As an ethicist, I frequently have to remind my clients that I will not give legal opinions. That’s not my job, though I am a licensed attorney. I know I sometimes venture into law as well as other areas that I have a more than casual interest and knowledge of, such as Constitutional law, history, theater, and popular culture, but there are topics covered here by necessity that require me to opine beyond my primary expertise to an uncomfortable extent.
I have especially wrestled with this problem regarding the recent impeachment assualt by the Democrats, “the resistance,” and the news media, which are essentially the “axis of unethical conduct” in this matter. (I will henceforth use the shorthand AUC.) A half written explication of what is going on—“What’s going on here?” is the starting point for most ethics analysis, after all—is sitting in my drafts file, causing anxiety like an unpaid debt. Thus I am relieved and grateful for the Wall Street Journal column that was published over the weekend, an analysis by David B. Rivkin Jr., Elizabeth Price Foley titled “This Impeachment Subverts the Constitution.”
I am relieved, because the column is remarkably consistent with my own conclusions and analysis. See? “I’m smart! I’m not dumb like everyone says!”
I have been writing on Ethics Alarms that the efforts to de-legitimize the election and Presidency of Donald Trump have constituted a destructive attack on the Constitution and the American system of government literally from the moment Trump won the 2016 election, and I have been chronicling how, despite my desire to write about non-political matters and despite the fact that this assignment has hurt traffic here and gotten my blog banned from Facebook. I consider it a matter of integrity, responsibility, and civic duty, because the actions of the AUC represent the most important, damaging, wide-spread and perilous unethical conduct to take place in the United States since Watergate, and perhaps longer.
Read the entire article, please. I will point you to some if its important and, as I see them, accurate observations:
- “Democrats have been seeking to impeach Mr. Trump since the party took control of the House, though it isn’t clear for what offense….The effort is akin to a constitutionally proscribed bill of attainder—a legislative effort to punish a disfavored person. The Senate should treat it accordingly.”
Exactly. I described the effort as akin to a bill of attainder in an argument on Facebook about a week ago.
- “House Democrats have discarded the Constitution, tradition and basic fairness merely because they hate Mr. Trump. Because the House has not properly begun impeachment proceedings, the president has no obligation to cooperate. The courts also should not enforce any purportedly impeachment-related document requests from the House. (A federal district judge held Friday that the Judiciary Committee is engaged in an impeachment inquiry and therefore must see grand-jury materials from special counsel Robert Mueller’s investigation, but that ruling will likely be overturned on appeal.) And the House cannot cure this problem simply by voting on articles of impeachment at the end of a flawed process.”
This is how I see the situation as well. It is part of the despicable plot that Democrats will force the Supreme Court to overturn their machinations, probably in a ideologically split vote, thus allowing them to attack the legitimacy of SCOTUS, demand court-packing measures, and further unravel public trust in our institutions.
- “There is no evidence on the public record that Mr. Trump has committed an impeachable offense. The Constitution permits impeachment only for “treason, bribery, or other high crimes and misdemeanors.” The Founders considered allowing impeachment on the broader grounds of “maladministration,” “neglect of duty” and “mal-practice,” but they rejected these reasons for fear of giving too much power to Congress. The phrase “high crimes and misdemeanors” includes abuses of power that do not constitute violations of criminal statutes. But its scope is limited.”
The misinformation being embedded in American minds on this point is frightening. I keep challenging the Facebook Borg’s daily references to the President’s “crimes,” and get back “emoluments,” allegations of conduct that occurred before the election, and election law theories that have no precedent and that are desperate at best. The general attitude of the AUC and its cheering section is that the President has committed crimes because that’s the kind of guy he is. This was the relentless argument of an anti-Trump stalwart whose derangement ultimately sent him around the bend and off the approved commenters list. It is also the orientation of the majority of columnists who populate the New York Times op-ed pages. What they are selling is bigotry: a presumption of guilt because of who and what an individual is, rather than being based on what an individual has done.
- “One theory is that by asking Ukrainian President Volodymyr Zelensky to investigate Kyiv’s involvement in the 2016 U.S. presidential election and potential corruption by Joe Biden and his son Hunter was unlawful “interference with an election.” There is no such crime in the federal criminal code (the same is true of “collusion”). Election-related offenses involve specific actions such as voting by aliens, fraudulent voting, buying votes and interfering with access to the polls. None of these apply here.Nor would asking Ukraine to investigate a political rival violate campaign-finance laws, because receiving information from Ukraine did not constitute a prohibited foreign contribution. The Mueller report noted that no court has ever concluded that information is a ‘thing of value,” and the Justice Department has concluded that it is not.'”
Thank you, thank you, thank you. A competent news media should have made this clear immediately, because it is true.
- “More fundamentally, the Constitution gives the president plenary authority to conduct foreign affairs and diplomacy, including broad discretion over the timing and release of appropriated funds. Many presidents have refused to spend appropriated money for military or other purposes, on grounds that it was unnecessary, unwise or incompatible with their priorities…Presidents often delay or refuse foreign aid as diplomatic leverage, even when Congress has authorized the funds. Disbursing foreign aid—and withholding it—has historically been one of the president’s most potent foreign-policy tools, and Congress cannot impair it….In 2013, Barack Obama, in a phone conversation with Egyptian President Abdel Fattah Al Sisi, said he would slash hundreds of millions of dollars in military and economic assistance until Cairo cooperated with U.S. counter-terrorism goals. The Obama administration also withheld millions in foreign aid and imposed visa restrictions on African countries, including Uganda and Nigeria, that failed to protect gay rights.”
There is more. The impeachment Plan S, the Ukraine narrative, (the complete, updated list was last published here) is no more legitimate or honest than its family members A-R, and all should be considered unconscionable means to an undemocratic end, a soft coup to remove an elected President without the necessity of an election. Rivkin and Foley have performed a great service by laying out so much crucial (and under-publicized) information clearly and persuasively.
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Pointer: Glenn Reynolds
Ethics Alarms 
I wish everyone, Republicans and Trump administration people included, would quit saying “there was no ‘quid pro quo.'” That’s just stupid. Even if there was a withholding of military aid until Ukraine investigated corruption, including Hunter and Joe Biden, so what? Just because Biden is (lamely) running for president doesn’t make him untouchable. Shouldn’t we be worried about whether or not all that money isn’t going directly into the Swiss bank accounts of various Ukrainian kleptocrats? It’s my understanding FDR conditioned aid to Britain at the outset of WWII upon Churchill’s agreeing to disband the empire as soon as possible after the conclusion of the war. It’s called leverage, boys and girls. Can you say that word? Sure you can.
This is a good point. The trick that’s been played for decades is to accuse someone of a fake crime, and when it’s denied, the accused himself has legitimized a false presumption. To avoid a physical war, we’d have to start waging a terminological/philosophical war about ten years ago.
Every contractual transaction requires there be consideration: Business Law 101.
Those holding the idea that the US simply doles out foreign aid with no strings attached demonstrates the person’s ignorance of foreign policy and whose opinions on such matters be dismissed out of hand.
Investigations are simply that investigations. Investigations are to find the truth not create dirt. The left’s insistance that the “favor” amounted to a request to fabricate “dirt” on their candidate demonstrates that the truth will reveal unsavory behavior by their candidate or reflects their own definition of the word investigation and illustrates that which they do when they investigate.
This happens within a larger context with even more substantial ramifications:
If we allow progressives, and a huge chunk of the political left, to continue their unethical and immoral nation destroying tactics, they will destroy the United States of America using their tactics that are rooted in sedition and subversion.
Bingo.
The Epoch Times published NINE COMMENTARIES ON THE COMMUNIST PARTY which is eerily similar to America’s Democratic Socialists. Ellis Washington’s WND article offers a condensed version: http://www.wnd.com/2013/05/democratic-socialists-long-march/
So what they’re saying is that the Democrats want to impeach Trump for the same kinds of things that Obama and other previous presidents have done openly and legally. And they wonder why they’re called deranged.
These sorts of articles are being published all over the place. The DNC must be providing these columns to people like candy to babies.
https://www.usatoday.com/story/opinion/2019/10/28/abuse-of-power-enough-to-impeach-no-crimes-necessary-column/2479066001/
Isn’t “abuse of power” just a partisan version of “maladministration,” something our founders explicitly rejected?
OB
The article used Nixon’s use of the IRS which is exactly what Obama did to conservative groups and what so many want to use to dig up dirt on Trump.
Apparently “Abuse of office” is when a Republican tells a Democrat to pound sand.
The Democrats never intend to lose an election again. There is no other explanation for the lack of discernment that they WILL be ‘done unto’ as they ‘do unto.’
Remember the Nuclear Option?
Here’s a challenge for anyone: Find an economic policy of the left not designed to create a state dependent majority.
Abortion… they are purposely reducing their voter pool.
…although calling abortion an ‘economic policy’ is a stretch, I will admit. They DO call it one, sideways, but it smells like an excuse to kill babies.
I agree. The tragedy is that almost nobody will read it, and virtually none who have already decided Trump must be guilty of something monstrous will care. I’m certain your Facebook feed will confirm that.
Be that as it may, I don’t necessarily agree with Rivkin and Foley’s assertion that the house must use a vote to authorize an impeachment inquiry. The Constitution is silent on the process to be used, and even though the House Democrats are clearly violating their own rules for many parts of this process, there is simply no realistic recourse for the minority given how the House works. Because of the strict majoritarian rule of the House, there is simply nothing anybody can do, and nobody at all in a position to declare it invalid and force the house to act on such a declaration. Declaring the process illegitimate based on prior precedent is ethically substantive and convincing, but politically and procedurally impotent.
The only way the House Democrats can be held accountable is via an election, and that is precisely why they are not following prior precedent — to avoid placing their vulnerable members on the record. The secondary reason is precisely so they can give only one side of the story to the press, and by extension, to the public. Pelosi knows full well what she is doing, and she has no inclination to be fair or equitable to the President. In fact, her entire mien is one of “ends justify the means” and “at any cost.”
Can the Senate declare a House impeachment under such circumstances illegitimate and reject it based on prior precedent? Sure. As the sole trier of fact, the Senate can do just that, although it can’t violate its own rules as easily as the house because it is not (yet) a majoritarian-ruled institution. The minority has options to force the majority to follow the rules. It is also likely that vulnerable Republicans (and Mitt Romney, for purely personal reasons) will not support such a dismissal.
But I do thing Rivkin and Foley get the rest exactly right. This is the modern equivalent of a Bill of Attainder, and Pelosi and the Democrats know that full well and are fine with it. “At any cost” means pretty much what you’d thing to these guys, and as noted above, they have been at it since Trump was declared the winner in the election.
Glen
The Constitution states the House of Representatives retains the sole power of impeachment. The Constitution also states that all appropriations originate in the House but does not explicitly say said expenditures must be voted upon. Thus, if impeachment proceedings can begin without a vote can an appropriation be made simply based on the Speakers say so? I would say no. The House of Representatives or House is a collective noun , therefore the House must act as a collective whole.
It seems to me that the reference to the House of Representatives in the Constitution means the body as a whole otherwise the idea that the Framers did not want impeachment to be a method to arbitrarily remove an unpopular president would be a fiction.
You know, Chris, that’s a pretty good point. I’m still not totally convinced that it requires a vote to begin an impeachment-related investigation in committee — after all, committees take up questions all the time without authorization by the full House.
Where I think your argument is strong is on the question of legal processes, such as subpoenas, by House committees related to impeachment. Because of the separation of powers, I think it is certainly questionable that a standing committee can simply investigate the Executive or Judiciary without an authorizing floor vote. Committees really have no authority except as delegated by the House as a whole, and any action implicating the separation of powers would seem to me to need an authorizing vote to have legal force. A committee might request witnesses appear without such a vote, but subpoenas directed at or directly implicating other equal branches would seem to me to require the imprimatur of the House in the form of a formal vote to proceed.
We’ll see how that goes. One judge has already declared that the House may proceed without a formal vote and require the DOJ to provide secret grand jury testimony. For both you and me to be right, she would have to be wrong.
Why do the Democrats say the investigation focuses on Joe Biden. Any request to investigate Burisma would involve Hunter and not specifically Joe. Hunter is not anyone’s political rival . So, any abuse of office would seem to be coming from those seeking to protect Hunter Biden from scrutiny.
This is an excellent, informative article. A well written synopsis of the current impeachment process being conducted by the Democrats and their co-conspirators, the news media. Articles such as this and Graham’s proposed Senate resolution are a start in attempting to head off the subversion of the Constitution by the AUC (I like the phrase, Jack), but it will not stop it.
I agree with Glenn. The House has rules and precedents, but they can be changed or ignored almost at will by the majority party. I do not see Pelosi abandoning this process because the Republicans cry that it ignores precedents. To them, it is work too well to stop now. They can leak any “evidence” supporting impeaching Trump they want and the media runs with it. They either don’t care about or don’t see the damage it will cause. Or perhaps they feel the risks are worth it if it will finally get rid of the scourge of Trump. The ends justify the means, rule 2 of the AUC (rule 1, of course: we don’t talk about the AUC).
Opps! NYT just reported Pelosi to hold House vote on impeachment. Wonder what changed?
Nothing changed, Bill Wolf. This is just another ploy.
https://theconservativetreehouse.com/2019/10/28/pelosi-calls-house-vote-to-affirm-speaker-impeachment-inquiry-the-house-never-authorized/
I want to quote my link at length, in part, so if Jack sees this he can get the ‘gist’ without having to read the whole thing. Hopefully it will be of some use to everyone here, in explaining what is going on.
“The rules for an “impeachment investigation” would provide rights for the minority and also rights for the Executive branch.
So instead of having a House vote to authorize an impeachment investigation, with subsequent rights for the minority; they are having a House vote to affirm the “impeachment inquiry” with an entirely different set of House rules that do not include rights for the minority.
Nice trick huh?
On Thursday there will be a House vote to authorize:
…”ongoing investigations as part of the existing House of Representatives inquiry into whether sufficient grounds exist for the House of Representatives to exercise its Constitutional power to impeach Donald John Trump, President of the United States of America, and for other purposes.” (link)
And that House vote will include rules to further facilitate the one-sided, official impeachment inquiry, process therein.
Here’s where it gets interesting.
“And for Other Purposes” – The Thursday vote will likely have a rule process to conjoin the House Judiciary Committee (HJC) with the House “official impeachment inquiry”.
Why now? Because the HJC just won a legal ruling from DC Judge Beryl Howell granting the Judiciary Committee formal impeachment authority. {Go Deep}
Lawfare is hoping that through this Thursday vote scheme they will be able to twist the legal process into providing their House inquiry judicial enforcement authority, or punishment possible for the executive not complying with a House committee subpoena.
Pelosi, Schiff and Nadler are hoping to achieve this by bringing in the House Judiciary Committee and the judicial enforcement authority they were just granted by Judge Howell. They are also in a big rush to do this; hence the Thursday vote. The rush is because the DOJ has filed a motion for stay, as they appeal the Judge Howell ruling.
Remember, the Lawfare intent is to pierce the constitutional firewall that creates a distinct separation of powers; and the Legislative branch is trying to force documents from the Executive branch, overriding executive privilege. This is a constitutional issue. This level of impeachment intent is why judicial enforcement authority (the full house authorization to grant weight to legal subpoena power) becomes much more important.
Pelosi, Schiff, Nadler and Lawfare are attempting to create “judicial enforcement authority” without having an actual and constitutional vote to authorize an official “impeachment investigation”. That’s what this Thursday House resolution is all about.
The Thursday House resolution is intended to authorize and validate the pre-existing Pelosi “impeachment inquiry”, and then expand the authority within the rules to create the impression of a full House impeachment investigation; without actually having a House “impeachment investigation vote”…. because that would open-up rights to the minority and rights to the executive.
Of course, as previously stated, none of this would be possible if it were not for the complicit support of the entire national media. Pelosi’s impeachment scheme requires a compliant media to support her construct. So far, they have.”
Here is Alan M. Dershowitz.
http://www.gatestoneinstitute.org/15069/impeachers-new-crimes