Unrestrained abuse of power an odd ‘not impeachable’ theory

CNN: Republican theory for Trump acquittal could unleash unrestrained presidential power

Impeachment was meant to punish Donald Trump’s unrestrained use of his authority, but the grounds on which Republican senators plan to acquit him may instead give him a green light to use his power however he wants to win reelection.

Trump’s GOP defenders looking to end his Senate trial in the next few days are increasingly arguing that it’s time to shut things down because even if Trump is guilty of coercing Ukraine for political favors, such conduct would not be impeachable.

“For the sake of argument, one could assume everything attributable to John Bolton is accurate and still the House case would fall well below the standards to remove a president from office,” South Carolina Sen. Lindsey Graham said in what his office says is his definitive impeachment statement.

Sen John Barrasso, a member of the GOP Senate leadership, added: “Even if everything in the book is true, it doesn’t rise to the level of impeachment.”

And Sen. Mike Braun of Indiana said: “It’s not even getting close to getting something that’s impeachable.”

These statements aren’t surprising. Republican senators were saying they wouldn’t vote for impeachment before the trial started.

They are seizing on stunning arguments envisioning almost unchallenged presidential power and highly limited criteria for defining the abuse of power and impeachment laid out by a maverick member of Trump’s legal team, Harvard Law professor Alan Dershowitz.

The legal reasoning from Dershowitz — while outside the mainstream — is giving Republican senators political cover to stand with the President.

The Harvard emeritus professor claimed on the Senate floor that if a politician thinks his re-election is in the national interest, any actions he takes towards that end cannot by definition be impeachable.

“Every public official that I know believes that his election is in the public interest. And if a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment.”

If a president thinks that it is ‘in the public interest’ that they be re-elected then anything goes? I would expect that president thinks that their re-election is more in the public interest than an opponent. But that shouldn’t justify any abuse of power they want to try – impeachment is supposed to provide a check on presidential abuses of power.

CNN legal expert Carrie Cordero said that Dershowitz’s arguments — that CNN reporters in the chamber said were warmly received by Republican senators — were nonsensical.

“It basically means that a President can do anything and they can make a subjective determination that their reelection is in the national interest. It invites and opens the door to anything that is in the realm of foreign influence.”

The spectacle of Republicans adopting such arguments is remarkable since the party that once saw itself as the epitome of limited government is coalescing in an effort to broaden the unrestrainable power of the presidency. But it is also thematically compatible with the idea of a “unitary executive” — a theory that grants expansive powers to the presidency and is advanced by some conservative lawyers — including current Attorney General William Barr.

In his own way, Trump has argued similar points, claiming that Article II of the Constitution gives him the power to do anything he wants.

Dershowitz tried to clarify his argument via Twitter:

They characterized my argument as if I had said that if a president believes that his re-election was in the national interest, he can do anything. I said nothing like that, as anyone who actually heard what I said can attest.

Let me be clear once again (as I was in the senate): a president seeking re-election cannot do anything he wants. He is not above the law. He cannot commit crimes. He cannot commit impeachable conduct.

But a lawful act— holding up funds, sending troops to vote, braking a promise about Syria—does not become unlawful or impeachable if done with a mixed motive of both promoting the public interest and helping his RE-election. Please respond to my argument , not a distortion of it.

Under the Manager’s overbroad theory of motivation – the theory to which I was responding – Joe Biden (who I admire and like) would be guilty even if a small part of his motivation for having the Ukraine prosecutor fired was to protect his son or his son’s company.

I believe Joe Biden is a patriot who cares deeply about the national interest, but he also cares deeply about his family. Under the Manger’s dangerous theory, he would have to be psychoanalyzed to determine the role each motive may have played in an entirely lawful action.

The Manager’s theory takes us down a dangerous road.

Another dangerous road is giving an unstable president the green light to do whatever he thinks is in his re-election interests (which of course he will think is in the public interest.

From U.S. presidential impeachment: (Wikipedia):

Article II, Section 4 of the U.S. Constitution limits the grounds of impeaching a president to “Treason, Bribery, or other high Crimes and Misdemeanors”. Because the precise meaning of the phrase “high crimes and misdemeanors” is not defined in the Constitution itself, it is left open to the interpretation of Congress, especially since the U.S. Supreme Court decided in Nixon v. United States that it did not have the authority to determine whether the Senate properly “tried” a defendant. Congress has, however, identified three general types of conduct that constitute grounds for impeachment, although these categories should not be understood as exhaustive:[1]

  1. Improperly exceeding or abusing the powers of the office.[1]
  2. Behavior incompatible with the function and purpose of the office.[1]
  3. Misusing the office for an improper purpose or for personal gain.[1]

Other than the above constitutional provisions, the exact details of the presidential impeachment process are left up to Congress. Thus, a number of rules have been adopted by the House and Senate and are honored by tradition. Among them, The House Practice: A Guide to the Rules, Precedents and Procedures of the House, prepared by the House Parliamentarian, is a reference source for information on the rules and selected precedents governing the House procedure.[2]

The Senate has formal Rules and Procedures of Practice in the Senate When Sitting on Impeachment Trials.[5] Nevertheless, both the House and the Senate are free to modify the procedures for each presidential impeachment and trial, respectively.[1]

So the politicians can change the rules to suit their own interests. This makes impeachment more of a political contest than a legal process, and that seems to be how the current impeachment is working in practice. Trump thinks he can break ‘rules’ as he sees fit, and House and Senate politicians can make the trial rules as they see fit – no doubt with more than a bit of an eye on their own re-elections, which of course they will think is in the public interest.

It is looking likely that the senate ‘trial’ won’t even get as far as hearing from witnesses.

Pelosi seems resigned to an acquittal.

If Trump is acquitted, be will no doubt see it as a major victory. It could give him the confidence that he can get away with doing anything, and to an extent this is likely.

But Trump may also try to avoid the adverse publicity that further abuses of power may initiate, especially in an election year – unless he thinks that voters will view abuses of power as strong leadership.

 

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40 Comments

  1. adamsmith1922

     /  31st January 2020

    Essentially that reasoning from Dershowitz and some others imbues the President as absolute ruler, and calls to mind the saying attributed to Louis XIV ‘ l’etat c’est moi’. Furthermore by acquittal they set a precedent for the future which will surely come back to haunt them.

    Reply
    • Grumpy

       /  31st January 2020

      Obama’s use of unfettered power to attack his political enemies by weaponising the DoJ, FBI, CIA and IRS is by far a much more despotic example. No problem there with the Democrats, MSM and leftie commentators…….

      Reply
      • adamsmith1922

         /  31st January 2020

        I was no Obama fan, but please provide verifiable examples with reputable and credible sources

        Reply
        • FarmerPete

           /  31st January 2020

          It is all public record, especially the IRS. You can read it for your self.

          Reply
    • This *is* criminal law, though — we’re talking about Richard Nixon’s criminal behavior underpinning the Watergate break-in and weaponising the IRS against his opponents, and the subsequent conspiracy and obstruction to cover up the crimes.

      Nixon was told in a unanimous decision by the 1974 SCOTUS the president is not above the law and executive privilege does not convey unqualified, unlimited immunity shielding unlawful acts by the executive.

      Beyond the question of criminal or constitutional law, Dersh’s reasoning goes to the core of this country’s existence as a democratic republic: the revolution was fought against a monarch claiming unlimited power. The United States of America exists because the founders rejected monarchical autocracy in principle. This is American History and American Government, grade school edition.

      Reply
    • Alan Wilkinson

       /  31st January 2020

      Nonsense. If Trump were convicted that would surely come back to bite every future President who faced an opposing Congress, now empowered both to define abuse of power as well as prosecute and judge the case.

      However on acquittal Trump (and future Presidents) will still be constrained by public opinion acting on the electability of Congress. That reality precludes your scaremongering scenario.

      Reply
  2. Blazer

     /  31st January 2020

    Dershowitz has been exposed as a flake when you line up his comments on prior impeachment of a U.S president.

    Reply
    • adamsmith1922

       /  31st January 2020

      True,but he provides a figleaf for acquittal by morally corrupt Republicans

      Reply
  3. Grumpy

     /  31st January 2020

    There is no case to answer and Trump will be aquitted, the same as for any person charged with a crime but has those charges dismissed by the court. It is called being innocent.
    That will be followed by a Senate investigation into the origins of this charade which will possibly result in criminal referrals to the DoJ for Schiff at least.

    Reply
    • … and of course, if it were Obama then he’d be as guilty as sin and ought to be removed from office forthwith.

      Yeah, got it. See where you’re coming from. Why don’t you just crown Donald king, nuke all blue states, and be done with.

      Reply
      • Joe Biden is on taping bragging that he withheld US aid from Ukraine, until they fired the prosecutor who was investigating Burisma where his son was on the board …. Biden was Vice to Obama.

        Reply
      • No, because it’s still not illegal to ask a foreign President to investigate the actions of a US citizen, even if conditional on granting aid.

        But bringing up the Obama administration is interesting. It was not illegal for them to sell guns to Mexican cartels, but they did. Then they tried to cover it up. I’d suggest that was far worse than anything Trump has done, but Eric Holder did not get impeached, only censured. I’d be interested to know if you think that impeachment was warranted for that? Y’know, since Obama is not Louis XIV and all…

        Reply
    • adamsmith1922

       /  31st January 2020

      Are you really serious.He will be acquitted, but innocent not ever.He is corrupt as well as a lying deranged idiot.

      Reply
      • Alan Wilkinson

         /  31st January 2020

        A pretty clever idiot who has managed as an amateur to defeat both professional media and politicians on their own turf, revolutionising both.

        Both of whom like you seriously and successively underestimated him. So comfort yourself with your insults if you can while continuing to lose to him.

        Same thing in the UK. Lefties fly Trump Baby and get wiped out by his mate Boris.

        Reply
  4. Dershowitz has repeatedly relied on the views of Harvard Law School professor Nikolas Bowie to support his argument. Only Dershowitz has twisted and manipulated Bowie’s writings in his descent into constitutional madness:

    a president who believes only he can fix it — who thinks his re-election is vital to the nation — can’t be impeached for abusing his power to corrupt the next election in his favor because by definition he’s doing what he thinks best for the country.

    I can only imagine Dershowitz making such an argument because he can no longer dispute the damning facts that have been gathered about the president’s actions.

    Bowie has of course pointed out that Dershowitz’s misinterpretations are flat-out wrong, irresponsible, and ludicrous:

    “Think of what that would mean. That would mean that if the president were to order the military to start rounding up black people because he’s afraid of losing the next election, and so long as the president is motivated by the ‘national interest,’ as long as the president is motivated to get reelected then that’s fine? That can’t be right… that is such an irresponsible and ludicrous argument.”

    Reply
    • adamsmith1922

       /  31st January 2020

      Dershowitz has become a Trump fan who will do anything to justify the unjustifiable

      Reply
    • duperez

       /  31st January 2020

      Bowie used a slightly different example than I had already used. Using Dershowitz’s argument, a president could freely deploy the military to protect the national interest as he saw it. I had a president sending troops into a state voting the ‘wrong way’ because it was in the national interest to have himself and only himself elected. Bowie had it as going in and sorting out black voters.

      For all the centuries of academic consideration and reverence accorded scholars, for all the tradition which Dershowitz seemingly believes in, for all the notions about the sanctity of the constitution and the practical and spiritual nuances of that, this is simply a dog eat dog fight, a battle for survival. Play to win. In a cultural context here, eye-gouge, grab him by the balls, bite his ear, punch him in the kidneys, kick him in the head. The only ethic is winning.

      Dershowitz has parked the musty tomes for zap and kapow! The way of the age, for the president of the age.

      The farce is accentuated by the faux reverence, the comic respect, with the conclusion being so foregone. To have it stamped with the grand label by Chief Justice Roberts (and repeated by others) as the ‘world’s greatest deliberative body’ is perfect.

      Reply
      • Alan Wilkinson

         /  31st January 2020

        Dershowitz rightly believes that trying to identify and quantify motive components is a subjective exercise that would lead to bad and inconsistent judgements and should not be recognised as the basis for an abuse of power impeachment conviction.

        Reply
        • duperez

           /  1st February 2020

          Dershowitz and the rest of them are involved in an exercise which is a subjective exercise. Inescapably so.

          Those charged with making judgements which are ‘sound’ and not bad and inconsistent in any situation, let alone ones to do abuse of power impeachment cases, are in an impossible situation.

          Can they leave behind the poll indicators in their states? The grace and favour and support implications of voting a certain way?

          The process is built on high flown notions and noble intentions. Seeking and finding the truth and applying it to the tenets at the core of the country might be what it ostensibly is all about.

          You know, I know, they know that, just as we know that since people are involved there has to be some element of subjectivity.

          Dershowitz on motive and subjectivity? If he is an eminent mind in the USA we can see how Giuliani gets to play cowboy.

          If the process is to get to the top of the tower, survey the scene, and make judgements which are not subjective, Dershowitz’s job is to stop people getting to the top of the building, to see and rule. Dershowitz’s job is to not let you look in some directions, see what’s going on. Ban witnesses.

          The nonsense about the whistleblower issue the same. It’s vacuous, but then it’s not because of the strategic distraction value.

          Any in the senate being distracted one iota by the whistleblower tactic are incapable of leaving subjectivity behind. And, from what you say, Dershowitz would believe that attention to the whistleblower would likely lead to bad and inconsistent judgement. There they were though, on about it still.

          But there you go, back to grace and favour and support implications. Senators can go home facing fire knowing there is going to be support from caterwauling rednecks and simpletons who have the whistleblower as the most treasonous American of all time. And therein lies the beauty of more distraction.

          Reply
          • Alan Wilkinson

             /  1st February 2020

            But we don’t disagree, duperez. The whistle-blower’s motives are as irrelevant as Trump’s. That is why the case will be thrown out without hearing any more from either of them.

            Reply
  5. Just a reminder of the implications of Ukrainegate: a play about American fecklessness and Ukrainian corruption in one “perfect” act.

    “In one gesture, Trump reduced the survival of Ukraine to a bargaining chip in an utterly petty pursuit; embroiled Volodymyr Zelensky, the Ukrainian president, in scandal and undercut his ability to defend the interests of his nation; and weakened the clout of U.S. leadership on Ukraine, the region and beyond.

    The biggest beneficiary of this latest Trump-derived scandal is the Kremlin. This isn’t some theoretical future calculus. It has an immediate impact on U.S. security and our strategic outlook. And it enhances the ability of the Kremlin to keep stirring chaos inside the United States.

    Trump is bargaining away U.S. security for conspiracy theories about Ukraine and the Bidens that he hopes will not only strengthen his position for his reelection, but will also erase the evidence that Kremlin intervention helped to elect him president.”

    https://www.politico.com/magazine/story/2019/10/06/putin-trump-zelensky-phone-call-229243

    Reply
    • Tom Hunter

       /  31st January 2020

      … but will also erase the evidence that Kremlin intervention helped to elect him president.

      Yes! The Kremlin knew that spending just a few hundred thousand dollars on Facebook and Twiiter trolls would turn the tide in favour of Hillary – especially if they focused on Mid-Western swing states and targeted non-college-educated Whites who had voted for Obama in 2008 and 2012.

      But their real trick was stopping Hillary from campaigning very little or not at all in those places. That was probably the work of a mole in her campaign, ammiright?

      Jesus Christ. That statement is as good a proof as one can get that for all the talk of fanatical Trumpists there’s a huge, unhinged group of Trump-haters who can still manage to get Op-eds written in the MSM.

      Even a two-year long investigation headed by a former FBI chief and staffed with a bunch of lawyers who were not just Democrats but Clinton campaign donors, people who had every incentive to get this result – could not get it. Which is why it died so suddenly among the Democrats and Ukraine became the next big thing.

      The biggest beneficiary of this latest Trump-derived scandal is the Kremlin.
      In the sense that the US electorate will continue to be hate-filled and polarised until Trump is driven from office then yes. Which is why providing “Russian sources” for Steele’s ludicrous dossier would be a classic piece of Russian foreign policy: throw in a little bit of “dezinformatsiya” and let it rip. Plausible denial and your enemies do all the work for you.

      And of course such a statement completely ignores that fact that it’s Trump that has provided lethal military aid to the Ukraine in the form of things like Javelin anti-armour weapons and such, whereas Obama provided boots and MRE’s because he didn’t want to “escalate” the situation with Russia.

      You remember Russia right? The place that required Obama and Hillary to do that big “reset” in 2009 after they’d got all reactionary with invasions of Georgia and the like because they’d been frightened by that war monger Bush! Not to mention all that scoffing and snark in 2012 when Mitt Romney said that Russia was the USA’s biggest geopolitical threat. What was Obama’s response in a debate held before millions of viewers?
      The 1980’s called and they want their foreign policy back

      Oh how we laughed. It’s no surprise that the Russians did try to interfere in the 2016 election – on Obama’s watch.

      In the eyes of Democrats Russia and Vlad went from being potential partners in places like Syria to Mortal Enemy Conspiring With Trump.

      And all it took was to lose an unloseable election.

      Reply
  6. and one final comment from me for the day, ‘cos I have better things to do today than trade barbs with gullible, narrowly-researched Trumpers…

    The outcome of this whole crooked ‘drug deal’ of Trump’s is the perfect formula for tyranny: The executive claims unlimited power, while his critics are muzzled.

    Reply
    • Pink David

       /  31st January 2020

      “and one final comment from me for the day, ‘cos I have better things to do today than trade barbs with gullible, narrowly-researched Trumpers…”

      This is the least credible thing you have ever posted.

      Reply
      • Credibility is in the eye of the beholder.

        “The facts of Trump’s corruption were never in dispute. The notion that this doesn’t rise to impeachable crimes has always been a joke.

        We could play the age-old parlor game of asking how our esteemed Republican senators would have responded to Barack Obama asking the French government to investigate Mitt Romney’s missionary exploits ahead of the 2012 election. But what’s the point?

        Today’s Republican party elected to remove their spinal cords three years ago, along with much of their frontal lobe and their self-respect. They wring their hands in private and lament their lampoon-worthy leader whose shoes they must lick on a daily basis.
        But they should know they are following in a fine tradition of the world’s puppet legislators, like the People’s Council of Syria and the Russian Duma under the expert guidance of one Vladimir Putin.

        We should in some ways be grateful for the honesty of our pseudo-senators. “There is no need for more evidence to prove something that has already been proven,” said Lamar Alexander, the Tennessee senator who was supposedly considering Bolton as a witness.

        Having decided the facts against Trump, Alexander then decided to trivialize his criminal acts of withholding congressionally mandated foreign aid and demanding foreign interference in his own election. According to Alexander, such stuff was simply “inappropriate”.

        “The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did,” said the senator, elected to make decisions for the American people in one of three co-equal branches of government.

        Faced with so many profiles in courage, our reality TV star of a commander-in-chief will carry on regardless, seeking out fellow grifters, foreign strongmen and domestic weaklings. Will he feel liberated by the failure of the Senate trial to seek out more foreign interference in this year’s election? The answer may be similar to the one about bears dumping in forests.

        Short of removal from office or federal indictment, there are no constraints on Trump’s conduct. He can hire another goon like Rudy Giuliani to work with sketchy foreigners running businesses called something like Fraud Guarantee. Then he can shovel any amount of sketchy cash on to Facebook’s mountain of money to beguile the gullible about the guaranteed fraud. Because a president can’t be impeached for inappropriate crimes. “

        https://www.theguardian.com/commentisfree/2020/jan/31/republicans-impeachment-trump-richard-wolffe

        Reply
    • Alan Wilkinson

       /  31st January 2020

      B.s. His critics can fight an election as he will. Meanwhile they can continue to spew drivel and hate like you do. They are not muzzled but they do need a bib.

      Reply
  7. Tom Hunter

     /  31st January 2020

    Seems to be a lot of CNN worship here. Funny considering how useless they are…not to mention being a perfect foil for Trump’s relectiion. It seems the following Don Lemon hit has been removed from his Twitter account, so here’s YouTube…

    Don Lemon’s CNN Panel laughs Itself Into Tears Ridiculing Stupidity Of Trump Voters”

    There’s an excellent analysis of this at The Dark Origins Of Don Lemon’s Southern Stereotype

    “Look who the corporate press has needlessly alienated through their chicanery: Rogan fans, Tulsi fans, Bernie fans, Andrew Yang fans, Trump fans, Kobe fans, Don Imus fans. It’s amazing. They can’t help themselves, because when they have a fundamentalist faith, you are certain you are on the side of the angels.

    A pitch-perfect description of “Ishmael” and his ilk on this blog comments section.

    At least the CNN Panel didn’t refer to them as “Deplorables”, which shows that they’ve learned a little from their 2016 election shock loss – though not enough for 2020.

    Reply
  8. The New York Times has also reported on John Bolton’s claim from his book:

    “Mr. Trump told Mr. Bolton to call Volodymyr Zelensky, who had recently won election as president of Ukraine, to ensure Mr. Zelensky would meet with Mr. Giuliani, who was planning a trip to Ukraine to discuss the investigations that the president sought, in Mr. Bolton’s account. Mr. Bolton never made the call, he wrote.”

    But it looks like few if any Republicans will vote to hear Bolton as a witness at the ‘trial’.

    Reply
  9. Probably the deciding sentiment – what trump did was “wrong and inappropriate” but didn’t “rise to the level of removing a duly-elected president from office and taking him off the ballot in the middle of an election”.

    Sen. Rob Portman, another potential swing vote, said he will vote “no” on witnesses today.

    The Republican from Ohio said in a statement: “I do not believe that additional witnesses are needed.”

    Portman continued: “I have said consistently for the past four months, since the Zelensky transcript was first released, that I believe that some of the President’s actions in this case – including asking a foreign country to investigate a potential political opponent and the delay of aid to Ukraine – were wrong and inappropriate. But I do not believe that the President’s actions rise to the level of removing a duly-elected president from office and taking him off the ballot in the middle of an election.”

    https://edition.cnn.com/politics/live-news/trump-impeachment-trial-01-31-20/index.html

    A pertinent question that probably won’t be tested before the election this year – if Trump did something similar again would repeat offending justify impeachment?

    he has already clocked up a long list of conduct putting the presidential office in disrepute.

    Reply
  10. Get ready for Republican Senators over the next three months to begin arguing that they’re shocked at the full extent of the revelations in Bolton’s book, and that they can’t be held accountable for their decision to acquit Trump, because they didn’t know just how ugly Bolton’s revelations were.

    Reply
    • Senators have already stated that, even if the claims were verified, Trump’s actions do not warrant impeachment. So no chance of anyone saying that.

      Reply
    • Pink David

       /  2nd February 2020

      Isn’t attempting to impeach a president without suitable evidence an abuse of power?

      Reply
  11. The comments here are quite incredible. There is nothing wrong with Derschowitz’s arguments. And they do not make a monarch out of the President.

    It’s actually a basic principle of Anglo Saxon law that something is legal unless the law says otherwise. Some here want to make exceptions for US Presidents, but it applies to them too.

    In theory, legal use of power by a President can be impeachable behaviour, but there would have to be clear reckless endangerment of US interests. That doesn’t even remotely exist in this instance. An opinion that something a President does is bad is insufficient. As Derschowitz implies, that’s a political matter for candidates in elections. If you think the Orange Man is bad, vote him out.

    Reply

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