Lessons In Legitimacy From The War Of The Roses

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Guest post by Steve-O-in NJ

In the year 1399 a nobleman of the House of Lancaster named Henry of Bolingbroke ousted Richard II of the house of Plantagenet, son of Edward III, from the throne of England, partly over alleged tyranny and mismanagement (possibly brought on by a personality disorder), but just as much over pride, power, and differences regarding how to govern. Henry IV’s reign was fraught with problems as the nobles battled for power and influence under an unconsolidated rule, including Henry “Hotspur” Percy’s revolt, an attempt to restore Wales’ independence by Prince Owen Glendower, even an attempt to restore Richard to the throne in something called The Epiphany revolt. After all, once someone has ousted a rightful ruler by force (or fraud or corruption), why can’t he be ousted by force?

Henry IV died at 45 due to less than wonderful health. Henry V, Prince Hal, followed his father to the throne. Though Shakespeare portrays him as a hero, and he did achieve some great feats on the battlefield, he died at 35 (previously thought to be of dysentery, but now thought of as probably heatstroke from hacking and banging in full armor in August) leaving a young and mentally infirm son to inherit the throne as Henry VI. The English nobles hadn’t forgotten the recent dynastic struggle, and there was no reason for another nobleman, named Richard of York (you need a scorecard to keep track of all these Richards and Henrys), also a cadet branch of the Plantagenet house, like the Lancasters were, not to decide to press his own claim to the throne, starting the 30-year dynastic struggle known as the Wars of the Roses, since the Lancaster symbol was a red rose and the York symbol was a white rose.

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Ethics Quote Of The Month:Rep. Alex Moody (R-WV) [Corrected]

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“It is wrong to have sent members of Congress home and then try to adopt without any debate a precedent-setting resolution that could imperil our Republic. The U.S. House must never adopt a resolution that demands the removal of a duly elected president, without any hearings, debate or recorded votes.”

Congressman Alex Mooney, blocking the Democrats’ idiotic and unethical attempt to pass a unanimous motion calling on Vice-President Pence to invoke the 25th Amendment, which is neither relevant nor legal under current circumstances.

Why yes, Congressman, it is! Not that you don’t deserve credit for speaking up, but it increasingly appears that the latest, most petty and potentially most dangerous effort by Democrats to prematurely end Donald Trunp’s tenure as President is incompetent, grandstanding, and not very serious, as if trying to remove a President shouldn’t always be serious.

On the other hand, after 19 previous attempts, maybe these mini-coups are like eating buttered popcorn to these vicious hacks. Once they start, they just can’t stop.

Mooney’s statement began, “Today I objected to Speaker Pelosi’s attempt to adopt via unanimous consent a resolution calling on Vice President Mike Pence to invoke the 25th Amendment to remove President Trump. Speaker Pelosi should not attempt to adopt a resolution of this magnitude without any debate on the floor of the U.S. House of Representatives.”

Exactly. It’s good to know someone in that big, white domey thing can read.

Pelosi’s statement, in contrast, suggest that she’s the one who has become unable to discharge the duties of her office:

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Pelosi’s Unconscionable “Snap Impeachment,” Part II: If This Happens, It Will Be Time To Release A Real “Kraken,” And I Hope I Can Help Feed Pelosi To It…[Corrected]

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Plan T, the apparent plan to impeach President Trump for a crime he clearly did not commit, is arguably the worse of the various AUC-contrived removal plots, because it will do the most damage by far. Even the actual impeachment, the ridiculous Plan S, had little long-term effect, and the Democrats abandoned it even as a campaign issue. Even they didn’t take it seriously: like so much of the rest, it was just one more way to denigrate, obstruct and weaken the leader of their own nation. It was part of strategy, that’s all. As I wrote in Part I, this is different in kind:

Plan T must be recognized for what it is: an act of pure hate and vengeance, and a deliberate, calculated insult to Trump’s supporters as well as those citizens who believe that that their government should not behave like third-world failed state.

I admit it: I am angry about this, and if it occurs, I will not forget it or forgive it—and I do not consider myself one of the Trump supporters being ostentatiously slapped in the face. I am angry because this is not how the United States of America behaves towards its leaders. I know readers here are sick of me saying this, but I will say it again because it is true: the nation owes respect and debt of gratitude to every President of the United States, without exception, when they leave office, and that respect should continue to the end of their days, and throughout our history. That’s right, every single one of them, the skilled and less-than-skilled, the competent and incompetent, the best and the worst of them, Andrew Johnson as well as Lincoln, Nixon as well as Eisenhower, the Bushes as well as Reagan, Hoover as well as FDR, Carter, Clinton, Obama, and yes, Donald Trump.

The job was always a killing one and a near impossible, one, and it has only become more difficult and unpleasant. Taking the job is an act of patriotism, and enduring it is an act of courage and character. No President has been treated as atrociously by so much of the public, the opposing party, his own party and the news media as Donald Trump, and it is remarkable that he accomplished as mach as he did under continuous attack. Nearly every other President has been accorded a “honeymoon,” the occasional benefit of the doubt, the opportunity to just play the head of state and accept the pomp, ceremony and traditional acclaim that comes with it. Not President Trump. He was not permitted a peaceful inauguration, nor respectful audiences in Congress to his State of the Union messages, nor the pleasure of throwing out the first ball in the baseball season, nor the host role in the Kennedy Center Honors, nor even an invitation to attend state funerals. Yet President Trump buggered on, as Winston Churchill said, doing his best to try to fulfill his promises and do what in his view was in the best interests of America.

He has been kicked virtually every day of his four years in office, and now his repulsive, vindictive, thuggish foes want to kick him as he goes out the door.

The effort to lay lat weeks riot at the Capitol at Trump’s feet is too cynical and false to be tolerated. Professor Turley had a succinct summary of how disingenuous that is in his recent column in the Hill:

We have had four years of violent protests, including the attacks on federal buildings, members of Congress, and symbols of our democracy. Former Attorney General William Barr was heavily criticized for clearing Lafayette Square last year after protesters injured numerous law enforcement officers, were injured themselves, burned a historic building, caused property damage, and threatened to breach the White House grounds. There were violent riots during the inauguration of Donald Trump and a lethal assault on some Republican lawmakers playing softball. Indeed, this year started as last year ended, with attacks on federal buildings in Portland and other cities.

It is beyond hypocritical for the same people and party that largely encouraged, enables and rationalized these and more to now pretend to be shocked, call a single, particularly stupid and pointless riot at the Capitol a “threat to Democracy,” and to attempt to impeach the President for his role in it, which consisted of endorsing a Constitutionally protected protest. The true threat to Democracy has been ongoing for four years, and it was called “the resistance.” I find it hard to believe that the American people will accept such a transparent and Orwellian distortion of reality, but I know that I won’t.

If the Congress wants to censure President Trump or some other symbolic gesture, fine. As I have written here, it was inappropriate for the President to be challenging the validity of his defeat, even more so than it was for Hillary Clinton to challenge the validity of her defeat, by Trump. Doing so was, in sequence, predictable, irresponsible, dangerous, in many ways justified, and completely in character. I would not object to an official precedent being established holding that no matter how close or dubious an election is, challenges to the results must not be pronounced in public, by POTUS.

Impeachment on this basis, however, is pure lawlessness. Here’s Turley again in another column (this is his specialty, after all). The emphasis is mine:

“..Democrats are seeking to remove Trump on the basis of his remarks to supporters before the rioting at the Capitol. Like others, I condemned those remarks as he gave them, calling them reckless and wrong. I also opposed the challenges to electoral votes in Congress. But his address does not meet the definition for incitement under the criminal code. It would be viewed as protected speech by the Supreme Court.

When I testified in the impeachment hearings of Trump and Bill Clinton, I noted that an article of impeachment does not have to be based on any clear crime but that Congress has looked to the criminal code to weigh impeachment offenses. For this controversy now, any such comparison would dispel claims of criminal incitement. Despite broad and justified condemnation of his words, Trump never actually called for violence or riots. But he urged his supporters to march on the Capitol to raise their opposition to the certification of electoral votes and to back the recent challenges made by a few members of Congress. Trump told the crowd “to peacefully and patriotically make your voices be heard.”….

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Pelosi’s Unconscionable “Snap Impeachment,” Part I: Welcome to Plan T

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In Ethics Alarms’ compilation of the previous 19 attempts at removing President Trump since his election had been stalled at Plan S, the unconstitutional, cynical and non-substantive impeachment of President Trump on spurious grounds in 2019. It’s lack of validity was demonstrated by the fact that neither the news media nor Democrats mentioned the sham during the 2020 Presidential campaign. In the introduction to the list, I wrote,

When Plan S, which late novelist Robert Ludlum might have called “The Ukrainian Perversion” if it had been one of his novels, fails like the rest, or if President Trump is re-elected, the list will keep growing. As scholar Victor Hanson Davis has pointed out, the sheer number of these successive plans belies the claim that this is not an ongoing attempt at a soft coup.

As it turned, out I was more right than I intended to be. Never did I suspect that Democrats would continue to try to remove the President before the end of his term even if they won the 2020 Presidential election, but they are doing so because the other 19 attempts failed. Since this cannot reasonably be called a soft coup, since the Democrats have already won the White House, Plan T must be recognized for what it is: an act of pure hate and vengeance, and a deliberate, calculated insult to Trump’s supporters as well as those citizens who believe that that their government should not behave like third-world failed state.

The rest of this post will be added to “Presidential Impeachment/Removal Plans, 2016 to 2020”:

Plan T (added 1/9/21): Trump should be impeached for “inciting a riot” with his speech to supporters on January 6, as Congress gathered to officially approve the states’ electoral college vote making Joe Biden the 46th President. The transcript is here.

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“All They Have To Do Is Not Be Crazy, And They Can’t Even Do That” Observations

The quote in the title, in various forms, has been repeated as a running gag on Instapundit, the conservative mega-blog, for four years now. The idea behind it was that in light of the chaotic and intentionally obnoxious style of the President, Democrats only needed to behave in a statesmanlike, responsible, fair and judicious manner to prevail politically. Instead, they did exactly the opposite.

The problem is that acting crazy worked. The increasingly radical leftist base wanted to rain anger and hate down on President Trump while trying every avenue to remove him without having to brave an election. After originally resisting, the Democratic leadership eventually capitulated, bolstered by now completely partisan news media and the Republican NeverTrumpers, whose hatred of the President was as much driven by class as politics. Now that Democrats have won control of the Senate as well as the White House, they apparently see no reason to stop the formula that succeeded so well—at the cost of dividing the nation, risking violence, destroying trust in our institutions, and cementing a new normal of endless political warfare, but still. This has become the party of “the ends justifies the means.”

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Saturday Morning Ethics: Christmas Countdown Edition

The story of that Christmas classic, Bing’s last holiday hit and also the last popular Christmas song that references its religious origins, is here.

I almost called this post the Clinton Impeachment Anniversary Edition, but decided to be more upbeat. It was on this date that William Jefferson Clinton became the second U.S. President to be impeached. Like the first, the unfortunate Andrew Johnson, Clinton was acquitted in the Senate. Also like Johnson, Clinton was impeached for genuine reasons consistent with the Constitution’s requirements. The next impeachment—did you notice how Democrats never mentioned it during the 2020 campaign?—-was very different: the Democratic House just decided it wanted to impeach President Trump and contrived an excuse to do it after three years of searching.

As veteran readers here know, it was the near complete absence of ethical analysis from the news media during Monica Madness and the mountain of rationalizations and obfuscations employed by Clinton’s defenders that prompted me to launch The Ethics Scoreboard, which in due course led to Ethics Alarms.

1. A bar exam ethics train wreck in California. The ABA Journal reports that more than 3,000 law school grads who sat for the State Bar of California’s remote October exam had their proctoring videos flagged for review, and dozens report receiving violation notices from the agency’s office of admissions. The issues flagged appear to be largely technology-based, and many claim they had no indication of a problem until they received violation notices. The flagging will create serious problems for those involved. A Chapter 6 Notice, as it is called, allows an applicant to respond in writing before any finding is made. If there is a determination that a test-taker violated procedures, bar actions could include warnings, a score of zero for the flagged sessions or the entire exam and negative marks on character and fitness evaluations, endangering the applicant’s prospects of receiving a license.

An individual can challenge the office’s determination and request an administrative hearing, and an unfavorable outcome can be appealed with the Committee of Bar Examiners and the California Supreme Court. However, those applicants’ October bar exam scores will be in limbo while hearings and appeals are resolved, and they will not be able to take the February 2021 exam when determinations of previous scores are pending.

The violations cited include examinees’ eyes being intermittently out of view of their webcams, audio not working; and test-takers not being present behind their computers during the exam. In other words, this is another disaster created by pandemic hysteria and technology unsuited to the challenge of providing an adequate alternative to in-person activity.

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Morning Ethics Warm-Up, 1/28/2020: Transcripts! Audacious Defense Lawyers! Canadian Defamation! “Bombshells”! [UPDATED]

Good morning…

1. Here’s a typical unbiased New York Times front page headline regarding the impeachment trial (from last week):

“One One Side, Piles of Evidence, On the Other, Heaps of Scorn”

Here’s some more scorn: there is no evidence at all of impeachable offenses on  that pile, and scorn for the President is being treated as evidence.

2. This is astounding. (From johnburger, and thanks) Check out this.

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

Note the date…

In his final section before concluding, Professor Turley covers other theories being floated as justification for impeachment, and finds them startlingly weak and contrived.

The Hill has Turley’s lament regarding the  the Alliance of Unethical Conduct’s attacks on his thorough and objective dismantling of their coup efforts. (The AUC—that’s the Ethics Alarm shorthand for the Democratic Party-“resistance”-mainstream media alliance to remove Trump from office by any means possible, not Turley’s.)  He writes,

Despite 52 pages of my detailed testimony, more than twice the length of all the other witnesses combined, on the cases and history of impeachment, [Washington Post columnist Dana Milbank] described it as being “primarily emotional and political.” Milbank claimed that I contradicted my testimony in a 2013 hearing when I presented “exactly the opposite case against President Obama” by saying “it would be ‘very dangerous’ to the balance of powers not to hold Obama accountable for assuming powers ‘very similar’ to the ‘right of the king’ to essentially stand above the law.”

But I was not speaking of an impeachment then. It was a discussion of the separation of powers and the need for Congress to fight against unilateral executive actions, the very issue that Democrats raise against Trump. I did not call for Obama to be impeached….

In my testimony Wednesday, I stated repeatedly [as I stated in my testimony during the Clinton impeachment] that a president can be impeached for noncriminal acts…. My objection is not that you cannot impeach Trump for abuse of power but that this record is comparably thin compared to past impeachments…. … Democrats have argued that they do not actually have to prove the elements of crimes…. In the Clinton impeachment, the crime was clearly established and widely recognized…. [W]e are lowering impeachment standards to fit a paucity of evidence and an abundance of anger…. 

Writes Ann Althouse in a post yesterday, “it seems to me that the real impeachable offense has always been that Donald Trump got himself elected.”

I wish Prof. Turley had dealt with that, the real justification, in their minds, for the House’s impeachment push.

Back to the professor:

C.  Extortion.

 As noted earlier, extortion and bribery cases share a common law lineage. Under laws like the Hobbs Act, prosecutors can allege different forms of extortion. The classic form of extortion is coercive extortion to secure property “by violence, force, or fear.”85 Even if one were to claim the loss of military aid could instill fear in a country, that is obviously not a case of coercive extortion as that crime has previously been defined.

Instead, it would presumably be alleged as extortion “under color of official right.” Clearly, both forms of extortion have a coercive element, but the suggestion is that Trump was “trying to extort” the Ukrainians by withholding aid until they agreed to open investigations. The problem is that this allegation is no closer to the actual crime of extortion than it is to its close cousin bribery. The Hobbs Act defines extortion as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.”87

As shown in cases like United States v. Silver, extortion is subject to the same limiting definition as bribery and resulted in a similar overturning of convictions. Another obvious threshold problem is defining an investigation into alleged corruption as “property.” Blackstone described a broad definition of extortion in early English law as “an abuse of public, justice which consists in an officer’s unlawfully taking, by colour of his office, from any man, any money or thing of value, that is not due him, or more than is due, or before it is due.”89 The use of anything “of value” today would be instantly rejected. Extortion cases involve tangible property, not possible political advantage.90 In this case, Trump asked for cooperation with the Justice Department in its investigation into the origins of the FBI investigation on the 2016 election. As noted before, that would make a poor basis for any criminal or impeachment theory. The Biden investigation may have tangible political benefits, but it is not a form of property. Indeed, Trump did not know when such an investigation would be completed or what it might find. Thus, the request was for an investigation that might not even benefit Trump.

The theory advanced for impeachment bears a close similarity to one of the extortion theories in United States v. Blagojevich where the Seventh Circuit overturned an extortion conviction based on the Governor of Illinois, Rod Blagojevich, pressuring then Sen. Barack Obama to make him a cabinet member or help arrange for a high- paying job in exchange for Blagojevich appointing a friend of Obama’s to a vacant Senate seat. The prosecutors argued such a favor was property for the purposes of extortion. The court dismissed the notion, stating “The President-elect did not have aproperty interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).” In the recent hearings, witnesses spoke of the desire for “deliverables” sought with the aid. Whatever those “deliverables” may have been, they were not property as defined for the purposes of extortion any more than the “logrolling” rejected in Blagojevich.

There is one other aspect of the Blagojevich opinion worth noting. As I discussed earlier, the fact that the military aid was required to be obligated by the end of September weakens the allegation of bribery. Witnesses called before the House Intelligence Committee testified that delays were common, but that aid had to be released by September 30th. It was released on September 11th. The ability to deny the aid, or to even withhold it past September 30th is questionable and could have been challenged in court. The status of the funds also undermines the expansive claims on what constitutes an “official right” or “property”:

“The indictment charged Blagojevich with the ‘color of official right’ version of extortion, but none of the evidence suggests that Blagojevich claimed to have an ‘official right’ to a job in the Cabinet. He did have an ‘official right’ to appoint a new Senator, but unless a position in the Cabinet is ‘property’ from the President’s perspective, then seeking it does not amount to extortion. Yet a political office belongs to the people, not to the incumbent (or to someone hankering after the position). Cleveland v. United States, 531 U.S. 12 (2000), holds that state and municipal licenses, and similar documents, are not ‘property’ in the hands of a  public  agency. That’s equally true of public positions. The President-elect did not have a property interest in any Cabinet job, so an attempt to get him to appoint a particular person to the Cabinet is not an attempt to secure ‘property’ from the President (or the citizenry at large).”

A request for an investigation in another country or the release of money already authorized for Ukraine are even more far afield from the property concepts addressed by the Seventh Circuit.

The obvious flaws in the extortion theory were also made plain by the Supreme Court in Sekhar v. United States, where the defendant sent emails threatening to reveal embarrassing personal information to the New York State Comptroller’s general counsel in order to secure the investment of pension funds with the defendant. In an argument analogous to the current claims, the prosecutors suggested political or administrative support was a form of intangible property. As in McDonnell, the Court was unanimous in rejecting the “absurd” definition of property. The Court was highly dismissive of such convenient linguistic arguments and noted that “shifting and imprecise characterization of

the alleged property at issue betrays the weakness of its case.”94 It concluded that “[a]dopting the Government’s theory here would not only make nonsense of words; it would collapse the longstanding distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. That we cannot do.”95 Nor should Congress. Much like such expansive interpretations would be “absurd” for citizens in criminal cases, it would be equally absurd in impeachment cases.

To define a request of this kind as extortion would again convert much of politics into a criminal enterprise. Indeed, much of politics is the leveraging of aid or subsidies or grants for votes and support. In Blagojevich, the court dismissed such “logrolling” as the basis for extortion since it is “a common exercise.” If anything of political value is now the subject of the Hobbs Act, the challenge in Washington would not be defining what extortion is, but what it is not.

D.  Campaign Finance Violation

Some individuals have claimed that the request for investigations also constitutes a felony violation of the election finance laws. Given the clear language of that law and the controlling case law, there are no good-faith grounds for such an argument. To put it simply, this dog won’t hunt as either a criminal or impeachment matter. U.S.C. section 30121 of Title 52 states: “It shall be unlawful for a foreign national, directly or indirectly, to make a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a federal, state, or local election.”

On first blush, federal election laws would seem to offer more flexibility to the House since the Federal Election Commission has adopted a broad interpretation of what can constitute a “thing of value” as a contribution. The Commission states “’Anything of value’ includes all ‘in-kind contributions,’ defined as ‘the provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services.’” However, the Justice Department already reviewed the call and correctly concluded it was not a federal election violation. This determination was made by the prosecutors who make the decisions on whether to bring such cases. The Justice Department concluded that the call did not involve a request for a “thing of value” under the federal law. Congress would be alleging a crime that has been declared not to be a crime by career prosecutors. Such a decision would highlight the danger of claiming criminal acts, while insisting that impeachment does not require actual crimes. The “close enough for impeachment” argument will only undermine the legitimacy of the impeachment process, particularly if dependent on an election fraud allegation that itself is based on a demonstrably slipshod theory. Continue reading

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

The press wanted Andrew Johnson impeached, too…

This section of Turley’s masterpiece covers the various “obstruction of justice” claims. The conclusion:

“Basing impeachment on this obstruction theory would itself be an abuse of power. . . by Congress. It would be an extremely dangerous precedent to set for future presidents and Congresses in making an appeal to the Judiciary into “high crime and misdemeanor.”

Boy, Turley did a terrific job…

B.  Obstruction of Justice

 Another crime that was sporadically mentioned during the House Intelligence hearings was obstruction of justice or obstruction of Congress. Once again, with only a few days to prepare this testimony and with no public report on the specific allegations, my analysis remains mired in uncertainty as to any plan to bring such a claim to the foundational evidence for the charge. Most of the references to obstruction have been part of a Ukraine-based impeachment plan that does not include any past alleged crimes from the Russian investigation. I will therefore address the possibility of a Ukraine-related obstruction article of impeachment. However, as I have previously written, I believe an obstruction claim based on the Mueller Report would equally at odds with the record and the controlling case law. The use of an obstruction theory from the Mueller Report would be unsupportable in the House and unsustainable in the Senate. Once again, the lack of information (just weeks before an expected impeachment vote) on the grounds for impeachment is both concerning and challenging. It is akin to being asked to diagnose a patient’s survivability without knowing his specific illness.

Obstruction of justice is a more broadly defined crime than bribery and often overlaps with other crimes like witness tampering, subornation, or specific acts designed to obstruct a given proceeding. There are many federal provisions raising forms of obstruction that reference parallel crimes. Thus, influencing a witness is a standalone crime and also a form of obstruction under 18 U.S.C. 1504. In conventional criminal cases, prosecutions can be relatively straightforward, such as cases of witness intimidation under 18 U.S. 1503. Of course, this is no conventional case. The obstruction claims leveled against President Trump in the Ukrainian context have centered on two main allegations. First, there was considerable discussion of the moving of the transcript of the call with President Zelensky to a classified server as a possible premeditated effort to hide evidence. Second, there have been repeated references to the “obstruction” of President Trump by invoking executive privileges or immunities to withhold witnesses and documents from congressional committees. In my view, neither of these general allegations establishes a plausible case of criminal obstruction or a viable impeachable offense.

In the Mueller report, Assistant Attorney General found no cognizable case was presented for an allegation of obstruction of justice. Many members of this Committee heralded the selection of Rosenstein as a consummate and apolitical professional who was responsible for the appointment of the Special Counsel. He reached this conclusion on the record sent by Mueller and, most importantly, the controlling case law. As with the campaign finance allegation discussed in this testimony, an article based on obstruction in the Russian investigation would seek the removal of a President on the basis of an act previously rejected as a crime by the Justice Department. Many of us have criticized the President for his many comments and tweets on the Russian investigation. However, this is a process that must focus on impeachable conduct, not imprudent or even obnoxious conduct. Continue reading

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

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