Does Precedent Require the House to Pass an Impeachment Inquiry Resolution?

It is a tiresomely repeated talking point that the current impeachment investigation in the House of Representatives is unconstitutional, violative of House rules, and in conflict with “bipartisan precedent.” As the first of these claims have been repeatedly and decisively refuted, I will here only take a little more detailed look than has been common at the precedent claim, which, turns out to be unsupported by history.

The Fatal Flaw in the Impeachment Clauses

I argued in my post on 8/26/19 that there is a fatal flaw in the 25^th Amendment in all those cases in which the president, although in fact no longer up to the responsibilities of the office, is determined to stay in power.  

Unfortunately, contemporary politics has produced a similarly baleful defect in the impeachment process. It is so clear cut it could almost be a theorem of game theory. It’s the Senate.

Can Anyone Still Believe that “Russia, if you’re listening . . .” Was a Joke

Some people in Congress and in the media had the temerity to suggest that it might be an invitation to a hostile foreign power to interfere in the 2016 election to implore, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.”  The president defended himself by explaining that he said it as a joke. “Of course I was being sarcastic.” (Interview on Fox and Friends.); "[I]n jest and sarcastically, as was apparent to any objective observer." (Written answers to Mueller questions.)  At a campaign rally he made fun of the media for not realizing, that it was all a joke.

In a post of June 9 this year, I examined Trump’s defense and the “in jest” defense to solicitation charges more generally. I was skeptical. Subsequent developments, including the recent dramatic developments seem to confirm that skepticism was not amiss.

Impeachment Investigation, Impeachment Vote: A Prosecution Perspective

There are differences between the decisions facing a prosecutor in an ordinary criminal case and the decisions now facing members of the House of Representatives. There are also similarities.

Yes Collusion! 2:"Russia, if you're listening . . ."

On 8/2/18, I devoted a post to Trump’s famous July 27, 2016, invitation, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” I there contended that this did not constitute a violation of any federal solicitation-computer crime statute, but that it arguably constituted criminal solicitation of a foreign (“in kind”) campaign contribution in violation of the election laws. I added, in passing, that it was potentially an impeachable offense. https://lawrencecrocker.blogspot.com/2018/08/was-trumps-russia-if-you-are-listening.html.

I have seen no reason to revise those conclusions substantially. I still think that there is a respectable argument that Trump violated the solicitation provision of the election law, a violation not merely civil, but a criminal. It is simply implausible that he did not think he was asking for something that he expected to be of very substantial value to the campaign – certainly more valuable than many thousands of MAGA hats.  It is also implausible that he had not been told about the prohibition against foreign contributions.

What I want to do here is first to extend the analysis to consider Trump’s defense to accusations against his statement: “Of course I was being sarcastic.” (Interview on Fox and Friends.); "[I]n jest and sarcastically, as was apparent to any objective observer." (Written answers to Mueller questions.)

 

Second, I want to return to the question of Trump’s claims that he has been fully vindicated with respect to all claims of the sort that he or his campaign colluded with the Russians.

Is Money Laundering Impeachable?

"high Crimes and Misdemeanors" as a Term of Art

In the interpretation of enacted law terms of art, for example, “third degree of consanguinity,” have a special place.  Just how special is debated: the degree of the specialness, the ways in which are special, and the special methods for unpacking their meaning. 

The term of art status of “high Crimes and Misdemeanors” may become salient.

Is Impeachment Mandatory?

The distinguished Harvard Law professor Cass Sunstein has recently argued, in a widely published opinion piece, that if a US president has committed “Treason, Bribery, or other high Crimes and Misdemeanors” then Congress is obligated to impeach. https://news.yahoo.com/impeachment-mandatory-130024433.html.  The “support and defend the Constitution” clause of their oath of office imposes the duty on upon each and every member of the House of Representatives to vote to impeach if the constitutional predicate is satisfied. 

Should President Pence be Impeached with Vice President Trump in the Wings?

Put aside for a moment the specific impeachment counts with which President Pence has been charged by the House, and turn to the opinion makers’ hot question: will we or won’t we be better off if Donald Trump became president following a vote of the Senate to convict Pence and remove him from office?

Was Trump’s criticism of Sessions for permitting indictments of Republican House members a high crime or misdemeanor?

The tweet in question:

(1)    “Two long running, Obama era, investigations of two very popular Republican Congressmen were brought to a well publicized charge, just ahead of the Mid-Terms, by the Jeff Sessions Justice Department. Two easy wins now in doubt because there is not enough time. Good job Jeff…..”

Impeachment for Pre-Innaguration Conduct II

In addition to the impeachments of Andrew Johnson and Bill Clinton, and the near impeachment of Richard Nixon, there have been 17 other impeachments voted by the House, mostly of federal judges. (8 were convicted by the Senate; some fended that off by resignation.) The charges in all 19 cases involved conduct while in office.

In a post of April 5, 2017, I suggested that the question of impeachment for conduct prior to taking office was edging towards a relevance more than academic.See http://lawrencecrocker.blogspot.com/2017/04/impeachment-for-acts-prior-to-taking.html.


In that post I argued that any suggestion to a foreign power of an in-office quid pro quo would bring the case within the "misconduct in office" category, whether or not the president came through with the quid pro quo. I also suggested that even if exclusively pre-office, a sufficiently egregious high crime or misdemeanor should be grounds for impeachment, despite the absence of House precedent.  

I invite you again to think about these issues, as they seem now to be more than edging towards relevance.

Was Trump’s “Russia, if you are listening, . . . “ Criminal? Impeachable?

On July 27, 2016, candidate Donald Trump asked Russia to find Hilary Clinton’s deleted emails. “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing.” It is fair to say, I think, that the Russians, if they took him up on this, could expect Trump’s gratitude and whatever might flow therefrom in the future.  Did this constitute a violation of federal election law? If so, was it a criminal violation?  If so, was it an impeachable violation?

Impeachment for Acts Prior to Taking Office?

It may be only an academic question, but one that has been edging  a little closer to the real world: Can the President of the United States can be impeached and convicted for acts committed before Inauguration Day?

Deceptive Truth: Kant, Sandel, & Bill Clinton

Occasioned by the suggestion of Sandel that it may sometimes be morally permissible to deceive people, so long as you do so without lying, I here examine such alleged truths as “I did not have sexual relations with that woman.” After setting up the issues in Section 1, in Sections 2-4 I examine questions of language, communication, and truthfulness in assessing whether candidate deceptive truths really are true. These sections require little if any prior familiarity in the area. The fifth section, however, probably will be hard to follow unless you have some acquaintance with Kant’s ethics. Lacking that, you still may well be able to follow the Sections 6-8, and the final section on the Clinton impeachment has no prerequisites.