Tuesday, January 21, 2020

An Impeachment Richly Deserved

In a few hours the third presidential impeachment "trial" in American history will begin.  I hesitate to call it a "trial" because it is still not clear that the Republican-controlled Senate will agree to hear witnesses and evidence, or even whether that body will consider the documents and witness testimony gathered by the House.  

Andrew Johnson was the first President impeached. That effort, in 1868, fell one vote short of
conviction in the Senate.  In 1998, President Bill Clinton was impeached for perjury and obstruction of justice.  His conviction on those charges failed by votes of 45-55 and 50-50.  In the 100 member Senate, 67 votes are needed for a conviction.

At the time, I supported Clinton's removal from office.  My view over the years has changed however,.  I still believe Clinton committed a felony (perjury) and, no, you don't get a free pass to lie when the issue is sex.  Also, it should not be overlooked that Clinton was carrying on a sexual affair with a subordinate in the workplace.  That's not right and to the Democrats credit, most at the time acknowledged that Clinton's conduct was wrong.  But most of those Democrats also took the position that Clinton's conduct was not impeachable and I agree with that now.  As heinous as Clinton's conduct was, that conduct did not directly relate to his presidential duties.  I think that should generally be the standard for impeachment.

The Trump's impeachment is most similar to the impeachment charges against Richard Nixon that were voted out by the House Judiciary Committee in 1974.  Those charges were 1) obstruction of justice for Nixon's attempt to impede the investigation of the Watergate break-in; 2) abuse of power 
for using his office to compel federal agencies to target his enemies; and 3) contempt of Congress for refusing to comply with congressional subpoenas.

I was only 13 in 1974, but I followed the Nixon impeachment hearings quite closely.  (Nixon, of course, resigned before the full House could impeach him.)  Donald Trump's transgressions make Richard Nixon's look like jaywalking. There is no comparison.

In 2016, Donald Trump accepted the help of a hostile foreign power, Russia, to win an American election.   It is illegal for foreign powers to involve itself in American elections.  And it is illegal for candidate to solicit that help.  At the very least, the candidate can be charged with a criminal campaign finance violation.

As the 2020 election approached, Donald Trump decided he would cheat again.  This time he used his office to "encourage" Ukraine into announcing an investigation of his chief political rival, Joe Biden, so he could try to paint Biden as "corrupt."  (I find it ironic that the most corrupt President in my lifetime, by far, thinks corruption is a good issue for him.).  To accomplish this goal, Trump, through intermediaries, offered Ukraine's President Zelensky a bribe - already appropriated military aid that Ukraine desperately needed for survival in defending itself against Russia.  (Never mind that Trump had no actual authority to impound the congressionally appropriated money.)  Trump was willing to put America's national security at risk for his own selfish, political reasons.  So much for Trump being a "patriiot."

And, no, Trumpers, the "transcript" (it was actually just notes) of the phone call does not exonerate Trump. Not even close.  Not that the phone call is the only evidence of Trump's Ukraine scheme.  Far from it.

When the House tried to investigate the Ukraine scheme, Trump immediately went into cover-up mode, attempting to block executive branch witnesses from testifying and refusing to turn over a single document (beyond the so-called "transcript").  The claim that executive privilege allows Trump to do this is laughable.  Nixon attempted to take the same approach when the White House recordings were subpoenaed.  The Supreme Court ruled 8-0 that Nixon executive privilege claim as to the tapes was invalid.  While a President can exert executive privilege when applicable, that privilege is not a blanket that allows a President to bar all witnesses or refuse to hand over any documents. The notion that Congress has no recourse but to run to court every time the President or other executive branch official refuses to comply with a subpoena by offering a bogus claim of blanket executive privilege is nonsensical.  

The House's impeachment charges against Trump are for 1) abuse of power; and 2) contempt of Congress.    Not only are both charges richly deserved, they only scratch the surface for what Trump could be charged with.  

As a Republican, I am greatly disheartened that so many people in my party, including those in Congress, want to give Trump a pass on behavior they would never in a million years accept from a Democratic President.  You would think they'd try to argue otherwise, but most do not.  It is a sign of today's tribalism, that they don't even protest when you point out their hypocrisy.  All that matters is what uniform the players are wearing.

History is watching.  History will judge Republican Senators harshly if they abdicate their responsibility to carefully consider the evidence and, instead, exonerate an obviously guilty President.  

10 comments:

True Republican said...

Clinton deserved impeachment just as Trump does.

Anonymous said...

GOP, the party of no values. Party before country.

Bill said...

While there are numerous good reasons not to impeach Trump - isn’t it hilarious to watch Nadler and Schumer lecture us about why impeachments shouldn’t be partisan when Clinton was at bat? - I’m going to limit my comments to the so claimed “abuse of Congress.” I see Paul has failed to read US v. Nixon. That case said executive privilege was “presumptive.” It then analyzed a subpoena for documents in the context of a criminal investigation, finding that the subpoena was allowed because of the interests of the criminal justice system in finding the truth and punishing wrongdoers. Thus, it held an absolute privilege would frustrate “the fair administration of criminal justice.” Impeachment is fundamentally different because there is an alternative remedy: elections. I know Paul has been wanting to impeach Trump since day 1, but the claims are beyond frivolous.

Paul K. Ogden said...

US v. Nixon did not provide for an absolute executive privilege which would allow a President to completely bar the release of documents in response to congressional subpoenas and completely bar executive branches witnesses from showing up to testify to Congress. Surely you're not claiming that. Trump has turned over ZERO documents in response to subpoenas relating to the impeachment proceeding. Surely you don't think U.S. v. Nixon provided for that. In fact, in U.S. v. Nixon, the Supreme Court voted 8-0 that Nixon had to turn over the tapes.

What happens in the future when we have a Republican Congress wanting to do oversight of a Democratic President? Are we Republicans going to be okay with that Democratic President simply making some broad absolutely claim of executive privilege to completely block the release of any documents and to block executive branch employees from even being asked questions by Congress? Would if Obama had done what Trump is doing? You think they'd say that's okay? That's the problem with Trumpers. They cannot envision a world in which their savior Donald Trump won't be President. They don't seem to grasp the concept of hypocrisy when it comes to supporting Trump doing things they would never accept a Democratic President doing. They don't grasp that they are setting an awful precedent that undermines our Democratic Republic.

As far as supporting Trump's impeachment from Day 1, the Mueller Report demonstrated that the Trump campaign had numerous contacts with Russia which worked to help Trump win the election. Trump, by accepting if not encouraging a foreign power in a federal campaign, cheated to win the 2016 election. So we're supposed to just ignore that? Now Trump trying to cheat to win the 2020 election. So we're supposed to just ignore that too? We're supposed to just look the other way while Donald Trump tries to shake down an American ally for a political favor, illegally withholding military aid and putting America's national security at risk in the process?

Bill said...

"Surely you're not claiming that. Trump has turned over ZERO documents in response to subpoenas relating to the impeachment proceeding. Surely you don't think U.S. v. Nixon provided for that. In fact, in U.S. v. Nixon, the Supreme Court voted 8-0 that Nixon had to turn over the tapes." So what. US v. Nixon was a very different context. You entirely failed to address the differences between criminal investigations and impeachments.

"What happens in the future when we have a Republican Congress wanting to do oversight of a Democratic President?" You need a lesson in separation of powers. Congress only has oversight when it is related to legislation. They do not have general "oversight" over the Executive Branch, whether it be a Republican or Democrat.

"Are we Republicans going to be okay with that Democratic President simply making some broad absolutely claim of executive privilege to completely block the release of any documents and to block executive branch employees from even being asked questions by Congress?" Again, in the context of impeachment, I sure am ok with it. Just won't vote for him in the next election.

"the Mueller Report demonstrated that the Trump campaign had numerous contacts with Russia which worked to help Trump win the election. rump, by accepting if not encouraging a foreign power in a federal campaign, cheated to win the 2016 election." The Mueller report made no such finding that Trump's LEGAL contacts with Russia had any effect on the election.



Paul K. Ogden said...

Bill,

So much fake news, so little time. The ruling from the Supreme Court in the Nixon case was related to the impeachment proceeding in the House Judiciary Committee. It was the same thing with regard to Trump. Same thing. There is ZERO legal support for the President's position that he can claim absolute executive privilege so he doesn't have to turn over documents in response to subpoenas in impeachment proceedings and can bar all executive officials who may testify. The Nixon case is not on point as to witnesses, but the same principle applies.

Actually, the requirement that Congressional oversight is only as to "legislation" has been very broadly interpreted by the courts. (I'm sure you know that.) And it should be. How can Congress know if legislation might be warranted until it does an investigation? Nonetheless, that the House shall have the sole power to impeach is specified in the Constitution.

Are you really saying that if there is an impeachment, the President of the United States can simply refuse to cooperate with subpoenas because it's not "legislation?" I don't think anyone has ever made that bizarre argument. And the Nixon case said otherwise.

So if a President commits an impeachable act, our only remedy is to vote against him at the ballot box? What if he's in his second term? You can see how that argument falls apart pretty quickly. And what if the President is cheating to try to win a future election...which, of course, is exactly what Trump was (is?) trying to do. So our remedy for a President cheating in the 2020 election is to vote him out in the 2020 election? Don't you see why that doesn't work? And let's take it a step further. What if it comes out that a President is helping rig the actual election machines that will tally the votes on Election Night? Are you saying our only remedy is to vote him out in the very election he is trying to rig the vote on?

Actually, the Mueller Report detailed 100 plus contacts between Russian officials and Trump campaign officials relating to the 2020 campaign. There is nothing in the Mueller Report that indicates that those contacts were "legal". Accepting (or even soliciting) a thing of value from a foreign country with respect to a federal election is illegal. But the law requires knowledge of the law. What got Donald, Jr. off the hook, for example, is they didn't have evidence that the younger Trump, who has an IQ of maybe 85, knew about the law.

Thd idea that we Republicans should support sweeping expansion of executive power so much that the President is above the law and accountable to no one (except at the polls) is extremely foolish and will come back to haunt us when a Democrat is President. We already having Democratic presidential candidates saying they can just do executive orders to advance virtually any policy position. Obama did that orders and we Republicans (rightfully) complained. Trump takes that approach X 10 and Trumpers, most of whom claim to be Republicans, applaud. Hypocrisy? You betcha.

Bill said...

"The ruling from the Supreme Court in the Nixon case was related to the impeachment proceeding in the House Judiciary Committee." Wrong. The subpoena came from the DOJ.

"the requirement that Congressional oversight is only as to "legislation" has been very broadly interpreted by the courts." Might want to read Kilbourn v. Thompson before you spew CNN talking points.

"Are you really saying that if there is an impeachment, the President of the United States can simply refuse to cooperate with subpoenas because it's not "legislation?"" Didn't say that. I said impeachment is different from criminal proceeding.

"So if a President commits an impeachable act, our only remedy is to vote against him at the ballot box?" Huh? I didn't say you can't impeach him. I said you can't subpoena matters that are protected by executive privilege.

"Actually, the Mueller Report detailed 100 plus contacts between Russian officials and Trump campaign officials relating to the 2020 campaign." Didn't say there weren't contacts. Said they were not illegal, as Mueller found.

"There is nothing in the Mueller Report that indicates that those contacts were "legal"." Huh? That was the whole point of the investigation.


Anonymous said...

Paul, I agree with you 100% on this. I don’t always agree with you but I always enjoy reading your blog. Please keep writing!

Paul K. Ogden said...

Bill, you do realize that it is campaign law violation for a candidate to take a "thing of value" from a foreign national? Pretty much anyone who has ever worked on a campaign knows that. That particular law does require the person to actually know that it's a violation of the law for the person to be prosecuted. The Mueller Report also said the Russian assistance the Trump campaign accepted was difficult to value and thus there would be a problem prosecuting the failure acceptance of the illegal in kind contribution because of that. That was a big mistake on Mueller's part, because the value of the assistance goes to the seriousness of the violation, not whether it's a violation of the law. You can still find something is a thing of value without being able to put a specific value on it which would allow for enhanced penalties.

A President of the United States cannot say "executive privilege" and then block ALL executive officials from testifying and block every last document from being turned over. (That is exactly what Trump did.) Rather, the executive officials are required to show up in response to subpeonas and the privilege is asserted to certain questions. Certain parts of documents for which executive privilege is asserted is redacted and that redaction can be challenged. I know 100% for sure you know that. So I am not sure why you're arguing this point. You know what Trump is doing is wrong.

The subpoena in the Nixon case was issued by Leon Jaworski, a special prosecutor. Yes, he was part of the DOJ, but I'm not sure why you think that is somehow different. So you think because a subpoena comes from the legislative branch, the President has a greater right to ignore it than if it comes from within the executive branch?

The case law giving Congress oversight over the executive branch is quite well-established. Kilbourn v. Thompson was an 1880 case laid out the test, which includes that the investigation must relate to an area where Congress could validly legislation. And subsequent court decisions have interpreted that requirement extremely liberally. Once again, I think you know that and if it was President Obama refusing to cooperate with congressional investigations you'd be screaming your head off that what he was doing is wrong.

CNN does not have "talking points." MSNBC does not have talking points. Even FoxNews doesn't have talking points. Donald Trump's people though have "talking points" Nothing wrong with that. All candidates and elected officials have talking points. The problem is that Trumpers and FoxNews hosts and other so called "conservatives" (many if not most Trumpers aren't real conservatives) just repeat those talking points and do not care one bit whether the talking points are true. Facts just do not matter to them. We good, they bad. That's about as deep as their reasoning gets.

I don't know why Trumpers cannot see the short-term folly of supporting a President assuming sweeping authority and refusing any oversight from the legislative branch. Do they not realize someday there will be a Democratic President and the Republicans in Congress might want to restrain that President. And since when do conservatives support an all-powerful President and a weak, ineffective Congress who has no meaningful oversight authority over the President? Real conservatives don't.

Bill said...

“It isn't so much that Paul is ignorant. It's just that he knows so many things that aren't so.” - Ronald Reagan

"You can still find something is a thing of value without being able to put a specific value on it which would allow for enhanced penalties." The finding was that it was too speculative to show it would be of any value. That was not the sole basis for finding no violation though. Remember campaign finance violations require scienter, i.e., knowing you are violating a law, and there was a good deal of dispute about that.

"A President of the United States cannot say "executive privilege" and then block ALL executive officials from testifying and block every last document from being turned over." The Democrats have made clear what information they are seeking. Remember, US v. Nixon did say that diplomatic, military, and national security communications are absolutely privileged.

"So you think because a subpoena comes from the legislative branch, the President has a greater right to ignore it than if it comes from within the executive branch?" In short, yes. First, a subpoena from the DOJ does not implicate separation of powers as the DOJ is part of the executive branch. Second, as I have repeatedly said, criminal proceedings are very different from impeachments with different purposes, different remedies, and alternatives available.

"The case law giving Congress oversight over the executive branch is quite well-established. Kilbourn v. Thompson was an 1880 case laid out the test, which includes that the investigation must relate to an area where Congress could validly legislation. And subsequent court decisions have interpreted that requirement extremely liberally." Kilbourn found attempts of Congress to subpoena financial records were not valid legislative purposes. That is exactly what the Democrats are trying to do with Trump's tax returns. You can't seriously claim obtaining evidence for an election is a valid legislative purpose?

"if it was President Obama refusing to cooperate with congressional investigations you'd be screaming your head off that what he was doing is wrong." I'm going to call that BS. If there is a valid claim of executive privilege I will support it.

"CNN does not have "talking points." MSNBC does not have talking points. Even FoxNews doesn't have talking points." I hear the Brooklyn Bridge is for sale too. You can't honestly believe this?