Wednesday, January 29, 2020

Inquiring Minds Want To Know!

Good question.
Even better question.
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The BEST People!

Except this argument shreds their other argument:  that impeachment is tantamount to a criminal proceeding because the Constitution speaks of a "conviction."  They used that reasoning to argue nothing less than "beyond a reasonable doubt" can be used by the Senate to determine whether or not the evidence supports removal from office.

Of course, there hasn't been any evidence presented, only a record of hearings in the House.  No cross-examination, no direct testimony (which obviates the cries of "hearsay!" that ring through the halls of the Senate from time to time.  Can't complain about hearsay when you keep introducing statements in arguments about what Trump said or tweeted or what Ukraine knew when. Can't have hearsay without testimony in the first place.  What you sure can't do is point out how much impeachment is like a criminal trial, and then point out how much it isn't like a criminal trial at all.
(Well, except when it suits him.)

Because which point were you trying to make, Counselor?
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Yeah, As I Was Saying...

It's the best catch there is.
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It's Big! And It's Beautiful! And....

....it's falling down!

Maybe Mexico is paying for it, after all?
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None Dare Call It Obstruction


Prosperum ac felix scelus
Virtus vocatur
(Crime, when it succeeds, is called virtue)--Seneca

The President's argument is that obstruction not only works, but should work.

Counsel for the President argued that the courts require "incrementalism" in conflicts between the Legislative and Executive branches.  This is correct, but that's the court's way of staying out of such conflicts as much as possible; it is not a rule for determining who wins by who yielded first, or who didn't yield at all.  None of the pending cases involving Congressional subpoenas and Administrative resistance to them has turned on the question of whether or not either party chose a less confrontational approach ("incrementalism") before going to court.  To the extent the courts require both parties to seek to resolve differences without a court order, that's the same approach any civil court takes in any civil dispute.  It's never a requirement you go to court to enforce a contract, for example.  You do that as a last resort, and only when both parties have exhausted all efforts to resolve the matter without court involvement.  The President, however, declared all Congressional investigations in this matter improper and illegal and refused all cooperation.  And now, having killed his parents, declares he is an orphan and therefore seeks the protection of the law against a charge that he is a murderer.

In short, the President's refusal to comply with any but an unappealable court order, i.e., a Supreme Court opinion directly on the facts of a particular request for information or individual witness testimony, is justified as a necessary concomitant of the separation of powers, and cannot be challenged except in court, and cannot be considered invalid until specifically invalidated by the Supreme Court.  And that opinion won't apply to the refusal to allow another individual to testify, without another decision by the Supreme Court.  In other words, obstruction works, because until the courts tell the Administration what to do, the Congress can't.  Ironically, the argument the Congress can't do it is the argument Congress can't be superior to the Presidency.  Except, under this argument, the Courts can; but the President's lawyers are keenly aware the courts regularly decline to be put in that position, which is the origin of the doctrine of incrementalism which they know declare is the shield that protects them from any repercussions for refusal to comply with Congressional oversight in any form, until the Courts declare themselves superior to the judgement of the President, and superior to the power of the President.

And until the court rules on a specific set of facts involving specific individuals and documents, the President has no obligation to comply with Congressional subpoenas.  Case in point from the proceedings this afternoon:

U.S. v. Nixon has no application here, because Trump is not Nixon.  And if it does, that case doesn't say what it says.

It's some catch, that Catch-22.

So obstruction works, because the Senate is going to grasp at that straw to refuse to even consider evidence in this case.  The vote to dismiss on Friday is a foregone conclusion, as is the outcome of that vote.  The GOP Senators will not vote for witnesses, because that means the case has to continue.  If there are to be no witnesses, all that's left is to dispose of the case and return to regular business next Monday.  And the vote, based on the questions asked by Senators like Collins and Mukowski and Alexander, will be that, since the House didn't go to court as the President says they should have, the President is justified in obstructing the House and the House is not justified in charging the President with obstruction and making that the basis of an impeachment.  And without that evidence, they have no basis for the other article of impeachment, that Trump illegally tried to extort (bribe) the government of Ukraine.  And since the House didn't do that investigation before presenting the articles of impeachment, there's nothing the Senate can do.  What are they gonna do, listen to 18 witnesses?
No; they don't even have to listen to one.  Case dismissed!

Some catch, indeed.
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Turning the Radio Off

I'm enjoying this argument that the Senate "trial" is a "trial" in any legal sense of the word.  Lawyers for the President just argued to the Senate that impeachment is akin to a criminal trial because the language of the Constitution speaks in terms consonant with criminal law.  However, there are no rules of evidence nor rules of procedure in play here, aside from the rules of the Senate which determine who speaks, what is said, and how long they have.

There's a lot of loose complaining, for example, about hearsay.  Like this:


Ted Cruz is a lawyer, and he knows he's using the word "hearsay" in a non-legal way.  He knows the myriad exceptions to the hearsay rule, and he knows nothing the Senate has heard in this proceeding (I won't call it a "trial," that's misleading) is presented by first-hand witnesses nor is it anything but hearsay.  The President's lawyers, in their answers this afternoon, refer to things President Zelensky "knew," or what President Trump said or meant, even though neither president was a sworn witness giving testimony under oath in the House impeachment investigation.  Those facts, quite simply, are not in evidence, not even in the record from the House accepted by the Senate.

The argument of the President's counsel is that there is not enough alleged here to impeach the President.  The second leg of that argument is that there is not enough evidence.  The third leg is that failure to present enough evidence cannot be cured by a Senate trial, because this isn't really a trial.  But there isn't any evidence being presented here; not in the legal sense.  There are allegations being made, and testimony of witnesses in the House being characterized, but no evidence is put before the Senators as triers of fact, as persons who hear the evidence for themselves and decide whether or not the arguments of counsel and the evidence presented sways them to decide one issue or another put before them.

In a criminal, or even a civil, trial, the jury as triers of fact would be asked specific questions aimed at satisfying the applicable law for the set of facts set before them in the trial.  That is, if the jury finds certain facts to be true and established, then the law establishes the crime charged is, or is not, proven.  In a bench trial there are no such questions, but the judge sits as finder of fact (as the jury) and finder of law (what law applies to the facts, and how).  The Senatorial procedure of an impeachment trial is roughly equivalent to a criminal bench trial.  However, this procedure is not bound by any rules of evidence or procedure that bind a trial court.  So it isn't a trial in any sense of the word.  It certainly isn't a trial without receiving and evaluating evidence.

The Senate, at this point, is not being asked to weigh and adjudge evidence.  They are being asked to respond to arguments from House managers and counsel for the President.  This is not a trial in any sense of the word. (And again they preach it round and square.  Counsel for the President says you don't go to trial without hearing from witnesses and conducting depositions.  Depositions are a discovery practice in civil law.  Criminal lawyers often go to trial without having had a chance to examine witnesses under oath beforehand.  And if the Senate calls witnesses, the case will "drag on for months."  Apparently the House is supposed to do all the gathering of evidence and cross-examination of witnesses and determination of who's story is the right story; the House, in other words is meant to be both investigator and trier of fact, and then present it to the Senate for an imprimatur and a verdict.  It's a logical and legal absurdity; but so long as it works politically.....)

(And now I'm listening to Alan Dershowitz declare that a President cannot be impeached because of his "motive" if the POTUS thinks his heart is pure.  I am not making this up.  Adam Schiff, a former criminal prosecutor, is shredding it just now.  But Dershowitz' argument is that, unless the President benefits personally and financially, that he benefits politically is irrelevant.  The argument is a President can do anything that means he's more likely to be re-elected, because it doesn't necessarily mean he'll make any money on it.  Unless it puts money in your pocket, in other words, it's not corrupt.  Wow, is that a bankrupt legal as well as Constitutional argument.
Yeah, that's how it's going.)

Eh, I have work to do.
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"Old Age That is Tied To Me As To a Dog's Tail"

Alan Dershowitz really needs to stop:

"[Elizabeth] Warren doesn't understand the law," he tweeted Tuesday. "My former colleague, Senator Warren, claims she could not follow my carefully laid out presentation that everybody else seemed to understand. This says more about Warren than it does about me."

"Everybody else seemed to understand"?  Dershowitz has repeatedly said one scholar who agrees with some of the tenets of his argument is an absolute refutation that "no one" agrees with him (when "no one" clearly refers to the great weight of authorities, not to the exception that proves the rule).  So how do we interpret "everyone else" under the Dershowitz rubric?  Turns out Jeffrey Toobin answered that question, but it comes in another conversation that we'll get to in a minute.

Dershowitz alleged that Warren, his former colleague at Harvard Law School, "willfully mischaracterized what I said," adding that "it's the responsibility of presidential candidates to have a better understanding of the law."
And how about Presidents?  Trump has repeatedly taken credit for signing a bill into law which Obama signed in 2014.  Trump has repeatedly said Art. II of the Constitution gives him unlimited powers.  Trump's ignorance of the law of the land is almost legendary.  Why does Dershowitz defend Trump, but denigrate Warren, on this issue?  More of his super-clever reasoning that "everybody else" understands?

Following an argument, and following the purported legal reasoning in an argument, are two different things.  There are two standards of measure involved.  An argument can be sound, but legally baseless.  A legal argument can be sound, but unpersuasive and poorly presented.  A well-presented argument can be legal nonsense.

To be fair, I didn't hear Dershowitz' argument to the Senate, and I haven't read a transcript.  But it was so bad Josh Marshall trashed it succinctly.  And was it really any better than this exchange?

“I mean, Alan, you are equating maladministration with the abuse of power,” said Toobin. “You are the only scholar who does that.”

“Again, you’re wrong,” said Dershowitz. “Let me give you a cite. Today’s New York Times,” Professor Nicholas Bowie says that almost exactly. He says that maladministration, abuse of office, abuse of power — read it in The New York Times.”

Stop right there, because that's an appeal to authority, and nothing more.  Dershowitz again hides behind another law professor who seems to agree with Dershowitz' reasoning (although he doesn't, as we shall see).  Dershowitz seems to think one law professor who can be said to agree with Dershowitz' argument is a devastating riposte to Toobin's argument.  But really:  twice nothing is still nothing.  And it gets worse:

“And I’ve read that article and let me finish, Alan. Let me finish,” said Toobin. “Nicholas Bowie, in that article, says you are wrong!”

“That’s right. And that’s why it makes his argument so much stronger,” said Dershowitz. “He thinks I’m wrong and yet he agrees with me that maladministration, abuse of power and abuse of office are essentially the same. I’m not quoting him for his conclusion. You can quote him from his conclusion. I’m quoting him for the point that you just made saying no scholars think abuse of power is the same as maladministration.”

“The best you can do is quote a scholar who thinks you’re wrong?” said Toobin.

QED.  One scholar.  And that scholar thinks Dershowitz is wrong.  Yeah, powerful argument you got there, Professor.

“Jeff, why is abuse of power an impeachable offense?” asked Cooper.

“Because impeachment is about what the president can do wrong,” said Toobin. “It is about abuse of the office of president. This is the difference between the Clinton impeachment and this impeachment. Anybody can lie about sex in the grand jury. Only a president can withhold aid from a congressionally authorized taxpayer money in return for dirt for his political enemies. That abuse of presidential power is exactly what Alexander Hamilton was talking about in Federalist No. 65. It is why there is an enormous consensus that abuse of power is an impeachable offense that only you and the president’s lawyers think is not an impeachable offense.”

“Let me make a categorical statement,” said Dershowitz. “If Hillary Clinton were under impeachment for abuse of power, virtually all the scholars that say abuse of power is an impeachable offense would be on the other side. They do not pass the shoe on the other foot test.”

“How do you know?” said Toobin incredulously. “You know every law professor?”

Toobin nicely turns Dershowitz' idiotic argument against him.  But Dershowitz wasn't done yet.

“Do you think there’s abuse of power?” Cooper asked Dershowitz directly.

“I don’t think we get to that issue, whether he abused his power,” said Dershowitz. “Did George Washington abuse his power?”
A question worthy of Donald Trump.  Honestly, I think we need to set an upper age limit on Presidents, beyond which the candidate cannot seek office.  Too damned many really old people in this country now, and too damned many of them clearly incapacitated and incapable of providing leadership, or counsel to leadership.  I'm quite serious about this.  I don't know that Trump's problem is age alone, but he and Dershowitz are both older than me, and I'm thinking more and more 65 is a pretty good retirement age.  Trump definitely has other problems, but old age is one of them not to be overlooked.
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Pettiness Knows No Statute of Limitations

Yeah, there is a history with Pompeo and NPR:

In addition, we found that congressional voices opposed to the deal were more than fairly represented, and in fact, a large chunk of the voices opposed to the deal came from Congress. That is important because Republican Rep. Mike Pompeo of Kansas, a member of the House Intelligence Committee, told The Associated Press that he had tried to get NPR to interview him and was turned down, and critics of NPR have cited that as evidence that NPR was hostile to voices opposed to the deal, thanks to the Ploughshares grant.

NPR confirms the congressman was booked for an August interview and then that interview was canceled, because there were too many other interviews scheduled. But that does not mean NPR was featuring only voices in favor of the deal. Days after the Pompeo interview was canceled, NPR interviewed Sen. Charles Schumer, a top Democrat from New York and one of the most vocal and respected Jewish members of Congress, who had just decided to oppose the deal. That was by far the more important story, since the vast majority of Democrats supported the president in voting for the deal.

Overall, these are the congressional voices opposed to the deal who were heard on NPR air, in either sound bites or interviews:

Sen. Charles Schumer (D-N.Y.), Rep. Steve Israel (D-N.Y.), Sen. Marco Rubio (R-Fla.), Sen. Lindsey Graham (R-S.C.), Sen. Bob Corker (R-Tenn.), Sen. John McCain (R-Ariz.), Sen. Tom Cotton (R-Ark.), Sen. Ron Johnson (R-Wis.), Sen. Rand Paul (R-Ky.), Sen. Bob Menendez (D-N.J.), Sen. Kelly Ayotte (R-N.H.), Sen. Mitch McConnell (R-Ky.), Rep. John Boehner (R-Ohio), Sen. Jim Risch (R-Idaho), Ben Cardin (both when he supported the deal, and after he switched sides) (D-Md.), Sen. Ted Cruz (R-Texas), Rep. Pete Sessions (R-Texas), Rep. Peter Roskam (R-Ill.), Rep. David Brat (R-Va.), Rep. Mimi Walters (R-Calif.), and Rep. Ed Royce (R-Calif.).
Sorta sounds like Pompeo didn't get his 15 minutes of fame with NPR 5 years ago, so today:  fuck them.  His statement now is equally self-serving and suspicious, and doesn't square with the State Department's refusal to let an NPR reporter on the plane for the Secretary's latest trip on behalf of the country.  NPR asked for information about the decision making process for determining an NPR reporter was not worthy, but the answer is fairly clear:  there was no process, there was only spite.

Which may sound like a dandy way to run a government when you have no idea how any bureaucracy, especially a government of, by, and for the people, should work.  But it's a recipe for disaster and chaos and failure in even the smallest locally owned business.

There's no other mention of Rep. Pompeo in that article.  The AP article it links is no longer available, but there's nothing to indicate pressure from Pompeo forced NPR to reveal the grant from Ploughshares.  One can assume the Secretary is aping the POTUS and inflating his importance (he even speaks of himself in the third person) in the matter, the better to make him the aggrieved party who is due an apology; the one wronged, rather than the one doing wrong now.  That's consistent with his statement that Kelly is responsible for this contretemps, that he is an innocent lamb and she the wolf who hoped to slaughter him.

Which is also of a piece with hoping Kelly "finds peace."  The clear implication is that she is, in the older use of the word (when "hysterectomy" meant removing the source of "hysteria"), an "hysterical woman."  Hoping she "finds peace" is a really smarmy way for some evangelical Christians to place themselves in the judgment seat while still being "compassionate" for those benighted souls who don't know Jesus the way they smugly claim to.  It sets you above and apart, and more importantly sets your target below and among the damned; or at least those who need to see the light, as you do.

These people really do think the sun shines out of their ass and the rest of us should constantly praise them for that.
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Another Late Night Roumdup


The corruption runs deep.



We live in hope.
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Tuesday, January 28, 2020

Why I'm Not Too Excited The Senate Might Call Witnesses

As Charlie Pierce put it: "the Republicans Have The Votes, so nothing else matters."

Truer words, and all that.
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True....

But then....

“The House could come back in February, immediately when this trial doesn’t happen in the Senate, they could come back and impeach and subpoena [John] Bolton and many others,” he explained. “That’s one bad alternative.”

“An even worse alternative is that New York State prosecutors could indict [Rudy] Giuliani tomorrow,” he continued, listing multiple felonies that could be charged.

“Would they prefer to have a Senate trial where they control all the rules of or have it be controlled by New York Democrats or House Democrats in the summer or the fall of 2020?” he asked.
And if none of that happens, there's still Bolton's book, and all the questions about why the Senate didn't interrogate him.  The "defense" is purely one of process:  Bolton's manuscript is not "evidence" (never mind the Federal Rules of Evidence don't apply in the U.S. Senate, even in an impeachment trial), and so couldn't be considered.  But that's a very "technical" argument (and really not valid as a matter of law).  That's a process argument.  And if you're arguing the process to the jury, you've lost.

So it's save yourself in the primaries, and then face people who ask why you didn't let the trial be a real trial, instead of a kangaroo court.  And it's face all the campaign ads that are coming your way, especially when even Kevin McCarthy is telling his crowd the Dems are beating the GOP silly in fundraising.  And it's explain to people why it was better for the country to leave Donald Trump alone, a man who's approval rating has never been higher than 42% in 3 years, a man who bragged about a poll showing him only 5 points ahead of Michael Bloomberg in Florida (!).

That devil you don't know is still gonna get his due.
 
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Up To the Minute Uncertainty

How fluid?
Just to be really clear:

Voters are far ahead of Republican senators. In the latest Quinnipiac poll, registered voters want witnesses by a margin of 75 to 20 percent. That includes “49 percent of Republicans, 95 percent of Democrats, and 75 percent of independents.” In a party known for its cultish obedience to the White House line, Trump cannot even peddle his “no witnesses” snake oil.

Trump has also lost a majority of voters on the merits. “More than half of voters, 53-40 percent, say President Trump is not telling the truth about his actions involving Ukraine. ... More than half of voters, 54 percent, believe President Trump abused his power regarding his actions involving Ukraine, while 42 percent say he did not. A similar 52 percent think that President Trump obstructed Congress regarding its investigation of his actions involving Ukraine, while 42 percent think he did not.” They don’t buy that there was a legitimate reason to suspend aid (52 percent "think the Trump administration’s withholding of U.S. aid to Ukraine was not justified, while 34 percent say it was justified”).

Democrats are holding firm, giving the back of the hand to any proposal to “trade” witnesses. As Senate Minority Leader Charles E. Schumer (D-N.Y.) said, if the Republicans have 51 votes, they can subpoena anyone they want (although Democrats would undoubtedly object on relevance and appeal to the chief justice).
But there's still the devil you know, v. the devil you don't know.  Senators could face challenges in primaries, which is (apparently) what they fear most.  Yes, Bolton's book is going to come out, yes there will be ads in September and October, but that's the devil they don't know:  yet.  The one they do know, waits in the primaries.  Which, if you haven't noticed, start next week. Yeah, it's not just the Democrats who are caucusing.
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I'm Old Enough To Remember

When this kind of argument was dismissed as a "technicality," something that surely shouldn't prevent justice from being done.

But now justice is in the eye of the beholder, eh?

Same as it ever was.
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I think they meant "Because of Trump's Support"

ETTD
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SECRET MEETINGS!

PROBABLY IN BASEMENTS WHERE MEMBERS ARE EXCLUDED!!!!!!!!!!!!!!!!!!!
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Ivanka Trump Will Call Me An Elitist



But it's better than being dumber than a box of rocks.
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Monday, January 27, 2020

Cleaning Up The Record

A recommended thread, by the way.
The best rebuttal possible.
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Redux redux (redux)

I do love these stories where the war is lost before the first shot can be fired. I'm old enough to remember when there weren't primaries to pick Presidential candidates. I don't remember the winning argument for primaries being:  "Let Iowa caucus and then we'll all just accept those results or we'll never win!" I'm pretty sure the idea was to let everyone vote so the consensus candidate would have the best chance in general.

Hillary Clinton got 48% of the vote, to Trump's 46%. The problem in 2020 will be the problem of 2016: turnout.

Ted Cruz won Iowa in 2016, btw.
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Entirely, and Beyond Argument

What Ted Cruz is spouting is Russian propaganda.

Vladimir Putin is laughing himself silly.
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Because, honestly....

Impeachment is unconstitutional.

I heard Robert Ray emphasize the "upon conviction" of a crime as the standard for impeachment.  He didn't say it, but lawyers know "conviction" is a term of art, not just that a group of Senators is convinced the crime occurred (or any group, for that matter.  How many Americans are convinced O.J. did it?)  He almost but didn't quite say the President must first be convicted of a crime in order to be impeached and removed from office.  Which means, of course, a President must face the judiciary before he/she faces the Senate.

Which is no less absurd than Dershowitz' argument.  I did like Starr's mention this morning that academics (and he gave a verbal nod to Dershowitz) agree with his interpretation of the impeachment clause of Art. II (which is also Dershowitz' interpretation), and then before he was through he said the "law professors" disagree with him, but who cares what they think?  Only the BEST people!
This reasoning is how Starr counted Nixon as the "fourth impeachment" in American history. Trump's lawyers argue process as it serves their interests (Robert Ray argued process exclusively after dinner.  Must have made it easier for the Senators to snooze.  Honestly, you never argue process.  You use it, maybe abuse it, but you never argue it to the jury.  The judge, maybe; but never even in FRONT of the jury!)  For Nixon, a House committee voted on articles of impeachment, and passed them; but the full House never did. Ergo, Nixon was never impeached (he resigned first).  Accusing someone of abuse of power is not the same thing as bringing articles of impeachment to the floor of the House for a vote.  But okay:  words are actions.  Except when they aren't.  After all, accusing the President of abuse of power before a TV camera is hardly the same thing as shouting "FIRE" in a crowded theater.
What's most interesting is that I'm getting all of this from Maggie Haberman, who scrupulously avoids the more inflammatory tweets in favor of news and simple reporting, like this.
Or this.
Because, you know, this is really the point of the President's "defense." Oh, wait: it was the point of his demand on President Zelensky, too! Wotta coincidence!
Yeah, I loved that one. It sounded like a prosecutor's idea of what a defense lawyer would argue in a criminal case. Completely absurd and would earn a rebuke from the judge as well as attention to the jury charge to squeeze such nonsense out of the verdict (technical detail lawyers would understand, but trust me, the judge would screw you over for making that kind of argument in court). Speaking of which:
Well, not for rich white guys, certainly; you know, the kind Dershowitz works for (well, rich guys; OJ has to fit in there, huh?) And while we're pointing out that even the news is not swallowing this "defense" without a pound of salt:
Yeah, the sooner this is over, the sooner everyone forgets about it, right?
Before we go, one quick swipe at Dershowitz' argument specifically (all it really deserves)
And a reminder Dersh really did go there:
Good night, and thank you for playing. We have some lovely parting gifts for you...
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