Constitutional Question

[Zkribbler]

Then hopefully Trump faces a charge in court for fomenting rebellion, or sedition, if not outright treason. Something has to stick.

I'd like to include five counts of felony murder plus mayhem for the scores of injured officers.

 

[TheMeInTeam]

???
Whether the allegations are true or not has no bearing on the constitutional question on whether there can be a criminal trial as well.

Let's try this a different way:

Bobby is accused of tax evasion. In the prosecution's document, they only include details about Bobby's dining habits.

Can Bobby see a criminal trial for tax evasion in that context?

~~~

That's the problem with the accusations against Trump in the context of the riots (and to a lesser extent even the Rittenhouse situation). The prosecution's own presentation of the facts/merits of the case are so insufficient in merit that even if you grant their stated facts as accurate and ignore the defense entirely, the charges don't make sense.

I'd like to include five counts of felony murder.

I'd like to include basic rationality in discussion and I'm sure some people would like to include a few winning lottery tickets. Actually if we're giving one of those out even I'd want one.

Thank you, and @Lemon Merchant this is the direction I was going with the question. As no specific law needs to be cited for an impeachment, with a conviction resulting in removal from office, a criminal or civil trial thereafter would not constitute double jeopardy as I see it.

A "conviction" of...what precisely? This also ignores that Trump's situation was a bill of attainder, since he was no longer in office. From the start insofar as there was going to be any prosecution, it should have been in a normal court. There's no "double jeopardy" here, just an enormous waste of time and money by our legislative branch making clowns of themselves. Good thing for them it wasn't a court, too, since falsifying evidence in actual courts has greater consequences. But they knew this was a political stunt from the start.

 

[amadeus]

A "conviction" of...what precisely

Any articles of impeachment passed by the House. I’m talking about the process, not the specific Trump cases.

This also ignores that Trump's situation was a bill of attainder, since he was no longer in office.

A bill of attainder would be if Congress passed a specific bill to punish Donald Trump. Said bill would need to be signed by the President, and as such is already forbidden by the U.S. Constitution.

If you’re talking about an ex post facto law, again, same as a bill of attainder there is an important point here—bills, laws, are signed by the President (or passed with a veto-proof majority.) A trial is not a bill, does not need the President’s signature, and thus neither constitutes a bill of attainder nor an ex post facto law.

 

[uppi]

Bobby is accused of tax evasion. In the prosecution's document, they only include details about Bobby's dining habits.

Can Bobby see a criminal trial for tax evasion in that context?

Yes, he can. What is the point?

 

[TheMeInTeam]

Yes, he can. What is the point?

My point is actually that he can't, and that point is consistent with law. Motion to dismiss.

A bill of attainder would be if Congress passed a specific bill to punish Donald Trump.

That's what impeaching someone not in office does. It's the constitutional equivalent of impeaching Hillary Clinton from presidency. Bonkers clown world stuff, not something anybody competent would take seriously.

To make this clear: congress flagrantly violated the constitution, and some of the HR trash proposals seem to demonstrate that's not accidental.

"Conviction" implies a person is convicted of SOMETHING. What is the conviction of a non-crime impeachment?

 

[amadeus]

That's what impeaching someone not in office does.

I would not reach this conclusion just because Trump’s term in office expired before the Congress had the time necessary to draft the article and hold the trial.

I didn’t read the impeachment article but I would assume it was for something done while he was in office.

"Conviction" implies a person is convicted of SOMETHING. What is the conviction of a non-crime impeachment?

Constitutionally, “... high crimes and misdemeanors”, and this language was made to be vague.

As to whether or not Congress could impeach someone long out of office, that’s uncharted waters but I think it could be possible. I think that would ultimately rest on whether or not the Supreme Court has the jurisdiction to intervene in a trial carried out by Congress.

 

[Camikaze]

What is your operating definition for the terms "high crime" and "misdemeanor"? The former is objectively a violation of actual law. If your standard for "misdemeanor" in the context of impeachment doesn't require a law to be broken, you don't have a standard for impeachment.

This is not the case, for reasonably obvious reasons. "High crimes and misdemeanours" is a legal term of art essentially covering serious misfeasance of public office. Disregarding for present purposes the centuries long history of the term prior to the drafting of the US Constitution, the obvious reason why the framers were not restricting removal to actual crimes is that you could have, for example, a President who decides that they were going to go and live in a dacha on the Black Sea coast permanently, while not doing their job and appearing on RT everyday to slag off the US. That would likely not be a criminal offence of any sort, but it would be a "high crime" warranting impeachment and removal.

 

[Ferocitus]

Knock, knock
Who's there?
Donald J. Trump.
Donald J. Trump who?
Ok, you can be on the jury.

 

[Angst]

???

What is your operating definition for the terms "high crime" and "misdemeanor"? The former is objectively a violation of actual law. If your standard for "misdemeanor" in the context of impeachment doesn't require a law to be broken, you don't have a standard for impeachment.

Problem is that "high crime" and "misdemeanor" actually has very little legal bearing as they lack concrete legal definitions. Part of the reason is that impeaching has been so rare historically, and have been done as answers to wildly different actions. It's quite common for legal scholars to believe that impeachment is a tool to stop problematic behavior - even when the behavior is technically legal. This is why people say "impeachment is a political process, not a legal one". It's not a courtroom case. It's a tool for the parliament to shut down part of the executive branch if the latter has amassed too much power and has started to become a problem. Regardless of legality.

EDIT: Camikaze's post is more clear about the matter.

-

This is, by the way, why impeachment is applicable to Trump's behavior until the parliament storming. US political rhetoric is quite poetic, which makes a lot of it not legally enforcable most of the time. This is a loophole that allows Trump to get through normal courts. But whether it is legally enforcable or not in normal courts, his behavior and speech is inciting riots and getting people killed. This definitely falls under what impeachment is actually supposed to solve.

 

[Cutlass]

Impeachment does imply actual crime, however, per the constitution. What we witnessed was a bill of attainder. With a few bits of falsified evidence by the prosecution (dates, doctoring evidence submitted). And the basis for impeachment was for actions that were not violation of law.

Bill Clinton's impeachment was falsified evidence by Congress. Why are you conflating that with Trump's treason?

To make this clear: congress flagrantly violated the constitution, and some of the HR trash proposals seem to demonstrate that's not accidental.

Again, we're talking about Trump, not BC. Congress's violation of the Constitution during the BC impeachment have no bearing on their entirely correct attempt to impeach Trump.

"Conviction" implies a person is convicted of SOMETHING. What is the conviction of a non-crime impeachment?

Treason is a crime.

 

[TheMeInTeam]

I would not reach this conclusion just because Trump’s term in office expired before the Congress had the time necessary to draft the article and hold the trial.

I didn’t read the impeachment article but I would assume it was for something done while he was in office.

As to whether or not Congress could impeach someone long out of office, that’s uncharted waters but I think it could be possible. I think that would ultimately rest on whether or not the Supreme Court has the jurisdiction to intervene in a trial carried out by Congress.

The purpose of impeachment is to remove someone from office. Once someone isn't in office, they're bound by normal laws only like anybody else. If you use the "standard" (aka none) congress used in this case, congress can simply stop someone from being president/running for office at-will.

This is not the case, for reasonably obvious reasons. "High crimes and misdemeanours" is a legal term of art essentially covering serious misfeasance of public office. Disregarding for present purposes the centuries long history of the term prior to the drafting of the US Constitution, the obvious reason why the framers were not restricting removal to actual crimes is that you could have, for example, a President who decides that they were going to go and live in a dacha on the Black Sea coast permanently, while not doing their job and appearing on RT everyday to slag off the US. That would likely not be a criminal offence of any sort, but it would be a "high crime" warranting impeachment and removal.

It's a tool for the parliament to shut down part of the executive branch if the latter has amassed too much power and has started to become a problem. Regardless of legality.

It's not convincing to say someone still has too much power when they're not in office. The above also doesn't appear to hold any consistent standard. The extreme example of a president moving to another country and doing nothing for US seems to be closer to a 25th amendment issue.

But whether it is legally enforcable or not in normal courts, his behavior and speech is inciting riots and getting people killed. This definitely falls under what impeachment is actually supposed to solve.

Standard consistency please. This goes way beyond simple whataboutism. Are we throwing out a substantial portion of congress via impeachment? There's a good reason we don't make these kinds of ridiculous causal inferences. I thought we had evidence capital riots were planned in advance? Are we holding elected officials to a standard where violent action taken after something they say can be attributed to them at arbitrarily later times? I have a feeling most elected officials wouldn't like that standard.

Bill Clinton's impeachment was falsified evidence by Congress. Why are you conflating that with Trump's treason?

I'm not talking about the Clinton impeachment at all. Congress falsified evidence in the impeachment proceedings this time.

Again, we're talking about Trump, not BC. Congress's violation of the Constitution during the BC impeachment have no bearing on their entirely correct attempt to impeach Trump.

I agree. Which is why I wasn't talking about the BC impeachment. Though since you brought it up that one was a joke too.

Treason is a crime.

Too bad evidence of treason was never presented.

 

[Birdjaguar]

@TheMeInTeam @amadeus @Lemon Merchant Here is a great article from The Atlantic on "High crimes...."

https://www.theatlantic.com/ideas/a...crimes-and-misdemeanors-actually-mean/600343/

The beauty of “high Crimes and Misdemeanors” from the perspective of the men of 1787 was that it provided both flexibility and some measure of guidance. Flexibility because it plainly pointed to the parliamentary practice of defining impeachable conduct on a case-by-case basis. Guidance because it incorporated, by reference, 400 years of prior practice on which one could rely in identifying the kinds and degrees of misbehavior that ought to be impeachable.

Moreover, the founders, both during the ratification period and afterward, identified multiple noncriminal acts they believed to be impeachable. At the Virginia ratifying convention, James Madison and Wilson Nicholas said abuse of the pardon power would be impeachable. Impeachment, some founders said, would also follow from receipt of foreign emoluments or presidential efforts to secure by trickery Senate ratification of a disadvantageous treaty. During the first Congress of 1789, Madison even argued that presidents could be impeached for “wanton removal of meritorious officers.”

In the Federalist Papers, Alexander Hamilton made the larger point that impeachment is directed at “political” offenses that “proceed from … the abuse or violation of some public trust.” He was echoed by the foremost of the first generation of commentators on the Constitution, Justice Joseph Story, who observed in his 1833 treatise Commentaries on the Constitution that impeachable conduct is often “purely political,” and that “no previous statute is necessary to authorize an impeachment for any official misconduct.”

Thus, one point on which the founding generation would have been clear was that “high Crimes and Misdemeanors” was not restricted to indictable crimes. Their understanding has been ratified by two centuries of American practice.

The first American impeachment was of Senator William Blount in 1797. Blount concocted a scheme to give Great Britain control of Florida and the Louisiana territories. When it was exposed, the Senate found he had committed a “high misdemeanor, entirely inconsistent with his public trust and duty,” and promptly expelled him. The House then impeached him in five articles alleging betrayals of trust and the national interest, only one of which even arguably alleged a crime. Although there is some debate on the point arising from the phrasing of the Senate’s verdict, most authorities conclude that Blount escaped conviction only because the Senate decided that senators are not civil officers subject to impeachment.

Multiple judges have been impeached, and some removed, for noncriminal abuses or dereliction of office. Judges John Pickering (1803) and Mark Delahay (1873) were impeached for drunkenness (both) or insanity (Pickering). Judges George English (1926) and Harold Louderback (1933) were impeached, wholly or in part, for abusive or biased behavior that brought their courts into disrepute.

Of the 11 articles of impeachment returned against President Andrew Johnson in 1868, nine involved technically criminal violations of the Tenure of Office Act, but the last and most significant two articles alleged general abuses of presidential authority. Johnson escaped conviction in the Senate by one vote, but no serious historian contends that his acquittal rested on the absence of an indictable crime.

Finally, and most pertinently, the House Judiciary Committee approved three articles of impeachment against Richard Nixon: the first for obstruction of justice, the second for abuse of power, and the third for defying House subpoenas during its impeachment investigation. Article 3 obviously did not allege a crime. But even in the first two articles, which did involve some potentially criminal conduct, the committee was at pains to avoid any reference to criminal statutes. Rather, as the committee staff observed in its careful study of the question, “high Crimes and Misdemeanors” is a phrase that reaches far beyond crimes to embrace “exceeding the powers of the office in derogation of those of another branch of government,” “behaving in a manner grossly incompatible with the proper function of the office,” and “employing the power of the office for an improper purpose or personal gain.”

 

[Cutlass]

I'm not talking about the Clinton impeachment at all. Congress falsified evidence in the impeachment proceedings this time.

Then where is the evidence, and why has no one made that argument?

I agree. Which is why I wasn't talking about the BC impeachment. Though since you brought it up that one was a joke too.

You said fake. BC impeachment was fake. Trump impeachment is patriotism.

Too bad evidence of treason was never presented.

In short, Trump could nuke New York after admitting to getting paid off by the Islamic State, and you'd still support him.

 

[Angst]

It's not convincing to say someone still has too much power when they're not in office. The above also doesn't appear to hold any consistent standard. The extreme example of a president moving to another country and doing nothing for US seems to be closer to a 25th amendment issue.

Standard consistency please. This goes way beyond simple whataboutism.

Not sure what you're arguing against here. Point is that "high crimes and misdemeanours" and the process of impeachment isn't a really legal thing, so comparing it to a judical process isn't fruitful. There's a usefulness, by the way, as to why it's not a judical process, even if I think it should be more explicitly stated in regards to punishable evidence; legislation makes things legal, after all. If a president was rampant about executive orders and amassed power in the presidental branch of the office, making things lawful that shouldn't be - and let's for now abandon Biden and Trump here, and instead say, well, Jackson - having a mechanism to prevent this thing, even if something is legal, has its benefits. Even though, I stress again, I prefer it being a thorough process. I'm just outlining the Constitution's vision of the thing, and we can agree with or disagree with that vision if we want. In the end, it was a constitutional attempt as a political process to prevent Trump from further engagement in politics, and due to a political vote, it didn't go through.

Impeachment is basically allowing the majority of congress to limit the presidental branch if congress doesn't like what the president is doing. That's what it is.

Are we throwing out a substantial portion of congress via impeachment? There's a good reason we don't make these kinds of ridiculous causal inferences. I thought we had evidence capital riots were planned in advance? Are we holding elected officials to a standard where violent action taken after something they say can be attributed to them at arbitrarily later times? I have a feeling most elected officials wouldn't like that standard.

Do we have evidence that the capital riots were planned in advance?

And are you suggesting a substantial portion of congress shouldn't be held responsible for these things?

And yea, the connection between Trump's (and others') words and the consequences are literally one link of causality. The capital riots happened as Trump stated they should be going to the white house and ensure the 'democratic process'. Paraphrasing here, but not to any particular degree. I can google eventually when I'm done with DnD, but IIRC it was outlined in the video montage the Democrats produced as evidence, so it should be easy for you to look up. In regular court, this phrasing of Trump can be dismissed by arguing that the interpretation used by the terrorists and the DNC is hyperliteral, but it's pretty explicit text when taken at face value. It's not arbitrary at all to connect the dots.

 

[onejayhawk]

The offense must rise to the level of "High crimes and misdemeanors." I take that to mean that the President must have broken the law in some fashion. But what do I know? I live in Canada.

The term is a modification of high misdemeanor from British law. It meant various sorts of abuse of, or neglect of, office.
https://en.wikipedia.org/wiki/High_misdemeanor

No, no actual law has to be broken to be impeached. "High crimes and misdemeanors" is non specific and is up to the House to determine in their wisdom. Now if the president does commit and actual crime, he apparently can be prosecuted later for that crime in a criminal or civil court.

True, though in the three impeachments prior to Trump (counting Nixon), there was allegation of felony criminal activity (Nixon and Clinton) or dereliction of office (Johnson)

Simple analogy: if an employee murders a customer, they are likely to get fired and tried under criminal law. I don't think anyone would argue that this is double jeopardy. Even if the person in question goes to court to fight the firing.

That is not a good analogy. You do not have a jury trial to get fired.

Problem is that "high crime" and "misdemeanor" actually has very little legal bearing as they lack concrete legal definitions. Part of the reason is that impeaching has been so rare historically, and have been done as answers to wildly different actions. It's quite common for legal scholars to believe that impeachment is a tool to stop problematic behavior - even when the behavior is technically legal. This is why people say "impeachment is a political process, not a legal one". It's not a courtroom case. It's a tool for the parliament to shut down part of the executive branch if the latter has amassed too much power and has started to become a problem. Regardless of legality.

EDIT: Camikaze's post is more clear about the matter.

See also 17th and 18th century English law.

This is, by the way, why impeachment is applicable to Trump's behavior until the parliament storming. US political rhetoric is quite poetic, which makes a lot of it not legally enforcable most of the time. This is a loophole that allows Trump to get through normal courts. But whether it is legally enforcable or not in normal courts, his behavior and speech is inciting riots and getting people killed. This definitely falls under what impeachment is actually supposed to solve.

It really wasn't impeachable and Trumps lawyers did a good job destroying the case on the facts. In the end it was just a big middle finger in Trump's direction.

J

 

[Birdjaguar]

It really wasn't impeachable and Trumps lawyers did a good job destroying the case on the facts. In the end it was just a big middle finger in Trump's direction.

J

Of course it was impeachable. Using Twitter as the primary presidential communication tool is impeachable if enough House members vote for it. And it was a big middle finger at Trump. Almost as big as as Trump's middle finger to America since November 3.

 

[uppi]

That is not a good analogy. You do not have a jury trial to get fired.

So what? The convoluted internal proceedings of how you might get fired do not protect you from criminal law.

 

[amadeus]

The purpose of impeachment is to remove someone from office.

Perhaps, but I'm again going to say if the alleged misconduct runs close to the end of a term, that timing in and of itself does not negate the right of the Congress to punish someone for that misconduct. Whether or not it is necessary is a separate question that has no significance to me in discussing the constitutionality of the impeachment process.

Here is a great article from The Atlantic on "High crimes...."

The critical point in that article to me was this: “no previous statute is necessary to authorize an impeachment for any official misconduct.”

The question was asked before: what differentiates an impeachment from a civil or criminal trial in the regular court system? For someone to be tried in a regular court, there needs to be a citation of statutory law. The House can write whatever charges it sees fit, regardless of statute, so that's where I'd draw the line between the "political" nature of impeachment and a regular court case.

 

[Camikaze]

It's not convincing to say someone still has too much power when they're not in office. The above also doesn't appear to hold any consistent standard. The extreme example of a president moving to another country and doing nothing for US seems to be closer to a 25th amendment issue.

Charles was executed despite being out of power for years. The English Civil War was quite the inspiration for the framers, who no doubt did not see the 25th amendment as an alternative remedy, by virtue of their inability to time travel.

This "high crimes" means literal crimes stuff is just such anti-originalist guff. There is no strain of constitutional interpretive thought which calls for isolating the word "crimes" from its context and history in such a way.

 

[TheMeInTeam]

Then where is the evidence, and why has no one made that argument?

People watching it have made that argument. Dates were altered, and a blue check mark was doctored in etc. Who's going to make an argument against this when the dog and pony show went about face, decided not to call witnesses after all, and was never a court proceeding in the first place?

You said fake. BC impeachment was fake. Trump impeachment is patriotism.

Derp.

In short, Trump could nuke New York after admitting to getting paid off by the Islamic State, and you'd still support him.

Confession by projection much?

Not sure what you're arguing against here. Point is that "high crimes and misdemeanours" and the process of impeachment isn't a really legal thing, so comparing it to a judical process isn't fruitful.

You still need standards, or the result is "at will impeachment". Our legislative branch is more or less arguing for "at will impeachment" anyway.

There's a usefulness, by the way, as to why it's not a judical process, even if I think it should be more explicitly stated in regards to punishable evidence; legislation makes things legal, after all. If a president was rampant about executive orders and amassed power in the presidental branch of the office, making things lawful that shouldn't be - and let's for now abandon Biden and Trump here, and instead say, well, Jackson - having a mechanism to prevent this thing, even if something is legal, has its benefits. Even though, I stress again, I prefer it being a thorough process. I'm just outlining the Constitution's vision of the thing, and we can agree with or disagree with that vision if we want. In the end, it was a constitutional attempt as a political process to prevent Trump from further engagement in politics, and due to a political vote, it didn't go through.

If we accept the premise of at-will impeachment, and there is grounds for that if we're loose enough in defining misdemeanors, then Trump/whoever could be impeached because anybody can be impeached.

However, in Trump's case it was still unconstitutional, since the purpose of impeachment is removal from office. The constitution does not extend this to bills of attainder.

Do we have evidence that the capital riots were planned in advance?

https://www.cnn.com/2021/01/13/politics/capitol-riot-investigation/index.html

MORE EVIDENCE: Riots at the Capitol Were Pre-Planned by Members of Antifa, Neo-Nazis and Others - Conservative News Outlet (localad.com)

Capitol Attack Was Planned Openly Online For Weeks—Police Still Weren’t Ready (forbes.com)

FBI finds evidence of coordination at Capitol riot - The Washington Post

And are you suggesting a substantial portion of congress shouldn't be held responsible for these things?

I'm suggesting consistency of standards. If basis is used to kick one official that basis shouldn't change when considering another.

Though I hesitate to suggest government ousting of elected officials in a broad sense. Unless they are an imminent threat (with high standards to prove that) the most sensible way to hold elected officials responsible is to not vote for them. POSSIBLY also have a mechanism whereby enough people petitioning could have a referendum to replace them.

That said, if a majority of the house/senate wanted to impeach themselves based on their own standards I wouldn't exactly shed a tear.

And yea, the connection between Trump's (and others') words and the consequences are literally one link of causality. The capital riots happened as Trump stated they should be going to the white house and ensure the 'democratic process'.

There's a non-trivial amount of time just to reach the location of capital riots from where Trump gave his speech. Under legal doctrine that's enough cooling off period already. Under moral doctrine people can make their own conclusions. I doubt Trump wanted the riot to happen very strongly though, because it had a) virtually no chance of benefitting him even by the most wildly optimistic estimates from the perspective of an insurrectionist b) was terrible optics that outed several republicans as cowards (though we knew that already) and c) goes against language he used in his speech.

Also, there's enough smoke above to suggest that Trump's speech wasn't the primary cause of the riot, given the plans to riot before he gave it. To what extent this was antifa junk vs far right junk (I suspect both) doesn't matter in the context of damaging the causal relationship. If people were planning it before the speech, the speech being a decisive factor becomes less plausible.

This is also a bad look for law enforcement that day, since they had reason to believe this would happen.

I can google eventually when I'm done with DnD, but IIRC it was outlined in the video montage the Democrats produced as evidence, so it should be easy for you to look up. In regular court, this phrasing of Trump can be dismissed by arguing that the interpretation used by the terrorists and the DNC is hyperliteral, but it's pretty explicit text when taken at face value. It's not arbitrary at all to connect the dots.

In regular court, "montages" aren't admissible evidence because they can be used to tell stories w/o context and misrepresent. The Democrats conveniently left out footage that contradicts their case, and in a court of law they'd get massacred (in the legal sense) by opposing council for that.

I hold that using only snippets of the speech *is* arbitrary, because what people actually witnessed was the entire speech.

Perhaps, but I'm again going to say if the alleged misconduct runs close to the end of a term, that timing in and of itself does not negate the right of the Congress to punish someone for that misconduct.

The language of the constitution doesn't agree. But if the misconduct is criminal in nature, there's still regular court. If it isn't, there's still the normal means of preventing any official from further office: voters.

Charles was executed despite being out of power for years. The English Civil War was quite the inspiration for the framers, who no doubt did not see the 25th amendment as an alternative remedy, by virtue of their inability to time travel.

The 25th was added presumably because it answered a question not previously covered in the constitution. The situation you described seems better attributed to the 25th.

Apparently the language of the constitution is vague enough that you can get away with at-will impeachment regardless though. I don't like that standard/precedent, but it's there now.