“The fact that an action is lawful is no defense,” and so the experts sum up how radically the mainstream media and politicians have bastardized impeachment, reducing it to nothing more than a show trial complete with a script and spoilers for the ending. Does anyone really believe this is how things are really supposed to work?
In the end, they didn’t really mean it. The charge was “incitement of insurrection,” but that should not be confused with the actual Federal charge, incitement of insurrection, “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
The real charge would have been tried in a real court with real witnesses, evidence, and standards of justice. No, this wasn’t the real incitement of insurrection crime, this was the newly created impeachment version, call it a high crime and misdemeanor. Of course, the experts assure us this is totally normal. “Impeachment is an entirely different process from the criminal process, even though it shares some of the words that describe the process,” explains Robert Peck, constitutional attorney and president of the Center for Constitutional Litigation.
Dr. Mark Graber, a law professor at the University of Maryland explains some of the differences, “There are some very strict rules for a criminal trial. There must be notice, right to an attorney, right to cross examine witnesses, right to call witnesses. These rules don’t exist for impeachment. The Senate determines their own rules.”
Apparently, the House and Senate together can also determine their own crimes and how those crimes should be judged. “In an ordinary criminal trial, the jury must be unanimous,” Dr. Graber notes. “The Constitution requires reasonable doubt… the Constitution doesn’t set any standard [for impeachment.] Senators determine for themselves what the burden of proof is.” “If a senator thinks it has to be beyond a reasonable doubt, the senator can vote on that basis,” Dr. Gaber continues. “If on the other hand, the senator thinks that even a small chance of the charges being true is enough to remove the president, or any other impeached official, then the senator can vote on that basis.”
The New York Times, claiming, rather incredibly, that the trial may have hinged on the “meaning” of “incitement,” as if the word had no meaning prior to the proceedings, helpfully explains that “The Supreme Court has placed strict First Amendment limits on incitement charges in court. But many legal scholars say they do not apply in impeachment trials.”
What are these strict limits on incitement charges? In 1969, in a case involving the Ku Klux Klan, the court ruled, “The constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Even the Times notes that, “Mr. Trump offered a similarly mixed message on Jan. 6. Even as he urged his supporters to ‘go to the Capitol’ and ‘fight like hell,’ he also made at least one milder comment. ‘I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,’ he said. Ordinary courts might consider the speech in isolation and credit the occasional calmer passage.”
Of course, the Times then continues to note that the House (Democrat) impeachment members are “urging the Senate to hold the president to a different standard.” In support of this position, they cite Jonathan H. Adler, a law professor at Case Western Reserve University. “However awful and unpresidential his comments may have been, I will accept for the sake of argument that they did not pose a sufficient risk of inducing imminent lawless action of the sort necessary to sacrifice First Amendment protection,” Professor Adler, wrote in a blog post. “Would that mean he could not be impeached for those remarks? Not at all.”
Keith E. Whittington, a professor of politics at Princeton, went one step further: “The House can impeach and the Senate can convict an officer for engaging in lawful conduct.” He continues, “The impeachment power is given to Congress to address myriad cases of noncriminal, political misconduct. The fact that an action is lawful is no defense to impeachment and conviction in the Senate.”
Read that again: The fact that an action is lawful is no defense. How else do you defend yourself then? If you exclude defenses based on legality, what kinds are you allowed to mount?
Legally, of course, there is some underlying truth to their position. They aren’t entirely making this up; they’re simply bastardizing it until the point where words in general have lost all meaning. The Constitution doesn’t specify what constitutes high crimes and misdemeanors, noting only treason and bribery specifically, nor does it prescribe rules of evidence or details for the conduct of the trial, merely that a majority is required in the House and two thirds in the Senate to convict. Otherwise, both Houses are free to make up their own rules.
This, however, doesn’t mean that there are supposed to be no rules at all, that the Founders intended a political free for all. If nothing else, the Founders were incredibly careful in their choice of language and incredibly sensitive to political persecutions. They specifically chose to describe impeachment with words gleaned from civil and criminal trials, meaning there’s no reason to believe they wouldn’t have expected many of the same standards to have applied. After all, the Constitution doesn’t specify the details of most of the operations of government. Therefore, it’s absurd to think the limited text is a license for partisans to do whatever they want, to arbitrarily create a standard where the legality of an action is no defense and there are no standards of behavior.
In addition, after ratifying the Constitution, it was immediately amended to guarantee free speech, prevent illegal search and seizure, guarantee due process and a jury trial, and ban cruel and unusual punishment. Are we to believe they wanted absolutely none of this to apply while conducting a trial of the chief executive? That they would have endorsed a process where a carefully chosen charge of “incitement of insurrection” doesn’t mean what it actually means and legality is no defense?
Prior to Trump, no President had ever been impeached without being accused of an actual crime. In fact, for the first Presidential impeachment, Congress literally invented one because they understood the difference between theoretically impeaching a President without having committed a real crime and practically doing so.
Andrew Johnson was impeached in 1868 for violating the Tenure of Office Act, a likely unconstitutional law that required a President to receive permission from Congress to fire certain cabinet members. The act had only been recently passed over Johnson’s veto, and the Republicans in Congress basically dared Johnson to violate it, even as they knew it would likely be struck down by the Supreme Court. Johnson ultimately fired the Secretary of War Edwin M. Stanton and he was impeached in the House. Of the 11 charges Johnson faced after the House impeachment, the majority concerned his violation of the Tenure of Office Act. Johnson was ultimately acquitted by a single vote in the Senate, “I cannot agree to destroy the harmonious working of the Constitution,” concluded senator James Grimes of Iowa, “for the sake of getting rid of an Unacceptable President.”
Today, however, we aren’t concerned with such niceties as what actually constitutes a high crime and misdemeanor, and what standard of judgement should be applied. The “harmonious working of the Constitution,” not one part of it, but the whole thing, are irrelevant.
In fact, we aren’t even concerned with what constitutes evidence or the procedures for handling it. If a Twitter post looks better with a blue check that wasn’t there and a change of date, so be it. If a slickly edited video is more impactful than the actual video, we’ll use the produced version. If we don’t want to bother with actually deposing witnesses and placing them under oath for cross examination, we’ll simply enter statements into evidence, even if they’re hearsay.
And we’ll do all this, acting like it’s completely normal. After the impeachment “trial,” Trump defense attorney, Michael van der Veen spoke with CBS reporter Lana Zak. “The prosecutors in this case doctored evidence. They did not investigate this case and when they had to come to the court of the Senate to put their case on, because they hadn’t done any investigation, they doctored evidence,” van der Veen explained. It was absolutely shocking. I think when we discovered it and we were able to expose it.”
Ms. Zak replied, completely nonplussed, “What you’re talking about now is a checkmark that’s a verification on Twitter that did not exist on that particular tweet [and] a ‘2020’ that should have read ‘2021’ and the selective editing, you say, of the tapes,” she explained. Apparently, van der Veen didn’t get the memo that none of this meant anything. He replied, flabbergasted, “Wait. Wait. Wait. That’s not enough for you? That’s not enough for you? It’s not okay to doctor a little bit of evidence.”
Charges that aren’t charges, crimes that aren’t crimes, trials that aren’t trials, evidence that isn’t evidence, witnesses that aren’t witnesses, jurors that aren’t jurors, and verdicts that aren’t verdicts. The language is the same, indeed the language is readily used by the mainstream media and politicians as if it were the same, an impeachment trial, a guilty verdict, etc., all the trappings of what a normal person expects to accompany a true legal proceeding.
It’s only the fine print that indicates those words don’t mean what you think they mean. In other words, we’ve turned impeachment into the definition of a show trial, an exercise purely in political theater. The process is based entirely on the needs of the moment: If you’re gonna make a hit, you gotta make it fit. The ending is already known in advance, and irrelevant to most of the players involved. The content itself is scripted and the evidence heavily edited. The precise meaning of the charges or how they will be judged is entirely unimportant.
Ultimately, all that’s left is the grandstanding as legality is no defense. Does anyone truly believe this is how any of this was supposed to work? I doubt it. Likewise, does anyone honestly think anything good can come of treating grave matters with such cavalier means? I notice none of the experts are trying to answer that question.
4 thoughts on “The Era of the Asterisk Impeachment”
I enjoyed reading this. I’m of the opinion that Pelosi knew she had only a short amount of time to do any/some/thing politically and she went full speed ahead. Still stinging from other dustups, she wanted Trump to achieve his footnote in history. She negotiated the venue and terms at the moment in time. More recent impeachments were predicated on Commission reports and tomes of evidence. She had none of that. Do I understand you to support the rules of engagement used in criminal law? Does this mean you disagree with McConnell when he says that impeachment was not intended to supplant criminal trials? Thanks for any additional comments you make on this,
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Thanks for your note, I appreciate your giving it a read and the kind words. Great question: No, I don’t disagree with McConnell if you look at it in isolation. Impeachments are different from criminal trials and they serve a different function entirely. I just don’t think its reasonable to jump from that to impeachment should be whatever the politicians say it is. I don’t see why the Founders wouldn’t have intended the rest of the Constitution simply vanish and no protections from the Bill of Rights or anywhere else should apply.
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I have considered that impeachment was originally intended as a tool to remove a criminally-convicted appointee, prez, and vprez, from their office. But that’s too narrow of an intent. Now I’m thinking that it allows Congress a tool to check the Executive power to seat a gang of thugs. In any case , thanks for your reply.
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I think there is definitely some truth to that; impeachment was intended to cover a wide range of issues, some of them non-criminal. At the same time, I don’t think that should imply that any process at all would be acceptable. To put this in perspective, it takes more time to convict a stone cold murderer caught on video tape than they spent on this last impeachment. I don’t think anyone wanted such important matters to be treated so cavalierly.
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