On impeachment, Part Two, some presumptions

In this post on impeachment, I want to state some presumptions that I think should apply in impeachment proceedings, including the latest impeachment of President Trump.

First, in my view, there should be a strong presumption against impeaching a president. The decision of who should be president is for the American people to make. The Constitution permits Congress to override that decision, but Congress should be very hesitant to use that power — and Congress always has been until pretty recently.

Although the Constitution uses the language of criminal law — “crimes” and “misdemeanors” — the criminal law standard of proof beyond a reasonable doubt should not apply, in my opinion. However, the evidence of the “high crimes and misdemeanors” should at least be clear and convincing. If the president is to be impeached because of things he said, as is the case in the second impeachment of Trump, ambiguities in his statements should be resolved in his favor, rather than in favor of impeaching him.

Source: On impeachment, Part Two, some presumptions

The Left destroys everything it touches. Impeachment is no longer impeachment.

Why Trump Shouldn’t be Impeached

As best I can tell, while Trump is morally responsible for the recent riot he is not legally responsible, since everything he did that contributed to it was something he had a legal right to do. But requirements for impeachment, other than a majority vote in the House to impeach and two-thirds in the Senate to convict, are unclear, so that is not, in my view, the fundamental issue.

Source: Why Trump Shouldn’t be Impeached


TRUMP’S SPEECH WAS NOT INCITEMENT TO IMMINENT LAWLESS ACTION. Not if words and precedent have any meaning. You don’t need to be a lawyer to figure this out – read it for yourself. The entire media and political apparatus (apparently including the interim dean of Cornell Law School) is determined to gaslight you into believing it was. But you are not the crazy one.

And, as a lawyer, I really hate to say this, but it’s now wildly apparent you can’t trust our legal system on anything even remotely political either. Don’t expect sanity from that quarter.


Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office

At best, supporters of post-departure Senate impeachment conviction could say there is an argument for it, but it’s complicated. Opponents merely need to point to the words of the Constitution. The post first appeared on Le·gal In·sur·rec·tion .

Source: Impeachment 2.0 – No, the Senate cannot convict Trump after he leaves office

If they can, does that mean Obama can be impeached? Maybe get Nixon while we’re at it. The notion of moot-ness seems to be moot.



Alan Dershowitz: Democrats Cannot Impeach Trump, and You Can’t Impeach Him After Leaving Office. “Congress has no power to impeach or try a private citizen, whether it be a private citizen named Donald Trump or named Barack Obama or anyone else.”

I should also note that they can’t disqualify him from running again. The penalty for impeachment only includes disqualification from offices of “trust or profit,” and as Josh Blackman and Seth Barrett Tillman demonstrated some time ago, those offices are appointed, not elected offices.


ANDREW MCCARTHY: If the House Won’t Vote, Impeachment Inquiry Is Just a Democratic Stunt. Only th…

ANDREW MCCARTHY: If the House Won’t Vote, Impeachment Inquiry Is Just a Democratic Stunt . Only the House can impeach the president. If there is to be an inquiry about invoking this most solemn and consequential of the House’s powers, the House must vote to conduct it.

Source: ANDREW MCCARTHY: If the House Won’t Vote, Impeachment Inquiry Is Just a Democratic Stunt. Only th…

Lewandowsky and the Non-Impeachment Hearing

Trump and his team, faced with a special counsel investigation, made a radically different decision. Beyond refusing to testify to special counsel Mueller — which Mueller never demanded he do — Trump cooperated fully with the investigation. Trump, who could have followed a Nixonian course of claiming executive privilege over all sorts of material, instead opened up the White House to Mueller’s investigators. Trump directed his people to testify and turn over thousands of documents to Mueller.
Don McGahn, the White House counsel, famously testified for 30 hours before Mueller’s prosecutors. All other key figures testified as well. That included Lewandowski, who said Tuesday that he spent hours with the Mueller team.
The fact is, House Democrats know what they know about the Trump-Russia matter, and in particular about alleged obstruction of justice in the White House, because Lewandowski and others in the Trump circle cooperated so fully with the Mueller investigation. They did so at the specific direction of the president.
And now, Democrats want to press a case of obstruction of justice against Trump.
What happened Tuesday was the second part of the Trump strategy. The first part was to cooperate with law enforcement. The second part was to not cooperate with congressional impeachment efforts.
Trump has refused to allow White House aides and former aides to testify before the impeachment panel; at the direction of the White House, two former aides, Rick Dearborn and Rob Porter, refused to appear alongside Lewandowski Tuesday. McGahn, also at the direction of the White House, has refused to testify before the committee. The House has gone to court to compel McGahn’s testimony, but a favorable decision is not guaranteed and in any event will take a long time.
Lewandowski, who never worked in the White House, did appear and made clear he would address the specific contents of the Mueller report. Indeed, when he was asked to confirm this or that passage in the report, he did. In that sense, his testimony was like that of Mueller himself, who sought to stay within the boundaries of the report when he testified before Congress.
The Trump-Russia affair is the anti-Watergate in the sense that the president and his team cooperated extensively with the special counsel, which will make the Judiciary Committee’s task of pressing an obstruction of justice case against them all the more difficult.
But what about Nadler’s specific point, about Article 3 of the Nixon impeachment? (For the curious, Article 2 accused Nixon of abusing federal powers to go after his enemies.) Article 3 charged that Nixon “failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives.”
Of course, House leaders, if they can muster 218 votes, can impeach the president for virtually anything they choose. But practically, they need a court to rule that the needs of their impeachment inquiry outweigh any White House claims of privilege. Again, Democrats are looking back to the days of Watergate, when U.S. v. Nixon said the needs of a criminal trial outweighed the president’s claim of privilege. But of course, with Mueller, Trump has already cooperated with the criminal investigation.
The bottom line is that Trump has flummoxed Watergate-fixated Democrats with a simple strategy: cooperate with the special counsel. In not cooperating with the Judiciary Committee leadership, he is in effect arguing that he has already cooperated with the important investigation and does not have to cooperate with a political investigation on Capitol Hill, especially when the House leadership cannot decide whether it is a formal impeachment proceeding or not.

Washington Examiner