The Constitution on Impeachment: What the experts are saying ...

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Re: The Constitution on Impeachment: What the experts are saying ...

#101

Post by Reality Check »

Jeffrey wrote: Fri Dec 06, 2019 7:40 pm If Trump is too stupid to know he can’t ask for bribes then he’s too stupid to be president.
What about all he Republicans who are too stupid to understand that?
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Re: The Constitution on Impeachment: What the experts are saying ...

#102

Post by Whatever4 »

Can Pelosi, Schiff, etc. be compelled to testify in a Senate trial regarding the investigations? Or does the Speech or Debate Clause Preclude that? Because Trumbers are frothing at the mouth in anticipation.
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Re: The Constitution on Impeachment: What the experts are saying ...

#103

Post by bob »

Whatever4 wrote: Sat Dec 07, 2019 2:25 am Can Pelosi, Schiff, etc. be compelled to testify in a Senate trial regarding the investigations? Or does the Speech or Debate Clause Preclude that?
The conventional wisdom is no, essentially for the reasons you articulated.

I'm not yet convinced the current president will go down that path. But the lingering constructional question is how he might try to enforce such a subpoena.
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Re: The Constitution on Impeachment: What the experts are saying ...

#104

Post by RTH10260 »

bob wrote: Sat Dec 07, 2019 3:14 am
Whatever4 wrote: Sat Dec 07, 2019 2:25 am Can Pelosi, Schiff, etc. be compelled to testify in a Senate trial regarding the investigations? Or does the Speech or Debate Clause Preclude that?
The conventional wisdom is no, essentially for the reasons you articulated.

I'm not yet convinced the current president will go down that path. But the lingering constructional question is how he might try to enforce such a subpoena.
Can members of some Senate committee subpoena people to show up as witnesses? I huess they might do it on behalf of Teh Donald. My question would be, does Teh Donald personally, or thru his lawyers, get to ask questions of the witnesses like in a criminal trial? Is it up to McDonnell to make up such rules? What questions would presumably be permissable to ask to Biden Jr,, he is really not able to bring anything to light on the accusations of Teh Donald bribing the Ukraine.
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Re: The Constitution on Impeachment: What the experts are saying ...

#105

Post by Turtle »

Whatever4 wrote: Sat Dec 07, 2019 2:25 am Can Pelosi, Schiff, etc. be compelled to testify in a Senate trial regarding the investigations? Or does the Speech or Debate Clause Preclude that? Because Trumbers are frothing at the mouth in anticipation.
Donald doesn't want them actually subpoenaed, he just wants to be able to complain to his fans that they need to be subpoenaed.
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Re: The Constitution on Impeachment: What the experts are saying ...

#106

Post by Slim Cognito »

Turtle wrote: Sat Dec 07, 2019 8:41 am
Whatever4 wrote: Sat Dec 07, 2019 2:25 am Can Pelosi, Schiff, etc. be compelled to testify in a Senate trial regarding the investigations? Or does the Speech or Debate Clause Preclude that? Because Trumbers are frothing at the mouth in anticipation.
Donald doesn't want them actually subpoenaed, he just wants to be able to complain to his fans that they need to be subpoenaed.
And his supporters have unbelievably short attention spans. What happened to his great, beautiful, inexpensive health insurance or Mexico paying for the wall? We've been vewy vewy close to a great China trade deal for 2-1/2 years. All he needs is for them to get worked up in the moment.
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Re: The Constitution on Impeachment: What the experts are saying ...

#107

Post by bob »

At the Big Dog's impeachment trial, the Senate voted to permit the witnesses to undergo recorded depositions in lieu of live testimony. The Senate watched the tape.

And, generally, a person represented by counsel doesn't get to question witnesses.* But I don't believe the current president will question any witnesses; he just wants to bluster about the prospect of doing do so. His usual talk big/act meek routine.


* Again, this isn't a normal scenario; the Senate can effectively overrule the Chief, depending on how hard the Republicans want to shatter the country's veneer of norms.
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Re: The Constitution on Impeachment: What the experts are saying ...

#108

Post by Dan1100 »

bob wrote: Sat Dec 07, 2019 12:35 pm At the Big Dog's impeachment trial, the Senate voted to permit the witnesses to undergo recorded depositions in lieu of live testimony. The Senate watched the tape.

And, generally, a person represented by counsel doesn't get to question witnesses.* But I don't believe the current president will question any witnesses; he just wants to bluster about the prospect of doing do so. His usual talk big/act meek routine.


* Again, this isn't a normal scenario; the Senate can effectively overrule the Chief, depending on how hard the Republicans want to shatter the country's veneer of norms.
That's going to look terrible for the R's.
Q: Wasn't Barrack Obama sent to earth by Satan to bring Sharia law to Delaware?

D Attorney: Objection, relevancy.

CJ Roberts: Sustained.

McConnell: Call for a vote.

[Proceedings stop for 1/2 hour while vote occurs. Vote is 54 to 46 to overrule the objection.]

A. No, Satan did not send Obama to earth.

Q. Then who did send Obama to bring Sharia Law to Delaware...
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Re: The Constitution on Impeachment: What the experts are saying ...

#109

Post by Addie »

WaPo OpEd - W. Neil Eggleston
Those who resist congressional subpoenas should be careful. They could be risking jail time.

Witnesses who received subpoenas for testimony or documents from the House Intelligence Committee and refused to comply should be worried about whether they risk going to jail for a minimum of a month for obstruction of Congress. As a lawyer who has counseled individuals facing congressional subpoenas, and a former White House counsel who has negotiated with Congress to try to avoid or limit demands for testimony from senior officials, I would advise them that they decline to testify or provide evidence at their peril.

This outcome might sound remote, but it is real. As House lawmakers venture deeper into the impeachment process, those in the House Intelligence Committee will now need to decide how to deal with those who defied subpoenas and refused to appear. The first step would be deciding whether to hold the noncomplying witnesses in criminal contempt. If the House votes for contempt, the contempt citation is referred to the Justice Department for prosecution.

The penalty for contempt of Congress is significant. It is a misdemeanor punishable by imprisonment for up to a year in jail. Unlike most misdemeanor statutes, however, this one carries a mandatory minimum penalty of at least one month in jail.

The noncomplying witness may believe that the Justice Department would never authorize the prosecution of an administration official when the administration itself is urging noncompliance with the committee’s subpoenas. That is certainly true as to this Justice Department, but witnesses would be well-advised to remember: The statute of limitations for contempt of Congress is five years.
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Re: The Constitution on Impeachment: What the experts are saying ...

#110

Post by Sam the Centipede »

Addie wrote: Mon Dec 09, 2019 7:24 pm WaPo OpEd - W. Neil Eggleston
Those who resist congressional subpoenas should be careful. They could be risking jail time.
:snippity: If the House votes for contempt, the contempt citation is referred to the Justice Department for prosecution.
:snippity:
The noncomplying witness may believe that the Justice Department would never authorize the prosecution of an administration official when the administration itself is urging noncompliance with the committee’s subpoenas. That is certainly true as to this Justice Department, but witnesses would be well-advised to remember: The statute of limitations for contempt of Congress is five years.
So the Justice Department has discretion about whether to act on the referrals? I guess that's not usually an issue because the DOJ would usually be on the pro-government side, so perhaps the rules don't fully consider a Congress v. Executive situation?

If it has book muscle of its own, Congress might need to consider employing Tresa Haywood's Condimental Martians to enforce their subpoenas!
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Re: The Constitution on Impeachment: What the experts are saying ...

#111

Post by Addie »

The Atlantic - Josh Blackman
What the Democrats Left Out

Instead of settling on charges that relate to statutory crimes, with clear, concrete criteria, the Democrats have instead released two articles of impeachment in which the misconduct exists largely in the eye of the beholder.


Today the House Judiciary Committee announced two articles of impeachment. The first article alleges that President Donald Trump abused his power by asking Ukrainian President Volodymyr Zelensky to publicly announce investigations into one of his political opponents, Joe Biden, and into a “discredited theory” that Ukraine, not Russia, had interfered in the most recent presidential election. The second article charges that President Trump obstructed Congress by refusing to comply with impeachment-related subpoenas. In opting for these two offenses—and in excluding three others that had all been plausible—House Democrats have narrowed their charges to the allegations that are the easiest to see, if you see the world, and this presidency, as they do.

What didn’t make the cut? First, Congress chose not to include articles of impeachment based on the foreign and domestic emoluments clauses. Democratic members of Congress have long alleged that President Trump is illegally profiting from his business entities that cater to foreign and state governments. Indeed, more than 200 members of Congress have sued the president in federal court, arguing that his conduct is unconstitutional. (I have filed a series of amicus briefs arguing that Trump’s conduct amounts to poor policy, but is lawful.) Yet, the House has not even held a hearing on these once obscure provisions of the Constitution. It would have been very difficult to make the case for impeachment based on a nonexistent record.

Second, Congress chose not to include articles of impeachment based on allegations in the Mueller report. For nearly two years, the special counsel titillated the Beltway with the prospect of potentially impeachable conduct. Robert Mueller’s voluminous report dispelled allegations of Russian collusion, but strongly hinted that President Trump engaged in obstruction of justice—that the President used his official power to stymie the investigation. Attorney General Bill Barr disagreed, and independently concluded that there was no criminal activity worth charging.

Of course, the House could have picked up the mantle and charged the president with obstructing justice. Indeed, Mueller’s report provided what many dubbed a “road map” for impeachment. But an article on impeachment based on obstruction of justice was not included. Why? I suspect the House realized that the president had a legitimate constitutional defense. Many of the alleged obstructive acts, such as firing FBI Director James Comey, are authorized by Article II of the Constitution. No, that provision does not give Trump the “right to do whatever” he wants. But it does allow him to supervise and control his administration. Most articles of impeachment based on obstruction of justice would have gotten bogged down in very difficult constitutional questions. (I wrote a four-part series discussing these issues.) I think at least one of the claims, in which President Trump asked his White House counsel to prepare a false record, could have been viable. Yet, the House left obstruction of justice, and its messy separation of powers issues, on the cutting-room floor.
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Re: The Constitution on Impeachment: What the experts are saying ...

#112

Post by Addie »

CNN OpEd: Are Trump impeachment articles legally flawed? Two experts debate
USA Today: 'Obstruction of Congress:' Trump's stonewalling becomes basis for impeachment
Salon: Experts on impeachment: Is this the express-lane version — or a Democratic masterstroke?

Lightweight impeachment? Maybe not. Experts say these are the "most serious" charges ever made against a president
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Re: The Constitution on Impeachment: What the experts are saying ...

#113

Post by Addie »

Lawfare - Scott R. Anderson, Susan Hennessey, Quinta Jurecic, Margaret Taylor
Marking Up the Articles of Impeachment

On Tuesday, Dec. 10, the House of Representatives released two articles of impeachment against President Donald Trump. Article I charges that the president abused his power by engaging in a wide-ranging scheme to solicit foreign interference from the Ukrainian government in the form of politically motivated and advantageous investigations. It further charges that Trump conditioned official acts—specifically, the release of military aid and a White House meeting—on Ukraine publicly announcing those investigations. Article II charges that the president has obstructed Congress by directing executive branch officials to refuse to produce documents and testimony in response to congressional subpoenas.

Yesterday, we examined the strategic choices underlying the articles. Time will tell whether that strategy pays off or backfires—but, whatever the underlying wisdom of those choices, this is the draft off of which the House Judiciary Committee will work, and it is highly unlikely that dramatic changes or additions will be made.When the House resolution containing the articles is marked up by the committee on Thursday, Dec. 12, however, there may be an opportunity to make adjustments and technical fixes designed to more clearly accomplish the House’s aims.

In examining articles of impeachment as legislative text, it is useful to consider the unusual space they occupy. In many ways, articles of impeachment are similar to a complaint or indictment in criminal litigation in that they lay out the basic statement of facts upon which the House believes the case for impeachment rests. Criminal complaints and indictments, however, are drafted against the backdrop of a defined framework of statutory law. Impeachment is different. The legal standards surrounding impeachment are formally undefined, contested in various ways, and largely left up to Congress itself to determine. This makes the task of drafting impeachment articles complex, and it also means that the text of the articles themselves help constitute what the House views as the legal contours of the impeachment power and what sort of conduct it covers. The articles are drafted with both persuasive goals—setting forth the argument as to what occurred and that it is impeachable—and defensive goals in mind, aiming to head off the counterarguments from members looking to defend the president on factual legal grounds.

Additionally, articles of impeachment need to be drafted with an eye toward precedent. Because impeachments are rare and the standards are not fixed, each article is important. And while there are risks of being too narrow, generally the more serious concern is being overbroad in a manner that might lead to unjustified impeachments in the future. Members of Congress considering the precedential consequences will consider whether they would support or oppose similar articles if leveled against a president more in line with their political views.
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Re: The Constitution on Impeachment: What the experts are saying ...

#114

Post by Addie »

Law & Crime
Impeachment Expert: ‘First Time in History’ We’ve Seen Trump-Mitch McConnell Type of Coordination on Senate Trial

One of the constitutional law and impeachment expert professors called as a witness by House Democrats said Friday that both he and history have never seen something like what President Donald Trump, White House lawyers and Senate Republicans led by Sen. Mitch McConnell (R-Ky.) are cooking up.

After it was reported on Thursday afternoon that Senate Majority Leader McConnell met at his office with White House counsel Pat Cipollone and others to talk about impeachment, McConnell went on Fox News Thursday night and said openly that the outcome of a Senate trial has pretty much been predetermined (the House is expected Friday to vote on articles of impeachment).

University of North Carolina Law Prof. Michael Gerhardt, who previously told the House Judiciary Committee “if what we are talking about is not impeachable, nothing is impeachable,” said Friday on CNN that the coordination that McConnell boasted of is without historical precedent.

CNN’s Poppy Harlow asked Gerhardt “how normal or abnormal is it for the Senate Majority Leader to work in, what he said, was lockstep, essentially, with the White House on a senate trial. Is that normal?”

“It is extremely unusual. We don’t have a lot of experience with presidential impeachments, but this is the first time in history when the president was coordinating with a big bloc of people from his own party in the Senate,” Gerhardt answered.
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Re: The Constitution on Impeachment: What the experts are saying ...

#115

Post by tek »

IANAL, but isn't this effectively the defense coordinating with the jury?
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Re: The Constitution on Impeachment: What the experts are saying ...

#116

Post by bob »

tek wrote: Fri Dec 13, 2019 4:32 pm IANAL, but isn't this effectively the defense coordinating with the jury?
Yes. And?
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Re: The Constitution on Impeachment: What the experts are saying ...

#117

Post by tek »

bob wrote: Fri Dec 13, 2019 4:42 pm
tek wrote: Fri Dec 13, 2019 4:32 pm IANAL, but isn't this effectively the defense coordinating with the jury?
Yes. And?
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Re: The Constitution on Impeachment: What the experts are saying ...

#118

Post by Sterngard Friegen »

The House managers should move to disqualify any Senator from voting who coordinated with Trump. It will lose, but who knows what the Chief Justice's initial ruling will be, and the American people who aren't partisans will "get it."
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Re: The Constitution on Impeachment: What the experts are saying ...

#119

Post by TexasFilly »

Sterngard Friegen wrote: Fri Dec 13, 2019 6:03 pm The House managers should move to disqualify any Senator from voting who coordinated with Trump. It will lose, but who knows what the Chief Justice's initial ruling will be, and the American people who aren't partisans will "get it."
Val Demings agrees:

I love the poorly educated!!!

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Re: The Constitution on Impeachment: What the experts are saying ...

#120

Post by Addie »

The Atlantic - Brenda Wineapple
How to Conduct a Trial in the Senate

The Constitution does not provide procedural guidelines for how an impeachment trial is to be conducted—so the senators of 1868 had to figure it out as they went.


On Thursday, March 5, 1868, Chief Justice Salmon Portland Chase, dressed in his long black-silk robe, marched to the head of the Senate chamber and solemnly announced that “in obedience to notice, I have appeared to join with you in forming a Court of Impeachment for the trial of the President of the United States.” Swearing that he would serve impartially as judge during the trial of President Andrew Johnson, he also said he would faithfully administer the Constitution and the laws. No one quite knew what that meant. They still don’t.

Impeachment: People know the House of Representatives may impeach a sitting American president with a majority vote. They also know that the Senate then conducts a trial of the impeached president with the chief justice presiding, and if two-thirds of the Senate vote to convict, the president will be removed from office. But the United States Constitution does not provide procedural guidelines for how that trial is to be conducted—what constitutes evidence, for instance, or who may object to it, or who might testify for or against the president. And in 1868, after the House of Representatives voted to impeach Andrew Johnson, these issues were fiercely contested in the Senate trial.

President Johnson had fired his secretary of war, Edwin Stanton, without the Senate’s consent, which the recently passed Tenure of Office Act had required. Though constitutionally dubious, that law had been created precisely to prevent Johnson from obstructing justice by sacking such men as Stanton, who was helping Congress implement the Reconstruction Acts, which Johnson had also been attempting to obstruct. When President Johnson violated the law, the House voted overwhelmingly to impeach him. It then drafted 11 articles of impeachment, most of which dealt with Johnson’s violation of the statute—his apparent commission of a demonstrable crime—although he was also accused of denying the legitimacy of Congress, holding it in contempt, failing to execute its laws, and abusing his power.
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Re: The Constitution on Impeachment: What the experts are saying ...

#121

Post by Chilidog »

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
So......

Given the following:

1) The Senate dismisses the charges.

2) Trump loses the reelection.

3) President Biden appoints Kamala Harris to be Attorney General.

Would Trump still be liable for prosecution under the federal bribery statute? It would seem that double jeopardy is explicitly voided here.
(Assuming that there is a political will to pursue this)
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Re: The Constitution on Impeachment: What the experts are saying ...

#122

Post by bob »

Chilidog wrote: Sun Dec 15, 2019 2:59 pmWould Trump still be liable for prosecution under the federal bribery statute? It would seem that double jeopardy is explicitly voided here.
Most likely yes. Not because the current president won't be expressly impeached for bribery. But rather because impeachment is political constitutional, and not criminal, in nature. In other words, impeachment doesn't cause jeopardy to attach, so double jeopardy wouldn't apply.

Too also: I don't think the current president will ever be criminally charged with bribery with respect to Ukraine.
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Re: The Constitution on Impeachment: What the experts are saying ...

#123

Post by Addie »

Newsweek
Mitch McConnell Is 'In Literal Violation of the Oath' He Must Take for Impeachment Trial, Says Government Professor ...

McConnell's remarks have drawn fierce criticism from Democrats who have condemned him for failing to act impartially and openly gaming the process to ensure Trump's acquittal. In a recent op-ed written for The Bulwark, Jeffrey K. Tulis, a professor in the Department of Government at the University of Texas, slammed McConnell's actions as "anti-Constitutional" and asserted that the senator will be "in literal violation" of the impeachment oath he will have to take before the trial begins.

Tulis explained that the impeachment trial in the Senate is so serious that senators will be required to make a new oath of office. He noted that Article I, section 3, clause 6 of the Constitution sets out that senators sitting on a trial of impeachment "shall be on Oath or Affirmation."

Although all senators must swear an oath to protect the Constitution when elected to Congress, the oath for an impeachment trial is different. "It is a juror's oath and a judge's oath—not a legislator's oath," Tulis wrote.

According to Rule XXV of the Senate Rules in Impeachment Trials, all senators must make the following oath: "I solemnly swear [or affirm, as the case may be] that in all things appertaining to the trial of the impeachment of [the person being impeached], now pending, I will do impartial justice according to the Constitution and laws: So help me God."

Commenting on the clause, Tulis said "the Constitution asks them to remember that they are not sitting as senators, but now as judges and jurors."

"So much so that for this brief period the senators are all equal," the professor added. "For the duration of the trial the Senate is a literally new institution with new rules, new norms, and new responsibilities."
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Re: The Constitution on Impeachment: What the experts are saying ...

#124

Post by AndyinPA »

bob wrote: Sun Dec 15, 2019 3:04 pm
Chilidog wrote: Sun Dec 15, 2019 2:59 pmWould Trump still be liable for prosecution under the federal bribery statute? It would seem that double jeopardy is explicitly voided here.
Most likely yes. Not because the current president won't be expressly impeached for bribery. But rather because impeachment is political constitutional, and not criminal, in nature. In other words, impeachment doesn't cause jeopardy to attach, so double jeopardy wouldn't apply.

Too also: I don't think the current president will ever be criminally charged with bribery with respect to Ukraine.
I have my doubts that the current president will ever be criminally charged for anything.
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Re: The Constitution on Impeachment: What the experts are saying ...

#125

Post by Addie »

Just Security: Federal Criminal Offenses and the Impeachment of Donald J. Trump
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