Friday, November 29, 2019

Impeachment: Trial Or Dismissal?

Not long ago there was a lively debate going on among Republicans about what would be the best approach for the Senate to take to possible House articles of impeachment against President Trump arriving on its doorstep--dismissal of the articles as insufficient or a very full trial. That question seems to have been answered by Trump himself, who has stated a preference for a full trial. The attractions are immediately obvious, and Republicans are coming up with suggested witness lists--starting with the Bidens, father and son.

On the other hand, I was reminded today that the option of a possible quick dismissal of articles of impeachment or even a refusal by the Senate to recognize their constitutional sufficiency has real merit. The merit lies in issuing a principled rebuke to the full frontal assault that House Dems have launched against our constitutional order--and I don't exaggerate.

We're all familiar with the Maxine Waters Doctrine: "Impeachment is about whatever the Congress says it is. There is no law." It's easy enough to dismiss this nonsense with a simple "consider the source," although it's widely parroted on the Left. Reality based people understand that the Constitution itself is our basic "law of the land," and it lays down the law with regard to impeachment.

But what are we to say to the Nancy Pelosi Doctrine, enunciated by the Speaker back in May, according to which Congress is superior to the other branches of government?

Pelosi claims Congress is a 'superior branch' of government 
House Speaker Nancy Pelosi on Wednesday declared that Congress is a “superior branch” of government, as the clash between congressional Democrats and the Trump administration over closely held documents intensifies. 
During an interview with Robert Costa for Washington Post LivePelosi was asked whether Congress is functioning as a coequal branch of government. 
“I think we’re a superior branch, quite frankly,” Pelosi said. “We have the power to make the law and the president enforces the law. So we have a big role. We’re closest to the people and we have a big role to play.” 
Despite Pelosi’s opinion, the U.S. Constitution, in its first three articles, defines three distinct branches of government: legislative, executive and judicial. The separation of powers also creates a system of checks and balances to ensure all three branches are coequal.

When the Speaker of the House dismisses separation of powers and the entire system of checks and balances among three coequal branches of government, is that not a constitutional crisis. Moreover, the Dems have acted on that idea, claiming--and receiving support for their claim from one of those Obama judges that John Roberts says don't exist--that there's no such thing as executive privilege. That essentially means that the executive branch is subordinate to the House, no matter what the Constitution says.

I imagine that the Supreme Court's justices read Pelosi's claim for Congressional superiority with more than a little interest. They cannot have failed to ponder whether a Trump impeachment would be followed by wholesale impeachments of any judges--unelected, and thus the most distant from "the people"--who fall afoul of their new Congressional masters. They will recall the calls for the impeachment of Brett Kavanaugh on essentially no grounds at all beyond those of Dem talking points--any one of the justices could be next!

So, when I read an article in the WSJ today by Jonathan Turley, law professor and impeachment expert, I was reminded of the dismissal option:

Adam Schiff’s Capacious Definition of Bribery Was Tried in 1787
Democrats finally try to follow Edmund Burke, but they are emulating his most spectacular failure.

Turley points out with his historical parallel that the famous Warren Hastings impeachment trial actually underlines the flaws in Schiff's "thinking" that are obvious to anyone who is familiar with the US Constitution. The Framers were well aware of the claims that Edmund Burke was making for impeachment as an all purpose political remedy, because the Hastings trial was ongoing as the Framers worked on the Constitution. Indeed, at least one of the Framers referenced the Hastings trial and strongly suggested that the Hastings impeachment should serve as a model for our Constitution:

In the push for a December impeachment vote, House Democrats appear poised to make history. It will be the shortest investigation producing the thinnest record of wrongdoing for the narrowest impeachment in history. There is, however, a precedent for the Democrats' expansive interpretation of bribery and impeachment: the trial of Warren Hastings, 230 years ago in Britain. but Hastings' tale is a cautionary one that nobody should aim to repeat. 
House Speaker Nancy Pelosi says she has "corroborated evidence of bribery." House Intelligence Committee Chairman Adam Schiff agrees, explaining that, "As the founders understood bribery, it was not as we understand it in law today. It was much broader. It connoted the breach of the public trust in a way where you're offering official acts for some personal or political reason, not in the nation's interest." 

Such a definition would, in fact, essentially abolish our entire constitutional scheme of government. Under the US Constitution, the United States was established as a republic with a strong executive. This was done with full intent, because of the experience of the dangers of a weak executive during the American Revolution. Schiff's definition of "bribery" would transform the United States into a parliamentary system, substituting a the fiction of a totally disinterested president for the reality of a political figure who could be impeached any time a bare majority in the House disagreed with any official act of the president and was willing to call it "politically motivated."

In fact, of course, this talk of a president acting only out of the purest of non-political motives is no more than a smokescreen to take in the gullible, with no basis in the Constitution itself, nor in history:

... The Framers did not, in fact, view bribery as some overarching concept of corruption. At the Constitutional Convention, George Mason objected to listing only "treason" and "bribery" as impeachable offenses because they were too narrow and limited. He suggested a broader term, "maladministration," citing the still-unfolding Hastings case, which was based on interpretations of bribery and corruption that would soon be exposed as dubious. 
Mason failed. The Framers rejected terms ranging from "corruption," obtaining office by improper means, betraying one's trust to a foreign power, "negligence," "perfidy," "peculation," and "oppression." All these were rejected along with "maladministration" and kept off the Constitution's list of impeachable offenses. 
... The Framers dropped these terms, however, as too broad and undefined. Indeed, in arguing against the inclusion of maladministration, Madison remarked that "so vague a term will be equivalent to a tenure during the pleasure of the Senate," an outcome repugnant to him. ... 
... the Framers expressly warned against lowering the impeachment standard to a mere discretionary option for any party that happens to control the Senate. That's what interpreting bribery to include any action viewed as "offering public acts for some personal or political purpose" would do. All politicians, including Mr. Schiff, are self-dealers who use their offices to advance themselves politically. That doesn't make their acts criminal or impeachable. Remember Warren Hastings.

You'll notice that Turley focuses on the latest Dem talking point: bribery. Another law professor, Alan Dershowitz, has offered a more thoroughgoing explanation for the constitutional principles of impeachment. Dershowitz, of course, totally rejects the Maxine Waters Doctrine. He instead insists that the constitutional standard for impeachment is both criminal and political in a very specific sense. In other words to be impeachable an act must be not only criminal but also a crime that strikes at the heart of the body politic.

Dershowitz also rejects the Nancy Pelosi Doctrine of Congressional superiority over the Executive and Judicial branches. Moreover, he adds a special twist by noting that presidential impeachments are distinct from other impeachments in a significant respect. "Normal" impeachments are ordinarily impeachments of federal judges. These are typically handled by Senate committees and the chairman acts as the "judge" if there is a trial. Not so in the case of a president. The Constitution specifies that in the case of the impeachment of a president the Chief Justice presides at the trial. This means that in a presidential impeachment all three branches of the government are involved, and it also--as Dershowitz points out--injects a properly Judicial character to any trial. There has been very little experience to go on in US history, but Dershowitz argues that a Chief Justice could exercise a considerable influence and even that--given the Chief Justice's involvement--decisions could be appealed to the full SCOTUS! And the specific decision Dershowitz has in mind would follow upon a motion to dismiss for failure to state constitutionally valid grounds for impeachment.

All this may sound far fetched, and yet in light of the extreme claims that House Dems are advancing against our constitutional order the Chief Justice could decide to take a much more active role in any trial. Another option, of course, would be for the Senate to reject House articles on the same grounds. The Senate does not have to allow an imperial House to dictate that it must hold a trial, nor the terms on which the Senate will conduct such a trial. While there are many attractions to a full and extended trial, doing the right thing by the Constitution has its own attractions.

In what follows, I append excerpts from three Dershowtiz articles on these topics.

Why the Framers would reject the Democrats' impeachment criteria


Many Democrats, including some constitutional law professors, now argue that President Trump can be impeached without evidence of high criminal acts. Some took the opposite view when President Clinton was being impeached. Hypocrisy aside, there are good historical reasons why the impeachment approach of the Democrats is wrong.
During the debates over the impeachment provisions of the Constitution, two differing views of our structure of government were presented. Some Framers argued that a president should be subject to removal by the legislature if he engaged in malfeasance of office or other comparable noncriminal misconduct. The other Framers took the view that giving the legislature such broad authority to remove a president would turn our country into the kind of parliamentary democracy that existed in England, rather than a republic with a strong executive branch.
The Framers rejected the broad criteria proposed by some, and required instead that a president could be removed only after a trial when he was convicted of “treason, bribery, or other high crimes and misdemeanors.” These more specific criteria assure that a vote to impeach an American president would be very different from a vote of no confidence by parliament, which removed a British prime minister.
... Throughout our history, there have been some who have wrongly argued the criteria for impeachment or removal is whatever the House and Senate want it to be. This would turn it into an entirely partisan process, and the Framers did not intend that.
When it comes to removing a president, there is an added constitutional protection. The chief justice of the Supreme Court must preside over the trial, thus introducing a judicial element into the process. The role of the chief justice is, in my view, and in the view of at least two former Supreme Court justices, to assure that Congress does not ignore the Constitution and put itself above the law. We hear from so many Democrats today that no one is above the law, referring to the president. But neither is Congress above the law, and the law mandates that the explicit criteria laid down in the Constitution for impeaching a president must be followed.
Applying these historical truths to the current situation, the case for impeaching President Trump based on the available evidence is extremely weak. The phone call to the president of Ukraine may have been ill advised, but that is a judgment for voters to make. There is nothing in the call that even approaches the constitutional criteria for impeachment and removal of a president. Nor does the special counsel report contain evidence that would justify impeachment. Democrats are seeking to weaponize the Constitution for partisan purposes.

A partisan impeachment vote is exactly what the framers feared
Hamilton warned of the “greatest danger” that the decision to move forward with impeachment will “be regulated more by the comparative strength of parties than the real demonstrations of innocence or guilt.” He worried that the tools of impeachment would be wielded by the “most cunning or most numerous factions” and lack the “requisite neutrality toward those whose conduct would be the subject of scrutiny.” 
.... Impeachment is an extraordinary tool to be used only when the constitutional criteria are met. These criteria are limited and include only “treason, bribery, or other high crimes and misdemeanors.” Hamilton described these as being “of a nature which may with peculiar propriety be denominated political, as they relate chiefly to injuries done immediately to the society itself.”
His use of the term “political” has been widely misunderstood in history. It does not mean that the process of impeachment and removal should be political in the partisan sense. Hamilton distinctly distinguished between the nature of the constitutional crimes, denoting them as political, while insisting that the process for impeachment and removal must remain scrupulously neutral and nonpartisan among members of Congress.
Thus, no impeachment should ever move forward without bipartisan support. ... 
... The framers intended the Senate, which was not popularly elected at the time the Constitution was written, to be less partisan and act more like judges.
The Supreme Court chief justice presides over the Senate removal trial of a sitting president, and adding that key judicial element would seem to demonstrate a desire by the framers to have a presiding officer whose very job description is to do justice without regard to party or person. ... 
... If the grounds for impeachment designated by the House include criteria such as maladministration or corruption, his lawyers could plausibly demand the chief justice to dismiss the charges as unconstitutional.

Weaponizing Impeachment against Political Opponents 

by Alan M. Dershowitz
November 4, 2019 at 5:00 am

* This very issue was debated at the Constitutional Convention, where one delegate proposed "maladministration" as the criteria for impeachment and removal of a president. James Madison, the Father of our Constitution, strongly objected on the ground that so vague and open-ended a criterion would have the president serve at the will of Congress and turn us from a Republic with a strong president into a parliamentary democracy in which the chief executive can be removed by a simple vote of no confidence. Instead, the Convention adopted strict prerequisites for impeachment: treason, bribery or other high crimes and misdemeanors.
* Congress is not above the law. It is bound by what the Framers accepted and cannot now apply the criterion the framers explicitly rejected.
* Most important, misusing the impeachment power in a partisan manner would pose, in the words of Hamilton, "the greatest danger" to our Constitution.
* To be impeached, a president must commit a crime (misdemeanor is a species of crime) and the commission of that crime must also constitute an abuse of office. An abuse of office without an underlying crime is a political sin, but not an impeachable offense. 
The constitutional power to impeach a duly elected president was intended by the Framers of the Constitution as a neutral, non-partisan tool of last resort to be used against only criminal incumbents in extreme cases. It is now being deployed as a partisan weapon that can be used routinely against presidents of a different party from those who control the House of Representatives.
Under the views of some members of Congress, any time the House is controlled by one party, a simple majority can properly vote to impeach. As Congresswoman Maxine Waters put it: "Impeachment is about whatever the Congress says it is. There is no law." She is wrong. The Constitution is the law and she is not above it.
Those who characterize the impeachment and removal process as completely political are wrong as a matter of constitutional law, even if they are right in describing the reality of how it is being currently misused. Advocates of this view misquote Hamilton in Federalist #65.
Hamilton did characterize the criteria for impeachment as "political," but only in the sense that they relate to "injuries done immediately to the society itself." He then immediately rejected the view that the process should be partisan, based on "the comparative strength of parties," rather than on "the real demonstrations of innocence or guilt."  
He called that the "greatest danger" and demanded "neutrality toward those whose conduct may be the subject of scrutiny." Those who misquote and misunderstand Hamilton wrongly conflate the words "political," by which he meant governmental, and "partisan, " by which he meant related to the comparative strength of parties and factions.
It is difficult to imagine a greater breach of Hamilton's principles than the recent House vote along party lines.


  1. "The merit (of a quick dismissal) lies in issuing a principled rebuke"

    Reminds me again of the phrase "playing by Queensbury rules".

    A rebuke means nothing to these people. They need to be ground into the dust, so they're unable to rise again for several generations.

    This is a war being fought.

    1. I'm not sure how that war fighting thing works for you. It seems to me that conducting an impeachment trial cedes the battlefield to the left, while the principled rebuke of dismissal takes possession of the battlefield. The battlefield in this case is the Constitution, and ceding the meaning of the Constitution to the Left gives them the victory by default.

      Again, a principled rebuke may mean nothing to them, but I would hope it would mean something to voters. If it doesn't, then the war is already lost.

      Somehow, for me, those considerations never called the phrase "playing by Queensberry rules" to mind.

    2. They're deliberately trying to stoke a civil war.
      They're deliberately trying to stoke a recession.
      They're deliberately stoking culture death.
      They're deliberately trying to agitate some crazy to assassinate.

      And they'll never stop unless they're stopped.
      Their propaganda machine already has half the voters.

      Trump will get a landslide this time, but that's Trump. What about after? If they're not ground into dust, they'll immediately start all over again.

  2. "Not long ago there was a lively debate going on among Republicans about what would be the best approach for the Senate to take to possible House articles of impeachment against President Trump arriving on its doorstep--dismissal of the articles as insufficient or a very full trial. That question seems to have been answered by Trump himself, who has stated a preference for a full trial."

    Trump may well prefer a full-blown trial with Bidens called as witnesses, and other malefactors who have caused him much pain in his first term called as well. Given the limitations of OIG process and the obstacles Durham might well face bringing the whole truth to light by means of criminal prosections, its easy to see why the full airing which a trial in the Senate might afford would be very tempting to Trump.

    But the Senate should consider whether, if the charges Schiff ultimately puts forward are insubstantial and/or fall short of constitutional standards, it is not in its own best interests, as well as the best interests of the country, notwithstanding Trump's preferences, to dismiss the impeachment by majority vote and move on with its legislative duties.

    Congress has much important business before it and a several month long trial attended by the entire Senate will stalemate the consideration of any other business by the Senate.

    I can well imagine a principled decision by the Senate to refuse to be distracted by Schiff's purely partisan gambit.

    1. I think we're seeing a political chess game in progress, with the GOPers trying to intimidate Pelosi into dropping the whole thing. She's in a lose-lose position from my perspective, but a trial looks like a bigger loss than the humiliation of climbing down. At least for their party as a whole.

  3. Pelosi is under enormous pressure from the Deep State to create chaos and confusion in the next few weeks and thereby lessen the news impact of the OIG report that is due out on December 9th. My guess is that all of the upcoming histrionics from Nadler's Committee will attempt to create that distraction and then spasm into a censure resolution that the Democrats will pass with a bare majority. They are playing a very weak hand poorly and after the OIG report comes out, it only gets worse for them.

  4. Senate republicans shouldn't fall into the trap of dismissing charges. That lays them open to election talking points of corrupt partisanship. Instead, they should request dismissal from the supreme court justice overseeing the trial. This becomes a legal dismissal, not political, emphasizing the dems' corrupt process. It also forces the House to play by the rules if they want to get a trial in the senate.

  5. Lots of reasonable endings discussed here but the fact, unfortunately for Pelosi, is the Dem party is driven by the "mad dog" faction and you can't reason with a mad dog.
    Tom S.

    1. I've never been talking about reasoning with mad dogs. I have been talking about speaking to the country. If you or anyone else has a better solution, let me know.

    2. I agree entirely. I was speaking to Pelosi's conundrum with what to do with this very ripe dead turkey. I think she will end up on "the wrong end of history", as her caucus would say, no matter what she does at this point. She is wrapped up with a decidedly lose - lose political tarbaby with no briar patch in sight.
      Tom S.

  6. “... the Framers expressly warned against lowering the impeachment standard to a mere discretionary option for any party that happens to control the Senate.”

    And so, if the Senate dismisses without trial the charges brought by the House, the impeachment standard is raised to a mere discretionary option for any party that happens to control both the House and the Senate. Besides giving the insane left something to keep them charged up for years (unwarranted dismissal of charges to protect Orange Man), if not generations, dismissing the charges would validate their approach to impeachment. And it would give the Democrats and their mass media arm something to beat low information voters with forever.

    A full Senate trial, ruthlessly executed, would have the dual advantage of exposing the sham for all the world to see AND seriously damaging many of the scoundrels of the left. The Democrats are at extreme risk here; they all seem to be criminals in a very serious sense (and I don't think the Bidens are the worst of it), and a thorough, ruthless process by the Senate could let it all hang out.

    Granted, such a trial might cause a lot of pain for the country, but that pain would go away as people were prosecuted and sent to prison, restoring faith in our institutions. Failing to go for the throat right now will, in my opinion, have far greater and longer lasting consequences that we might not want to live with.

    The Democrats have corrupted the impeachment process, but we can't undo what the Democrats in the House have done. We have to make the consequences for them so painful that it won't be tried again soon.

    I'm with Trump: The Democrats don't have a case; they know they don't have a case; they're grasping for anything; it's the perfect time for a devastating counter-attack.

    1. "if the Senate dismisses without trial the charges brought by the House, the impeachment standard is raised to a mere discretionary option"

      No, you weren't paying attention. Dismissal is based on a failure to bring impeachable charges.

      It's like if I prosecute you for voting GOP. Do you want a full trial with a verdict that the case wasn't proved beyond a reasonable doubt?

      Or do you want the judge to throw it out, saying that there's no case at all because there's no crime at all.

      Dismissal sets a bar for future impeachments and educates the country about impeachment--while at the same time humiliating the imposters. Trying to make the process painful by pretending that the process was a valid one educates no one and encourages them to try again when circumstances may be more favorable.

  7. I get the political and not so cold warfare implications here. Constitutional and prudential imperatives, and the need to work for peace in the Amercan body politic do militate in the Chief Justice, acting like judges do all the time, taking the decision out of the hands of the jury, slapping down the prosecution and dismissing this mess out of hand as constitutionally and legally insufficient. That would serve as a precedent and message to a future House of Representatives, avoid the appearance of a political call by the Senate and restore constitutional order. The President's counsel though, needs to make the motion.

    1. "The President's counsel though, needs to make the motion."

      Actually, no. In the Clinton impeachment Senator Byrd brought the motion, before any witnesses were called. It was defeated.

      The question is, How should the Senate proceed in the face of an out of control House? The Senate can adopt new rules.

  8. The other way to look at it is, the process will be painful *because* the process was invalid.

    Without pain, there will be no education, and no one will learn.

    Simple dismissal without pain will just lead to more attempts. People seldom learn hard lessons without pain.

  9. Well, I'm in favor of the summary dismissal route. And I'm in agreement with Mark that conducting a trial is ceding the battlefield to the Dems, giving the appearance of credibility to the House impeachment, rather than dismissing the charges as the evidence-free allegations they are.

  10. I'm not going to weigh in on the merits of dismissal vs a trial. I'll wait and see if the Dems impeach.

    I think that the Dems have a tiger by the tail. I don't know what they were thinking. I guess they convinced themselves the public would swing to their side, probably because of the Dem/Deep State/Fake News echo chamber that they inhabit.

    They made their beds and I am enjoying them lie in them. I don't have a lot of respect for Pelosi but I at least gave her credit for wanting to preserve her Dem majority. For whatever reason (leftist lunacy pressure, Trump ridiculing her, etc.) she gave the okay for impeachment. She stated she was willing to squander the Dem majority. Now it seems to me that she suddenly is wanting to yank the steering wheel away from Pencil Neck and get back on to safer territory. It may be too late.

    1. I can agree with that. If anyone can devise a way to put the entire burden for trial/no trial on the Dems, that person would be Mitch McConnell.

  11. The range of considerations, options and possible outcomes (for Trump, the House, and the Senate) discussed here (and they are all valid and highly thoughtful) are probably still only a small sample of the range of issues being discussed by the principals this Thanksgiving Weekend.

    Some tough choices coming up for all involved.

    I wouldn't want to be Nancy Pelosi because I think all of her choices end in "lose".

  12. Is it too much to hope that, regardless of impeachment/no impeachment and/or trial/no trial, Adam Schiff is thoroughly disgraced and run out of politics?

    1. He's putting many, many Dems in a very difficult position. Gingrich was run out. Schiff?

    2. Thing is, Clinton purjured himself and tried to suborn purjury with two different people in a civil court case.

      Granted, I do not believe that he should have been compelled to testify in the first place per the Constitution, but he was and complied indicating he would at least follow the law. Clinton could have told the judge to pound sand amd try to enforce contempt, summary judgement, or any other court order, but he did not.

      Trump has truly done nothing wrong other than opppsing the uniparty.

    3. Ah, but that's the unforgiveable sin.