The editors of the Wall Street Journal, once again, express what has essentially been my view of the impeachment proceedings all along:
Presidents conduct foreign policy in what they think is the national interest, but they also hope it will be in their political interest. Presidents typically act from “mixed motives,†as Mr. Dershowitz put it, that are difficult to discern or to separate the high-minded from the self-interested.
It is thus too low a constitutional bar for the House to claim, as it does, that Mr. Trump can be impeached because Democrats think his motives were corrupt. The acts themselves must qualify as “high crimes and misdemeanors.†Mr. Trump’s acts don’t qualify—because asking aid recipients to investigate corruption isn’t illegal, and in any case the aid to Ukraine was delivered on time and no investigation of Joe Biden was started. This does not condone Mr. Trump’s request, which was reckless and dumb, but it isn’t an impeachable offense.
What would be a clearly impeachable offense?
He could be impeached for soliciting a financial bribe, for example, or seeking a campaign contribution from a foreign source. He could also be impeached for exceeding his constitutional authority.
or a contribution to his or her foundation I might add. How, then, it has been asked do you constrain presidential power? The answer is under the law, applied even-handedly. Enact laws that that define and prohibit in clear terms the behaviors you wish to eliminate. Ask less of the military and reduce its size and power. The larger the federal government, the military, foreign aid, and the State Department in general, the greater the power of the president.
Are you f**king kidding me???? These acts are the definition of corruption! Holding up aid from an ally that was ALREADY DISCUSSED AND APPROVED BY A BIPARTISAN VOTE OF CONGRESS and then covering it up?? Why do you think Trump et al engaged in a coverup if this was all perfectly legal??? VERY disappointed in you!!!!!!
In the last thread, I raised the question about what Congress has done to check Presidential discretion on foreign disbursements, such as time limits, reporting, and delegation. Andy referenced that holding the funding authorized by Congress was illegal, which made me look closer at the Impoundment Contract Act, which in deed provides relevant time limits, reporting and delegation.
Which makes me wonder, why didn’t the Congress impeach him for violating this Act? It is not mentioned in the Impeachment Resolution. Scanning the House Report, the Impoundment Act is mentioned and discussed under these headings:
PRESIDENT TRUMP CONTINUED THE HOLD DESPITE AGENCY CONCERNS ABOUT LEGALITY
OMB USED UNUSUAL PROCESS TO IMPLEMENT PRESIDENT’S HOLD, SKIRTING LEGAL CONCERNS
From a prosecutorial piece these are not compelling claims of illegality, and it appears that the House Committee was well aware of the legal issues and decided to utilize the fact pattern surrounding the law as evidentiary support for abuse of power, not as a legal violation in and of itself.
The cost of paper is cheap, they could have added another ground, but didn’t. My conclusion is that all of the legal violations that could have been claimed against Trump have some aspect that gives him an out. Once it was clear that the impeachment would not have specific laws for support in a hostile Senate, “abuse of power” for politically motivated actions became a catch-all ground allowing all people opposed to Trump to voice their own complaints.
Everything in Mary’s post is an example of hyperventilated misuse of facts. The aid was “paused,†for a brief period of time, but delivered in the fiscal year in which it was appropriated by Congress. The aid involved was not military, like was withheld for 3 years in the Obama Administration, and actually voted down by 3 of the current House Managers who are ironically prosecuting Trump for supposedly withholding aid.
Cover-up? The transcripts of both calls between Zelensky and Trump were released expeditiously, unlike the IG transcript which filled in more details involving the whistleblower – perhaps his bias, who he worked for, irregularities in the whistleblower’s paperwork, etc. This transcript has been withheld, classified and probably will never see the light of day. Such a move is a blatant definition of a “cover-up.†And, the party members executing this ploy are the Democrats.
. . . continued
1) The importance of delegation is that it gives Congress someone to hold accountable outside the context of triggering the ultimate confrontation between branches of government. Here, OMB has responsibilities and if it violated the Act (as the GAO concluded), then the responsible officer at OMB can be impeached. Historically, impeachment was the devise used by Parliament to oust the King’s men; it is an American expansion to include the POTUS. Of course, starting impeachment proceedings against a federal official will either result in the official resigning or pointing the finger.
2) OMB’s legal counsel approved the actions and from the legal opinion letter I’ve skimmed, it looks like there is a serious issue about how the Act treats fund deferral and fund rescission differently, and how these differences appear to create a conflict between the President’s right to hold funds for 45 days, in relation to the end of the fiscal year. GAO has apparently proposed amending the Act to clarify this.
3) The attorney letter also pointed to similar holds under the Ford and Carter administrations.
4) The Impoundment Control Act sets froth civil remedies for enforcing its provisions. This makes it a more difficult law to describe as a high crime or misdemeanors.
Arent you the guy who always says the best form of a bribe is to just give someone your business card? Limiting impeachment to the direct transfer of money is absurd. Asking a foreign country to aid you in your election effort is even worse that accepting money.
Query- So it would be perfectly legal for Trump to call Boris right now and ask him to release a statement saying that they had proof Biden, Sanders or whoever had accepted millions in illegal campaign donations? Not impeachable since this is just politics and anything is fair in the effort to get re-elected.
Steve
I didn’t say it; Dan Rostenkowski said it. I don’t endorse it. But to deny it is a political commonplace is clinical denial.
I don’t know whether it’s against the law or not. Since it’s not a sworn statement, it’s not suborning perjury. Let me ask another question. Was Clinton’s interfering in the Russian election against the law? Are repeated U. S. government interferences with Israeli elections against the law? I think they were wrong but I doubt that they were against the law. Not everything that is wrong is against the law.
Is doing something that is wrong a “high crime and misdemeanor”?
Heh. A farce at the start. A farce at the end.
The wailing and moaning reminds me of election night 2016.
PD,
Thanks for taking the effort – your descriptions sound correct and credible to me. It sounds like another case where a legal office gives cover by declaring that some action isn’t a violation, like the Bush Admin torture memos.
Dave,
Well, that is a terrible standard and it is a questionable argument, at best, that the impeachment power is actually limited to that standard.
If that’s the standard, then a President could coerce any foreign government to do almost anything against a domestic political rival. As long as money doesn’t change hands, then it’s all OK.
I continue to believe that allowing Presidents to use their inherent constitutional authority in foreign policy for the specific purpose of damaging domestic political appointments is a Rubicon we don’t want to cross. Whether or not this farce of an impeachment process is enough to give future President’s pause is an open question.
We should not, however, accept the Dershowitz argument on impeachment in this case. On that I agree with Keith Wittington:
https://reason.com/2020/01/30/acquit-if-you-must-but-dont-endorse-the-dershowitz-argument/
No, they aren’t against US law that I know of. The US has long had an open policy that can influence foreign elections – there is an agency funded annually by Congress for this specific purpose. Yes we are hypocritical when we allow this but declare that foreigners intervening in our election is an “act of war.” But I don’t see how that is relevant to the President using his office to compel foreigners to interfere in our elections here.
I also continue to disagree with the theory that impeachment is only for criminal conduct since we know there were, at most, only a handful of federal crimes when impeachment was created and the authors intended it to be a check on abuses of power, not merely financial bribery. And that theory suggests that a President could never be impeached, much less criminally charged, for anything that can’t be made illegal because of separation of powers.
So do I which is why I advocate Congress’s enacting a law explicitly prohibiting the behavior. What I don’t want to see is what’s happening now—when the House is controlled by one party and the White House by another, the House voting to impeach a hated political opponent.
We’re going around in circles in this. In the absence of an actual crime to prove abuse of power you MUST prove corrupt intent. Proving corrupt intent is quite difficult—basically it requires a confession, a pattern of affirmative behavior (not the absence of behavior), or actual material benefit.
“So do I which is why I advocate Congress’s enacting a law explicitly prohibiting the behavior. ”
Except Congress can’t enact unconstitutional laws.
Keith Wittingon’s latest piece gets at the point I’ve been trying to make:
https://reason.com/2020/01/31/otherwise-lawful-powers-and-impeachable-offenses/
Read the whole thing, it distills my issue with Trump’s conduct.
Yes, we are going in circles. I’ll point out again that impeachment is not a criminal proceeding with criminal penalties. Your very high standard of proof regarding corrupt intent is in line with a criminal proceeding, not impeachment for reasons previously explained.
“Was Clinton’s interfering in the Russian election against the law? Are repeated U. S. government interferences with Israeli elections against the law?”
Is there a law against this? As Andy noted dont know of one. Should we impeach over this? It doesn’t seem like a high crime etc. I think we should probably avoid this and would be happy if Congress passed a law against it. Of course how about all of Israel’s interfering in our elections?
“to prove abuse of power you MUST prove corrupt intent.”
You have set an impossible standard especiallyin cases involving a foreign govt. Ukraine wants our money. They want it regardless of which party controls the White House. There is no way they will testify against any president. We could get a better idea about intent if we were allowed to interview all of the actors involved. We now have executive privilege being used to stop testimony from the people present when intent would have been discussed. So I think you get the best evidence you can. As noted, Trump has never been interested in corruption as an issue. He sent his personal attorney to get involved in pressuring a foreign govt, which I believe is pretty much unprecedented. You have everything except the confession. Since we need to hold our politicians to a higher standard that criminals that’s enough. Besides, if it looks like there would be conviction then Trump could release the missing documents and let the witnesses testify which would no doubt prove he is innocent. (LOL)
There is no material benefit to controlling the office of POTUS? People spend millions to get elected. What was th net worth of US presidents before and after they left office?
Steve
What the impeachment crew has been doing (and IMO will do in the shampeachments to come) is operating under the assumption that anything Trump does is out of corrupt intent and building their case on that assumption, demanding that he prove his innocence of their accusations beyond a shadow of a doubt. That’s French Revolutionary Tribunal bonkers. Is that the way they want to play the game now? That everybody they accuse of a crime or wrongthink or even genetic bias must prove their innocence? Hell, by that standard I could be accused of having murdered JFK and put on death row for it (OK, I’m stretching there. I was four at the time. But I still could have fired the fatal bullet by hitting the trigger with a rock. It could have been done).
Not one of the infamous 17 House Witnesses who have had their testimony released, including Vindman who was on the call, testified that was a quid pro quo. They PRESUMED it, ASSUMED it, took it for granted that there WAS a QPP, but none of them would admit under oath that there actually WAS a QPP (Sondland testified that POTUS said he wanted no QPP). As for ICIG Attkinson, his testimony is apparently so explosive and super secret that apparently Jesus Christ can’t get clearance to see it.
And finally, even if there WAS a QPP, so what? Asking a foreign leader about the status of a corruption investigation isn’t a crime. By the House Manager standards every act the President makes, including combing his hair, could plausibly be construed as corrupt because it was done to enhance their political prospects. Let’s hold Nancy Pelosi to that standard and see how far she’s willing to push it.
Poppycock. It’s not an impossible standard. It is a standard by which Trump should not have been impeached. If your objective is to impeach and remove Trump, that won’t do it. Sentence first, verdict later.
I think he should have been censured. As it is, he will probably be impeached but acquitted and the entire proceedings will have a partisan taint.
I want to emphasize I am not defending Trump and have never done so. I am defending a system of a rule of law and due process.
Tars first 6 lines say it all. That’s what’s going on. You know this due to the serial reasons for impeachment. One doesn’t work. Just choose the next.
I can’t believe so much analysis and words have been wasted on this charade.
Hey Jan, why don’t you take your comment and shove it up your ass.
Thank you PD for researching and posting the info about the legal issues.
“Poppycock. It’s not an impossible standard.”
Trump isn’t going to confess. Zelensky isn’t going to say he was pressured because he wants our money. We have no power to get a foreign leader to testify anyway. So what you have set up is a standard where you will pretty much only accept the transfer of money as proof of bad intent and your Illinois politician makes it very clear it is easy to get around that by asking for something in kind.
“What the impeachment crew has been doing (and IMO will do in the shampeachments to come) is operating under the assumption that anything Trump does is out of corrupt intent”
Anything? You overdose on your CBD tonight? They didnt go after him for everything else he has done. They may have talked about impeachment (lets not forget that the GOP actually impeached someone first and they also talked about impeaching Obama) but they didnt actually do it until Trump asked a foreign govt help with his re-election.
“OK, I’m stretching there. I was four at the time.”
No, I agree it is not a stretch. For example, if you were a Dem POTUS and there was a Republican special prosecutor looking at a land deal in Arkansas, you could end up without prosecutor talking to a woman who was a 16 y/o girl living in California when that real estate deal was happening. And then you would get impeached. Nope, you arent a reach at all.
Steve
If Schiff introduces new articles of impeachment, I’ll pull the plug on the TV. He reminds me of someone’s angry ex wife.
Here’s an American Spectator opinion piece which pretty much sums up the impeachment saga we’ve all had to go through in the House and than the Senate.
First, there was the House’s role creating and voting on two Articles Of Impeachment:
“Bill Clinton was impeached after a multiyear grand jury investigation by Independent Counsel Ken Starr and an impeachment inquiry in the House of Representatives in which Clinton’s lawyers participated and were able to present and cross-examine witnesses. All of this resulted in Clinton, the nation’s chief law enforcement officer, being charged with the actual crimes of lying under oath and obstruction of justice.
In marked contrast, the House voted to impeach Trump for non-crimes of abuse of power and obstruction of Congress after a relatively brief 78 day investigation by the House Intelligence and Judiciary Committees most of which took place in camera in a secret underground bunker. For all but the last week (by which time it was too late to affect the outcome) Trump’s lawyers were excluded, not allowed to call or cross-examine witnesses, and questioning of witnesses by Republican committee members was severely restricted.”
The Adam Schiff House proceedings have been described by many as “Soviet-style,” especially how blatantly one-sided the entire proceeding was orchestrated — literally a “Kangaroo court!”
Then there was the Senate side of it:
“Time and again, the president’s lawyers were able to play video excerpts of witness testimony in the House proceedings which supported Trump but had been omitted from the House Managers’ ludicrously selective and deceptively one-sided presentation. This kind of game playing is what’s known among trial lawyers as “greasy kid stuff†and is the mark of litigators whose incompetence poses a constant latent threat their cause. Or, as we used to say in the old Justice Department, such advocates are walking violations of the Sixth Amendment right to counsel. The House Managers had to be brain dead to think that they wouldn’t get caught hiding exculpatory evidence when it was readily available to the defense.”
However hiding exculpatory evidence appears to be a pattern of acceptable obfuscation among current democrats, and even some republicans, who want to toss Trump, no matter what rule of law or Congressional protocol is violated. This was demonstrated in Flynn’s manipulated conviction, as well as what the IG FISA investigations discovered — omitting exculpatory evidence, or, in some cases changing evidence to meet FISA requirements for a warrant, that otherwise would not have been granted.
Sigh. Clinton’s lawyers were not able to be present and cross examine Starr’s efforts. The House used Starr’s work to do most of the work so there was little need for witnesses. Most of the witnesses that the Clinton team called were legal experts to discuss the legality of the impeachment. The Trump team was offered the opportunity to present witnesses at the Judiciary committee and one of the experts at the hearing testified in favor of Trump (Turkey?).
““Soviet-style,†especially how blatantly one-sided the entire proceeding was orchestrated — literally a “Kangaroo court!—
Then I guess the same thing goes for the Starr based Clinton impeachment. Note that Clinton actually had to testify, unlike Trump who did not. Talk about Soviet style.
What exculpatory evidence did the Democrats hide? You are being (deliberately) vague here. It was Trump who refused to let the people who worked most closely with him testify and while Clinton had to turn over every document requested Trump held back lots (most?) of documents.
Keep trying, but there really isn’t anything of which you can accuse the Democrats here which the GOP has not already done.
Steve
Irregularities in House impeachment process:
Barred counsel from attending hearings, whose job was to protect the House from violating executive privilege. Schiff opposed counsel because in his words it would amount to “witness intimidation.”
Changed authorization of the impeachment inquiry investigation from the House Judiciary to the House Intelligence Committee, likely so the hearings could be held in the Sensitive Compartment Information Facility or SCIF. While these hearings did have republicans present, the transcripts were only partially released, oftentimes with information to the media that was highly misleading. The minority party also was refused witnesses they wanted to call or subpoena. During the final phase of the hearing republicans were tethered to Adam Schiff whims, regarding what questions they could and could not ask witnesses, often times interrupted and completely shut down. Because these hearings were held by the Intel Committee (rather than the Judiciary Committee) the privileges accorded under H. Res 660 only kicked in at the Judiciary Committee, which had no fact witnesses or fact-finding because of already being done in the Intel Committee – a clever way to circumvent privileges that were allowed to Clinton.
Schiff also threatened Trump that any effort to exert privileges would be regarded as evidence of obstruction. This was the same tactic Schiff used when earlier subpoenas, inappropriately issued, were met with legal opinions advising people not to comply or testify. This legal opinion was then seen as tantamount to “Obstruction of Congress,” leading to the one of the two impeachment articles submitted to impeach Trump. Â
Exculpatory evidence in witness transcripts was deliberately withheld, so that only statements criticizing or showing displeasure with the president were emphasized in leaks from the House majority. For instance, Sondland’s remarks, which the House majority immediately shared with the media, were very troubling until the core of his statement, saying the president was adamant about no QPQ, turned the essence of his testimony totally around to a more positive rendition, reinforcing the president’s position. This kind of testimony manipulation colored many of these witness testimonies putting into jeopardy any sense of fairness or truth-seeking.
Democrat leaders and staff had access to witness testimony transcripts, while Republicans were severely restricted, having only one copy made available under the supervision of a democrat staff member.  Â
“For instance, Sondland’s remarks, which the House majority immediately shared with the media, were very troubling until the core of his statement, saying the president was adamant about no QPQ, turned the essence of his testimony totally around to a more positive rendition, reinforcing the president’s position.”
You realize what you are saying here. When Sondland testified, with GOP House members present, he gave his whole statement and no exculpatory evidence was withheld, as you claimed. What happened is that the Dems released to the public that part which which most favored their narrative. After having Nunes do the same thing for a couple of years and Barr even more blatantly not releasing Mueller’s prepared release but using his own which conveniently left out anything that would make Trump look bad, you arent seriously going to think this is a big deal?
So again, please cite some examples of exculpatory evidence being withheld. While you are at it lets see some quotes and actions from corruption fighter Trump.
Steve
The initial Sondland testimony, released by Dems to the press, was considered a “John Dean†moment, in that it was so inflammatory to have provoked a viral smoking gun claim. IOW, the Dems exploited one piece of testimony while not releasing a more exculpatory part of it. It was through a Republican’s probing, of a direct conversation Sondland had with the president, that the no QPQ quote was finally revealed, changing the impact of Sondland’s words from being a smoking gun to nothing more than irrelevant personal assumptions.
However, once a fraudulent statement is made, a lie publicly submitted, it will have done the damage intended to achieve the narrative wanted. Your own repeated comments about Trump’s sarcastic outburst at a rally, asking “Russia for help,†or how Trump supposedly ridiculed a disabled man because of body language, that was frequently used in all public appearances (having nothing to do with disabilities) – all debunked but still pointed out as serious examples in which to augment your own thesis of grievances against Trump.
You can weave into this what you want, Steve, as invariably there is always a small detail or stat in which you can point out, in order to validate the 93% negative MSN POV comprising the “facts†most committed Dems follow.
I dont think exculpatory means what you seem to think it means. Sondland’s full testimony was allowed at his hearing. No exculpatory evidence was hidden, meaning no information was hidden from the hearing that was determining whether or not to impeach.
Only Republicans think it was some John Dean moment. As I noted we had AG Barr do the same thing when he selectively released information. I have already agreed that the Dems selectively released stuff to the public, but I have also noted and cited a specific instance where Republicans did exactly the same thing, and I wasn’t whining about it being a John Dean moment. As I keep saying, anything you want to accuse the Dems of doing the GOP has already done, usually in spades.
“how Trump supposedly ridiculed ”
Not supposedly, he did. All you have to do is watch.
Steve