Wednesday, December 18, 2019

Better Know the Impeachment Process 12.18.19 "High Crimes & Misdemeanors, Ex Post Facto, & Bill of Attainder"

Now we come to the heart of the standard for impeachment: "treason, bribery, and high crimes & misdemeanors." I'm going to skip over treason and bribery for now and move to the third test, certainly the broadest standard and one that is much less apparent than issues of treason and bribery. Black writes about the decision to use this phrase "high crimes and misdemeanors" at the Constitutional Convention:

Mason’s ready substitution of “high Crimes and Misdemeanors” indicates that he thought (and no voice was raised in doubt) that this new phrase would satisfactorily cover “many great and dangerous offences” not reached by the words “treason” and “bribery”; its coverage was understood to be broad.

Black, Charles L., Jr.. Impeachment (pp. 27-28). Yale University Press. Kindle Edition.

But a wide-open and general term could run afoul of the abhorrence among the Founders about bills of attainder and ex post facto (after the fact) laws. In other words, making something illegal after it's done. The Constitution specifically prohibits bills of attainder and ex post facto laws. About this, Black writes:

When a congressman says, in effect, that Congress is entirely free to treat as impeachable any conduct it desires so to treat, he (or she) is giving a good textbook definition of a bill of attainder and an ex post facto law, rolled into one. Our Framers abhorred both these things, and we have never wavered from that abhorrence. It cannot be right for Congress to act toward the president as though these prohibitions did not exist. There may be no way to keep Congress from violating their letter or spirit, but the conscientious congressman has to feel them, in spirit at least, as bounding and confining the operation of the vague words, “high Crimes and Misdemeanors.

I say “in spirit,” because the letter of these clauses cannot always apply. As pointed out above, in connection with the question of criminal character of the impeachment proceeding, the words “high Crimes and Misdemeanors” are themselves too vague to satisfy constitutional standards of reasonably clear warning, in criminal statutes as applied in the ordinary courts; in this technical sense, the application of the quoted phrase to concrete cases must often be “ex post facto” in practical effect. But the spirit and equity of the bill of attainder and ex post facto clauses can to a large extent be followed if we treat as impeachable those offenses, and only those, that a reasonable man might anticipate would be thought abusive and wrong, without reference to partisan politics or differences of opinion on policy. The approximation of this result necessitates exploration of some further issues.

Id. pp. 29-30.

Tuesday, December 17, 2019

Better Know the Impeachment Process 12.17.19 "Congress & Not the Courts Control" *& "Jobs for Lawyers"

The Final Responsibility of Congress

We are used to confiding (or to imagining we confide) all constitutional questions to the courts. I shall later maintain that “judicial review” has no part to play in impeachment proceedings. For now, it should be briefly pointed out that, if I am right, then Congress, in acting on the matters just discussed and on those to be discussed in the next chapter, rests under the very heavy responsibility of determining finally some of the weightiest of constitutional questions, as well as a great many important and difficult questions of procedure. For this purpose, and in this context, we have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts, and that anything is constitutional which a court cannot or will not overturn. We ought to understand, as most senators and congressmen understand, that Congress’s responsibility to preserve the forms and the precepts of the Constitution is greater, rather than less, when the judicial forum is unavailable, as it sometimes must be.

Black, Charles L., Jr. & Bobbitt, Philip, Impeachment: A Handbook, New Edition (pp. 22-23). Yale University Press. Kindle Edition.

The Place of Lawyers

Impeachment is a matter of law, foursquare and all the way, and lawyers must run the process, as surely as doctors must run the operating room. The Congress can get plenty of lawyers, and the money to pay them with. The position of the president is more problematic. Some may think that it is wrong for public funds to go to the financing of the defense of an impeached president, or of one threatened with impeachment. Yet, if we turn the question around and look at it from another side, do we want the outcome of this most important of proceedings ever to be affected by the president’s lack of adequate legal help? We must understand, also, that the participating lawyers are advocates, whose job is to take a side and present it with skill and vigor. Our entire legal system bets a great deal on the proposition that this “adversary” system is the least imperfect way to develop all the truth; the corollary is that we must look on partisanship not as an evil but as a part of the system’s working. No one, including the president, can be treated lawfully if he is not adequately represented by counsel committed to him. Intemperate public attacks on lawyers, for the positions they take as advocates, are really attacks on our adversary system of justice. Such attacks are particularly surprising when mounted by other lawyers while legal proceedings are pending.

Id., p. 23.

Monday, December 16, 2019

#Impeachment Special: Witnesses & Documents, Trump Taking the 5th & Trial Strategy

Schumer, Pushing McConnell to Negotiate, Lays Out Plan for Impeachment Trial

The Senate Democratic leader wants to seek testimony from Mick Mulvaney, John Bolton and other White House officials, and subpoena documents the White House has withheld.

Senator Chuck Schumer proposed a trial beginning Jan. 7 that would give each side a fixed amount of time to present their cases. — Credit...Samuel Corum for The New York Times

By Sheryl Gay Stolberg and Michael D. Shear

Dec. 15, 2019

The article above lays out a fair & reasonable plan--based primarily on the Clinton impeachment plan approved by all of the Senate Republicans back in 1999. Schumer also wants to subpoena the testimony of witnesses who have here to date refused to testify and limited number of documents that the WH has refused to produce. Seems fair, doesn't it?

The witnesses, including Mulvaney and Bolton, could provide definitive exculpatory evidence in favor of the president. So, too, the documents. The Democrats will have established a prima facie case if the House votes in favor of impeachment, the analog of a criminal indictment. At this point, the Democrats can claim that they have established probable cause that an impeachable offense has been committed. One could argue that by calling these (hostile) witnesses and obtaining these documents, the Democrats could ruin their case. What if Bolton & Mulvaney lie to protect Trump? What if the documents are inconclusive? It's a gamble. Of course, if a lie is apparent enough in the face of all of the evidence and an attorney believes that during the examination of the witness the witnesses credibility will be undermined by obvious attempts to lie or evade, then breaking the adage about never asking a question that you don't the answer to can be set aside. (Prosecutors in criminal cases, because of a defendant's 5th Amendment right against self-incrimination, quite often don't have the benefit of advanced statements from the defendant to use in cross-examining a defendant who's chosen to testify.)

Query: if impeached, does Trump have a 5th Amendment right to refuse to testify (if subpoenaed)? This is not a criminal offense. Impeachment is a constitutional provision that his neither strictly civil or criminal, nor even legal in nature. There most certainly is a political component. So why would the 5th Amendment apply? And why wouldn't Trump want to appear and testify to clear his good name about what he considers scurrilous charges?

Just askin'.

Riots in Jaipur, Kerala, and Throughout India: A Sad & Frightening Story

NYTIMES.COM

Protests Spread Across India Over Divisive Citizenship Law

Several people have been killed as the unrest spreads to new corners of the country, and security forces have cracked down.

I'm deeply saddened to read about the new anti-Muslim law in #India and the resulting violence. Both #Jaipur and the state of #Kerala--where C & I lived about a year-each during our two years in India--reported violence and deaths. In Dehli, where we spent a fair amount of time, the report suggests a police riot (and I suspect other places as well, although some held higher expectations of the #Dehli police). India has, I believe, the second-highest population of Muslims in the world (behind Indonesia), but Indian Muslims have been subject to a great deal of discrimination and mistreatment--including violence. When we were in Thiruvananthapuram (Trivandrum), Kerala, in 2014, Modi was elected prime minister, and I, and many others, thought his election didn't bode well for India and the fraught issue of religious tolerance. Where we lived in Thiruvananthapuram, we had a mosque, a surprising variety of Christian churches, and Hindu temples within a short walking distance of our apartment. And they seemed to play well together. (Of Jaipur, firmly in the center of the solidly Hindu-dominant north but near Muslim areas, I'm less surprised.)

The leadership of Gandhi, Nehru, and Ambedkar (the least known & under-appreciated of this founding triumvirate) attempted to form a religiously-tolerate nation-state, but that has been difficult, as it has been in the U.S. And as the U.S. still suffers the original sin of slavery, so India from its caste system. It's sad but not surprising that these troubles exist and that the BJP under #Modi would attempt to fan and exploit divisions. At one point Modi was barred from traveling to the U.S. because of his perceived role in anti-Muslin riots in #Gujarat in the early 1990s. So again, no surprise.

"A widespread belief is that the Indian government will use both these measures — the citizenship tests and the new citizenship law — to render millions of Muslims who have been living in India for generations stateless." (From the article below.) The words "render . . . stateless" should send a chill through anyone who's read Hannah Arendt or #TimothySnyder, among others. Such moves pave the way for genocide and less lethal forms of discrimination and horror. It's a very sad & alarming story to wake-up to.

Several people have been killed as the unrest spreads to new corners of the country, and security forces have cracked down.

Saturday, December 14, 2019

Better Know the Impeachment Process 12.14.19 "Hearsay at Trial"

One of the issues (faux issues, really) raised by Republicans against the use of "hearsay" may come up in the Senate trial also. Given the strategy that the White House and the Senate leadership are planning, to minimize any evidence at trial at all, we can expect a lot of "hearsay." But should that bother us? Black argues not, and I'm inclined to agree, although to assume that members of the current Senate are more prudent and insightful about the credibility of evidence strikes me as--well--a stretch. Here's what Black says on the subject:

In an ordinary trial, for example, we exclude what we call “hearsay” evidence—testimony by one witness that another person, not a witness, told the witness that something had happened. We exclude evidence of the defendant’s character, unless he himself seeks affirmatively to establish his good character. And so on through a considerable range of technicality. Here, I think, the sensible answer comes clear. These technical rules of evidence were elaborated primarily to hold juries within narrow limits. They have no place in the impeachment process. Both the House and the Senate ought to hear and consider all evidence which seems relevant, without regard to technical rules. Senators are in any case continually exposed to “hearsay” evidence; they cannot be sequestered and kept away from newspapers, like a jury. If they cannot be trusted to weigh evidence, appropriately discounting for all the factors of unreliability that have led to our keeping some evidence away from juries, then they are not in any way up to the job, and “rules of evidence” will not help.

Black, Charles L. & Bobbitt, Philip, Impeachment: A Handbook, New Edition (p. 18). Yale University Press. Kindle Edition.

Sharing: Yascha Mounk on the Prospects for the Left in the US, UK, & Western Europe

WARNING: This article (link below) is an in-depth analysis by a political scientist (Yascha Mounk) about voting patterns in Western Europe, UK, and the US. It assesses the prospects for left-leaning & hard-left parties gaining against the far-right populist trend in democracies. Thus, recommended only for political junkies with an analytic bent. Highly relevant to the current contest for the Democratic presidential nomination and the prospect of success for defeating the current president and his far-right populist/plutocratic coalition.

A couple of especially thought-provoking quotes:

Because of the longstanding ideological dominance of the center left, the only people who could offer this alternative were orthodox leftists whose political outlook had been formed in the 1960s and ’70s, like Corbyn and Mélenchon, or new populists who forged their political identity in countercultural street protests following the 2008 financial crisis, like Iglesias. For a few brief years, their novelty allowed them to gain tremendous influence and popularity. But the more voters saw of them, the less they were convinced. On closer inspection, the new protagonists of the far-left tide turned out to be no more capable of commanding a large share of the vote than their long-defunct predecessors.

The greening of the left is also affecting the Democratic Party: While Sanders has enjoyed the loudest voice in the past years, it is politicians who combine a commitment to the free market with a robust defense of the welfare state and an emphasis on the kinds of social and cultural issues that are of pressing importance to educated city-dwellers—like Nancy Pelosi, Kamala Harris, Pete Buttigieg, or Cory Booker—who increasingly represent the party’s mainstream.

(For an addendum of sorts, see Mounk's article in The Atlantic that reflects on the stunning electoral defeat of Corbyn & the Labour Party.)

TThe coalitions that sustained the traditional left parties in the West have collapsed. New ones can be built—but it won’t be easy.

DEMOCRACYJOURNAL.ORG

Left for Dead

The coalitions that sustained the traditional left parties in the West have collapsed. New ones can be built—but it won’t be easy.

Friday, December 13, 2019

Better Know the #Impeachment & Removal Process 12.13.19 "Standard of Proof"

A crucial issue--or what should be a crucial issue--in any Senate trial of impeachment should be the appropriate standard of proof by which to judge the evidence, as it is in any trial. The constitutional text about impeachment does not address the standard of proof, so sound judgment and legal reasoning must apply here. Black, writing in 1974, splits the baby as it were, suggesting that something more than a civil trial stanard of a preponderance of the evidence (more likely than not) but less than proof "beyond a reasonable doubt" (the criminal standard) should apply. I think that this take makes the most sense. Black writes:

[F]or example: “Did the official on trial perform an action because a campaign contribution was given, or was this a coincidence?” Either is possible; the “finding” of this “fact”—the “fact” of corrupt or blameless motivation—may entail the drawing of complicated inferences from circumstances; the circumstances themselves may be proven with more or less clarity. Before the “fact” can be “found,” the trier of fact must decide on a standard of proof. Should he find an impeached president guilty of corruption if it seems slightly more likely than not that a corrupt motive was present? Or should a finding of guilt have to rest, as in a criminal trial, on evidence which leaves no “reasonable doubt”? It makes a big difference, as the example I have just given shows.

. . . .

What is the right standard for judging guilt in an impeachment proceeding? Of course we don’t know the answer with any sureness; we have to work it out for ourselves. As with so many constitutional questions, we have to ask what is reasonable, and the reply is here far from obvious. Removal by conviction on impeachment is a stunning penalty, the ruin of a life. Even more important, it unseats the person the people have deliberately chosen for the office. The adoption of a lenient standard of proof could mean that this punishment, and this frustration of popular will, could occur even though substantial doubt of guilt remained. On the other hand, the high “criminal” standard of proof could mean, in practice, that a man could remain president whom every member of the Senate believed to be guilty of corruption, just because his guilt was not shown “beyond a reasonable doubt.” Neither result is good; law is often like that.