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Impeachable Offenses?

~ The Use & Abuse of Impeachment in the 21st Century

Impeachable Offenses?

Author Archives: crosbysamuel

Resurrecting Justice Curtis’ Argument

26 Wednesday Dec 2018

Posted by crosbysamuel in Articles, Uncategorized

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Collusion, donald trump, Frank Bowman, harvard law school, high crimes without law, Impeachment, interpretation, joshua matz, justice benjamin curtis, lawrence tribe, Mueller, nikolas bowie, voter fraud

Nikolas Bowie, Assistant Professor at Harvard Law School, wrote in an article for the Harvard Law Review Forum, entitled “High Crimes Without Law,” a dissent to the popular view that impeachable offenses need not be violations of existing law. This argument was first made by Justice Benjamin Curtis, who left his post with the Supreme Court  in the wake of the Dred Scott decision, and subsequently agreed to represent President Andrew Johnson in his impeachment proceedings. Johnson was impeached, in part, for inflammatory speeches given in protest of Congress’ anti-slavery legislation.

Curtis argued that the “high crimes and misdemeanors” warranting impeachment are defined as high crimes committed against the United States, made illegal by laws of the  United States. He supported this argument with three points: “first, a textual argument that the phrase “high Crimes and Misdemeanors” refers to something analogous to treason and bribery; second, a structural argument that impeachment proceedings are criminal trials; and third, a structural argument that Congress could not use impeachment proceedings to subvert the constitutional prohibitions against ex post facto laws and bills of attainder.” Bowie explores these arguments in detail, and then proceeds to respond to modern counter arguments, such as those professed by Professors Laurence Tribe and Joshua Matz. The primary difference between Curtis’ interpretation and that of Tribe and Matz’s more expansive definition is in the way they define impeachment, as either a criminal or civil process; Tribe and Matz argue that impeachment is a civil proceeding not requiring the constitutional protections of a criminal proceeding. Interested readers should follow the link above for a more detailed overview of Bowie and Curtis’ argument.

As a note, even if Curtis’ interpretation is correct, and impeachment only applies to crimes enshrined in law, that does not necessarily let President Trump off the hook. The voter fraud for which he has been very nearly implicated by Mueller’s investigation, may well be a criminal violation. Professor Bowman weighed this possibility in his latest post, though he would disagree with Bowie and argues that violations of existing law are not necessary for impeachment. Said post can be found here.

5bb929d6200000c70101ea90.jpegKean Collection/Getty Images

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Pulling out of Syria — Trump further Demonstrates his Incompetence

21 Friday Dec 2018

Posted by crosbysamuel in Uncategorized

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abuse of military power, Collusion, defense secretary, Foreign policy, Impeachment, iran, mattis, president, russia, syria, troops, trump, withdraw

President Trump announced yesterday that he planned to withdraw American troops from Syria, a decision that has been widely criticized by Democrats and Republicans alike, and which lead to Defense Secretary Jim Mattis’ resignation. Though Mattis’ decision to resign was based upon the whole of Trump’s foreign policy, the withdrawal from Syria is seen as the straw that broke the general’s back; Mattis repeatedly refused to publicly endorse the withdrawal after Trump’s requests. Trump’s decision is viewed as premature, because, though it is at its tail-end, the conflict with the Islamic State is on-going in Syria. It seems the only person in favor of the withdrawal is Russian President Vladimir Putin who said “Donald’s right, and I agree with him.” With the United States absent Russian and Iranian influence over Syria will increase.

I wrote a few weeks ago about how the abuse of military power could be considered an impeachable offense, based on precedent set by British impeachments (written about by Professor Bowman here, pt. VIII). The withdrawal from Syria could be considered another impeachable military blunder in two ways: 1) unfitness, based on the general lack of wisdom that the withdrawal represents; and 2) that the action may have been taken at the urging of a foreign power, specifically Russia. Though Trump has offered justifications for his action, such as not wanting to be the “policemen” of the Middle East, if it turns out that this action was taken for no other reason than to appease Putin, then it is may be an abuse of military power warranting impeachment.

21dc-mattis-promo-jumbo-v3.jpgPablo Martinez Monsivais/Associated Press

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House Democrats are Taking Things Slow

18 Tuesday Dec 2018

Posted by crosbysamuel in Articles, Uncategorized

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Frank Bowman, Impeachment, impeachment debates, investigation, nancy pelosi, oversight committee, Robert Mueller, saudi arabia, speaker of the house, Special Counsel, The House of Representatives, turkey, united arab emirates

Politco reports that Nancy Pelosi, incoming Speaker of the House, is reining in impeachment efforts in order to give Special Counsel Robert Muller more time with his investigation. She is joined in this effort even by progressive Democrats who voted to start impeachment efforts last year, such as Rep. Pramila Jayapal. Though representatives, such as California Rep. Eric Swalwell, recognize that the campaign finance law violations, established by Michael Cohen when he confessed to paying hush money to models Stormy Daniels and Karen McDougal, do constitute impeachable offenses, they feel they do not alone justify impeachment. It has been suggested that this may be in part because they are reluctant to risk the blow-back that Republicans faced after the impeachment of President Clinton for the mild offenses brought incident to the Lewinsky scandal. They are however planning to start oversight hearings in January.

House Democrats are wise to wait. With new reports that Saudi Arabia, the United Arab Emirates, and Turkey may have had their hands in President Trump’s election, it is apparent that whatever conspiracy exists, it has many more as of yet not-established parts. Additionally, as Professor Bowman has written, the impeach-ability of Trump rests on the slue of missteps he has committed since before and during his presidency. It will take the whole of his crimes, well established by Mueller’s investigation, to justify impeachment efforts.

download (3).jpgChip Somodevilla/Getty Images

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The Moscow Project Looms

29 Thursday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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charge, cohen, Collusion, conspiracy to defraud, false statements, felix sater, fixer, guilty, house of representative, House of Representatives Permanent Select Committee on Intelligence, Impeachment, individual 1, individual 2, Lawyer, Michael, Moscow Project, Mueller, president, russia, Senate, Senate Select Committee on Intelligence, Special Counsel, trump, Trump Tower

Michael Cohen, President Trump’s former lawyer, pleaded guilty earlier today to a charge of “false statements,” for lying to Congress about the extent of his and President Trump’s involvement in plan to build a “Trump Tower” in Moscow, Russia. Cohen falsely represented, in a letter sent to the Senate Select Committee on Intelligence and House of Representatives Permanent Select Committee on Intelligence, that 1) “The ‘Moscow Project’ ended in January 2016 and was not discussed extensively with others in the Company;” 2) “Cohen never agreed to travel to Russia in connection with the Moscow Project and ‘never considered’ asking [President Trump] to travel for the project;” and 3) “Cohen did not recall any Russian government response or contact about the Moscow Project.” In fact Cohen communicated with Felix Sater, a real estate developer with Russian ties, about the project; told Sater he would travel to Russia; addressed Trump about the possibility of Trump traveling to Russia; and communicated directly with Russian officials about the project.

Obviously this looks bad for Trump. The evidence of these ongoing communications with Russian agents strengthen the case for collusion/conspiracy to defraud in that it helps to establish, at least, that Trump’s confidant and fixer had strong ties to Russia while Trump was campaigning for office, and goes a long way towards establishing that Trump had such ties as well. While that doesn’t get us all the way to conspiracy to defraud, it certainly helps to bring us closer. One email written by Sater in November 2015 about the project may be damning. It read in part: “our boy can become President of the USA and we can engineer it.”

e201bbe0-4806-4aef-a7f0-0a873d9738b7-AP_Trump_Lawyer_Party_Switch.jpgMary Altaffer, AP

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Manafort Flips Again

27 Tuesday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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campaign chairman, Collusion, Conspiracy, impeachable offense, Impeachment, indictment, lying, pardon, paul manafort, plea agreement, president, Robert Mueller, russia, russians, Special Counsel, trump, wikileaks

Special Counsel Robert Mueller has submitted court filings indicating that his team will not be recommending that Paul Manafort’s, President Trump’s former campaign chairman, sentence be reduced as previously considered, because Manafort has not been cooperative with his investigation. Manafort plead guilty to two counts of conspiracy pursuant to a deal he made with prosecutors; however, contrary to that agreement, Manafort has been lying to authorities (about some unspecified things). David S. Weinstein, a former federal prosecutor, believes Manafort’s lack of cooperation may be due to a belief that he will ultimately receive a pardon for his crimes. The consequences of such a pardon and similar pardons have previously been considered on this blog.

manafort.jpg

 

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Abuse of Military Power — the Newest Impeachable Offense?

21 Wednesday Nov 2018

Posted by crosbysamuel in Uncategorized

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5800, abuse, abuse of military power, Britian, caravan, Central America, Frank Bowman, immigrants, immigration, Impeachment, military, president, troops, trump

This opinion piece, published in the New York Times, describes President Trump’s order sending the military to meet the caravan of immigrants at the U.S.-Mexican border as an unprecedented abuse of military power. The caravan referred to is that of the thousands of immigrants moving north towards the United States from Central America. President Trump has used the caravan to boost his anti-immigration rhetoric over the past few weeks. Trump recently ordered that 5800 military troops march to meet the immigrants, an action which the opinion piece above theorizes was taken solely to curry political favor. If that is that case, it would be an unprecedented abuse of military power.

Though what Trump did was technically legal,  the opinion claims that it amounts to an abuse of military power.  To use and move troops for no other reason than to gain political advantage is a first for American presidents. The piece points out that though other presidents have referred to military actions in speeches to increase their popularity, there are no examples of presidents that have taken military action within the United States for no other reason than to curry political favor. It argues politics must be the sole reason for the order because in the past similar border threats have been dealt with by fewer troops and the national guard alone. By treating the situation as a more serious threat, Trump has turned a group of tired immigrants into a national security threat. As such, Trump’s manner of dealing with the caravan amounts to an unprecedented abuse of military power.

Abuse of military power has historically been considered an impeachable offense. Professor Frank Bowman wrote an article about the history of British impeachments (found here), entitled “British Impeachmnets (1376 – 1787) & the Present American Constitutional Crisis.” In it he explores historical British impeachment procedure and specific examples of British impeachments. He cites to several examples of British officers that were impeached for military blunders. For instance, Michael de la Pole, Earl of Suffolk, was impeached for failure to adequately utilize funds for maritime defense and bungling a military expedition to relieve Ghent. In 1626 parliamentary outrage over George Villiers, the Duke of Buckingham’s, military incompetence also led to articles of impeachment.

The phrase “high crimes and misdemeanors” is the vague descriptor of what qualifies an act as impeachable. It can be difficult to tell what the founding fathers intended to fall into that scope. However, the drafters of the Constitution would have known of these British impeachments. An impeachment of a president for abuse of military power does not seem out of the realm of possibility, because of the historical precedent already in place for such a thing, and because the enormous power that is placed with the President as the Commander in Chief. Without a way to rectify abuse of said power there would be little balance between the branches of government. Therefore, it is arguable that in moving 5800 troops to the border Trump has committed another act worthy of impeachment.

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Will the Investigative Torch Pass to the House?

13 Tuesday Nov 2018

Posted by crosbysamuel in Articles, Uncategorized

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acting attorney general, Adam Schiff, attorney general, Collusion, Committees, donald trump, House appropriations committee, house intelligence committee, House of Representatives, investigation, Jeff Sessions, matt whitaker, midterms, Mueller, nancy pelosi, nita lowey, president, russia, zoe lofgren

With Jeff Sessions gone as Attorney General and Matt Whitaker positioned as acting AG, one has to wonder how much longer Mueller will be able to carry on his investigation unhindered. It may be the Special Counsel will have to pass his baton over to the House. But will  House Democrats vigorously investigate?

This article from Vox, written by Ezra Klien, correctly points out that because Democrats took the House but not the Senate, they will have trouble passing legislation into law. Much of what power is left to them is in the  investigation of President Trump. With their new found majority, Democrats are taking over vital investigative committees in the House. New York Democrat Nita Lowey, will chair the Appropriations Committee, and has “a laundry list of potential areas for inquiry. . . . [including the] family separation policy and hurricane relief in Puerto Rico.” California Rep. Adam Schiff will lead the House Intelligence Committee, which has already been engaged in the Trump investigation.

However, Democrats may be reluctant to shift their focus to investigation. Nancy Pelosi, House Democratic Leader, has said that any investigations will be “strategic” aimed at “seek[ing] the truth.” And Rep. Zoe Lofgren, a Democrat from California, expressed a similar sentiment, stating: “if Mueller sends us an exploding bomb, we may have an obligation to deal with that. But absent that, I don’t think the country will be on board with impeachment, and nor should we.” She feels that focusing on the investigation will distract from what “really matters to people.” It may be Democrats are unwilling to focus their energy of uncovering a truth that, even if it leads to impeachment in the House, will fail to cause removal by the Senate.

pelosi.jpgJ. Scott Applewhite

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Stone and WikiLeaks

30 Tuesday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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conspiracy to defraud, donald trump, election fraud, Impeachment, investigation, Mueller, president, Robert Mueller, roger stone, russia, russian collusion, Special Counsel, trump, wikileaks

Special Counsel Robert Mueller’s investigators are looking into comments Roger Stone, an adviser to President Trump and self-proclaimed “ultimate political insider,” made to those who called on his political insight. Stone said he knew of WikiLeak’s plans to release information which would affect the 2016 election, apparently referring to the Democratic National Convention emails which were hacked by Russian Intelligence Officials. Roger Stone also claimed to have a relationship with the founder of WikiLeaks, Julian Assange. The natural conclusion to be drawn here, is that a connection between Stone and WikiLeaks is a connection between Stone and Russia, which is ultimately a connection between Trump and Russia. Though Stone has yet to be indicted, he did admit in August that such a thing is possible. The possibility now is greater than it was then, and with Stone’s indictment may come a plea deal and cooperation.

roger_stone_ap_file.jpgANDREW HARNIK/ASSOCIATED PRESS/FILE

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The Social More-ing of the Executive and Legislative Branches

27 Saturday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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after the trump era, Congress, constitutional standard, DACA, Deferred Action for Childhood Arrivals, donald trump, georgetown journal, hyperpartisan, immoral, impeach, neil s. siegel, president, shutdown, trump

Is there a constitutional defense against members of the Executive and Legislative branches that act not illegally, but immorally? Constitutional scholars have recognized this possibility for judges, but would leave it to the political process to take care of the rest of the branches. Neil S. Siegel, in his article After the Trump Era: A Constitutional Role Morality for Presidents and Members of Congress,  published in the Georgetown Law Journal in its October, 2018 Edition, argues that the moral constitutional standard applied to judges should be extended to presidents and congressmen as well. Here is an excerpt from his article:

Meanwhile, the federal government itself is becoming even more dysfunctional as elected officials increasingly disregard norms that previously constrained partisan competition; more often than not, elected officials are unable to cooperate across party lines to execute the basic responsibilities of the federal government. Examples abound. The confirmation process for Supreme Court Justices has become a hyperpartisan, destructive race to the normative bottom. A Republican Senate approved highly consequential tax legislation without any Democratic input or even a single hearing, let alone the traditional process of “multiple congressional hearings, proposed statutory language and detailed reports from the tax-writing committees, all prepared well in advance of any vote” and “with the assistance of [Joint Committee on Taxation] staff and with the input of Treasury Department experts.” In addition, Republican President Donald J. Trump routinely flouts norms and conventions of proper governmental behavior that previously constrained presidents of both parties. The Democrats, for their part, held up urgent funding legislation in order to extract a deal that would offer a path to citizenship to beneficiaries of the program known as Deferred Action for Childhood Arrivals (DACA); a shutdown of the federal government ensued. Three characteristics of the problems discussed above stand out. First, they mostly implicate the convictions and conduct of the public and the political branches, not the courts. Second, they concern mindsets and behavior that, although troubling, are not potentially unconstitutional or otherwise illegal. Third, that behavior, even where not potentially unconstitutional or otherwise illegal, raises concerns that are properly denominated constitutional in the broad sense that they appear to call into question the long-term health of the American constitutional system.

000_HZ8ZT-e1478828415397.jpgAFP/Nicholas Kamm

 

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Mueller’s Questions Exclude Obstruction

14 Sunday Oct 2018

Posted by crosbysamuel in Articles, Uncategorized

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donald, Elie Honig, impeach, investigation, Jonathan Turley, Mueller, Obstruction of Justice, president, questions, robert, russian collusion, Special Counsel, trump, written answers

Special Counsel Robert Mueller sent President Trump and his lawyers questions this week regarding collusion between the Trump Campaign and Russian officials. This represents a breakthrough in negotiations between the parties as to the scope of questioning of the President; however it is limited. The President’s answers will only be written. Given Trump’s history of contradictions this may be a safeguard against perjury. Commentators have noted that the series of questions leave out obstruction of justice.

Jonathan Turley, in an opinion piece written for The Hill, has theorized that the absence may indicate Mueller is not pursuing an obstruction charge. His supports his opinion by pointing out that obstruction of justice is a bad fit for the President’s alleged crimes, since the charge is normally applied to the obstruction of some kind of judicial proceeding. Elie Honig, a former federal prosecutor from New York, disagrees with Turley. He theorizes that if Mueller is presenting questions about collusion that must be because he is focused on specific conduct and doesn’t see “wiggle room” for the President in his answers. In his mind, the fact that Mueller isn’t giving questions about obstruction does not mean that he has given up on the charge, but rather that he is preparing for a legal battle that could go to the Supreme Court.

Regardless of Mueller’s motivation, readers would do well to remember that the crimes of obstruction and collusion are intimately involved. If it could be established that President Trump was involved in the Russian election interference, that would go a long way in establishing the mens rea required to convict the President of obstruction of justice — his corrupt influence, if you will.

trumpfirst_opi2jd.jpgKevin Lamarque/Reuters

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