MOD V. MOD! Impeachment smackdown! There can be only one!

Well again, the term is imprecise and suggests criminality, even if it doesn't require it. And again, treason and bribery clearly are criminal, thus the link--"other"--reinforces the same, evenif it doesn't absolutely require. Again, Black is clearly aware of this, as well.

My apologies for my first response not being clear.

But since then, My posts have included this:



And this:



And of course this:




And seriously, you do realize this, right? The House can impeach a President for anything. It doesn't need a legal opinion to justify the impeachment, based on an interpretation of "high crimes and misdemeanors." Black's book isn't some weighty opinion that can be used to authorize the process. It's just a review of the process (a very good one, no doubt), along with some of Black's opinions on different aspects. I'm asking because it kinda seems like you're arguing that it's possible to have an absolute decision here, with regard to what is required to impeach a President. Your take on Black's piece--calling it the "seminal piece of scholarly legal work on the subject"--seems to reflect this as well.

There isn't going to be a Supreme Court decisions declaring what "high crimes and misdemeanores" entails, because it it is purposefully vague, because the framers wanted the door open for impeachment, always, even if it's just a crack. But what they didn't want was impeachment being used as a political weapon to get political foes out of office. And in that regard, they tried to limit its use, without actually limiting its use. I think it's quite brilliant.

So it becomes the case that the voting public is the arbiter, the validater of the process. If it is used improperly in the public's eyes, the ballot box becomes the fix (unfortunately, the voting public has become something of a joke, with many every bit as partisan as the worst partisan in Congress).

So how is impeachment assessed? How should Congress critters go about using it in order to keep the public trust?

In my opinion, the bar is high. And criminal acts, while not a requirement, should generally be seen as a precondition. Black thinks differently. And imo, his argument to support his position--because again he recognizes that mine is consistent with intent, as I noted above--he throws up some examples of things that should be impeachable, even if they are not crimes. And I think his argument is weak there, since one example is just too unlikely to ever be even remotely mirrored in reality, another details things which would, in fact, be criminal, and the last is of something that should not be seen as impeachable at all, but as a legitimate use of Presidential power, even if it seems distasteful (again, the fix here is the ballot box).

Yet still, at the end of the day, Ford is right. Black, I think, does a great job of showing why Ford's statement runs afoul of the intent of the framers, but what he can't do is prove Ford's statement incorrect. And he knows it.

So again, there's no legal expertise that's going to win the day here; there's no weight of opinion to "prove" anything, because the House can do as it wills and there's not a damn thing anyone can do--legally--to stop it. Let's face, the reasons for Johnson's impeachment were total crap. The case against him didn't reach Black's threshold, much less mine.

Your argument in this thread appears to be based on this passage of Hamilton's:

And I believe (as does Black, and the National Review article, the Federalist piece, etc. etc. that I cited) that you are reading too much into it.

First, consider that the passages immediately before the passage you cite concern where impeachment trials should be held, rejecting the Supreme Court, and relying instead on the Senate.

The passage you quoted above is discussing WHY the Senate should be the place instead of the Supreme Court.  And the reason is because they wanted to be sure that IF a criminal offense were involved, that offense could still be prosecuted in a separate court proceeding, and not be blocked by double jeopardy or tinged by bias.  Otherwise (as Black and my other cites note), the SOLE punishment for a criminal transgression, if one occurred, might be impeachment, and they'd otherwise get off scot free.   This had in fact happened in England. Also, as Hamilton notes, having both impeachment and any applicable criminal proceedings in court could  also have the opposite effect, and result in the official getting more punishment than he actually deserved.  (See my next post below on that topic)  

So  -- impeachment trials needed to be in a place other than the court.

That's all this passage is saying.

Providing for the possibility that criminal prosecution might apply is not the same as saying that it will necessarily apply. 

Providing a room for nursing mothers to pump milk at an office is preparing for the possibility -- indeed, the likelihood -- that some employees will give birth and require such a room.  But it does not imply that all of them will.

Having a nurse's office at a school prepares for the inevitability that some children will get sick or be injured. But it does not mandate that they do so just because the office is there.

Having an emergency evacuation plan, an extinguisher, sprinklers, and regular fire-drills is an acknowledgment that fires happen and you need to be prepared.  But that doesn't mean that having such preparation in place demand that someone set fire to the building.  (So don't get any ideas, Angie .)

The founders certainly would have anticipated that many -- even most -- of the offenses that would call for impeachment would have criminal consequences, and it would have been folly not to anticipate it and address it.  But they didn't say (as they easily could have) that the offense must be criminal in nature.  Instead, they deliberately chose a phrase -- high crimes and misdemeanors -- that swept in non-criminal offenses of a serious nature.

As you note, they were very concerned that impeachment not be used for partisan purposes.  (that's why they eliminated "maladministration").  That being the case, if they meant impeachable offenses should be criminal, why not just say so?  

It's because they didn't intend that at all.  They intended only that the offenses be serious and go to the public trust and abuse of the office (rather than mere unpopular politics).  And so they deliberately chose a phrase that meant exactly that.



ETA:

I submit that the leeway "other high crimes and misdemeanors" gives to decide what is an impeachable offense is a big part of the reason WHY the legislative branch can, as you say "impeach a president for anything."

The other reason? The clause doesn't actually say that they can't impeach for some other reason.  It says:

It says they shall be removed for those reasons.  It actually doesn't say those are the ONLY reasons.  The Founders meant the bar to be high, and they left guidelines accordingly, but they didn't tie the Houses or the Senate's hands. 

And as I've argued to death, the guidelines they DID leave direct not that the crime must be criminal, but that it must be a serious breach of the public trust.

That also leaves the fact that an offense could be criminal, and yet not a serious enough breach of the public trust to be impeachable.  E.g., lying under oath -- if it's to obstruct justice, that's certainly a breach of public trust, and seriously so.  But what if it's a fib about a blowjob from a consenting adult?  It's up to the House and Senate to decide.

Finally, since several times in this thread you've taken a whack at me for my putting so much stock in Black:

First, it's because I think he's correct and puts it well and clearly. I am not an ignorant boob blindly pointing at a random partisan website. I'm a lawyer with an opinion on the subject pointing to the seminal work on the subject by a universally recognized expert, as well as numerous other cites, to support my opinion.

Second, even supposing I knew nothing about this subject, I know what goes into a work like Black's because I was both an executive editor on a law review and assisted a couple of professors in editing their works and making them fit for publication. They don't just read something and spout off their expert opinion. They do a deep dive into sources. They argue it with other experts. They get their thinking picked all to pieces by minions like me, and by eminent peers who are also experts.

For a work to survive forty years and still be revered by legal experts and historians as seminal means that it's pretty solid and not to be lightly dismissed.

That doesn't mean you can't disagree with it, of course. But IMO if you are going to go so far as to say the work is "piss-poor," it requires taking a comparably deep dive into the sources as the author did. In this case, I submit, it involves not only wading into the Federalist papers, but also seriously examining, e.g., how the founders would have understood terms like "high crimes and misdemeanors." including their origins and how they were used.

Also, as I've demonstrated, Black's reading and mine are in keeping with what other eminent experts in the field have concluded. (Nor have you pointed to anything but your own reading.) That's not, as you claimed earlier in the thread, a mere appeal to authority.

I don't for a minute doubt that you know a lot about the Federalist papers and are very well read.  As am I.  I do, however, guarantee that Black, who made the area his life's work, has read more deeply than either of us.  I'm not saying you have to kowtow to Black's opinion, nor that it is sacrilege to disagree with it. But to do so scornfully... "Piss-poor" is a very strong word and in my opinion requires a very strong argument to support it -- much more so than, e.g., "I read that passage differently." 

Look, I'm obviously not explaining myself well enough, because judging by the above, you're still not really getting what I'm saying. Moreover, you still seem bent out of shape because I dared to disagree with one--one--opinion and argument in Black's book.

As to the book's "seminality," lol. As I noted, I was aware of it, but it wasn't on any required reading lists when I was in grad school. And you obviously just became aware of it, yourself. And again, it's not a legal treatise; it's specifically written for everyman, to explain something that was happening when it was written. This isn't to say the book is bad, is no good, or the like. It's just that you're overselling it as a means of defense, and that is the very definition of an appeal to authority.

I'm just glad you were content to leave it there...


But I'll say a word on this:



Impeachment by Congress is a Big Deal. As I think you actually noted, it has occurred only 19 times in U.S. history. A number were very much politically motivated, unfortunately (including Johnson, as I noted, Samuel Chase, and of course Bill Clinton). Of particular interest to me--and I think to this discussion--is the impeachment of John Pickering, who as you can see at the Wiki leak was impeached--and convicted--for "drunkenness and unlawful rulings." And there's some truth here; it's a complicated tale, but one might reasonably see much of his conduct as undignified, as making him unfit for office. But his impeachment reflected a campaign by the Jeffersonians (and Jefferson, himself) to oust as many Federalist judges as possible, by whatever means possible. And many of them--the Jeffersonians--were quite frank about it all.

You'll have to forgive me on some of this, because if all of this stuff is online, I'm not exactly sure where it is; I'm going largely by memory. But I did find an article from the UNC law review that is saying the same thing (page 95 of the review):



And as I remember the arguments here--that extended into the Chase impeachment--there was a great deal of back and forth over the issue of whether or not there was some sort of crime to hang on Pickering. There wasn't--not even a "high crime or high misdemeanor" and the Senate's decision reflected this, even though it voted to remove Pickering.

But with Chase, the shit hit the fan. The Jeffersonians tried the same tactic--and again admitted publicly that their motivation was purely political--and failed before the Senate (Chase was impeached, not convicted). The article I just found actually covers Chase as well, so you can continue reading there, if you so desire. I should also note that there would have likely been far more impeachments under the Jeffersonians, if they hadn't found an easier way to dump a bunch of the new Federalist judges: repealing the Judiciary Act of 1801 (I'm sure you know that story, so there's no point in going in to it).

My point in all of this: this was a dark period in many ways for the republic, because Jefferson--despite all the love he gets--behaved really, really badly while in office, imo. Seriously, he and his cronies in Congress were so over-the-top in some of their antics that one could, I think, fairly wonder if maybe Jefferson should have been impeached. He wasn't, and I'm really not suggesting that he should have been. And that's because the bar is supposed to be really high. Jefferson should have known this, yet under his watch, under his direction, impeachment turned into exactly what it was not supposed to be.

Heh. Reason magazine is ready to impeach Trump right now.

Americans Should Impeach Presidents More Often. We don't do it nearly enough.



I can't speak to this author's reputation as a scholar, as I can with Black, and Black et al's less extreme take seems right to me. Still, I enjoyed the read. And I'm betting Don, at least, will enjoy it, too!

(And even though I think the author is taking the "hell, we should impeach all the time" line too far, I frankly think he makes some valid points about our current president. I wonder very much what Hamilton, et al. would make of Mr. Trump.)

A bit of the article's discussion on the impeachment clause (more at the link):