Articles of Impeachment

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14 mins read

The best way to understand the reasoning behind the Articles of Impeachment [draft] is in the context of last week’s Judiciary Committee Report on Constitutional Grounds for Presidential Impeachment.

What!? You didn’t read the report!?

No worries. Here’s your Over the Cliff Notes*

*Name suggested by a clever Twitter follower.

If you compare the expert testimony as given in the Report on the Constitutional Grounds for Presidential Impeachment with the Articles released today, you can see what the House Dems are trying to do. Shall we dissect it together? 

Here we go.

Article 1 is Abuse of Power. 

The experts as quoted in the report said this:

Impeachment Article One describes specifically how Trump used the powers and privileges of his office for self-enrichment, and to subvert the national interests in favor of his own personal interests.

To use the B word* or not to use the B word, that was evidently the question.

*bribery

The experts said this:

Advantage of using the B word: The Constitution specifically names bribery as an impeachable offense.

The experts explained that “bribery” as we understand it today in the federal criminal code isn’t the same as “bribery” as the drafters understood.

In other words “bribery” in the Constitution isn’t the same as bribery in the federal criminal code.

Dr.Sleeps asked:

They’re not calling it bribery because calling it that is problematic, and this isn’t a criminal trial.

They said “solicit and pressure.” In colloquial terms, that would be bribery and extortion, but there are solid reasons for avoiding the criminal code.

Renee asked:

Pointing to the federal criminal code would be to place statutory law above the constitution, and would imply that what is impeachable is derived from federal statutes. The constitution is the highest law in the land.

Article II is Obstruction of Congress, not obstruction of justice.

The point in Article II is that Trump’s obstruction goes beyond obstruction of justice (“unprecedented”) and strikes at the Constitution itself.

Impeachment is [partly] about the power balance between Congress and the Executive Branch.

If impeachment is too easy, the president becomes beholden to Congress. If impeachment is too difficult, there are no real checks on presidential power.

Article II makes the point that Trump has seized for himself (the executive branch) the power to decide what is impeachable and the power to even stop impeachment altogether, which torpedoes all meaningful checks and balances.

Read this with balance of power in mind:

The House Democrats are going for the big picture. This isn’t petty fraud or simple theft. Trump’s behavior undermines our form of government and Constitution.

I also took questions on Twitter:

The investigations will absolutely continue. The House is making clear that they’re not playing politics with timing. Expert witnesses said “If this isn’t impeachable, nothing is,” and Trump presents an on-going threat. Not impeaching right now undercuts those arguments.

The cases continue.

The attempt to get financials continue.

Suppose the natural result of Trump’s stalling and stonewalling is that the 2020 election has a summer or October surprise that blows the GOP reelections to smithereens, allows Democrats to say, “The GOP knew this all along and tried to hide it from you.

Manager selected by the House present the case at the Senate trial.

What stops them from saying, “We call McGahn” or “we call Mazars and order them to bring documents.” They’ll refuse, but now they’re defying a trial in progress on live TV with cameras rolling (will cameras be rolling?).

Some things are complicated. Some things are simple. People understand that innocent people don’t try to hide evidence. Also there you have it: Live proof of Contempt of Congress.

Who knows? Maybe the GOP-led Senate will feel angry to be defied that way.

Also, any evidence obtained between now and the trial can certainly be introduced.

This may not be possible as a matter of law. In the Clinton impeachment, voting on the articles was treated like voting on a bill: Once the vote happened, the matter automatically transfers to the Senate.

The experts testified about what makes an impeachable offense.

Private crimes (like tax fraud) are embarrassing and obviously point to dishonesty, but that’s not what the framers had in mind as impeachable.

The framers wanted to impeach behavior that threatened the Constitutional order and showed abuse of office for personal gain. Exactly like what Trump and his minions did in Ukraine, and with his obstruction and stonewalling.

On the other hand, if the documents show that Trump is enthrall to Russian oligarchs, that also undermines the Constitutional order. If something like that comes out a few months before an election, you won’t have to worry about Trump getting elected. If it comes out along with proof that the GOP leadership knew and knowingly shielded Trump, you’ll watch a tsunami of anger hit the GOP from the general public. (And of course they knew. Yale Prof Timothy Snyder’s book was on the bestseller list, and others have outlined it all in detail, it just hasn’t sunk into the public consciousness.)

  • We don’t know for sure (although probably) 
  • The House must do its duty and the facts warrant impeachment
  • The public is educated as to the tricks Trump is trying to pull. Remember the antidote to the firehose of lies is raincoats on the population.

Nah. They’re entirely separate issues. “My client also does good things,” doesn’t help with conviction (but it might with sentencing) I don’t think you have to worry about Trump shutting down the government this year and tanking his approval ratings.

#1: Pelosi will be criticized no matter what she does. Being the most powerful woman in the country has its drawbacks.

#2: They are using the Mueller case to show pattern and practice. That way they don’t have to litigate it and prove it, they just use it to show that this is the kind of thing he does as a matter of habit or practice.

This has a name in evidence law. The rules of evidence don’t apply, so we’ll just give it as common sense: He did it before. He’s doing it now. He’ll do It again.

Tip: The correct answer to any legal question is “it depends.”

Right now, the House GOP are shielding Trump. What if the Senate GOP decides not to? What if they decide they need a fair and open trial or they’ll get roasted in Nov 2020.

No. One thing made clear at the Clinton Senate trial was that the Senators are both judge and jury. At the same time, this isn’t a normal court, so the usual rules that apply to jurors and judges don’t apply. If the Framers wanted this to be a normal trial, they would have given the task to the judiciary. Instead they gave it to elected officials beholden to their constituents. 

Yes, but the pardon power, like other presidential powers, cannot be used corruptly. He can’t pardon his way out of this, don’t worry. That would be more abuse of power.

I love it! God quotes the constitution to show me I’m wrong!

Except I’m not wrong. “Except in cases of impeachment” is understood by constitutional scholars to mean that a pardon can’t undo or stop an impeachment. (I know of no serious constitutional scholar who says anything else) I’ve seen some non-lawyers misread this.

Yes, for federal crimes, but Pence can’t undo the impeachment.

I can’t see how this would help the GOP. To begin with, more evidence might be available. Moreover, if they want to shield Trump, the way to do that is to have a trial and find him not guilty, not leave an accusation hanging over him. I think the GOP Senators are caught between a rock and a hard place right now.

The way this works is that the House Managers act as prosecutors, the president’s lawyers defend the president, the Senators are judge and jury (and the chief justice presides) I can’t imagine him not mounting a defense. It’s hard to imagine the Senators (judge and jury) also taking the role of defending the president.

But we’re definitely through the looking glass already, so I don’t put anything at all past the Trump-FOX-GOP.

Personally I think a laundry list of Articles would be a bad idea. Focussing on the behavior that the expert witnesses pointed to as dangerous and what the framers intended for impeachment has advantages.

There is no legal reason why more articles of impeachment can’t be brought later.

But consider what a production it is. All those hearings! Last spring, some of the people saying “Just impeach right now” didn’t really understand the process. The impeachment process is like a federal investigation and grand jury proceedings. Trials can go quickly (a person can be convicted in a day) but the investigations and process to get to the indictment takes lots of time. This took MONTHS and they went at lightening speed.

When witnesses become available, I’m sure they will question them, yes. When documents become available, they’ll decide what to do with them. There are measures short of impeachment, like censure.

How about this: “The House votes to censure Donald J. Trump for taking unprecedented steps to hide from the American people the fact that he is financially beholden to Russian oligarchs” and then include evidence that all these years, he’s been propped up by Russian money. And Trump’s own obstruction caused this censure to happen 9 weeks before the election. In other words, the timing wasn’t because Democrats played politics. It was because Trump obstructed. 

It would make no sense for the burden of proof to be beyond a reasonable doubt (the standard for criminal trials) This is more akin to a civil proceeding. The question is whether Trump keeps his job. Criminal trials involve loss of liberty, property, and (in capital cases) loss of life. Trump wants the highest possible standard to make it harder to remove him.

This is why I’m glad they didn’t talk about bribery, because this will confuse people into thinking criminal standards apply.

Whew. That should cover it, right?

You’re all ready for the Impeachment Law portion of the Twitter Bar exam.

Originally posted on Musing about Law, Books, and Politics.
Re-posted with permission.


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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently writing an overlapping series of biographies called the Making of America. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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