The editors of the Wall Street Journal finally get around to the point I’ve been making since August:
The questions from Senators in the impeachment trial aren’t plowing much new ground, but they have been useful in underscoring some constitutional principles. To wit, it isn’t legitimate to toss a President from office because the House thinks otherwise legal acts were done with “corrupt motives.â€
House managers concede that President Trump broke no laws with any specific actions. Instead, they claim that he abused his power because his motives for asking Ukraine’s President to investigate Joe and Hunter Biden were self-interested—to assist his re-election rather than as Mr. Trump claims to investigate corruption.
More than one Senator teed up the issue, and White House lawyers did an admirable job of explaining the constitutional point. “All elected officials, to some extent, have in mind how their conduct, how their decisions, their policy decisions, will affect the next election,†White House Deputy Counsel Pat Philbin said. “It can’t be a basis for removing a President from office.â€
The emphasis is mine. I don’t think that’s quite correct. I think that for it to be legitimate corrupt intent would need to be proven and that is self-evident from the conduct itself only if you bring that to your consideration of the facts.
BTW, I’m all for calling all of the witnesses. Call Bolton. Call the Bidens. We should also have depositions from the president and the president of Ukraine.
I believe Dershowitz covered the issue thoroughly. It basically makes my point from Day 1: you have to be a mind reader and project your own biases to even entertain an impeachment argument. But it fails. That said, I don’t think for a second the Schiffs and Pelosi’s of the world actually believe any of this. Its a politically convenient stance. Theatre.
The Trump team has eviscerated the House managers on fact and law. Brutally filleted them like fish. Its a national embarrassment.
Witness calling is just playing to the propagandist’s drip, drip PR strategy. Surely you have now heard the Bolton tape commenting on the substance of the call. It in no way, shape or form supports the notion of some evil intent. It would only lead to the next “bombshell” revelation. What next, Stormy in the Senate? How about Avenatti? How about Bozo?
Dave, Can you restate that sentence with “corrupt intent” included? I think you are missing commas or something? Or, maybe split it up into multiple sentences? It’s unclear to my 6th grade reading comprehension skills, what your thought is.
Yeah, the House articles of impeachment are based upon Trump seeking an “improper personal political benefit.” I’ve stopped paying much attention to the impeachment saga since this was forwarded as the offense. I think its week, and couching it in political terms just feeds into political outcomes.
There is one thing I disagree w/ Blackman about, at least from his writings in December. I haven’t read much recently. He tended to identify the problem with improper political motivations as denying the President fair notice of the conduct which is worthy of impeachment. That comes very close to a due process argument about vague laws and due process doesn’t apply to political office, because political office is not a thing of value that a politician possesses. That’s the flip-side of why extortion/ bribery was not committed; politics isn’t property, but it would be corrupt for the President to obtain cash from someone to exercise a discretionary power.
When Blagojevich was charged with adjusting reimbursement rates at a children’s hospital in order to get money, the take-away should have included wonder that the Governor had the power to unilaterally adjust those rates. If holding back funds to Ukraine is so outrageous, then what is Congress doing about it? (Suggestions: time limits on the appropriations; reporting requirements; delegation to cabinet members, etc.)
PD:
That echoes another point I made back in August: the House’s first action should have been to pass a bill that delineated clearly what they objected to. My suspicion is that, like art or pornography, they can’t define it but they know what it is when they see it, which is why I have been saying that censure was the proper course of action.
Jason:
How about this?
“the notion that corrupt intent is self-evident from the conduct itself may be reasonably inferred only if you bring that to your consideration of the facts to start with”
This is where a lot of us disagree. It is self evident as far as I am concerned because it would never be appropriate to ask for a favor that might harm your chief political opponent that would help win an election. The exception I can see to that is if a POTUS had a history of campaigning against corruption and then we could presume they were just presenting a specific example. In this case Trump does not have that history. SO now presidents can ask other countries for all kinds of help that will personally benefit them, they just have to claim it was a political act. I see no way you can limit that.
What should be done if you arent a political campaigner against corruption, and even if you are, is to publicly ask for an investigation. The AG can run it, or if you control a house in Congress they can run the investigation. Heck, 8 investigations into Benghazi, what would another investigation hurt?
Steve
Steve I’ve seen you ask repeatedly for evidence that Trump campaigned against corruption. What was “drain the swamp�
You can certainly argue (and this is pretty much my view) that when Trump campaigned on that it was to promise to uncover corruption among the opposing party, not against corrupt members of the GOP or making structural changes, and I think the evidence bears that out (some specific things I think he campaigned on for structural form have never been addressed.)
But I don’t see how you can claim that a guy whose supporters chanted “Drain the Swampâ€and “Lock her up†didn’t have a history of campaigning against corruption. It’s definitely not as though he suddenly decided to ask for this investigation after never having asked for an examination of other corrupt individuals before.
“What was “drain the swampâ€?”
You tell me because it certainly wasn’t talking about corruption. As far as I can tell it just meant get rid of Democrats. He has never actually done anything to try to reduce corruption. Look at the cabinet people he hired. I am not buying drain the swamp in the slightest. Lock her up? Really? He wanted his political opponent in jail after she was investigated (over and over, the Trump DOJ and Trump State Department has also investigated her) and they didnt press charges. Again, this is no principled objection to corruption.
Again, show me what he has the lead the charge or even participated against corruption somewhere? Badmouthing political opponents is something anyone can do.
“after never having asked for an examination of other corrupt individuals before.”
Again, who?
Steve
Just realized I am probably being unfair. You might not be aware that there are actual lists where people try to rate the most corrupt countries. Feel free to peruse the list and tell me which country where Trump has made some effort to address corruption.
Steve
The difference between steve’s (and, I believe, Andy’s) position and mine is that I, although I agree that something can be inferred from a positive pattern of behavior, I don’t think that anything can be inferred from a negative pattern of behavior.
“To wit, it isn’t legitimate to toss a President from office because the House thinks otherwise legal acts were done with ‘corrupt motives.'”
I interpret that as meaning that you can’t impeach a President for any legal exercise of his power. This would include any use of power that is a Constitutional prerogative of the Executive, to include exerting executive privilege to prevent disclosure of evidence and the giving of testimony, most aspects of foreign policy, pardons, classification, etc.
It seems to me the problems with such a standard are obvious and are clearly contrary to the original intent of impeachment.
And again, holding the funding authorized by Congress was illegal.
“I think that, for it to be legitimate, corrupt intent would need to be proven and the notion that corrupt intent is self-evident from the conduct itself may be reasonably inferred only if you bring that to your consideration of the facts to start with, i.e. a presumption of guilt.”
What is the burden of proof for intent generally? What is the burden of proof in this particular case with Trump? Would it be possible to ever achieve that burden with Executive privilege in place that can specifically block evidence and testimony?
Testimony, e.g. “I did it for the money.” Or a pattern of action (not inaction). Basically, intent is pretty hard to prove.
Certainly not when both the parties to the conversation deny there was anything wrong with it. That’s why intent is a pretty weak reed to hang your hat on.
IMO the solution to the problem you pose is greater restraints on executive power rather than lowering the bar for impeachment. Of course that would actually require the Congress to work for a living.
It’s unbelievable how that line in the Ukrainian transcript, “asking for a favor,†means, “I want to arm twist Ukraine into helping me get re-elected†to some people. Steve has been such a fan of that interpretation, being unrelenting in condemning Trump for conduct he seriously considers to be worthy of impeachment. OTOH, he has shown few worries in addressing the then VP Biden’s boastful bullying of Ukraine about taking aid away should they not do him a favor. Unlike Trump, where his election was never mentioned in any conversations, Biden made it quite clear what he wanted in return for a billion dollars of aid. Is Biden’s submission of his demands, wrangling for the firing of a prosecutor and the dismissal of a case involving his son’s employer, by putting a country’s access to aid on the line, a positive or negative character trait when appraising his qualities to be POTUS? Just like Trump’s promiscuous behavior prior to seeking the presidency was deemed relevant, why shouldn’t Biden’s promiscuous quid pro quo behavior also be subject to scrutiny?
Furthermore, as stated before, periodically there have been recorded interviews played demonstrating Trump’s disapproval of aid being indiscriminately disbursed to countries known for their corruption. Also, like CStanley noted, his rhetoric before and during his presidency has constantly chastised governmental corruption, those who put their own self-interests above those of the people, especially people known as the “forgotten†ones. They are the blue collar workers who democrats once advocated for, but are now being displaced by an assortment of elite intellectuals, academia, celebrities, illegal immigrants, and fringe anti-capitalism groups.
“That’s why intent is a pretty weak reed to hang your hat on.”
Exactly, which is why your requirement that intent must be proven is a de facto free pass.
“IMO the solution to the problem you pose is greater restraints on executive power rather than lowering the bar for impeachment. Of course that would actually require the Congress to work for a living.”
Congress can only restrain certain things and even many of those are routinely ignored by Presidents because they are constitutionally suspect or Congress has no power to enforce them.
Look, I’m with you on Congress doing its job to rein in executive power, but I don’t consider this to be lowering the bar on impeachment. What authority can Congress exercise to prevent future Presidents from using or misusing their office to compel foreign government to interfere in domestic politics?
But at this point, Trump probably should be acquitted because the House didn’t do its due diligence to try to force more testimony, and Senate Republicans are doing everything they possibly can to prevent any further evidence from coming to light. And, conveniently, they will turn around and say there isn’t enough evidence of wrongdoing and acquit. They all should be ashamed IMO. I’m convinced the allegations are true on a preponderance of evidence standard and also the fact that the administration has given no coherent alternative explanation. The various excuses floated by the administration and others are mutually contradictory and incoherent at the same time.
Much has been made of Rudy Giulianni. He started the investigation of Biden long before the infamous call. Long before Biden announced. He uncovered dirt. Does anyone think he did not speak with his client? Trump knew the score long before Biden even announced.
The notion that Trump simply ginned up a political hit job after Biden announced is ludicrous on its face.
And again, holding the funding authorized by Congress was illegal
My understanding is that wasn’t the case because of the relatively short time it was held up.
I read an opinion with which I agreed, that if that was Congress’s real concern it could and should have been handled by specifying timelines for funding to be dispersed (and in the case of noncompliance it would be appropriate to censure POTUS.)
Does anyone take this “security interests of Ukraine” talk seriously? Seriously? Obama provided jack. Blankets to send smoke signals for help I guess. Crickets from the pols and pundits. This is just political and evil tripe for the brain dead.
All the witnesses indeed. Under oath, cross examination. A special prosecutor in cases of suspected perjury. This should never end because when it does the House will draw up new articles of impeachment. They made this flimsy storyline their’s let them ride it through to the election.
And require all Senators attend all sessions.
But of course if you solicit and pay for made-up dirt on a political opponent from foreign nationals it isn’t foreign interference. One of the House Managers in the trial actually said this today. And of course nothing Downer, Mifsud, or Steele did counted as foreign interference, all they did was entrap Papadopoulos and Page so that a purported Manchurian candidate could be surveilled. Who was called a foreign asset based on an memo that’s so secret it can’t even be read on a SCIF.
Why are the names Eric Ciaramella and Joe Pientka so terrifying to the Democrats? Why can’t Atkinson’s deposition be provided? We’re supposed to topple a President based on the opinion/complaint of an anonymous leaker who didn’t even get the facts right on his complaint because likely whoever gave him the info put his own interpretation on the call to make it sound as damaging as possible? Why did Atkinson change the form to include hearsay and then backdate it to fit the time frame of the complaint? Who anointed Atkinson Inspector General of the Executive Office? (hint, the Executive is exempt from ICIG oversight). It’s a bunch of angry mean teens who can’t even get their stories straight. And the only reason why it’s gone this far is because they’re being covered for and cheered on by a horde of journalists who want to be the next Woodward and Bernstein.
These are the people who want to run the country. Remember that. If they win, they’ll treat everybody and anybody that gets in their way the same. Sarah Palin. Brett Kavanaugh. Eric Greitens. Their hatred and viciousness know no bounds. They have become completely unhinged in their desperation.
“OTOH, he has shown few worries in addressing the then VP Biden’s boastful bullying of Ukraine about taking aid away should they not do him a favor.”
What I have actually said is two things. First, there are concurrent newspaper, journal, magazine articles noting that the EU also wanted the Ukraine prosecutor booted because he was corrupt and not doing his job. It was official, meaning out in the open, policy to get rid of the guy. Biden was carrying that out. Show where there are Eu statements calling for Ukraine to investigate Biden and I will agree these two things are the same.
Second, I have always said go ahead and investigate Biden. I dont like the idea of politician’s kids getting jobs on boards or jobs in the White House because their dad is a politician. I am absolutely 100% sure you won’t agree with this.
“Obama provided jack.”
He wasn’t trying to buy their help with his election.
“Much has been made of Rudy Giulianni. He started the investigation of Biden ”
I dont understand that either, after all the way things usually work is that we have the president’s personal lawyer conduct investigations. Granted, I cant think of any examples at the moment bbut Iam sure that you can name a lot.
Steve
“topple a President based on the opinion/complaint of an anonymous leaker”
Nope. First the Trump appointed IG found merit int eh complaint and then the investigation proved they were true. The only reason to go after a whistleblower at this point is for revenge, and to discourage other whistleblowers. Cant have other people telling us the truth about Trump can we? You cultists really do look after the big guy so well.
Steve
Isn’t there another, completely legitimate reason, namely, to determine whether the individual was a whistleblower or an operative? The difference would be if Adam Schiff or his staff reached out to the individual who then produced information or whether the individual came to them with information?
Whistleblower’s names are not sacrosanct, and more times than not identified. Just yesterday a CNN whistleblower was publicly speaking about his experience with this news Corp, how they took news and manipulated stories so as to be more “propaganda†(his term) than factual. Why the Ukrainian call whistleblower should remain anonymous, and yet considered lethally authentic and unbiased, is beyond me. If such a standard became universal, in most trials, then anybody could secretly lodge complaints of wrongdoing at anyone, escaping cross examination, and thus given a pass to liberally lie.
“Isn’t there another, completely legitimate reason, namely, to determine whether the individual was a whistleblower or an operative?”
You seem to have forgotten that Trump controls the DOJ, the AG and the IG who took the initial complaint. What are the chances they haven’t looked at this already?
“lethally authentic and unbiased, is beyond me. ”
Because his claims were found to be true.
“then anybody could secretly lodge complaints of wrongdoing at anyone”
You really dont understand this fo you? Yes, anyone can lodge a complaint. However the complaint doesn’t go any further until it is reviewed baby the IG, who has been appointed by the current POTUS. So an official who was appointed by Trump has to review the complaint and then agree that it is substantially true before the complaint can go any further. Most organizations that I am aware of that have whistleblower rules have something set up so that you dont get random false claims baby anonymous angry employees.
jan- You didnt respond. Do you have any of those EU statements asking Ukraine to investigate Biden? Still waiting for examples of Trump’s interest in foreign corruption, or even any corruption.
Steve
CStanley,
“My understanding is that wasn’t the case because of the relatively short time it was held up.”
Not according to the GAO or other experts in this area. Congress typically gives the administration some latitude when distributing aid, depending on the circumstances, which is written into the bill. None of the excuses that the administration gave are legitimate reasons.
“But of course if you solicit and pay for made-up dirt on a political opponent from foreign nationals it isn’t foreign interference. ”
Sure, but there are some significant differences. Private parties hiring an oppo research firm which then hires a former British intelligence agent, who then dredges up a hodge-podge of mostly public and unverified information is not the same thing as the President of the United States using the power of his office to dig up dirt. If the GOP had hired an oppo firm and they had gone into Ukraine to find dirt on Biden, then that would be equivalent.
None of that, of course, excuses the way Steele’s information was improperly and illegally used in the Page FISA warrant. But that activity doesn’t magically make Trump’s actions legitimate.
“Isn’t there another, completely legitimate reason, namely, to determine whether the individual was a whistleblower or an operative? ”
Again, the evidence doesn’t hinge on what the whistleblower said, most of which has been corroborated by other sources including the President and Guiliani. But by all means, call him/her as a witness along with everyone else. But, of course, the GOP and Trump’s allies don’t want that because everyone knows that Trump did, in fact, hold defense aid and a WH visit contingent upon Crowdstrike and the Bidens. And Trump’s defense is admitting as much since their strategy now revolves around the argument that this is not impeachable conduct and are not trying to dispute the allegations directly.
“If such a standard became universal, in most trials, then anybody could secretly lodge complaints of wrongdoing at anyone, escaping cross examination, and thus given a pass to liberally lie.”
I’ve directly participated in several IG complaints in the federal government. That is now how it works. Yes, anyone can make a complaint, but they are all investigated and vetted. The ones that are bullshit (and they are fairly frequent) die a quick death as it’s clear their legitimacy has no basis. This whistleblower’s complaint was vetted and deemed sufficiently credible and serious to forward up the chain.
None of that, of course, excuses the way Steele’s information was improperly and illegally used in the Page FISA warrant. But that activity doesn’t magically make Trump’s actions legitimate.
But all of that, plus a lot of stuff you glossed over (to give just one of many examples, Nellie Ohr from Fusion GPS passing oppo research to her husband Bruce at FBI) make Trump’s action pale by comparison. The backstory there also shows why more legitimate means of opening an investigation were not available to Trump.
Honestly to read your version of Crossfire Hurricane, I can’t help but think of the two movie screen phenomenon. I guess if you haven’t seen the film that some of us have watched, the Trump feature has a much different feel to it.
“But all of that, plus a lot of stuff you glossed over (to give just one of many examples, Nellie Ohr from Fusion GPS passing oppo research to her husband Bruce at FBI) make Trump’s action pale by comparison. The backstory there also shows why more legitimate means of opening an investigation were not available to Trump.”
The problem with this argument is two-fold:
1. It’s entirely subjective whether what Trump did “pales in comparison” to what was done with Trump. Both things of those things can be bad and the desire to excuse one because of the other is also entirely subjective. Personally, I’m not interested in keeping score and trying to justify one as worse than the other. Both should be opposed and condemned, not excused.
3. The theory that the “legitimate” means of investigating Biden were not open to Trump is novel in that it’s not a reason Trump or his administration has given to excuse their actions. Rather it’s a theory invented by Trump supporters to try to justify his actions.
So no, I don’t buy that theory at all because Trump and his associates have not tried to make it and those who are making it don’t actually have the inside information necessary to confirm the theory. So IMO it’s throwing spaghetti at a wall and hoping it sticks.
It reminds me of Reynolds over at OTB arguing that it was completely legitimate for Hillary to use her own server because government servers are supposedly so insecure. Clinton and her proxies never used that as a reason for why she opted to use the server, so that theory was just an example of making shit up to excuse what Clinton did.
Thanks Andy, that’s a very well reasoned response and gives me good fir thought.
I am genuinely not a Trump supporter trying to use pretzel logic to exonerate him. When I compare what I see as corrupt actions on both sides I’m more or less pointing out my belief that the rule of law and our institutions have been so corrupted that the system is becoming dysfunctional.
As a result, partisans use the dysfunction to excuse behavior in their side, but eventually even objective observers have to acknowledge that when justice isn’t applied evenly to all it is unjust.
I have no idea what the fix is, and I recognize some parallels say between my feelings in this matter and the way the BLM activists feel about our criminal justice system. To me their stance is untenable but I recognize that once you’ve lost faith in the fairness of a system you can’t support it.
I agree with that.
Regarding your point 2….
I don’t see how it would be possible for Trump’s lawyers to use the theory I’ve posited as a defense. The investigation into the actions of DOJ, FBI, CIA, etc is still ongoing. Parts of what had already been made public IMO are damning but that doesn’t mean there’s a legal basis for using this argument.