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Post by Deleted on Jul 20, 2017 13:40:21 GMT -5
A perfectly wonderful article from lawfare -- it is a section from a book on impeachment written in 1974 by the eminent professor Charles Black. Do read the whole thing. This subject will never be more important for citizens to understand than in times like these. www.lawfareblog.com/impeachable-offenseIt gives a really terrific analysis of the grounds for impeachment under the Constitution. Hard to give snippets, since it all follows point by point, and context is important, but I'll try: On high crimes and misdemeaners: He then goes on to discuss, e.g ., improper campaign tactics: As well as obstruction of justice, the wrongdoing of subordinates, income tax fraud... if I start quoting everything relevant, I'll soon be quoting the entire thing. I promise it is more than worth your time, and extremely helpful in considering whether Trump's behavior just sucks, is perfectly fine, or is impeachable. Not that we'll be making that decision, of course, but I'm sure we'll all be thinking about it, wherever we stand on the issue. Do read it!
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Post by robeiae on Jul 20, 2017 14:38:34 GMT -5
Yeah, I'm not digging his arguments very much. For instance, he says this:
Sorry, but I very much do doubt that such conduct would be impeachable, as a matter of course. The President's power to pardon is just about absolute. A President could indeed pardon all of the above people. A President could even announce that this would be his/her policy going forward. There's nothing impeachable here, imo. It would be outrageous, I think. Hopefully, such a President would never be re-elected, would lose the support of his or her party, and thus be able to accomplish almost nothing. But this is fundamentally a ballot box issue, not treason, not bribery, not a high crime and misdemeanor.
I think Mr. Black does a piss-poor job dealing with the word "other" in the relevant clause of the Constitution.
This is what the clause says:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Clearly, treason and bribery are both high crimes and/or high misdemeanors (I believe the "high" is descriptive for both of the terms). High crimes and misdemeanors are expressly criminal in nature. The whole point of spelling this out is to prevent politically motivated impeachments based on non-criminal actions and/or policies.
FDR established internment camps for Japanese-Americans (and others). That was a horrible thing to do, but he did it with an EO; he had that authority as Commander-in-chief. Is taking a bribe really worse than this, in the grand scheme of things? Is what Nixon did really worse? I don't think so (and this is hardly the worst perfectly constitutional action taken by a US President). But so what? It's not impeachable, per the Constitution. It was a horrible choice to make, one that now seems to have been a huge error that accomplished nothing. But again, such actions are not what the impeachment clause is intended to address at all, imo. Presidents are going to screw up, they're going to get things wrong, sometimes with good intentions and sometimes with not so good intentions.
But Presidents can't be ignoring the law, can't be committing serious crimes. Treason is a serious crime. Bribery of or by a public official is a serious crime. Engaging in voter fraud would be a serious crime. So would a host of other things, things that are just big-time crimes all on their own--like treason or murder--or are crimes that are particularly bad when committed by an elected official--like bribery, voter fraud, and so on.
So I disagree. It doesn't give a terrific analysis at all. It's terribly flawed.
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Post by Deleted on Jul 20, 2017 15:09:00 GMT -5
No offense, Rob, but one of you (Black) is a recognized legal expert in the field of constitutional law looking at the language and its context of history in an analysis that has been considered masterful since it was written forty years ago.
You can disagree with it if you like (I don't, and it's given me much food for thought -- I plan to buy the book), but dismissing it in one reading like a BuzzFeed article as "terribly flawed"..
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Post by robeiae on Jul 20, 2017 15:28:06 GMT -5
*shrug*
I don't care. I thought the Kelo Decision was outrageously wrong, but it was authored by a Supreme Court Justice. Am I suppose to kowtow to their authority automatically, then?
And I think noted legal scholar Lawrence Tribe's defense of intrasession appointments was a load of crap (especially since he flip-flopped on the issue).
I'm not going to have poor reasoning forced down my throat, simply by virtue of an appeal to authority.
And I didn't dismiss the piece like it was Buzzfeed. I read the whole thing and picked out one particularly weak bit to make my point, then noted a failure--by my reckoning--in the logic of the piece.
So no offense to you Cass, but saying "people think this is masterful" doesn't move me at all. If you don't want to address specifics, you don't have to, but an appeal to authority isn't gonna work, here.
And just for the record, I reckon I'm as well read on the history of the Constitution, the interpretations of the same, and all of the background materials involved as you or most anyone else.
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Post by Deleted on Jul 20, 2017 18:40:57 GMT -5
I find Black's discussion of "other", as well as his discussion of "high crimes and misdemeaners, to be quite persuasive from a grammatical, historical, and legal angle. I am looking forward to reading the chapter in context of his entire book. I repeat my recommendation of the article to the rest of you, for whatever it is worth.
I don't find your "FDR wasn't impeached, so clearly the founders didn't think opening Japanese internment camps was an impeachable offense" argument at all persuasive. Whether or not the founders would have thought so -- they weren't around to opine -- they left the remedy in the hands of Congress. If Trump shot someone on Fifth Avenue, or Barack Obama had misappropriated funds, but Congress, because they liked them politically, decided not to impeach, would that be evidence that the Founders wouldn't regard such things as an impeachable offense under that clause? No. It would be evidence that Congress didn't choose to impeach them. It might mean Congress wasn't doing its job, but wouldn't say shit about the Founders' intent.
As for the meaning of "other high crimes and misdemeaners", I find Black's analysis and explanation that they need not be explicitly criminal in nature very persuasive. I'm on my way out the door in a few minutes to meet a friend for a drink, so I don't have time to parse his intricate analysis on the meaning of the words and their historical use tonight. For the time being, I'll just quote Black's examples of non-criminal acts that he believes would be impeachable. I agree -- they might not be criminal, but they'd be grounds for impeachment. You think we'd just have to suffer with our president moving to Saudi Arabia, taking on four wives, and conducting his administration by phone?
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Post by robeiae on Jul 20, 2017 20:42:45 GMT -5
As a matter of application, what is or what is not an impeachable offense is ultimately in the hands of the House of Representatives, since that body is given the power to begin impeachment proceedings. And true enough, that means nothing it truly off of the table. But in choosing the wording that they did, the framers--Madison, et al--were seeking to minimize instances of impeachment, were seeking to make it less likely to be political. Indeed, this is why the Senate is the body that passes judgement, because allowing that politics might slip in through the House, the Senate was seen as far less likely to accept a politically motivated charge. Of course, the Senate is no longer the body it was 200 years ago, but I digress. Hamilton, on the politcal problem with impeachment ( Federalist 65): Hamilton, on why the Senate judges instead of the Supreme Court (same source, my boldface): Hamilton assumes that the cause(s) of impeachment are criminal acts, as a matter of course. As to the origins of the term "high crimes and misdemeanors," I'm familiar with it. I did the research ages ago. I know it's seen as a "term of art" and was a fairly common turn of the phrase back in the day. I also know that "high misdemeanor" was a specific term addressed in Blackstone, which is why I feel that the "high" in the Article obviously applies to both crimes and misdemeanors. And Blackstone's analysis of such and his listing of examples--from prison breaks to obstruction of justice--are crimes. I'm pretty sure he doesn't list taking multiple wives and moving to another country. The author of your piece fairly notes the crime of treason is explicitly spelled out in the Constitution, so there's no question of what that means. Bribery is pretty clear, as well. Given these two explicit crimes, he would allow--as would many others, to be sure--that "high crimes and misdemeanors" should be read incredibly liberally, with regard to intent, that it's a common law term, so to speak. And yet, treason had a much wider meaning in common law than how it's defined in the Constitution. Again, I think the "other" is the key. The intent here was to limit impeachments, as much as possible, while still allowing for things not anticipated. And imo, the framers did a pretty good job. We don't get a lot of impeachments, and that's as it should be, because in the face of treason and bribery, it's hard to sell something that isn't a crime as a "high crime" or "high misdemeanor" to the public. Again, criminality is generally assumed, as a bare minimum. And again, I know the House has the final say here and that it is not actually limited in what it can use as a basis. And maybe Black's analysis represents a potential tool to justify an impeachment for what would fundamentally be a political action. But I think that is a misreading of intent on the part of the framers, who nonetheless left room the opening. So it's fine if you find his argument persuasive. I don't. Absurd scenarios don't change this (that would be the Saudi one you quoted; the second scenario IS a crime, not sure how he's unsure there; the third is the one I already quoted and it's not a crime and shouldn't be seen as an impeachable offense, imo). And I'm not going to say "oh gee, I guess they are persuasive since he's a recognized expert and recognized experts are always right and can never be questioned."
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Post by Deleted on Jul 20, 2017 21:51:37 GMT -5
(FYI, he's not just a recognized expert. His book is pretty much the seminal piece of scholarly legal work on the subject.)
I do not read your highlighted passage the way you do, at all. It doesn't say that the only justifications for impeachment would be criminal. It says that besides impeachment, he'd still be subject to any other applicable punishment that the law might call for, and that therefore the body that determines impeachment shouldn't be the same one that would try him for an offense as a citizen. It's explaining "here's why it has to be Congress" not "only criminal offenses justify impeachment."
But take my reading of the words and put it wherever you put Black's.
Since you did research on "high crimes and misdemeaners, this shouldn't be news to you:
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Post by Deleted on Jul 20, 2017 22:05:38 GMT -5
See also scholarship.law.nd.edu/jleg/vol1/iss1/8Sorry for the crappy cut and paste. My wifi is down and I'm doing this on my phone. This doc is a PDF, and it's a huge pain in the ass. I tried to fix it and made it worse! If I get a chance, I'll fix it tomorrow when I get on a computer. There are many other excellent quotes in that legal article supporting the point that a criminal charge is not required for impeachment, and the founders did not intend that to be so. Anyway -- those words of Hamilton's -- I do not think they mean what you think they mean. I think they mean, as these articles explain, that the founders wanted impeachment to be separate from any criminal proceedings that might potentially apply -- not that impeachment couldn't be done unless a criminal law was violated. And the term "high crimes and misdeameanors" was an old, well-known (at the time) term that swept in all kinds of serious offenses against the public trust -- not just criminal offenses. ETA: Fixed it as best I could on my phone. I hope you all appreciate my dedication, pulling up this stuff and quoting from PDFs on this freaking tiny screen when I should be in bed.
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Post by robeiae on Jul 21, 2017 8:47:34 GMT -5
Anyway -- those words of Hamilton's -- I do not think they mean what you think they mean. Nah, they mean exactly what I think they mean. Again, the point I'm making is with regard to intent. And that intent was to try to minimize the usefulness of impeachment as a political tool. I'm not saying that Hamilton's word should be read as meaning that absolutely all impeachable offenses must also be crimes that also lead to court charges. But his words, his analysis, indicate a clear expectation on his part: that impeachable crimes would generally be crimes. And really, Black can't help but allow that this is the case, that this was consistent with Mason's expectations. From his book: So we're on the same page at this point. See? My issues are with what follows, with his arguments justifying impeachment for a much larger swath of activities (and it's instructive to remember when he wrote and published this book). The example of the President who moves to Saudi Arabia and gets a harem, look I agree that that would be a good reason to impeach the turkey, even though the specifics of the impeachment charges might not be crimes, per se. But again, that's an absurd scenario and not a sound basis for divining intent. Again, the Constitution is clear, insofar as the House has the power to impeach. And it can interpret things as it sees fit. So in truth, absolutely nothing is off of the table. You get that's what I'm saying, right? And again, Black allows that such can be seen as the case, though he clearly sees this as inconsistent with intent (just like me): FYI, the theoretical congressman he speaks of is not theoretical at all. It's Gerald R. Ford: But allowing that this may be technically true, that there is nothing preventing the House from impeaching some one for anything, there remains the issue of how we would want or expect this to be approached, what we as citizens should be prepared to accept. And in that regard, I think it is as I have argued: the framers did not expect wide-ranging standards, they expected that impeachment would be used rarely and that the grounds of such would involve actions on par with treason or bribery, i.e. other high crimes or high misdemeanors. Yes, there remains an opening for things that may not be expressly illegal, but trying to mandate standards there, arguing for all sorts of non-criminal activities to be impeachable as a matter of course, is inconsistent with the intent of the framers. Black's arguments that seek to expand this to a range of other things that may not be expressly criminal don't impress me. I think he's reaching. Sorry. And again, the moment is important here. Black was writing partly as a means of explaining why impeaching Nixon would be okay. And of course, his arguments here are resurfacing because of Trump. Beyond that, I am aware of this book. And I'm not saying it's a bad book, at all. Indeed, my issue is with a specific portion of it, the part you quoted, the part the article you linked to republished. That's a small portion of the book. It's what, 80 pages or so? And it explains how impeachment works, the process, the background, the history, and so forth. And it does so quite effectively. But I disagree with the platitudes you'r extending here, as well, which strike me as an attempt to bolster an appeal to authority. The book is not a legal treatise. It is what it's introduction says it is: "for the citizen." My disagreements with some of with some what he says are not disagreements with tight, unassailable legal arguments at all. They're with interpretations, ones that will probably never be absolutely resolved, much less codified. And that's as it should be, imo.
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Post by Deleted on Jul 21, 2017 9:44:07 GMT -5
History and the weight of legal scholarship on this is squarely on my side and Black's -- a criminal offense is not required for impeachment, nor did the Founders intend it to be so, which is why they chose to use a well-worn centuries-old legal phrase that swept in non-criminal offenses.
Moreover, such impeachment cases as there have been have expressly recognized this. See, e.g , the cases cited in the articles I linked.
You're parsing Black's wording, but ignoring those facts.
ETA:
You are correct on this -- impeachment was not intended to remove someone merely because Congress doesn't care for their policies (the remedy for that is the ballot box). Hence why the founders decided not to use "maladministration."
But it WAS intended to reach offenses that were not necessarily a violation of the criminal code but that nevertheless were a grave breach of public trust that render someone unfit for office. See, e.g., everything I already cited.
ETA:
E.g., the fact Trump wants to build a ridiculous transparent border wall is NOT grounds for impeachment, however stupid the idea may be and however much many of us may dislike it.
But his engaging in sleazy dealings and egregious lies may be another matter, if they strike at the public trust and his fitness for office.
See, e.g , the articles I've already cited.
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Post by Deleted on Jul 21, 2017 10:13:06 GMT -5
I submit that, had the founders intended what you claim, they would have said "crimes" or "crimes against the state" or "high crimes against the state" (or something to that effect).
Instead, they deliberately chose an ancient and then-familiar legal phrase that had historically been (and was at that time) understood and had been implemented to include non-criminal offenses.
We can be sure they knew "high crimes and misdemeanors" was not a criminal term and had been used in impeachment case to include non-criminal things like appointing unfit subordinates, not prosecuting cases, not spending money allocated by Parliament, promoting themselves ahead of more deserving candidates, arresting a man to keep him from running for Parliament, losing a ship by neglecting to moor it, etc. If they didn't want to include such things, but only violations of the criminal code, they would have made it clear.
ETA:
As a general thing, if you use a well-known stock phrase in a contract, one that is universally understood to mean a particular thing, you don't then get to say "oh, I didn't mean that as it's been used -- although I didn't say so, I really meant this other thing, and see, look, if you ignore the common usage of the phrase and parse the words this other particular way, you get this different, more limited, meaning." (If you specifically define it in the contract to mean that other thing, that's another matter. But if you don't do so, and there is later a dispute about the meaning of the term, the court is going to look at the way the term is commonly used and understood in that industry.)
Similarly, if in a contract you define a term, you don't get to later in that contract use that exact same term, but claim you actually meant something else that one time, though you didn't say so, and technically the actual words could mean that, too.
The founders were quite familiar with the term "high crimes and misdemeanors", and you can be sure they knew how it had been used historically. If they meant it to have a more limited meaning, to leave out all non-criminal offenses, they would have said so.
They didn't. Because they meant to leave it open enough to include serious breaches of trust that rendered officials unfit for office but might not be encompassed by "crime," but also to make it clear that those offenses must be serious and relate to their fitness for office. And they trusted to future members of Congress to use the provision wisely, not to try to remove people just because they didn't care for their politics.
If we take your reading, we have to assume the founders used the phrase without regard to the way it had been used for centuries, but didn't bother to say so.
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Post by Deleted on Jul 21, 2017 12:19:57 GMT -5
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Post by robeiae on Jul 21, 2017 12:28:17 GMT -5
I submit that, had the founders intended what you claim, they would have said "crimes" or "crimes against the state" or "high crimes against the state" (or something to that effect). I'm not sure you're getting me at all, perhaps because I'm not willing to just accept the analysis of my legal betters? I don't know. Regardless, I'm not arguing that a specifically criminal offense it required for impeachment. As I noted, that can't be the case because the House can impeach anyone that they want to impeach for whatever reason that they can dream up, and there's not a single law that stands in their way. But again, per the bit I quoted from Hamilton and per Black's own initial analysis--that forms he basis of the argument he seeks to overcome--the wording of the clause is intended to limit the use of impeachment by minimizing the politics that are always at play in Congress. The clear implication that criminality is an expected--though not required--element of such charges works to that end. Again, Black allows this, as well. Do you? Again, Black is arguing that people--citizens--should accept an extended scope as a matter of course, that a series of non-crimes can by tabled up as impeachable offenses. I disagree. I think criminality is a good minimum standard, though I certainly accept that specific case could arise where impeachment is warranted, despite no underlying criminal act. But that's going to be evident only in the moment. Trying to determine all such non-criminal acts that are nonetheless impeachable offense is a fool's errand imo, and somewhat dangerous, if there's any official weight behind such a thing (thankfully there isn't and this is unlikely to change). Because such analysis can't hep but become politicized. And more importantly, it can't help but tend to expand the potential use of a power that the Constitution is expressly trying to limit. In my mind, it's not unlike Justice Sotomayor's comments about jury nullification: they were ill-advised and damaging to the integrity of the system. Your mileage may very, certainly.
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Post by Deleted on Jul 21, 2017 12:51:37 GMT -5
I've stated that I fully concur that impeachment wasn't intended as a remedy for unpopular politics, or to be used for purely partisan ends.
But no, I don't agree with this, at least in the context of the way you are arguing it -- and I don't think, in context, it's what Black is saying.
Sure, it is not at all unlikely, perhaps even probable, that an impeachable offense is also going to end up being criminal because it has to be serious, not some trifling misstep. (And that being the case, the founders wanted to ensure they could both remove someone from office and also press criminal charges if appropriate without double jeopardy coming into play.)
But that doesn't demonstrate, at all, that there's a presumption against serious breaches of trust that aren't specifically enumerated in the criminal code being impeachable offenses.
Most cats are furry. That doesn't mean hairless cats then have a presumption against being cats. Most people have pigment in their skin and hair. Doesn't mean there's any doubt about whether albinos are human.
"Criminality" isn't the defining feature of "high crimes and misdemeanors." It's a side issue. That there is often a correlation does not prove otherwise.
And so say all of the many cites I've pulled up.
No dispute -- impeachment wasn't intended to be used for purely partisan purposes. Black doesn't say otherwise, and nor do I. But it was intended to be used when an official's actions seriously breach the public trust., criminal or no. Whether that breach also is a crime is a side issue.
Which is why Black's examples are good ones, and in keeping with the history of the phrase "high crimes and misdemeanors" as the founders would have understood it.
Congress doesn't HAVE to impeach. But they don't need a crime to do so in order to keep within the Founders' intent. What they require is a serious breach of the public trust.
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Post by Deleted on Jul 21, 2017 15:39:46 GMT -5
To bring it to our current situation --
I'd agree that it would be improper to impeach Trump for partisan reasons like, e.g , his plan to build a wall.
But it would not be improper to impeach him for breaching the public trust (should the Senate conclude he did so), even if no criminal violation occurred. That's why all the "collusion isn't a crime!" and "it's not technically treason because it isn't wartime!" talk I see all over twitter is beside the point. The question is not whether the behavior is technically treason or actually violates the criminal code. The question is whether it constitutes a serious enough breach of the public trust that it justifies removing him from office.
And yes, the determination of whether that's the case is left to our legislative branch, who should not impeach for partisan reasons, and need not impeach at all. But should they choose to impeach -- just because the particular behavior they cite isn't a violation of the criminal code and isn't technically treason would not be evidence they impeached for political reasons nor that they acted improperly.
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