Written Statement of Prof. Jonathan Turley: “The Impeachment Inquiry Into President Donald J. Trump: The Constitutional Basis For Presidential Impeachment” [PART III]

(Part I is here; Part II, here.)

In this section of his testimony, Turley deals with the Ukraine phone call that is supposedly impeachable. Here is the key paragraph:

“Again, the issue is not whether these comments are correct, but whether they are corrupt. In my view, there is no case law that would support a claim of corrupt intent in such comments to support a bribery charge. There is no question that an investigation of the Bidens would help President Trump politically. However, if President Trump honestly believed that there was a corrupt arrangement with Hunter Biden that was not fully investigated by the Obama Administration, the request for an investigation is not corrupt, notwithstanding its inappropriateness. The Hunter Biden contract has been widely criticized as raw influence peddling. I have joined in that criticism. For many years, I have written about the common practice of companies and lobbyists attempting to curry favor with executive branch officials and members of Congress by giving windfall contracts or jobs to their children. This is a classic example of that corrupt practice.”

IV.   THE CURRENT THEORIES OF IMPEACHABLE CONDUCT AGAINST PRESIDENT DONALD J. TRUMP

 While all three acts in the impeachment standard refer to criminal acts in modern parlance, it is clear that “high crimes and misdemeanors” can encompass non-criminal conduct. It is also true that Congress has always looked to the criminal code in the fashioning of articles of impeachment. The reason is obvious. Criminal allegations not only represent the most serious forms of conduct under our laws, but they also offer an objective source for measuring and proving such conduct. We have never had a presidential impeachment proceed solely or primarily on an abuse of power allegation, though such allegations have been raised in the context of violations of federal or criminal law. Perhaps for that reason, there has been a recent shift away from a pure abuse of power allegation toward direct allegations of criminal conduct. That shift, however, has taken the impeachment process far outside of the relevant definitions and case law on these crimes. It is to those allegations that I would now like to turn.

At the outset, however, two threshold issues are worth noting. First, this hearing is being held before any specific articles have been proposed. During the Clinton impeachment hearing, we were given a clear idea of the expected articles of impeachment and far greater time to prepare analysis of those allegations. The House leadership has repeatedly indicated that they are proceeding on the Ukrainian controversy and not the various alleged violations or crimes alleged during the Russian investigation. Recently, however, Chairman Schiff indicated that there might be additional allegations raised while continuing to reference the end of December as the working date for an impeachment vote. Thus, we are being asked to offer a sincere analysis on the grounds for impeachment while being left in the dark. My testimony is based on the public statements regarding the Ukrainian matter, which contain references to four alleged crimes and, most recently, a possible compromise proposal for censure.

Second, the crimes discussed below were recently raised as part of the House Intelligence Committee hearings as alternatives to the initial framework as an abuse of power. There may be a desire to refashion these facts into crimes with higher resonance with voters, such as bribery. In any case, Chairman Schiff and committee members began to specifically ask witnesses about elements that were pulled from criminal cases. When some of us noted that courts have rejected these broader interpretations or that there are missing elements for these crimes, advocates immediately shifted to a position that it really does not matter because “this is an impeachment.” This allows members to claim criminal acts while dismissing the need to actually support such allegations. If that were the case, members could simply claim any crime from treason to genocide. While impeachment does encompass non-crimes, including abuse of power, past impeachments have largely been structured around criminal definitions. The reason is simple and obvious. The impeachment standard was designed to be a high bar and felonies often were treated as inherently grave and serious. Legal definitions and case law also offer an objective and reliable point of reference for judging the conduct of judicial and executive officers. It is unfair to claim there is a clear case of a crime like bribery and simultaneously dismiss any need to substantiate such a claim under the controlling definitions and meaning of that crime. After all, the common mantra that “no one is above the law” is a reference to the law applied to all citizens, even presidents. If the House does not have the evidence to support a claim of a criminal act, it should either develop such evidence or abandon the claim. As noted below, abandoning such claims would still leave abuse of power as a viable ground for impeachment. It just must be proven.

A.  Bribery

Continue reading

Comment Of The Day: “Comment Of The Day: “Pre-Thanksgiving Day Ethics Wrap-Up, 11/27/2019””

 

Alizia Tyler’s Comment of the Day predictably set off another round of debates relating to the Civil War. There are few episodes in our history that are so rich with ethics and leadership controversies, so it is not surprising that Lincoln, secession, slavery, the Confederacy, Lee and other objects of contention keep finding their way here, most recently in connection with the relentless Confederate Statutory Ethics Train Wreck.

Red Pill Ethics has made an impressive entry in this fascinating and ever-green category. Here is his Comment of the Day on the post,”Comment Of The Day: “Pre-Thanksgiving Day Ethics Wrap-Up, 11/27/2019””….I’ll be back at the end.

I sat and argued Lincoln a bit to my significant other. Or at least all the things history kind of brushes aside.

1) Laws determine what we can’t do, not what we can do. If there is no law saying that an act is illegal then it is by definition legal. This is the foundation of American law. The government just can’t make up rules and arrest you for things that aren’t illegal.

By this universally true standard, the South’s secession was legal. There is no law prohibiting it and, historically, none of the early states entered the union with the understanding that it was an unbreakable agreement. Indeed the federal government was deliberately made to be a weak structure to preserve the autonomy of the states. To this day there is no law saying that the states can’t leave the union – in any case such a law would be deeply hypocritically and ethically bankrupt given America’s rebellious origin. Some Supreme Court cases have touched the issue but their constitutional basis is literally non existent – “Texas had become part of ‘an indestructible Union, composed of indestructible states’ ” uhhhhh where does the constitution say that?

2) At the time of the Civil War, secession was widely if not universally viewed as a legal option. So a few Southern States peacefully succeeded and ordered all Northern troops out of their sovereign territory. The feds did not comply. They sat in Fort Sumter and did not leave. The Confederacy then blockaded the Fort to prevent it’s resupply that the unlawful occupiers of that land might be forced to leave. Again the Feds did not comply. Instead they ran the blockade and sent more men and material to the Fort. Sorry fam, but when one nation sends troops into another nation to occupy their land… that’s an invasion no matter how bloodless it may be. The modern equivalent of a bloodless invasion like this would the Russian annexation of Crimea. Bloodless but inarguably illegal and an act of war. If Ukraine had gotten its shit together and actually had a functioning military or military alliances it very likely would have been the start of a big ol’ war. As it stands though, Ukraine lacks the power to fight back and so it took the invasion on the chin.

The South did not. They opened fire on the Fort and eventually took it back – and they managed to do it without actually killing anyone. A bloodless invasion was met with a bloodless defeat and sovereign land was returned to its sovereign owner. In any case, the North’s soft invasion and the previously unheard of authority that it implied so alarmed the other states that four more states who had initially opposed secession then decided to secede. The North then blockaded the South’s ports and invaded Virginia. Even Maryland and Delaware, Northern states, considered withdrawing from the Union but were prevented from doing so by federal intervention…which brings us to the next evil that Lincoln’s administration perpetrated. Continue reading

Comment Of The Day: “Pre-Thanksgiving Day Ethics Wrap-Up, 11/27/2019”

Presidential Thanksgiving Addresses, which used to be a big deal but which have fallen by the wayside. Winston Churchill had a memorable one too, on November 23, 1944:

We have come here tonight to add our celebration to those which are going forward all over the world, wherever allied troops are fighting in bivouacs and dugouts, on battlefields, on the high seas, and the highest air. Always this annual festival has been dear to the hearts of the American people. Always there has been that desire for thanksgiving, and never, I think, has there been more justification, more compulsive need than now.

It is your Day of Thanksgiving, and when we feel the truth of the facts which are before us, that in three or four years the peaceful, peace-loving people of the United States, with all the variety and freedom of their life in such contrast to the iron discipline which has governed many other communities – when we see that in three or four years the United Sates has in sober fact become the greatest military, naval, and air power in the world – that, I say to you in this time of war, is itself a subject for profound thanksgiving.

We are moving forward in this struggle which spreads over all the lands and all the oceans; we are moving forward surely steadily, irresistibly, and perhaps with God’s aid, swiftly towards victorious peace.

There again is a fitting reason for thanksgiving, but I have spoken of American thanksgiving. Tonight here, representatives of vaster audiences and greater forces moving outside this hall, it is British and American thanksgiving that we may celebrate today. And why is that? It is because under the compulsion of mysterious and all-powerful destiny we are together.

We are joined together, shedding our blood side by side, struggling for the same ideals, and joined together until the triumph of the great causes which we serve has been made manifest.

In her Comment of the Day, on Pre-Thanksgiving Day Ethics Wrap-Up, 11/27/2019,” Alizia points us to one of Abe Lincoln’s Thanksgiving speeches:

The Proto-Fascist Lincoln wrote:

“Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be—That we may then all unite in rendering unto him our sincere and humble thanks—for his kind care and protection of the People of this Country previous to their becoming a Nation—for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war—for the great degree of tranquillity, union, and plenty, which we have since enjoyed—for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted—for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.”

The first assertion I would make is that we now live in outcomes of the Civil conflict of the mid-1800s. Some historian, I forget who, said that the Civil War or War Between the States was the ‘defining event’ that frames everything. When I heard it, I didn’t understand. Now I think I understand better.

There are many aspects to this, of course, but the one that most strongly comes to my mind is this imperious (that is how I see it) declaration made by President Lincoln which is a rhetorical marvel but, in fact, a group of powerful lies. Did the ‘glorious being’ desire that a civil war divide a people? Did the glorious being ‘give thanks’ that 700,000 men were killed as a result of an internal war that fractured the Republic? Was the ‘glorious creator’ standing behind the North in its imperious claim to define a ‘nation’ whose identity it would control? The questions could go on & on & on… Continue reading

Observations On The Charleston, W.V., “Christmas War” (And The Way The Mainstream Media Reported It)

There are many lessons, ethical and otherwise, to be learned from Charleston, West Virginia’s short-lived “Winter Parade.” I originally missed the story, which apparently took place over three days in October. Fox News, which has led the “War on Christmas” narratives since the days of Bill O’Reilly, covered it.

Even before Halloween, Charleston’s  new mayor (and its first female occupant of the office) Amy Goodwin sent out a Facebook announcement that “The Charleston Winter Parade will begin at the corner of the Kanawha Boulevard and Capitol Street.” For years, the city has had an old-fashioned “Christmas Parade” (you know, like they show in “A Christmas Story” ?) with Christmas-themed floats, marching bands, fire trucks, Shriners in their tiny cars and Santa Claus. Suddenly it was officially a Druid-sounding “Winter Parade” because Mayor Goodwin wanted to signal that her city embraced all faiths and cultures. “I wanted to show that Charleston is a welcoming and inclusive city,” she said.

A large number of Charleston residents didn’t welcome her unilateral decision at all. “The new mayor needs to be voted out if she does away with the Christmas parade,” read an early comment on ther Facebook post. “Christmas is all about Christ, not some winter parade.” Columnists and radio shows weighed in, almost unanimously condemning her decision. The largely white and  Christian city of 48,000 hadn’t exactly been racked with controversy over the Christmas parade, but now renaming the parade felt to many like a rejection of Christianity and tradition.

The New York Times quoted the president of the West Virginia Chamber of Commerce in Charleston, Steve Roberts: “The community reaction was a collective groan, It’s a cute little parade with cute little kids and can’t we just have a Christmas parade?”

The change threatened to start a chain reaction. The Times story says that Brandon Willard, a junior high band teacher, began to worry about his musical selection for his student band scheduled to march in the parade: Leroy Anderson’s “Sleigh Ride.”It’s a secular Christmas tune of long-standing (they always played it at my High School Christmas assembly), but Willard became worried that he would be accused of having the band take side. Maybe parents would pull their children from the parade in protest, maybe even preventing the band from having enough musicians to march. It would be a big disappointment to the students, who march every year in Santa hats and with decorated instruments, and this year, with new  light-up necklaces he had ordered. The parade also counted toward their grade. Continue reading

Headed Straight Into The Ethics Alarms Massive “Nah, There’s No Mainstream Media Bias!” File: Bloomberg News Provides A Smoking Cannon

Let’s give credit to Bloomberg News for this at least: it isn’t trying to hide its capitulation to a conflict of interest and its abandonment of journalism ethics.

2,700 journalists working at Bloomberg L.P., the financial data company primarily owned by newly minted Democratic Presidential candidate Michael Bloomberg, were thus instructed  in a memo sent by John Micklethwait, Bloomberg Editorial and Research’s editor in chief:

“We will write about virtually all aspects of this presidential contest in much the same way as we have done so far. We will describe who is winning and who is losing,. We will look at policies and their consequences. We will carry polls, we will interview candidates and we will track their campaigns, including [Michael Bloomberg’s] We have already assigned a reporter to follow his campaign (just as we did when Mike was in City Hall). And in the stories we write on the presidential contest, we will make clear that our owner is now a candidate.”

However, the memo went on to say, Bloomberg’s outlets, including Bloomberg Businessweek and several industry-specific sites, will not perform in-depth investigations of  Bloomberg or any of his Democratic rivals.

Let’s be clear about what this policy means by looking at it from another angle. Bloomberg media outlets will only be seeking damaging news and creating critical “in-depth” analysis on one party’s candidate, that being the Republican party and its candidate, President Trump.. They will operate during the next year like Charles Foster Kane’s newspaper, the New York Daily Inquirer operated when the corrupt Orson Welles character was running for governor in “Citizen Kane.” Continue reading

Post Road Trip Ethics De-Brief, 11/20/2019, AND Morning Warm-Up, 11/21/2019

Bvuh.

Thinking is a chore right now, never mind typing.

We returned from a triumphant two-Darrow ethics program New Jersey tour, highlighted by the intense Darrow oratory performed by actor/legal instructor Paul Morella. This does a cynical ethics CLE presenter’s heart good: finding myself short of time, I asked the assembled NJ Bar members to vote on whether Paul should omit Darrow’s famous Leopold and Loeb closing argument, or Darrow’s own desperate plea for an acquittal when he faced a jury considering his own guilt of jury tampering in the 1911 MacNamara case. The group almost unanimously voted that we complete both closings, with my ethics commentary as well, bringing the program to an end almost a half hour later than scheduled. Nobody left, and believe me, in most CLE seminars, the lawyers seldom stay one second longer than they have to.

Brought a tear to my eye…

No rest in sight, though: tomorrow, I take an early flight to team up with rock guitar whiz and singer Mike Messer in Las Vegas for Ethics Rock Extreme. And I’m punchy now...

1. Well, maybe the NFL is learning…News item: The Miami Dolphins released already suspended running back Mark Walton on Tuesday, hours after he was arrested on charges of punching his pregnant girlfriend multiple times in the head. Walton had been serving a four-game suspension because of  three arrests before the season started. He was sentenced in August to six months’ probation after pleading no contest to a misdemeanor weapons charge.

Now let’s see if the Patriots sign him…

2. Just a quick impeachment hearings note: It is astounding to me that witnesses are being called by the Democrats to testify regarding their opinions on a President’s phone call to a foreign leader. Big black headlines shout that witnesses called a phone call “inappropriate.” Who cares? The President has the authority to decide what is “appropriate,” and there are no impeachment articles in the Constitution designating “acting inappropriately” according to someone else’s opinion as a “high crime and misdemeanor.”  Leaders become leaders because they do thinks that others think are “inappropriate.”

Don’t get get me  started on presidential actions through the centuries that experts, government veterans and other critics at the time thought were “inappropriate,” or worse.

I started compiling a list of what I would consider genuinely impeachable actions by past Presidents The list makes the current impeachment push look even more contrived than it already is.

3. I see that the group that surreptitiously filmed Planned Parenthood staff discussing abortions was hit with over 2 million dollars in damages. Good. Continue reading

Unethical Quote Of The Week And Incompetent Elected Official Of The Month: Baltimore Mayor Jack Young

Sure, be happy and proud, Mr. Mayor! After all, you didn’t commit those murders, and better still, you weren’t the victim of any of them!

“I’m not committing the murders. And that’s what people need to understand. I’m not committing the murders. The police commissioner is not committing it. The council is not committing it. So how can you fault leadership? You know this has been five years of 300-plus murders, and I don’t see it as a lack of leadership.”

—Baltimore Mayor Jack Young, responding to criticism over another year of violent crime in the city, with the number of murders about to reach 300.

Any elected official foolish enough to make such a statement should just resign in disgrace. He is incapable of competent leadership, because he doesn’t understand what it is that leaders do. They are responsible for the welfare of those who follow them, depend on them, trust them. Because they have taken on this responsibility, they are accountable to everyone in the organization—in his case, a municipality—for a deterioration in conditions there. Continue reading