I finished reading Bowman’s book on impeachment, which means I’ve now read these:
I was planning to write Over the Cliff Notes but my head is so stuffed full of information, I wasn’t sure where to start.
So I took questions on Twitter.
Cindy threw me an easy one. Is Trump’s behavior impeachable? Most certainly. In fact, I can see lengthy Articles of Impeachment. I wish it was my job to write them.
Good question. The Constitution doesn’t give much guidance on procedure, just that the Chief Justice “presides.” But the Senators are both judge and jury, so it isn’t like a normal trial.
There is something I wonder: What if the Democrats call as witnesses all the people stonewalling the subpoenas? What if Roberts orders them to testify (and bring documents)? What if he even orders Mazars to bring Trump’s tax records? Maybe that’s why the Democrats aren’t waiting for SCOTUS to decide.
So for the people wondering why the Democrats are plowing ahead before they get Supreme Court rulings, and before they get all the evidence . . . maybe they don’t need to wait for the Supreme Court because Roberts himself will be at the trial.
None of us know what all the House has in terms of evidence, so all we can do is speculate. I suspect that Pence (and whether he committed impeachable acts) won’t be part of this proceeding. It will complicate things too much.
Start with Sunstein. There’s unnecessary chit-chat, so skip the preface, Chapter 1 and most of Chapter 2. Start with “Unitary Executive, and read through chapter 9.
These scholars agree on the basics. Dershowitz is the oddball (but he’s not in these books). Dershowitz is only important because I’m sure he gives the Trump-GOP view. He differs from the others in that he thinks there must be an actual crime, as in a violation of the federal criminal code, for impeachment to be constitutional.
This makes no sense whatsoever. The federal criminal code didn’t exist when the Constitution was drafted, “high crimes and misdemeanors” was a term of art the drafters would have understood, and POTUS, by virtue of his office, can engage in dangerous acts that are not a crime if ordinary citizens do them.
To take a completely (totally) random example, if an ordinary citizen is in the pay of a foreign government, there is no crime.
The easiest response to Dershowitz, though, is to include a few federal criminal violations in the Articles of Impeachment. There are several.
House rules: Special committees can investigate, but the Judiciary Committee has had jurisdiction over impeachments, ever since it was created in 1813. So the judiciary committee writes the articles.
(I told you my head is stuffed full of facts.)
Impeachment has been a process since the 1300s, when impeachments first appeared in Britain. The best quotation, though, is from Benjamin Franklin: “Anyone who wishes to be president should support an impeachment clause, because the alternative is assassination.”
Benjamin Franklin of course meant that we need impeachment for the president who uses the power of his office to keep himself in power.
An actual trial is different from the fact-gathering portion, which is what we’ve had so far. At the Senate trial, the House Managers act as the prosecutors. I assume, as prosecutors, they call witnesses and put on evidence.
The most complete historical analysis is in Bowman’s book. He goes back to the 1300s, traces all impeachments, explains what the drafters would have understood, given their participation in drafting state constitutions and trying impeachments.
For sensible people, Dershowitz has lost all credibility.
If this were a normal trial, the verdict would be easy. The evidence is overwhelming. The opposition, though, is armed with propaganda. Truth itself will be on trial.
Another easy one. Trump’s behavior was exactly what the founders feared: A president using the powers of his office for self-enrichment and self-dealing, using the powers of his office to influence an election, and selling out to a foreign power.
It depends on what “presides” means, right?
This is from Yale law professor Bruce Ackerman. (I haven’t researched the Senate rules. I just finished Bowman’s book!):
Remember, the Senate trial also plays in the Court of Public Opinion.
Consider the optics of this: Chief Justice says X testimony or Y documents are necessary to get to the truth. Senate Republicans say: “We’re blocking them.” (Not enforcing them)
Some things are complicated. Other things are refreshingly simple. Like a “coverup.” We all know that innocent people don’t bury evidence. Let it happen on the Senate floor with the cameras rolling (will cameras be rolling?)
I agreed with this last spring, if impeachment would have been based entirely on the Mueller report. But this is different. Trump’s Operation Ukrainian Shakedown was exposed and foiled. He’s now paranoid about “spies” in the White House watching him.
Answers”
- If the recordings are deemed reliable evidence, I’m sure they’ll be included.
- Yes, definitely, the Mueller report will be included. In fact, I expect obstruction in the Mueller probe to be an Article of Impeachment
- Depends on what they add.
I agree that there won’t be a second impeachment, for various reasons. Legally, it’s possible. Politically, it would be suicide.
Left-leaning Twitter often fails to consider strategy as it relates to vulnerable Democrats are in red-leaning districts.
Without representatives like Lauren Underwood, the Democrats wouldn’t have won the House in 2018 and none of this would be possible: Trump would not be exposed, and Operation Ukrainian Shakedown would have [most likely] worked.
Basically we’d be in big trouble.
When you read interviews with these Democrats, it’s clear that their districts aren’t happy with the impeachment, and they want their reps back to business. They need the impeachment behind them as they go into the election season. Ignore their needs at the peril of democracy.
Yes, I’d bring in Mueller’s obstruction. Emoluments might fit into the articles as evidence of self-dealing. But I wouldn’t include a laundry list of everything Trump has done that endangers security. Not all wrongs are impeachable, nor should they be.
Personally, I really hope we see witness intimidation, which is a federal crime, and also has a gut-wrenching simplicity easily understood. Regarding the whistleblower, Trump used the word “treason” and talked about “execution.” Look at the smear campaign launched against Yovanovitch and Lisa Page.
All I can say is this: Because truth itself is on trial, I don’t expect a senate trial to look like a normal trial.
Given what we’ve seen so far from the GOP, I expect grandstanding, kicking up dust, and attempts to confuse people.
This is a good question. I did some posts over the summer about why it isn’t realistic to expect a Trump impeachment to follow Nixon’s trajectory.
Trump may retain 35-40% approval no matter what comes out.
The people who will stick with Trump no matter what know exactly what he is.
That percentage of the population has always been with us.
They insisted on a Constitution that allowed slavery.
They didn’t want women to vote.
They were in favor of Jim Crow laws.
They were opposed to Brown v. Board of Education.
They hated the 1960s radicals.
They cheered Gingrich who said the GOP mustn’t compromise.
Trump’s support may still erode, but not as far as people may hope or expect.
The abolitionists, Susan B. Anthony, Thurgood Marshall, Martin Luther King, Jr., and all the progressive heroes have been fighting the same enemies since the start of the nation. The fight is always hard. That’s why they’re heroes. So what do we do?
We fight the same fight that others fought before us. The GOP is a reactionary party.
They push us backwards. We push forward again.
It never really ends. I’ll end this thread here:
Fortunately, Susan B. Anthony and others taught us how to do it.
