A Prosecutor’s Very Simple Legal Guide For Impeachment

The Revolutionary Act ^ | 12/9/19

[Phlyer]

Sorry, but this article is not compelling. I think what the House is doing is a travesty, but that is my opinion, and some of the Dimms in the House obviously disagree.

Where in the Constitution does it define "High Crime?" If it does not, then it means what the Congress says it means. Where in the Constitution does it define "Misdemeanor?" If it does not, then it means what the Congress says it means.

The comments in the article about the Senate being a trial are valid, but they do not have to follow 'due process' unless and to the extent the Constitution defines it (and it does not). Hearsay, opinions, and other unallowable "evidence" can be used to convict, if the Senate decides to do so.

The Chief Justice should advise them to follow due process, but he doesn't get to vote on the final conviction.

That is the strength and the weakness of our system. The Congress is independent of the other branches, and so has the sole power of impeachment. It can't be controlled by the President, nor even by the law as defined by nine people in black robes. It is only controlled by its own sense of honor and integrity . . .and we know how far that goes. The Dimms wouldn't recognize integrity if it bit them in the ass, and there are way too many Republicans who are the same.

I still don't think Trump will be convicted in the Senate - if it ever comes to trial - but it will be because enough of the Republicans (and maybe some Dimms) fear re-election if they vote to convict on such obviously trumped-up charges. It will be a political decision, not a 'legal' one.

[Brian Griffin]

“Where in the Constitution does it define Misdemeanor? If it does not, then it means what the Congress says it means.”

If Congress defines “it” by law in advance of the “offense”.

We are a nation of laws.

[Lurker]

“We are a nation of laws.”

It’s kind of cute how you still believe that.

L

[Brian Griffin]

“The Congress is independent of the other branches, and so has the sole power of impeachment. It can’t be controlled by the President, nor even by the law as defined by nine people in black robes.”

Nine people in black robes have been repeatedly proven to be very inventive and assertive.

Given the Nixon tapes decision made at the request of Congress, the Supreme Court can play a role in the impeachment process.

[Brian Griffin]

Quotes from the phone call transcript:

President Zelensky

“We are ready to continue to cooperate for the next of defense steps. Specifically we are almost ready to buy more Javelins from the United States for defense purposes.”

Trump:

“I would like you to do us a favor though because our country has been through a lot and Ukraine knows a lot about it.

“I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike.

“I guess you have one of your wealthy people. The server, they say Ukraine has it.”

Obviously, only an investigation by a foreign government could get to the truth.

“I would like you to get to the bottom of it. As you said yesterday, that whole nonsense ended with a very poor performance by a man named Robert Mueller, an incompetent performance, but they say a lot of it started with Ukraine. Whatever you can do, it’s very important that you do it if that’s possible.”

Trump wanted “to get to the bottom of it”. Trump was targeting unknown masterminds, not the greedy Biden son or his father.

Obviously yet again, requesting foreign government investigative help was appropriate.

“I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved.”

“The other thing, there’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great.”

“Biden went around bragging that he stopped the prosecution so if you can look into it. It sounds horrible to me.”

And it sounds horrible to me too.

Trump made reasonable requests in a totally polite and appropriate manner, unlike “Quid Quo Pro Joe” Biden, who said fire the prosecutor or no $1 billion.

[Phlyer]

. . . the Supreme Court can play a role in the impeachment process.

"Can" play a role. Absolutely. My point is that it is a political decision, not one bound by legal analysis. But the politics are influenced by public opinion, and public opinion is influenced by the rule of law. If the Supreme Court (or even just the Chief Justice) make a strong point that what Congress is doing is improper, then the politicians will probably listen.

But there is no way to force Congress to comply. Their only real limitation is their perception of the political price if they are too blatantly unfair. And for their partisans, there is no limit to how unfair they 'should' be.

[olesigh]

After biden bragged in 2018, to the CFR, that he had his sons prosecutor fired by threatening to withhold aide., Trump was obligated to have an investigation conducted.

BTW where is the report on that investigation?

[Phlyer]

If Congress defines “it” by law in advance of the “offense”.

If Congress were to write a new law making something that Trump had done illegal or just unambiguously "bad", it would clearly be "ex post facto" and unConstitutional. But if they just 'interpret' what "High Crime" or "Misdemeanor" mean, they are just acting as a court. Judges 'interpret' the law all the time.

And who would have the authority to overturn their interpretation? Why Congress, and Congress alone. How convenient.

However, "We, the People" do have the authority to make them pay a price for their interpretation. It won't put the President back in office, but it is that threat that might make Congress decide to comply with intent of the Constitution.

As I said in the first post on this topic, I don't think it will come to that. But a lawyer analyzing how he thinks the law should be interpreted is not a compelling argument. This is still a political process.

[CodeToad]

Then let the Senate expel all Democrats.

[Brian Griffin]

“Where in the Constitution does it define ‘High Crime?’”

I would imagine “high crime” is one that was punishable by hanging.

“Misdemeanor” probably was meant to mean any lesser offense subject to criminal punishment by statute.

In modern times, the term “misdemeanor” in common use would include all offenses punishable by statute that are not felonies, which carry a possible term of imprisonment of at least one year.

I believe it was the intent of the Founders that all offenses defined by statute and carrying a criminal penalty could/would form the basis for executive branch impeachment.

[Brian Griffin]

“there is no way to force Congress to comply”

Trump conceded temporarily to every nonsensical federal judicial order ever issued during his time in office.

If the White House guards let Trump in the White House after a Supreme Court decision, then Congress has to go along, especially after Trump signs a spending bill and Pence sends Congress his “veto”.

[Brian Griffin]

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution....”

[Brian Griffin]

“the Senate is the ‘court’”

The Senate is the jury and the Senate chamber is the courtroom.

The Chief Justice is the judge. And judges can toss cases.

[Political Junkie Too]

Where in the Constitution does it define "High Crime?" If it does not, then it means what the Congress says it means. Where in the Constitution does it define "Misdemeanor?" If it does not, then it means what the Congress says it means.

An originalist might disagree.

An originalist might say that "high crimes and misdemeanors" has a long-understood basis in British Common Law.

An originalist might say that the Framers kept the concept of "high crimes and misdemeanors," but changed the process of impeachment from the British parliamentarian way to the Congressional two-part split-chamber way.

An originalist might say that "high crimes and misdemeanors" is not whatever Congress says it is, but rather, that Congress has a centuries-old historical benchmark of what it has been in British and American law, and has to judge whether the President reached that threshold of abuse of office.

-PJ

[Phlyer]

An originalist might disagree.

Absolutely. I'm not an originalist. I'm a literalist. The law means what it says (including the Constitution) as it would be read by reasonably - meaning, typical of the population - literate citizens, because it starts out "We, the People", not "We, the landed gentry of Virginia."

If a word can be shown (burden of proof on the person making the claim) to have changed meaning since the time the particular statement (basic or amendment) was approved, then the meaning at the time of ratification should apply. An example is 'regulated' which did not mean 'controlled by written laws not passed by Congress.'

But even then - in my philosophy - it would be the literal meaning as the words were used when the article was ratified.

And a literalist would say that any documents not actually part of the Constitution are useful only if they convince "the People" of the most rational and direct way to read the written words. So, a Federalist paper is valuable for the cogent arguments presented, not just because of who wrote it - even if it were James Madison.

[Phlyer]

I would imagine . . .
I believe . . .

Good for you. You as one of "We, the People" should be forming your own opinion, and your judgment seems reasonable to me. Each of us is responsible to make our own decisions.

[Political Junkie Too]

So, a Federalist paper is valuable for the cogent arguments presented, not just because of who wrote it - even if it were James Madison.

Not just the Federalist Papers, but the source materials the Framers relied upon, and the ratification debates from the several states.

They all give meaning to the "literal" intent of the words that were used at the time.

Agree on your examples, e.g., "regulated" meant practiced, drilled, organized and led. I wish "natural born" had a similar pedigree. I do think that "high crimes and misdemeanor" did NOT mean no crime at all, even if people disagree on what crime it DID mean.

-PJ

[Phlyer]

They all give meaning to the "literal" intent of the words that were used at the time. (Emphasis added)

My foundational premise is that "We, the People" should be able to understand our contract with ourselves, called the Constitution. It's important that each of us can be confident that we know what authority we have assigned to the Federal government, using no more information than the document and our knowledge of our own language. In the absence of a compelling argument that a specific word has significantly changed in meaning - as used by "We, the People" - since an article was ratified, then the words as they are understood in today's usage are what matters.

To me. As I said, I'm a literalist . . . or perhaps, a "contemporary literalist." And I am most definitely not an authoritarianist. It doesn't matter who made an argument, nor how many 'learned' historians claim to understand what it means.

On the other hand, those who wrote the Constitution, and argued for it, were very knowledgeable and eloquent men. Their explanations and analysis are often compelling. Your point about the explanations in place at the time is a good one, because those explanations are still well-written and convincing, not just because they were written at a particular point in time.

I disagree with your definition of "regulated" because you're trying to point toward a specific outcome, which is no different than what today's statists do. "Regulated" did not mean "practiced, drilled, organized, and led." That is an application of what it means to a specific topic, and I even disagree with that. What did "well-regulated" mean as words - not in the context of a militia but in general?

They meant consistently and reliably operating (i.e. "regular"). Clocks were called, "regulators" as a way to claim that they could be relied upon to tell time consistently and correctly.

Now, what does that mean context of a militia? It means that the militia would need to be capable of operating reliably and efficiently when needed. To that end, it was necessary that the militia - which is the body of "We, the People" could show up when needed (hence, "Minutemen") already competent in the use of their own arms. And to that end, they needed to be able to keep and bear arms - in order to develop the skill and competence required at times when they were not needed to ensure the security of a free state. That right could never be infringed if they were to be efficient and effective - which is, "well-regulated" - when they were needed.

For a historical context on what it was intended to mean, consider Lexington and Concord. At Lexington, the Minutemen stood up against regular (smoothly and efficiently operating) troops of the British Army. And the Minutemen broke and ran, defeated completely. The military skills of standing in ranks under fire were not part of what the militia could do (because they were not "practiced, drilled, organized, and led", i.e. trained in that skill). However, when the British troops marched on Concord, the militia fired at them from behind fences and trees and hay bales and devastated the British. Because they were trained to an efficient and effective standard in the skills of loading, aiming, and firing their own weapons. Those are the skills a militia needed to have.

We may end up at the same point on what rights the Constitution protects for us and actually have no major argument between us. Whether we reach that point because of appeal to original intent or contemporary literalism is less important than that we agree on the key result.

[DoodleDawg]

“How often do we see people blind to their own interests precipitately maddening on to their own destruction!”

Every time we look at a congressman or senator.