When the constitution was written, there were no federal statutes. If only statutory crimes are impeachable offenses, how do we write of impeachment before there are statutory crimes?
Here is how Dershowitz addressed you query:
Curtis argued that there must be a specific violation of pre-existing law. He recognized that at the time of the constitution there were no federal criminal statutes. Of course not. The constitution established the national government, so we couldn’t have statutes prior to the establishment of our constitution and our nation. This argument is offered today by proponents of this impeachment on the claim that framers could not have intended to limit the criteria for impeachment to criminal behavior.
Justice Curtis addressed that issue and that argument head on. He pointed out that crimes such as bribery would be made criminal by the laws of the United States, which the framers of the constitution knew would be passed. In other words, he anticipated that Congress would soon enact statutes punishing and defining crimes such as burglary, extortion, perjury, et cetera. He anticipated that and he based his argument in part on that. The constitution already included treason as a crime and that was defined in the constitution itself. And then it included other crimes.
But what justice Curtis said is that you could include laws written or unwritten, express or implied, by which he meant common law, which at the time of the constitution there were many common law crimes. And they were enforceable even federally until the Supreme Court, many years later, decided that common law crimes were no longer part of federal jurisdiction.
You go on.
ribery as understood by the framers would have been some thing like: “a public official who directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally in return for being influenced in the performance of any official act."
Why the Democrats didn't charge Trump with bribery is beyond my ken.
When you assert a particular statute you have to meet every single element of the statute without fail. By charging abuse of power you can argue generally.
mikwut
Last edited by Guest on Wed Jan 29, 2020 9:58 pm, edited 1 time in total.
All communication relies, to a noticeable extent on evoking knowledge that we cannot tell, all our knowledge of mental processes, like feelings or conscious intellectual activities, is based on a knowledge which we cannot tell. -Michael Polanyi
"Why are you afraid, have you still no faith?" Mark 4:40
EAllusion wrote: ... it’s hard to see it as anything other than dishonesty aimed at those who don’t know any better.
Pretty much this.
Then pretty much give your legal analysis showing dishonesty. I gave the link to the transcript to E above.
mikwut
All communication relies, to a noticeable extent on evoking knowledge that we cannot tell, all our knowledge of mental processes, like feelings or conscious intellectual activities, is based on a knowledge which we cannot tell. -Michael Polanyi
"Why are you afraid, have you still no faith?" Mark 4:40
Dershowitz is now relying on an argument made by Supreme Court Justice Benjamin Curtis in defense of Johnson.
Dershowitz claimed that Curtis “argued successfully to the Senate that criminal like conduct is required. That argument prevailed.” But I believe Dershowitz is mistaken in his interpretation of the argument, along with the basis for the acquittal of Johnson. First and foremost, Curtis primarily addressed the violation of the Tenure in Office Act, which no one denied as being statutorily defined as a criminal “high misdemeanor.” Indeed, it was clearly defined and Johnson himself knew he was committing it. He had rightfully believed that the criminal provision was unconstitutional.
It was that criminal violation which was the subject of all 11 articles of impeachment against Johnson, and most of the argument of Curtis. He declared, “As to those articles there is some law unquestionably, the very gist of that charge being that he broke a law.” It was only at the end of his argument that Curtis turned to the tenth article, which indeed drew the lowest vote in the House. It was an absurd collection of noncriminal acts, which Curtis referred to as “extraordinary peculiarities” such as bringing Congress “into disgrace, ridicule, hatred, contempt, and reproach,” as well as making “with a loud voice certain intemperate, inflammatory, and scandalous harangues.” Curtis rightfully ridiculed the articles as evidence that the House “erected itself into a school of manners” in the process.
Johnson was saved by seven Senate Republicans who switched sides to reject his illegitimate impeachment. It was not due to the absence of a criminal allegation but due to the manufactured quality of the charges. The underlying conduct did not warrant conviction as a high crime and misdemeanor. While Curtis argued that the language of the Constitution mirrored criminal lexicon, his statement that it “designated impeachable offenses as offenses” was meant to argue that the Senate should consider itself a court rather than some heated political forum on impeachment.
The most powerful argument made by Curtis concerned his attack on the criminal allegation itself as a crime created solely to impeach Johnson. That was the position that had “prevailed” rather than an argument that impeachment cannot include any noncriminal allegations. Not only do I believe the interpretation of the Johnson trial is fundamentally mistaken, but it is a mistake to ask senators to base their votes on such a widely rejected theory. Impeachments can be based on noncriminal acts, but that does not mean the noncriminal acts in this case are impeachable.
Furthermore, Trump should not wish to prevail on such a flawed theory, leaving history to debate whether he was acquitted on the weight of the evidence or on an erroneous interpretation. There are ample reasons to vote against this impeachment. The witnesses who testified along with me in the House impeachment inquiry described the case against Trump as an “attempt to abuse power.” It is already difficult enough to bring a purely noncriminal impeachment, but to do so on an attempt at abuse of power raises serious concerns over the subjectivity and fluidity of such claims.
So that is the true meaning of the Johnson trial. It was an impeachment formed in rage and devoid of all reason. Indeed, it was the fourth such attempt to impeach Johnson and his leading opponent, Representative Thaddeus Stevens, confronted reluctant House members by demanding, “What good did your moderation do you? If you do not kill the beast, it will kill you.” They responded by impeaching Johnson on trumped up charges. Ultimately, what began as a disgrace for the House turned into one of the finest moments for the Senate when those seven Republicans upheld their oaths and decided to cross the aisle and acquit a president they despised.
The Johnson impeachment showed us that even criminal acts can be rejected as falling short of the standard of the Constitution. Before his trial, Johnson declared, “Let them impeach and be damned.” He was right. Had the Senate convicted him, we would have invited endless contrived impeachments. That is the argument that “prevailed” in the Johnson case.
"One of the hardest things for me to accept is the fact that Kevin Graham has blonde hair, blue eyes and an English last name. This ugly truth blows any arguments one might have for actual white supremacism out of the water. He's truly a disgrace." - Ajax
Do you realize the issue we were debating is whether Dershowitz is dishonest in his argument? Noting that Turley interprets the warrant of the 7 republicans not setting precedent for whether a crime is necessary does not show Dershowitz is dishonest. Indeed Turley says nothing of the sort. They offer two alternative possibilities. An alternative interpretation that is reasonable is not refutation.
Do you also realize my comment that Trumps opposition agrees with Dershowitz when it helps their case and disagrees when they don't is applicable to you too? You have repeated it with Turley and come full circle presenting Turley in the same way. You love him to refute Dershowitz but deride him as a contrarian when he testifies for the Republicans. I guess just pick from a buffet of what you like and what you don't and never mind the hypocrisy.
mikwut
All communication relies, to a noticeable extent on evoking knowledge that we cannot tell, all our knowledge of mental processes, like feelings or conscious intellectual activities, is based on a knowledge which we cannot tell. -Michael Polanyi
"Why are you afraid, have you still no faith?" Mark 4:40
EAllusion wrote:... it’s hard to see it as anything other than dishonesty aimed at those who don’t know any better.
canpakes wrote:Pretty much this.
mikwut wrote:Then pretty much give your legal analysis showing dishonesty. I gave the link to the transcript to E above.
mikwut
Looks like you and EA are agreeing on the main point (below - am I misinterpreting?); what I’m agreeing to is EA’s conclusion that The Dersh’s argument is being presented with dishonest intent. In other words, he knows better. I’m not needing to provide a legal argument for my opinion of his intent past that.
EAllusion wrote:
mikwut wrote:Dershowitz is soooo right when he criticizes Trump. But his impeachment argument based on pretty substantive historical and legal interpretation is soooo wrong.
The overwhelming bulk of commentary from actual constitutional law experts, which Dershowitz is not, describes his arguments as quackery.
Do you realize the issue we were debating is whether Dershowitz is dishonest in his argument? Noting that Turley interprets the warrant of the 7 republicans not setting precedent for whether a crime is necessary does not show Dershowitz is dishonest. Indeed Turley says nothing of the sort. They offer two alternative possibilities. An alternative interpretation that is reasonable is not refutation.
Do you also realize my comment that Trumps opposition agrees with Dershowitz when it helps their case and disagrees when they don't is applicable to you too? You have repeated it with Turley and come full circle presenting Turley in the same way. You love him to refute Dershowitz but deride him as a contrarian when he testifies for the Republicans. I guess just pick from a buffet of what you like and what you don't and never mind the hypocrisy.
mikwut
You do realize my post wasn't a response to anything you said, right?
And you do realize that it isn't just Jonathan Turley who disagrees with Dershowitz, right? It is quite literally the entire field of Constitutional scholarship who thinks his argument is bunk, and Dershowitz has even conceded that point that he's a lone wolf on this one. I don't "love" Turley to refute Dershowitz. I could have just as easily provided a refutation by Lawrence Tribe, but Turley seems to be a Republican favorite so I was pointing out the hypocrisy.
"One of the hardest things for me to accept is the fact that Kevin Graham has blonde hair, blue eyes and an English last name. This ugly truth blows any arguments one might have for actual white supremacism out of the water. He's truly a disgrace." - Ajax
canpakes wrote:Looks like you and EAllusion are agreeing on the main point (below - am I misinterpreting?); what I’m agreeing to is EAllusion’s conclusion that The Dersh’s argument is being presented with dishonest intent. In other words, he knows better. I’m not needing to provide a legal argument for my opinion of his intent past that.
It is hard to come to any other conclusion because Dershowitz does know better.
Dershowitz strikes me as a limelight hog. He injected himself into this situation because he likes to be the intellectual guru in every high profile case. He even said it himself, that when it appeared Hillary was going to win he was all about supporting Hillary. Now that Trump is in power he's kissing up to him and trying to act like he's a true Democrat (his claim) who is just being honest to his genuine understanding of the Constitution. Yeah, right. Somehow his understanding changes dramatically depending on who's president.
Incidentally, the other day Mike Pompeo was being lavished with praise by Trump in a conference room simply because he verbally abused a female journalist working for NPR. He cursed at her and told her she couldn't find Ukraine on a map (he got a map and she did point it out). Trump and his fawning audience, they were all just laughing it up, and Alan Dershowitz sitting behind Pompeo was slapping him on the shoulder laughing with support for his actions. Yeah, he's a true Democrat huh.
"One of the hardest things for me to accept is the fact that Kevin Graham has blonde hair, blue eyes and an English last name. This ugly truth blows any arguments one might have for actual white supremacism out of the water. He's truly a disgrace." - Ajax
Schiff’s response to Dershowitz focused on one particular senator:
He asked his audience to imagine what would have happened if then-President Barack Obama asked the Russians to dig up dirt on then-candidate Romney, the GOP’s 2012 presidential nominee?
Can you imagine the absolute nuclear crap show the Right-wing-‘o-sphere would’ve had? Granted, I would’ve loved seeing if Liberals values would’ve held, but good Lord we know how the Right would’ve reacted, for sure.
- Doc
In the face of madness, rationality has no power - Xiao Wang, US historiographer, 2287 AD.
Every record...falsified, every book rewritten...every statue...has been renamed or torn down, every date...altered...the process is continuing...minute by minute. History has stopped. Nothing exists except an endless present in which the Ideology is always right.
Not to minimize, but this was published before the House had even presented their case. It's an opinion on constitutional law co-written by a labor law professor and third-year law student.
That said, I'm not sure the article lets Trump off the hook.
To the extent Trump solicited an announcement unrelated to any actual investigation, he was not soliciting an official act that may be described as part of “logrolling.” Trump thus went beyond the exchange of public acts that constitute political or diplomatic logrolling. His conduct would support a finding of an exchange of official acts (by Trump) for things of value (the public statement sought from Zelensky) and as no public justification for seeking the statement has been offered, the corrupt intent necessary to maintain a bribery charge.
It seems to me that they're concluding that "logrolling" isn't a valid defense, in this case.
Last edited by Guest on Thu Jan 30, 2020 5:00 am, edited 1 time in total.
Logrolling doesn't apply if the favor to Trump was for personal benefit, for which he was acting against the interests of the United States by withholding the meeting which is an official act. It's even worse extended to the witholding of aid.
The argument against Joe Biden is he used a quid pro quo to have Shokin removed. The implication was he used his office for personal benefit to aid his son. The mitigating facts involve the removal of Shokin furthering US and NATO interests while being against the interests of Hunter Biden's client. As acknowledge in the link, using leverage to exchange for benefitial acts in the interest of the nation is how politics works. It's the personal benefit against the nation's interest that drives the stake into the heart of Trump's defense arguments.
This seems like an attempt to muddy clear waters.
ETA: what Morley said
The world is always full of the sound of waves..but who knows the heart of the sea, a hundred feet down? Who knows it's depth? ~ Eiji Yoshikawa