Judging Impeachment: A Third Oath and a Criterion for Judgment--or "What of the Shoe Was on the Other Foot?"

I'm been thinking about how we could set a standard to allow Senators to return an appropriate judgment at the conclusion of the current impeachment trial. To begin, let's start with the oath that each senator takes when beginning their term of office. (See Below)

At the beginning of the current trial, each senator took this oath as well.
(See below)

Now, perhaps before returning a decision, each senator should take another oath. However, the oath would not be the same for each senator. Each senator would take the following oath before announcing the senator's judgment:

"I swear (or affirm) that the decision I make today is the same decision I would make if the president in question would have been Barack Obama, Bill Clinton, or any other Democrat. I have not been moved by partisan favor or any motive other than to uphold and defend the Constitution of the United States of America, so help me God."

So New York Senators Chuck Schumer and Kristin Gillibrand should take it as well as Senator Chuck Grassley and Senator Joni Ernst. All of them. And then the voters will determine if each one upheld the oath.

Of course, this isn't going to happen, but is it a bad idea? Moreover, isn't this the criteria--regardless of any oath--by which each of the 100 senators should be making her or his decision?

I welcome suggestions or rebuttals.

Bob Bauer Takes Down Dershowitz Impeachment Defense (Easy Pickings)

Bob Bauer served as White House Counsel to President Obama. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the co-director of the university's Legislative and Regulatory Process Clinic. He wrote this piece for the Lawfare blog (an excellent source of legal analysis). It includes this concluding paragraph:

"In the coming Senate trial, McConnell and Dershowitz are helping each other set a very different precedent of their own, one in which, as a matter of norms (McConnell) or constitutional law (Dershowitz), there is no room for removing a president for the serious abuse, or repetitive abuses, of the power of his office. And, under Dershowitz’s view, a president who is a murderer, a white supremacist, or a virulent misogynist, or who takes off for a year’s vacation in Rome, would also be free to serve out his or her term, or take into a reelection campaign the “vindication” supplied by a Senate acquittal."

Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.

LAWFAREBLOG.COM

The Trump Impeachment and the Question of Precedent, Part II: The Trouble With Alan Dershowitz’s ‘Constitutional Argument’

Alan Dershowitz and Sen. Mitch McConnell are helping each other set an impeachment precedent in which there would be no room for removing a president for serious abuse of power.

George Conway Takes Down the Trump Impeachment Defense

Lincoln Project supporter & lawyer George Conway.

Their arguments are wrong on the facts and wrong on the law, but that’s not the worst part.

WASHINGTONPOST.COM

Opinion | George Conway: The worst thing about Trump’s answer to the impeachment articles

Their arguments are wrong on the facts and wrong on the law, but that’s not the worst part.

Heather Cox Richardson on the Eve of the Senate Trial: The Non-trial Trial

From @HeatherCoxRichardson:

“For his part, Senate Majority leader Mitch McConnell (R-KY) is doing everything he can to make sure the public sees as little of the proceedings as possible. As conservative pundit David Frum put it: “No witnesses… No evidence… No time… No cameras.” As of Sunday night there had been not even “the most basic negotiation or exchange of information,” according to Senate Minority Whip Dick Durbin (D-IL), and this evening, less than 24 hours before the trial is supposed to start, McConnell revealed a four-page resolution establishing trial rules.

The rules leave open the possibility of simply ending the case immediately, which is unlikely to happen. They limit the arguments from each side to 24 hours over the course of two days each. This would mean a deluge of information too much for most of us to take in, even if significant argument didn’t happen in the middle of the night… as of course it would. The rules give the Senate the option of refusing to hear new evidence or testimony, and on the chance that the Senate does vote for testimony, the rules are arranged to prevent former National Security Advisor John Bolton—or anyone else-- to testify in public.”

After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

HEATHERCOXRICHARDSON.SUBSTACK.COM

January 20, 2020 - Letters from an American

After a relatively quiet holiday weekend, the frenzy before tomorrow’s Senate impeachment trial has begun. It is important to remember that Trump's people have produced no evidence that the president did not, in fact, do the things of which he has been charged. His supporters are not even trying t...

NYT & Professor Bowman Debunk Trump's Defense Brief

No lawyer sitting in the Senate should buy this baloney argument on Trump’s behalf. But if you don’t have the facts, argue the law—even if it’s a crap argument.

From the article:

“Mr. Bowman — whose scholarship on impeachment law is cited in a footnote in the Trump legal team brief — called the arguments in that brief “a well-crafted piece of sophistry that cherry-picks sources and ignores inconvenient history and precedent.” For example, he noted, it makes no mention of how the Hastings case involved allegations of abuses of power that were not indictable crimes.”

The president’s legal case would negate any need for witnesses. But constitutional scholars say that it’s wrong.

NYTIMES.COM

‘Constitutional Nonsense’: Trump’s Impeachment Defense Defies Legal Consensus

The president’s legal case would negate any need for witnesses. But constitutional scholars say that it’s wrong.

Former Iowa Senator Tom Harkin: 100 Judges, Not 100 Jurors

Tom Harkin link.

“Tom Harkin: Senators are not jurors. A key point from the former Iowa senator. We have 100 “judges” not “jurors.” Are they (the senator-judges)corrupt? Time will tell & then the voters will judge & then History will have the final say. https://t.co/huZoVru6DW”

TWITTER.COM

Steve Greenleaf on Twitter

“Tom Harkin: Senators are not jurors. A key point from the former Iowa senator. We have 100 “judges” not “jurors.” Are they (the senator-judges)corrupt? Time will tell & then the voters will judge & then History will have the final say. https://t.co/huZoVru6DW”

Bob Bauer Takes Down Mitch McConnell's Argument re Impeachment

A thoughtful lawyer's brief that deconstructs McConnell's arguments against Trump's removal from office brink-by-brick. McConnell is the epitome of hypocrisy and double-talk, but he usually doesn't have to enter into an arena that includes knowledgeable folks who understand legal process and argument. Here he encounters such a response--and he loses, bigly.

N.B. This includes a rejection of the argument of "no crime, no foul" so often claimed by Trump's defenders.

In speeches sounding the alarm about “toxic” precedent, Sen. Mitch McConnell has set forth a questionable view of the law of impeachment with serious implications for the future of this constitutional remedy.

LAWFAREBLOG.COM

The Trump Impeachment and the Question of Precedent

In speeches sounding the alarm about “toxic” precedent, Sen. Mitch McConnell has set forth a questionable view of the law of impeachment with serious implications for the future of this constitutional remedy.

Looking at the Constitutional Convention & High Crimes & Misdemeanors"

A deeper look at the debate that occurred at the Constitutional Convention in 1787 and that incorporated impeachment for "High Crimes and Misdemeanors" into the Constitution.

If not for three sparring Virginia delegates, Congress’s power to remove a president would be even more limited than it already is

SMITHSONIANMAG.COM

Inside the Founding Fathers’ Debate Over What Constituted an Impeachable Offense

If not for three sparring Virginia delegates, Congress’s power to remove a president would be even more limited than it already is

Black & Bobbitt: "High Crimes & Misdemeanors"

“Treason” and “bribery” are crimes, whether committed by the president or by anyone else. Is the meaning of the phrase “high Crimes and Misdemeanors” limited to ordinary crimes? Can a president lawfully be impeached and removed only for conduct which would also be punishable crime for anybody? Some have contended for this interpretation. It would be easeful to be able to adopt it, because the vague phrase “high Crimes and Misdemeanors” would thus be lent all the precision of the statute book; agonized attempts properly to limit it, while at the same time leaving it properly ample scope, would be avoided. But I cannot think it remotely possible that this interpretation is right.

Black, Charles L., Jr. & Bobbitt, Philip, Impeachment: A Handbook, New Edition (pp. 30-31). Yale University Press. Kindle Edition.

Impeachment: Tribe on the Dershowitz Argument

It's time to get back to impeachment.

Below is an article debunking the claim by Trump's celebrity defense lawyer, Alan Dershowitz, who argues that an actual law must have been broken by the President to justify removal from office. Wrong, as Laurence Tribe, of Harvard University Law School, and perhaps the foremost constitutional scholar during my time as a lawyer, argues. BTW, Tribe's argument accords with that his current Harvard colleague Cass Sunstein (CITIZENS GUIDE TO IMPEACHMENT) and with Black & Bobbitt's IMPEACHMENT: A HANDBOOK, NEW EDITION, which I've quoted at length in earlier posts on the topic of impeachment.

Bogus arguments for a bogus client.

They should not be allowed to mislead the American public or the senators weighing his fate.

WASHINGTONPOST.COM

Opinion | Trump’s lawyers shouldn’t be allowed to use bogus legal arguments on impeachment

They should not be allowed to mislead the American public or the senators weighing his fate.

On the Apocalypse in Australia

When one travels with the pilgrim Dante through the Inferno as a part of his (Divine) Comedia, one finds a varied terrain with various tortures intended to suit the seriousness of the sin. Indeed, Judas Iscariot along with Brutus & Cassius (assassins of Caesar) are consumed by Satan, who remains encased in a frozen lake at the very pit of hell. This provided a very different image of hell than what I'd grown up with, which as simply a vast pit of fire. But Nature is finding a preference for raging fires as our fitting punishment for our mistreatment of her. Witness the fires in California and now in Australia. I have difficulty imagining (resistance, no doubt) what these particular hells must be like, but Man Booker prize-winning novelist Richard Flanagan, an Australian, provides a useful description:

"The images of the fires are a cross between “Mad Max” and “On the Beach”: thousands driven onto beaches in a dull orange hazie, crowded tableaux of people and animals almost medieval in their strange muteness — half-Bruegel, half-Bosch, ringed by fire, survivors’ faces hidden behind masks and swimming goggles. Day turns to night as smoke extinguishes all light in the horrifying minutes before the red glow announces the imminence of the inferno. Flames leaping 200 feet into the air. Fire tornadoes. Terrified children at the helm of dinghies, piloting away from the flames, refugees in their own country."

Flanagan also finds some gallows humor at the scene. We humans can find humor almost anywhere, even in the midst of hell. I suspect to the extent that we can't laugh--or at least chuckle--at our plight, we're not human. Really, do you know anyone who doesn't occasionally laugh? Well, yes, HIM; he only smirks & that is to express dominance, not shared human folly.

Flanagan:

"The bookstore in the fire-ravaged village of Cobargo, New South Wales, has a new sign outside: “Post-Apocalyptic Fiction has been moved to Current Affairs.”"

As record fires rage, the country’s leaders seem intent on sending it to its doom.

NYTIMES.COM

Opinion | Australia Is Committing Climate Suicide

As record fires rage, the country’s leaders seem intent on sending it to its doom.