Agree or disagree

[detbuch]

Originally Posted by Pete F.

Floridaman can be impeached for what he has done and what he might do, as long as the Senate decides that he should be removed.

The Senate has no powers of impeachment. The House has that and it is done before any decision can be made by the Senate. The House is not constrained from drawing articles of impeachment by what the Senate might possibly decide.

There was intentionally no constraint put on the Senate to have to abide by anything other than their consciences and the political ramifications of their actions. It is not a court of law, it is the Senate.


This is patently a misinterpretation of any "intent" in the writing of the Constitution. The three branches were equally balanced. If the Senate is not constrained other than by their own consciences and the political ramifications of their actions, then the President should only be constrained by his conscience and the political ramifications of his actions. Asking the President to be constrained by the conscience of the Senate is not only making him subservient to the Senate, it's absurd on its face since it would give the Senate the power to convict a President on the same grounds (for doing the same thing--abiding by his own conscience and abiding the same political ramifications that the Senators would face--re-election) that the Senate did to convict him, thereby depriving the President the same means and method to act that the Senate has to act.

Dershowitz claimed in his testimony that a president does not commit “high crimes and misdemeanors” unless he violates criminal statutes.

By this argument, no abuse of power could be impeachable unless it violated a criminal law.

He uses a revisionist view of the constitution and the founders to back himself up.

He says that Hamilton in Federalist 65 was writing about specified crimes and that it should not be expanded to include misconduct, abuse, or violation [of some public trust].

He selectively misses part of the essay, and I quote: can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security.

Hamilton said that the Senate was the place to try impeachments, that they do no involve just the normal application of laws and facts, but rather an "awful discretion" not bound by normal legal standards, that the Senators would have to bear political responsibility for.

But still be bound by convicting on charges of some actual Treason, Bribery, or Other High Crimes and Misdemeanors. The "discretion" would still be bound by those parameters even though not bound by normal legal standards. The Senate is not allowed some awful discretion that went outside those parameters. Otherwise, leave those restrictions out and just say the Senate can convict on any discretion or personal twist of conscience it desires.

As far as his gross interpretation of Madison on maladminstration, he apparently limited his reading.
Madison specifically argued that if senators feared that the president might abuse the pardon power, then the Senate could preemptively remove him from office in an impeachment trial: “if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him [with pardons], the House of Representatives can impeach him; they can remove him if found guilty.”
This contradicts Dershowitz's assertion that it needs to be a crime to remove the president, and in addition reflect's Madison's belief that a President could be removed preemptively.
Dershowitz hopes that the Senate and you fall for his false choice, that because Madison rejected maladministration therefore he has a high and somehow concrete standard of criminal acts. He ignores that high crimes and misdemeanors was intended to include an undefined category of crimes and miscarriages of public trust.

That is what "high crimes and misdemeanors" consist of.
It is not an invitation for senators to turn impeachment into whatever they want it to be, but a charge to senators to make hard legal and prudential judgments about abuses of power and violations of the public trust which are so grave that, even if not technically illegal, still merit constitutional impeachment and removal.

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" charge is thinking or wanting to do something, but not actually 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. 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 being able to act on unconstrained 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.

[Pete F.]

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.

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.

[fishgolf]

Jim in CT is correct.