Tuesday, December 31, 2019

Two Highly Recommended Impeachment Reads

Christopher Roach, an attorney, has published two articles on impeachment during the past two weeks. They're both excellent, clear expositions of the principles behind what's going on. While it's impossible for Roach to offer an entirely dispositive opinion on how Trump and the Senate should proceed--simply because political considerations will inevitably intrude--his discussion is conceptually useful. By presenting a clear conceptual framework and understanding of impeachment under our Constitution, we get a better idea how whatever path is chosen should be framed in order to stand with the principles of our constitutional order.

I won't attempt to summarize each article--while very readable, they're also thorough and need to be digested fully. However, a few remarks ...

The first article, published today, presents the case for simply dismissing the articles of impeachment: Can the Senate Dismiss the Impeachment Without a Trial? It can and it should. Roach's argument is principled and is one with which I'm entirely in agreement--except that I tend to believe that the president would be better served politically by a vote to acquit. Nevertheless, I highly recommend the article in its entirety because Roach presents his case well and, in so doing, also presents a fairly thorough comparison of impeachment trials to ordinary criminal trials. My one reservation is that, while of course it's inevitable that Roach should proceed by way of analogy, I believe that analogizing of the House to a grand jury is insufficient and, in key aspects, misleading. When he gets to the Senate's role he recognizes that such analogies can't be pressed too far.

Here is his conclusion--and bear in mind that his conclusion is based on his previous pretty thorough presentation:

After expressing the need to get impeachment done immediately, even though the presidential election is less than a year away, Nancy Pelosi and the House Democrats are now delaying the formal transmission of their own impeachment articles. They apparently have even floated the idea of adding some additional charges to dress them up. This all stinks of gamesmanship and desperation, as well as complete indifference to due process. 
Just as civil and criminal trials cannot proceed to trial when the allegations of misconduct are fundamentally flawed, the Senate too has the power—indeed, the duty—to dispose of flawed and partisan impeachment articles without conducting a full-fledged trial through the familiar mechanism of a pre-trial dismissal. 
From the time of the transition through the present, Trump’s opponents have engaged in what rightly has been described as a coup. It is high time for the Republicans to respond with a coup de grace. If the Senate gave these impeachment articles the contempt they deserve by dismissing them in summary fashion, it would not be an expression of “bare knuckles” political power, but rather an affirmation of due process and the authority of the American people and the president they elected over the deep state.

The second article dates back to December 16th:

The FBI, Impeachment, and the Question of Motive
Without having committed a crime nor broken any particular rules, an impeachment is underway. All this when the abuses of the FBI in the last election represent a form of interference that far eclipses anything foreign or domestic that has ever occurred in the history of the republic.

This article has a very clear discussion of how the whole question of motive plays into impeachment. Roach compares how the issue of motive affects our judgment of a president's actions as compared to the actions of a president's subordinates--in this case, employees of the FBI. Once again, I present just the conclusion, which rests on the preceding discussion:

When dealing with subordinate federal employees and agencies, their motives should always be to follow the rules, follow the laws, and follow the lawful directives of the elected president, regardless of whether a Democrat or Republican is president. Self-proclaimed resistance to this requirement of public service has been the chief source of abuse by the deep state after the election of President Trump. 
On the other hand, when considering “high crimes and misdemeanors” that support impeachment, considerations of presidential motive should be limited to those cases that are connected to genuine bribery and purely personal motive, not the far larger number of cases of overlapping motives of personal and public interest. 
Here the standards have been inverted. Subordinate members of the FBI whose motives were obvious and whose abuses well documented have been given a pass. The motives of the various participants, far from being public spirited, include a cover up of their own misdeeds—concealment of exculpatory material, avoidance of oversight, deviations from policy, and naked partisanship—by crudely projecting their own high crimes and misdemeanors onto President Trump. 
Trump, on the other hand, acting well within the normal boundaries of presidential action, is being evaluated as if he were a GS-12. Without having committed a crime nor broken any particular rules, an impeachment is underway. All this when the abuses of the FBI in the last election represent a form of interference that far eclipses anything foreign or domestic that has ever occurred in the history of the republic.


  1. Judge Dismisses Impeachment Lawsuit After Democrats Pull Plug on Witness

  2. I agree that the Senate should summarily dismiss. To do otherwise is to give a fig leaf of legitimacy to an obviously fraudulent action by the opposition that diminishes the significance of impeachment. Unfortunately, it looks as though senate Republicans have already been herded to the fig orchard.

    1. It's a principled position. From a political standpoint, I think Trump wants an acquittal because too many might regard a dismissal as simply political. I know that doesn't really make sense, but it's about perceptions, not rational thought.