Monday, December 23, 2019

The Rushed Impeachment--Now We Know Why

Today we learn definitively that what we've suspected is the truth. Impeachment is being used in what I termed yesterday as a "cart before the horse" manner. In other words, impeachment is being used by the Dem House as the justification for demanding testimony and, most importantly, the Mueller grand jury records. CTH has the story, but it's straightforward enough.

Basically, the House lawyers have filed a brief in the case in which they're attempting to compel the testimony of former WH Counsel Dan McGahn. The rationale that the Dem House presents is that, now that the House has impeached President Trump, they need McGahn's testimony to use as evidence in the impeachment trial!

But wait, you say. How could there have been an impeachment without evidence? Well, that's a point. House Dems are claiming, in effect, that they can impeach and then investigate to find the evidence to justify the impeachment. Remember when Maxine Waters said impeachment is whatever the House says it is? The Dems really meant that. Fox News quotes the Dem brief to point out that the Dems are actually suggesting that they could add new articles to their impeachment--implying that, in spite of their vote--impeachment remains a work in progress:

“If McGahn’s testimony produces new evidence supporting the conclusion that President Trump committed impeachable offenses that are not covered by the Articles approved by the House, the Committee will proceed accordingly---including, if necessary, by considering whether to recommend new articles of impeachment,” the brief stated, noting that they still have “ongoing impeachment investigations.”

This is exactly why I've been on the side of McConnell taking the articles up immediately.

There are a lot of legal and, especially, constitutional issues here. One, of course, which I've offered an opinion on, is whether the Senate has to wait for the House to "transmit" the articles before it can act. I side with those like Alan Dershowitz who maintain that the Dem House vote is the act of impeachment. That being the case, the Senate is now the actor. The House's role is finished. But the Dem House is claiming that we've only just begun. It's all just part of a process and we define the parameters of that process.

In addition to throwing the very constitutional meaning of "impeachment" totally up for grabs, this tactic is an end run around the constitutional restriction of House investigations to matters of oversight and legislation. Now, having constituted themselves as an investigative entity, an impeachment tribunal, they claim to have full investigative powers. They are now claiming to be, in effect, more than a legislative body. They are an investigative body like the FBI. Or so they claim.

Below are the portion's of the DoJ reply brief that seem to me the most relevant. Please note that this brief doesn't address the merits of the case as I've described them, above. It is in fact, a supplemental brief that is limited to “addressing the effect of the articles of impeachment on the issues in this case, including whether the articles of impeachment render this case moot and whether expedited consideration remains necessary.” DoJ is at this point only arguing that the case should be dismissed as an improper entanglement of the court in an "interbranch" dispute--a dispute between the Executive and Legislative branches that is being more properly addressed in the impeachment process.

What DoJ is arguing, more specifically, is that since this case originally arose from the Dem House Impeachment Theater--it was an attempt to force McGahn to testify before the Impeachment Theater--the Dem House's impeachment vote has ipso facto removed the very justification for which the suit was brought. Unstated, but lying behind this argument, is the view that the impeachment vote concluded the Dem House's role in impeachment. Any question of calling witnesses is now strictly a matter for the Senate. Therefore the court should not get involved.

Just as irregular, the Dem House used this very case as the basis for one of the two articles of impeachment--obstruction of Congress! This, argues DoJ, is actually a power contest between the Legislative and Executive branches, and the courts should decline further involvement now that the Dem House has proceeded to impeachment. If the court should get involved at this point, it would be deciding the very matter that is a subject of dispute in any impeachment trial--and that is a matter for the Senate to decide.

3. The articles of impeachment affect this case in two other ways. First, even before the impeachment vote, the Committee had no response to the Department’s point that a court, as a matter of equitable discretion at the very least, should refrain from entangling itself in an interbranch dispute where Congress as a whole has not made a conscious choice to clearly grant the courts subject-matter jurisdiction over the Committee’s suit and the Committee a cause of action to sue at all. See Opening Br. 46-47; Reply Br. 24. The reasons for refraining are even more compelling now that what the Committee asserted—whether rightly or wrongly—as the primary justification for its decision to sue no longer exists. 
Second, the article of impeachment addressing purported obstruction of Congress relies in part on the judicial proceedings in this very case. The House Judiciary Committee’s impeachment report, for example, cites the district court’s characterization of the Justice Department’s litigating position in this case for the proposition that the President “insists that unfounded doctrines, such as absolute immunity, preclude testimony by many current and former officials who might shed light on any Presidential abuses.” H.R. Rep. No.116-__, Impeachment of Donald J. Trump, President of the United States: Report of the Committee on the Judiciary 165 (2019). Pursuing an interbranch suit in court while simultaneously pursuing impeachment, and then using that litigation as part of the impeachment proceedings, is “far from the model of the traditional common-law cause of action at the conceptual core of the case-or-controversy requirement.” Raines v. Byrd, 521 U.S. 811, 833 (1997) (Souter, J., concurring). But that is exactly what the Committee has done. The effect of that choice is to “embroil[] the federal courts in a power contest nearly at the height of its political tension.” Id
Indeed, if this Court now were to resolve the merits question in this case, it would appear to be weighing in on a contested issue in any impeachment trial. That would be of questionable propriety whether or not such a judicial resolution preceded or post-dated any impeachment trial. Cf. Nixon v. United States, 506 U.S. 224, 232, 235-36 (1993). The now very real possibility of this Court appearing to weigh in on an article of impeachment at a time when political tensions are at their highest levels—before, during, or after a Senate trial regarding the removal of a President—puts in stark relief why this sort of interbranch dispute is not one that has “traditionally thought to be capable of resolution through the judicial process.” Raines, 521 U.S. at 819. This Court should decline the Committee’s request that it enter the fray and instead should dismiss this fraught suit between the political branches for lack of jurisdiction.


  1. I have commented previously that this evolving and worsening debacle is, first and foremost, political warfare and not simply a legal contest to be adjudicated by gentlemen acting civilized before a Court of Law. Clearly this runaway train is seriously dividing the country and inflaming passions that can easily erupt in unpredictable and tangibly harmful ways.

    The Deep State, acting presently through it's political minions, is not going to back-off in the slightest until there is catastrophe or they are forthrightly confronted by an able combatant. And Barr/Durham is the only player on the battlefield that can realistically perform in this role. People like Rudy and Tom Fitton at Judicial Watch are trying to fight back, but the Deep State does not fear them.

    Barr does not have the luxury of waiting indefinitely for the right time and place to counterattack. And a few TV interviews is not going to suffice either. The FBI has already cornered some very important former Obama Administration officials in both perjury and leaking classified information to the press (rock solid cases). It's time to indict one of them and send an unambiguous message to the Deep State.

    1. First you say this is "not simply a legal contest" then you say that the only person who can do something effective is a lawyer and that the only effective thing he can do is get before a court sooner rather than later.

    2. Mark, I'll wager that Unknown means to suggest, that Barr is the last barrier to Deplorables' "passions that can easily erupt in unpredictable and tangibly harmful ways.".
      I'd be staggered, if Barr were not to take deadly seriously the prospect of such an eruption.
      I can imagine, that he is weighing this, against prospects of the Left resorting to "civil disobedience", if Barr dares to send to the cabal their just desserts.

    3. Personally I don't imagine that for a moment.

    4. Barr's duty is to expunge politically-motivated actors from the DoJ and prevent their recurrence. Criminal prosecution, where appropriate, will be required to accomplish that.
      But Barr can't prevent politically-motivated actors from inhabiting the political branches of government, or the "news" media, or public schools, or blogs, or my workplace. So the long-running “civil war” between citizens who appreciate the principals of our Constitution and citizens who don’t, will continue. But, hopefully, Barr will ensure our ongoing “civil war” will no longer be instigated by the DoJ itself.

    5. Right. Barr can do a lot, but there are limits that are the constraints placed upon him by the limits of his official position.

    6. To me what Barr and the others can do is expose enough of what has happened to turn off enough of the public for Democrats to get trounced in at least the next few elections. (And putting in jail people who deserve it wold be a huge bonus for our democratic health going forward.) The only sure way to improve the behavior of politicians is to teach them and their supporters that such contemptible behavior doesn't pay politically, and that's done by kicking a whole lot of them out of office and putting that party out of power a good long while.

    7. The goal of kicking a whole lot of them out, for a long time, may well largely hinge on the ability of "moderate" Righties to connect with moderate Lefties (as per Dersh's hope) vs. SJWs.
      Such connection could be quite spurred, by exposure of the extent to which the Obummer Admin. was the greatest criminal conspiracy in U.S. history.
      This could well be a Granny (to use a baseball analogy.

      Such connection is already likely somewhat spurred, by spread of the truth about SJW quasi-totalitarianism, e.g. via the recent film "No Safe Spaces", featuring Dersh, D. Praeger, Shelby Steele, etc.
      This film is more like a bunt single (as is the emergence of the IDW).
      It'd really be cool, if a sequel could illuminate the Post-Mod origins of so much of today's obsession with Safe Spaces, e.g. via the "oppressed's" BS about "my Truth" vs. the Truth.

  2. There is so much more to be said by the parties' counsel and by constitutional scholars and ultimately by the courts on whether this procedural ploy is legitimate...that I will refrain myself from commenting...

    Except to say...

    The sort of thinking offered by the Democrats here is not reflective of the kind of system...the kind of country...I want to live in.

    I don't believe the kind of highly technical, hyper-partisan, over-the-top litigation strategies offered by Pelosi, Schiff, Nadler and the Lawfare crowd to resolve what is fundamentally a political question reflects a dispute resolution system I have any faith in.

    I believe men of good faith should sit down and discuss their differences, and resolve them, keeping the best interests of the whole country in mind and in heart. The resolution in any individual case may not be (will not be) to everyone's liking, but there will always be an election (at least under our existing Constitution) to resolve unresolved political differences.

    The situation we are in now has been in the works for some time. I spent 40 years (as a practicing lawyer) watching our legal system evolve in this direction. Rarely did I see the kind of litigation which is developing here resolve fundamental political differences.

    I strongly believe the House Majority is making an enormous mistake. Regardless of who 'wins'.

    1. "I strongly believe the House Majority is making an enormous mistake. Regardless of who 'wins'."

      I do too. And I think they'll lose this because they're gonna scare the rest of the government, who will realize the type of authoritarian system that rule by The People's House will inaugurate--rule by NY and CA (where people poop on the sidewalks), dominance of NY and CA over the Executive and the Judiciary, as well as over the Senate.

  3. In his recent interview, Barr sent the signal that Durham would not likely enter the fray until late Spring or early Summer. My guess is that the Deep State interpreted that to mean that they could have the field unilaterally for the next six months to do as they pleased. Which means escalate unfettered and push the limits of the law as far as possible if not beyond. That is an invitation to disaster and not farsighted leadership.

    And as for how this is being viewed on Mainstreet, I doubt anyone has any confidence that May/June won't bring more news of more delays, and the September abrogation deadline will be closing fast.

    1. "Barr sent the signal that Durham would not likely enter the fray until late Spring or early Summer. My guess is that the Deep State interpreted that to mean that they could have the field unilaterally for the next six months to do as they pleased."


    2. Yet I would agree that there is truth in the idea that part of the Dems strategy is to pollute the political discourse with charges against Trump and thus attempt to water down the horrible truths behind Durham's indictments when they do come.

    3. I think that's absolutely at the heart of Barr's strategy, to combat it by avoiding a trickle out of nickle-dime offenses like perjury and instead show the falsity of the Big Lie. That's why he's focusing on the ICA and the "origins".

    4. I’d say that Durham has been in “the fray” for some time now. The mention of late spring/early summer had to do with when it could go public. Durham has had criminal investigators going and what they develop goes to a grand jury. Secret. Those who think in terms of releases and reports are putting their own curiosity before the health of the ultimate prosecutions. Conspiracy prosecutions are not usually blow-by-blow public affairs, nor are they done piecemeal.

    5. I'm working on an interview transcript that will put a lot of this in perspective. It's all stuff we've talked about before, but people forget.

  4. It is not about right or wong or the Constitution.

    It's about pure, naked, unabashed power and the attempts to gain it back.

    It's a Civil War waged without arms starting with the interference in a US election by our own government continuing into a coup against a US president. It has verged into junta territory, but thankfully the vast majority our military rejects that.

    1. True. Right, wrong, the Constitution--all that is nothing but cover for a naked power grab.

    2. FWIW, I have a running debate with myself whether its a naked power grab or a coverup. I go back and forth.

      I acknowledge that the Left is all about power and have even so posited here from time to time.

      But I also can only make sense of a dark and unprecedented criminal conspiracy including dozens of officials and probably going straight to the top if it is to cover up something even worse.

      I suppose it could be both, which would then double-qualify this as the largest political scandal in our history.

    3. Their war against Trump is very personal, but it’s not about the nitpicky things some like to go after. They are concerned about his independence - no one owns him - and his strength and obvious commitment to cleaning up the Swamp where they have reveled undisturbed for too many years. They see that he has the desire and ability to to spoil their world. To expose any graft they’ve been involved in. To cause them to lose their cushy jobs.

  5. Trump ran against the establishment and won, and he has done an amazing job of revealing the soft corruption in the us government, in all branches. I’m still surprised he survived the Mueller Report and the scorched earth tactics of the resistance. My guess is Pelosi is throwing everything against the wall and hope it sticks to Trump, and / or placates her parties thought leaders. It’s an ends justifies the means ethos, that does not care about cost.

    Perhaps it’s also a fear that if Trump is not discredited, the Democrats and their allies will be branded with a scandal worse than watergate, and suffer at the ballot box.

    1. One word: Desperation. I'm sure his ability to survive and thrive has Pelosi throwing her dentures against the wall.

  6. What's the truth here?
    According to this article, "The United States Supreme Court – in a 9-0 holding – unequivocally ruled that no trial is required for the Senate to acquit, or convict, anyone impeached by the House of Representatives."

    If this is true, surely the senators know this? Then what's all the talk about, re waiting for the articles to be passed to the Senate?

    They could just go ahead at once.

    1. That case involved a federal judge named Nixon--not the former president. The reporter was right to look to the case, but misunderstood some of it. Here's the scoop.

      Impeachment for presidents is different than for all other government officers. The constitution mentions nothing a trial after impeachment generally, and thus impeachments are typically handled by a senate committee, which no judge presiding.

      However, the constitution does specifiy that in the case of the president the senate holds a trial.

      With that background, you can see that the reporter's argument makes sense, and is overall correct. However, I believe that he/she goes too far in asserting that the SCOTUS has no role. In the case of a president where the CJ presides, some issues could be decided by the CJ and even appealed to the SCOTUS. I think the article is correct that an acquittal couldn't be appealed. However, a conviction might be appealed--so I would argue--on the grounds that there was no impeachable offense, no high crime or misdemeanor. Although not part of the actual holding of the Nixon case, I believe at least 3 justices did agree that that could be a possibility. As I say, it wasn't part of the holding, but they were certainly thinking along those lines.

      However, this is uncharted territory. I wrote about this recently here:

      and quoted a law professor who mentions the Nixon case:

      "Putting aside the propriety of her remarks, Ginsburg’s snide remark is wrong. Walter Nixon v. U.S. left open at least three circumstances in which courts could review an impeachment. Moreover, Alan Dershowitz wrote in his book that there are additional circumstances in which an impeachment could be reviewed in Court."

    2. Tx for the link. I'll read it in more detail later.