Fort Sumter moment and have us descend into a civil war. I’ll be giggling as real patriots go around exacting revenge on the leftists who have destroyed this country.

    1. There will be no civil war. Prosecutions or not.

    2. Civil war over criminal prosecution of criminal acts? Sounds like somebody just wants an excuse to go burn down a black person’s house.

  35. I gotta say, posting these revenge fantasies on every single thread since you appeared is… maniacal. Can you maybe go read some of your favorite Pinochet biographies and give it a rest?

  36. There might many dispositive questions here other than the bare constitutionality of the second trial. Is res judicata distinct from double jeopardy, and do the verdicts of the High Court of Impeachment have precedential effects in the courts? If so, are all conclusions of fact and law necessary to the verdict precedential, given the earlier vote establishing jurisdiction? Would a prosecution in DC have different double jeopardy calculus vis a vis a prosecution in the Congress? Are crimes that implicate the color of the office immune from a second trial, distinct from crimes that don’t implicate the office? If jeopardy attached in the earlier proceeding, when did it attach? In a vague impeachment bill (no names, no pack-drill) does any conduct that might fall within the charge categorically fall within the reach of double jeopardy, or is more of a modified categorical, looking at the issues raised in the House’s presentation?

    All of these questions are perhaps more productive than trying to summon up an imaginary orrery of the Founders’ Constitution in the mind, and trying to fit a second prosecution into its general sensibility. To, along with the rest of American political thought, lightly plagiarize the German Enlightenment, if you want to find the Founders’ vision, look to the details.

    Mr. D.

    1. There might many dispositive questions here other than the bare constitutionality of the second trial.
      Here is my take:

      Is res judicata distinct from double jeopardy, and do the verdicts of the High Court of Impeachment have precedential effects in the courts?
      It is definitely distinct. On the second question, I don’t think there is any precedent. I would tend to think not, since removal is partially a political question. But it is debatable.

      If so, are all conclusions of fact and law necessary to the verdict precedential, given the earlier vote establishing jurisdiction?
      I see you have assumed that claim preclusion does not apply. Which is clearly correct, since the Senate has no power to convict someone criminally.
      As for collateral estoppel, there were no express conclusions of fact and law. Which means there might be many reasons to not convict. Hard to see how any particular one was “necessary.”
      Especially since many Senators argued and voted that such a procedure against an ex-president violates the Constitution. (Remember, the jurisdictional vote was by majority vote, but conviction requires 2/3s vote. Many of the more than 1/3 who voted against conviction were on record that the Senate lacked jurisdiction.)

      Would a prosecution in DC have different double jeopardy calculus vis a vis a prosecution in the Congress?
      Don’t know what you mean. Congress has no power to prosecute, except for removal or qualification.
      Perhaps you mean that DC is part of the federal sovereign, so there is some basis to invoke double jeopardy, as opposed to a state prosecution, where the separate sovereign doctrine would allow it.
      In any case, there is no double jeopardy because the Constitution expressly allows criminal prosecution, and because the target is never in “jeopardy.”

      Are crimes that implicate the color of the office immune from a second trial, distinct from crimes that don’t implicate the office?
      I don’t see why, given that double jeopardy does not attach. If a federal office took a bribe, he could be both removed by the Senate and prosecuted criminally in a court of law. The text of the Constitution makes that plain. And bribery clearly implicates the color of the office.

      If jeopardy attached in the earlier proceeding, when did it attach?
      It doesn’t. Hypothetically, when they start hearing evidence.

      In a vague impeachment bill (no names, no pack-drill) does any conduct that might fall within the charge categorically fall within the reach of double jeopardy, or is more of a modified categorical, looking at the issues raised in the House’s presentation?
      As I said, double jeopardy does not apply. But if it did, anything within the charging instrument should be within the scope of double jeopardy, since the target is in “jeopardy” of being convicted of those charges. I believe that is the rule for indictments.

  37. Interesting. I would tend to say that the High Court is at least a little precedential, as even legislative conduct, like the action of states in international law, can be binding norms for future conduct. (The annotated versions of most legislative procedural guides are mostly composed of examples of past rulings from the chair.) And if it’s a little precedential, the fact that the chamber is sitting in its judicial function would at least theoretically mean that anyone subject to their jurisdiction (e.g., Current Resident, 1600 Pennsylvania Ave.), to the extent that they wanted to act lawfully, was bound to either follow every principle necessary to the past orders of the High Court, or to think themselves capable of making a good faith argument for a change in the law.

    While claim preclusion with identity of parties most definitely applies — a repeated identical bill from the House would safely be ignored, and conduct by the same officeholder ratified by one High Court couldn’t be held criminal by one of a different electoral composition a few years later, without damaging the rule of law. But yes, non-mutual estoppel on issues not necessary to the judgment is concededly a bridge too far for the argument for precedent.

    I would question any ipse dixit claim that double jeopardy doesn’t apply. The OLC took that prospect very seriously. Removal from the most powerful office in the country does seem to be at least mildly punitive.

    Interesting questions, though. Cheers.

    Mr. D.

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