Thursday, December 12, 2019

UPDATE: What Should The Senate Do With An Unconstitutional Impeachment?

We've had discussions on this earlier. The difficulty is that it's uncharted territory, as Professor Alan Dershowitz says today. He goes on to state that IF articles of impeachment are voted out of the House, the Dems will have damaged our constitutional order by abusing its powers. Here are the options Dershowitz sees for dealing with this situation:

So, what options would the Senate have if the House voted to impeach on two unconstitutional grounds? Would it be required to conduct a trial based on "void" articles of impeachment? Could it simply refuse to consider unconstitutional articles? Could the president's lawyer make a motion to the Chief Justice — who presides over the trial of an impeached president — to dismiss the articles of impeachment on constitutional grounds? 
This is uncharted territory with little guidance from the Constitution or history. There are imperfect analogies that may be informative. If this were an ordinary criminal case, and a grand jury had indicted a defendant for a non-crime (say, having gay sex) or an unconstitutional crime, the trial judge would be obliged to dismiss the indictment and not subject the defendant to an unconstitutional trial. Impeachment, however, is not an ordinary criminal proceeding. So, the analogy is not directly on point. But impeachment by the House is similar in many ways to indictment by a grand jury, and a removal trial by the Senate is similar to a criminal trial, including being presided over by a judge. It is entirely possible that the president's lawyers may file a motion seeking dismissal of the impeachment as unconstitutional. It is impossible to predict whether such a motion would be entertained and if so, how it would be decided. 
Another option would be for the president's lawyer to seek judicial review of the House's unconstitutional action. Despite the fact that the Constitution says that the House shall be the "sole" judge of impeachment, two former justices have opined that there might be a judicial role in extreme cases. 
The most likely option for the president — and the one hinted at by White House sources — is for the Senate to conduct a scaled down trial focusing on the constitutional defects in the articles of impeachment. No fact witnesses would be called: that would turn the proceeding into a he said/she said conflict with no clear resolution. Only legal arguments — neater and quicker — would be presented before a vote was taken.

UPDATE: All Professor Dershowitz's hypotheticals fail to address all contingencies. For example, what happens to Zelensky's daughter?


  1. Are Johnson's comments the sequel to Sdhiff's "I'm only going to say this seven times" bedtime story?

    Stupid is as stupid does. Or maybe we've entered the Twilight Zone. That would explain all the things that I think are going on versus the reality that is presented by the Dems/Deep State/Media.

    If charges don't come out soon, I'm going to have to start drinking heavily.

    1. I couldn't begin to guess. Andy McCarthy said yesterday he thought he was having an out of body experience listening to someone as sobersided as Horowitz. And now this!

  2. Meanwhile, just who is FBI "Case Agent 1"? Chuck Ross. at Daily Caller, devotes an entire article to him based upon the numerous mentions of him in the IG report:

    *The Justice Department inspector general’s report on FBI surveillance of the Trump campaign offers a damning assessment of the bureau’s handling of the Steele dossier, and its investigation of Carter Page.

    *Among those deemed “primarily responsible” for the “most significant” errors in the investigation is “Case Agent 1.”

    *The agent, who still works for the FBI, played a key role in several aspects of Crossfire Hurricane, including handling an FBI informant, interviewing a source for the dossier, and applying for warrants to spy on Page.

    “Case Agent 1” wore many hats during the Trump-Russia investigation.

    The veteran FBI counterintelligence investigator was a handler for Stefan Halper, a Cambridge academic who met covertly with three Trump campaign advisers 2016. Case Agent 1 opened the case file, known as an Electronic Communication, on Trump campaign adviser Carter Page in August 2016. He was also the main driver at the FBI for surveillance warrants on Page, and he was put in charge of verifying each strand of evidence included in the documents. He interviewed Page, a former Naval officer, five times in March 2017, and also met in January 2017 with Christopher Steele’s main source for information in the infamous Trump dossier.

    Case Agent 1 is also one of the main villains in the Justice Department inspector general’s (IG) report on the FBI’s handling of the Trump-Russia probe, known as Crossfire Hurricane.

    And there’s more here:

  3. More from that Daily Caller article (and there is still more)… How could IG Horowitz merrily skip over this person and all the errors and omissions he committed? Or is his time coming? Has he been referred to Barr/Durham? I hope we’ll find out that is the case.

    Case Agent 1’s misdeeds are scattered throughout the inspector general’s (IG) 476-page report. That’s in part because the agent, who is not identified by name, was involved in several aspects of Crossfire Hurricane: opening the case file on Carter Page, handling Halper, filing FISA paperwork, and conducting interviews with investigative targets and witnesses.

    The report identifies six areas where the agent withheld information that contradicted the FBI’s working theory that Page was an agent of Russia. According to the report, Case Agent 1 withheld exculpatory statements that Page and another Trump campaign aide, George Papadopoulos, made to Halper. The agent also withheld information from Justice Department attorneys about Page’s longstanding relationship with the CIA.

    The agent, who was one of the first FBI agents to join Crossfire Hurricane after it opened on July 31, 2016, also withheld information that raised questions about the credibility and reliability of Steele and the veracity of his dossier, which alleged a “well-developed conspiracy of cooperation” between the Trump campaign and Russian government.

    More… see link above.

    1. When I first saw that, I thought maybe Joe Pientka, but the profile doesn't fit. I'm thinking that the case agent would have been on the Unit Chief level, perhaps. But that's just a guess.

    2. >>BebeDecember 12, 2019 at 5:22 PM

      "More from that Daily Caller article (and there is still more)… How could IG Horowitz merrily skip over this person and all the errors and omissions he committed? Or is his time coming? Has he been referred to Barr/Durham? I hope we’ll find out that is the case."<<

      As explained by Horowitz yesterday, the error, omissions, and mistatements were so pervasive and serious, and the explanations so unsatisfactory, that he referred the entire matter -- agents up through upper management -- to DOJ to decide what actions need to be taken (which could include prosecution.)

      I happen to believe that Horowitz was asked to do this, rather than document statutory violations and the evidence for it, himself, so as to not tip-off the potential targets for prosecution prematurely. Barr will leave it up to Durham as regards predication, and perhaps other prosecutors for other issues.

      The other reason for Horowitz to defer to DOJ on criminal referrals is that given the limitations under which the IG operates, there would be no way for him to get a full evidentiary picture, which Durham and other prosecutors can with their GJ subpoena power, and Barr's power to declassify as needed, delegated to him by POTUS.

      The IG report did the most important thing of all: it now provides an evidentiary basis for Durham and Barr to continue criminal probing to find out who is responsible for these outrages behaviors, and what the underlying motives were, which the IG cannot fathom from his limited access to witnesses and documents.

      Horowitz has documented what went wrong; Barr and Durham can now investigate to find out who was responsible, what the motives were, and what crimes were committed along the way.

  4. The democrats are facing the same defeat that Corbyn is getting tonight. Good!

    Rob S

  5. As for Zelnsky's daughter, she will be spirited off to a small Pacific island that will subsequently capsize under the added weight of an impeachment search party.

  6. Why not Senate send it back to House D's to redo properly and resubmit.

    1. They'll need to figure out the procedure for that. There is no real precedent, but there needs to be.