Quote:
Originally Posted by detbuch
Yeah, well it's been recognized that the "Misdemeanors" bit was a weak, nebulous, throw-in to try to cover unknown, undefined, circumstance. Probably a poor choice of word. A misdemeanor is a crime, but a low level one, hardly worthy of impeachment. So what was probably meant is defined by the preceding qualifier "High"--a High Misdemeanor, which would be the redundant "High Crime."
In any event, as it stands, the so-called "abuse of power" is thinking or wanting to do something, but not actually (this should be: successfully) doing it. And attaching to that non-existent doing, the notion that it was specifically intended to influence an election. Even though there was every legal right and duty to do what WAS done--delay for verification. (The legally required verification had been done and asserted to prior to the illegal hold being placed on the aid) It seems that the High Misdemeanor here must be an unfulfilled thought crime. But this unfulfilled thought High Misdemeanor does accord with your notion of someone in a branch of government acting on conscience.
And, anyway, any action by the President can influence an election. So what follows from that is the ridiculous notion that a President should not act (not do his duty) because it will affect an election.
So by your own definition, if the Senate acquits, then we can assume that they followed your principle, that they followed their conscience, and will abide the political consequences, and all went as it should.
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Misdemeanors was in no way a "weak, nebulous, throw-in to try to cover unknown, undefined, circumstance." It had a distinct meaning when the Constitution was written and unlike the current WH occupant the men who designed and wrote the constitution were very well read. Since some of Blackstone's language is directly reflected in the contemporaneous discussions that lead to the writing of the constitution, I assume they had read this book.
Sir William Blackstone, in his famous 1765 treatise, Commentaries on the Laws of England – the most widely possessed and read law book in America at the time of the framing of the Constitution and a respected resource of many of the Constitution’s framers – discussed ordinary criminal law and impeachment proceedings separately, in different sections of the fourth book of his epic treatise. While the province of impeachment and the province of the criminal law both involved punishment for “Public Wrongs” – and both employed the words “crimes” and “misdemeanors” – impeachment involved public wrongs of a distinctly different sort. Book IV divides the treatment of different types of public wrongs into numerous subheadings. The terms “crimes” and “misdemeanors” are set forth as general descriptors for public wrongs in Chapter 1. But successive chapters then deal separately with different specific types of offenses.
Significantly, wrongs punishable by impeachment are discussed distinctly in Chapter 9, entitled “Of Misprisions and Contempts, affecting the King and Government.” There, Blackstone employed the term “high misdemeanors” in a specialized sense. The “first and principal” illustration of “high misdemeanors,” Blackstone wrote, is “the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment.”
Keep Blackstone’s identification of “high misdemeanors” with “mal-administration” of high officers in mind. It comes back around in the Constitutional Convention’s discussion of the language that ultimately became the Constitution’s impeachment standard.
https://www.lawliberty.org/2018/08/0...eanors-part-1/
It hard to believe that someone who claims to be an originalist would ignore the research and constitutional arguments about that. Though if you agree with Dershowitz's ever changing opinions, that might be the explanation. Here is one of them:
"Contemporary judicial nominees who glibly recite the expected formula of original intent or understanding should read [the Dred Scott opinion] and be asked whether they would have joined the majority decision in Dred Scott—and if not, why not? I have yet to hear a persuasive explanation of how honest ‘originalists’ could have wriggled their way out of the majority conclusion in Dred Scott or how they could have agreed with the Supreme Court’s unanimous decision [in Brown v. Board of Education]."
Should or did, is the question.
And the politicians will suffer the political consequences.