Tuesday, July 10, 2018

Oxygen is flammable


Alan Dershowitz thinks the Supreme Court should decide what a "high crime and misdemeanor" is for impeachment purposes.  His argument is absolutely laughable:*

“The decision by the framers to have the chief justice preside over the trial of a president may suggest that the decision was not intended to be entirely political. Indeed, it would be wrong for the chief justice to participate, much less preside over, an entirely political process. Judges are required to stay out of politics,” Dershowitz writes.
The impeachment trial of Bill Clinton, over which then Chief Justice William Rehnquist presided, was not a trial conducted according to any rules of procedure formulated by any court, and was not subject to Federal Rules of Evidence (the Senate may have agreed to follow such rules, but the Court could not have negated a conviction on the grounds the Senate chose not to.  This is part of a well-established doctrine that the House and Senate conduct their Constitutionally established business according to rules of their making, and the courts do not interfere in that process or the application of those rules.).  The charge of perjury was laughably unsound as a legal matter, and in any court of law probably would have resulted in a directed verdict for the defendant on the grounds of lack of evidence or materiality of the misrepresentation (how was a man denying a sexual encounter with a woman not his wife material to any investigation?).  It was an entirely political proceeding whose conclusion was a surprise to no one.

His argument is sheer moonshine, in other words (or the end of the constitutional republic, one or the other).  But would violation of one's oath of office constitute an impeachable offense?  The oath is to preserve, protect, and defend the Constitution of the United States, and yet Trump has pardoned people with no observable sense of the validity of the Constitution.  He vilifies the federal government as a "deep state", castigates law enforcement agencies as "corrupt" and their investigations are "rigged witch hunts."

On its face, that's a violation of his oath of office.  If Trump is not going to faithfully carry out the duties of his office, why is he allowed to stay there?

And on the issue of the pardons, where this all started, the sage words of Mr. Charles Pierce:

In related news, the Hammonds walk free while a few thousand children are still in federal custody for the crime of stepping over a line on a map. That is unspeakable.

Let the people say:  "Amen!"

*More reasonably the Chief Justice is assigned to oversee the impeachment trial in the Senate because the Chief Justice is the only position, besides President, created for an individual in the Constitution, and the Chief Justice presiding makes the trial an act of the full Constitutional government, not a judicial trial subject to the rules of evidence and procedure and appeals.  The office of President is not a Constitutional right to any person, although removal can only come through the electoral process or impeachment.  But impeachment does not need to follow all the requirements of due process and equal protection because if arguably it doesn't, what's the remedy?  To be restored to office, despite the clear Constitutional intention that conviction in an impeachment trial shall lead to removal from office, and no other outcome (criminal proceedings are allowed separately, but cannot be a part of the impeachment conviction)?  There is no provision in the Constitution for that outcome, and every reason to argue it is not provided for.

And there's actually legal precedent for this argument, and against Dershowitz':

In the Judge Nixon case, the Court held that a claim to judicial review of an issue arising in an impeachment trial in the Senate presents a nonjusticiable “political question.”  Specifically, the Court rejected a claim that the Senate had departed from the meaning of the word “try” in the impeachment clause by relying on a special committee to take evidence, including testimony. But the Court’s “political question” analysis has broader application, and appears to place the whole impeachment process off limits to judicial review.

Please note there is no distinction between a Presidential impeachment and the impeachment of a federal district judge.  And the argument Nixon (the judge, not the POTUS) raised was whether evidence taken by a special committee, rather than the full Senate, was sufficient to "try" the case in the Senate.

Dershowitz is trying to sell a book to the ignorant, nothing more.
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1 comment:

  1. rick allen6:31 AM

    The idea that the only way to stop a President from doing whatever he wants is impeaching him is disturbing in the extreme. He can walk into your home whenever he wants, assault women, have hired goons beat up opponents, so long as Congress looks the other way? Is that how the Constitution really conceives of the authority of the republic's chief magistrate? And so now our "best and brightest" lawyers are arguing that even Congressional power is limited?

    Also this notion of a right to "self-pardon." To issue a "blanket pardon." What has that to do with the ordinary privilege to occasionally show mercy to a convicted felon? But some are talking about it as some sort of right to exempt the President's favorites from compliance with the law, a power which, taken to its logical end, results in a "license to kill."

    I fear sometimes that Nationalism is actually our most heart-felt religion, and that we really want a tyrant (because we imagine that he will always confine his depredations to others than me and my loved ones.)

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