Don’t give them any ideas, Dershowitz.
I don’t find the argument strong. Treason and bribery aren’t “criminal-like,” they are crimes. The law is too complex and all-entwining as it is. If they’d been patient and careful, they would have found some crime. As their own manager admitted today, however, they were worried it wouldn’t happen before the election.
Congress makes the law. If they didn’t get around to making a law against whatever it is they don’t like, that’s on them. Goodness knows they have made enough other frivolous laws, in addition to the perfectly good ones we inherited.
UPDATE: The Devil you say!
7 comments:
Congress makes the law.
Some thoughts: It's almost irrelevant, except politically, whether a crime has been committed by the President.
Congress-made law must be made within the confines of the supreme Law of the Land, our Constitution. In our present context, the President must have committed some criminal act or misdemeanor in order to be legitimately impeached and, pursuant to one outcome of a Senate impeachment trial, removed from office.
Seemingly conflictingly, the President cannot convicted of anything. The impeachment/trial procedure under our Constitution is, explicitly, not a criminal proceeding: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification.... Guilty and acquittal simply are meaningless concepts here.
This goes further to a central point of the matter that keeps getting missed by the Republicans: Progressive-Democrats and their NLMSM keep bleating about adding witnesses, evidence, etc throughout the course of the Senate's trial "like any other trial," and "what kind of a trial is it without witnesses?" They keep conflating the Senate's portion of the impeachment/trial process with an Article III court (or State court) trial. In fact, the two have nothing to do with each other. The impeachment/trial procedure requires a crime in order to remove a President from office, but to convict him of that crime, he has to be haled into an Article III court for a separate, actually criminal, trial.
Dershowitz is wrong: "criminal-like" isn't enough; there has to be actual criminality--unless the misdemeanor part can be construed as "criminal-like." But that's a reach.
(Another central point that keeps getting missed is the Progressive-Democrats' constant demand that the President provide his evidence to prove his innocence. The Republican legal team and Republicans generally, keep not disputing that unAmerican contention. Kellyanne Conway finally started approaching this, tangentially, tonight.)
Eric Hines
As inconvenient as I find it in the present circumstances, I have always believed an impeachable offense is whatever Congress says it is by the requisite margin of votes. If they vote to oust a president on flimsy grounds, they should pay a heavy penalty in Congressional elections. Flimsy grounds are whatever voters say they are.
As inconvenient as I find it in the present circumstances, I have always believed an impeachable offense is whatever Congress says it is by the requisite margin of votes.
It is that; you and Ford are correct--as a matter of politics. I was writing in starry-eyed idealism of constitutionalism. Because I'm ever the optimist.
Eric Hines
I agree with you, actually, and expect the voters to enforce that judgment in the primaries and again in November.
If impeachment is a political process, and not a criminal one, then I reject the notion that refusing to testify before Congress is "obstruction of justice". Congress is not a court, and by their own standards, it is not a legal hearing. Therefore, "obstruction of justice" is not possible.
Second, The House investigates (i.e. calls witnesses, gathers evidence, etc), the Senate tries the evidence and renders a verdict. Calling in new witnesses, presenting evidence not gathered by the House... these are not legitimate. They're an attempt to bolster a case not supported by the investigation. Tex, I know you did some lawyering, and you can likely correct me, but what would happen if the prosecution, in the middle of the trial attempted to call a new witness? Would that be allowed? Or if they attempted to present completely new evidence not already entered? Is that kosher? I'm no lawyer, but I am pretty certain the answer is no.
Dems are claiming they need to call these new witnesses because the process of investigation was "rushed". Well given they're the ones who ran the circus, it's their fault if it was rushed. So too bad. I think McConnell is being VERY generous by having the Senate use the EXACT same standards used in the Clinton impeachment. If the Dems don't like it, they can go pound sand. They don't get to have their cake and eat it too.
Nothing about this process would pass muster in a criminal prosecution, but that's not what it is. As my former partner used to say about his role in Watergate and the Clinton impeachment, a criminal trial is a chess-game, but a Congressional hearing is a knife-fight. They get to unsheathe their knives, but so do we.
I agree that the obstruction of justice charge is silly, but not because there can be no such thing as a basis for impeachment. Anything Congress finds repugnant can be the basis of an impeachment. It could, for instance, find that a crime that Congress believed had happened, but that couldn't be proved in a criminal court, was impeachable. Congress could impeach on the ground of evidence that would be inadmissible, or on the ground that the President "took the Fifth," which would be prohibited in criminal court.
That doesn't mean Congress can get away with impeachment for something preposterous or fundamentally unfair. They're unlikely to get a 2/3 vote in the Senate, in the first place, if it's too ridiculous, and even if they did, I hope the voters' revenge would be swift and terrible. The current show isn't about securing a conviction, it's about throwing mud. The Constitution allows them to throw mud. It also allows the voters to express their disgust at the ballot box.
None of this is to say I don't think the impeachment directors don't deserve to be skewered for hypocrisy when they advocate for formal criminal procedure one week and the opposite the next. They're not bound by criminal procedures any more than their opponents are, but the political process will bind them, at least to some extent, to arguments that don't baffle and enrage voters. After that, it's our job to stand up for ourselves by voting.
Jerry Nadler, last night (for the umpteenth time), made the Progressive-Democrats' case for no more witnesses, no more evidence, no need for more investigation. He accused Republicans of shirking their solemn duty, of being wholly immoral, for any decision other than to vote "Guilty."
The Progressive-Democrats' case being that sound, there's plainly no need for further debate. Call the question, and convict.
I hope the voters' revenge would be swift and terrible.
Justice, not revenge, and terrible in the sense of "stern." Nadler's behavior last night, especially, badly wants more than CJ Roberts' mild admonishment (of both sides, in an unfortunate display of moral equivalence), it demands censure.
Eric Hines
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