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Take This Impeachment And Shove It...

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  • #31
    Originally posted by Sam View Post
    Souter's hypothetical was if the House impeaches and the Senate, without trial, voted to convict on the basis of the President "being a bad guy".

    Humorously, that finds its closest parallel to conservative pundits today urging McConnell to forgo a trial in case of impeachment and immediately vote to acquit Trump.

    --Sam
    Both White and Souter address the Senate because that's what was involved in Nixon.


    Graham is already on record and the Senate sets its own trial rules - no statute overrides that. The chances of a Republican led Senate allowing a trial with no public witnesses are as close to negative as probability gets. The justification will be the Sixth Amendment - but in reality, it's politically untenable not to.

    "He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot


    "Forgiveness is the way of love." Gary Chapman

    My Personal Blog

    My Novella blog (Current Novella Begins on 7/25/14)

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    • #32
      Originally posted by Teallaura View Post
      No, he's left a plenty wide door - besides the non-binding nature of Nixon.

      It's uncharted territory - and we have no idea what the Court will consider re: House precedings.

      And being President doesn't strip you of your Constitutional rights.

      You do realize both White and Souter addressed the Senate, right? You're arguing the Dems have no recourse if they believe the Senate has acquitted unjustly. The Senate is unlikely to convict - might test the 'we don't have to if we don't wanna' theory, but I doubt it.
      In short, textual and historical evidence reveals that the Impeachment Trial Clause was not meant to bind the hands of the Senate beyond establishing a set of minimal procedures.


      White makes clear in his concurrence (which is primarily a dissent of the majority opinion RE: judicial review) that, whatever role the judiciary has, it's minimal.

      As discussed earlier and as White notes in his concurrence, Trump does not have constitutional 6A protections in an impeachment trial. It's separate from a criminal trial (an important point for White's analysis). Trump may get some 6A-like protections in his Senate trial but those do not apply to an impeachment hearing in the House.

      The door is small, it's not uncharted territory (someone just noted on Twitter that House voted to impeach Johnson in 1868 before even adopting the articles of impeachment!), and Trump doesn't have constitutional 6A rights in an impeachment trial -- if he gets 'em, he has to negotiate for 'em.

      --Sam
      "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

      Comment


      • #33
        Originally posted by Teallaura View Post
        Both White and Souter address the Senate because that's what was involved in Nixon.


        Graham is already on record and the Senate sets its own trial rules - no statute overrides that. The chances of a Republican led Senate allowing a trial with no public witnesses are as close to negative as probability gets. The justification will be the Sixth Amendment - but in reality, it's politically untenable not to.
        Parliamentary rules don't override statutory protections. If Graham were to try and force the public testimony of the whistleblower (who will, again, be a bit player in the trial if at all), their lawyer would sue and likely win.

        Constitutional Rights > Statutory Protections > Parliamentary Rules

        --Sam
        "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

        Comment


        • #34
          Originally posted by Sam View Post
          Parliamentary rules don't override statutory protections. If Graham were to try and force the public testimony of the whistleblower (who will, again, be a bit player in the trial if at all), their lawyer would sue and likely win.

          Constitutional Rights > Statutory Protections > Parliamentary Rules

          --Sam
          Constitutional power > Trial rules from Constitutional mandate > Statutory protections


          The little Democrat will have to face the music - and only the Court could intervene, but you've argued the Court won't.

          You can't have it both ways - if impeachment trials aren't subject to Sixth Amendment protections then they are for danged sure not subject to statutory protections. If Trump has no recourse to the Sixth Amendment and Due Process then the alleged whistle blower has no recourse to statute!

          Fairness: it's what for supper!

          "He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot


          "Forgiveness is the way of love." Gary Chapman

          My Personal Blog

          My Novella blog (Current Novella Begins on 7/25/14)

          Comment


          • #35
            No, parliamentary rules do not override statutory protections.

            Trump, as the subject of the impeachment trial, doesn't have 6A rights because it's not a criminal trial. People who don't have 6A rights in a proceeding can still have statutory protections that apply (Congress would still be bound to abide by the ADA for disabled witnesses, for example).

            --Sam

            Originally posted by Teallaura View Post
            Constitutional power > Trial rules from Constitutional mandate > Statutory protections


            The little Democrat will have to face the music - and only the Court could intervene, but you've argued the Court won't.

            You can't have it both ways - if impeachment trials aren't subject to Sixth Amendment protections then they are for danged sure not subject to statutory protections. If Trump has no recourse to the Sixth Amendment and Due Process then the alleged whistle blower has no recourse to statute!

            Fairness: it's what for supper!
            "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

            Comment


            • #36
              Originally posted by Sam View Post
              No, parliamentary rules do not override statutory protections.

              Trump, as the subject of the impeachment trial, doesn't have 6A rights because it's not a criminal trial. People who don't have 6A rights in a proceeding can still have statutory protections that apply (Congress would still be bound to abide by the ADA for disabled witnesses, for example).

              --Sam
              Trial rules, not parliamentary rules - big difference.

              Impeachment is a criminal trial - per the US Constitution.

              Your special pleading does not work - and is fallacious. If impeachment isn't subject to the Sixth Amendment then it's not subject to statutory law, either. And according to you, the Court won't intervene so who's gonna stop the Senate from forcing public testimony?

              "He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot


              "Forgiveness is the way of love." Gary Chapman

              My Personal Blog

              My Novella blog (Current Novella Begins on 7/25/14)

              Comment


              • #37
                Originally posted by Teallaura View Post
                Trial rules, not parliamentary rules - big difference.

                Impeachment is a criminal trial - per the US Constitution.

                Your special pleading does not work - and is fallacious. If impeachment isn't subject to the Sixth Amendment then it's not subject to statutory law, either. And according to you, the Court won't intervene so who's gonna stop the Senate from forcing public testimony?
                It is not a criminal trial ... and it seems strange to lean heavily on White's concurrence while knocking out one of the key legs his reasoning rests on.

                Trump doesn't have constitutional 6A protections in a Senate trial; he will get some by negotiation.

                You continue to mistake the issue and make a category error. The argument isn't "In a Senate trial, the Senate can arbitrarily decide to do whatever it wants, laws be damned." Congress is still bound by the law. Trump doesn't have constitutional 6A protections in a Senate trial not because the Senate has decided to waive them but because it's not a criminal proceeding. Other constitutional and statutory protections still apply (i.e., Trump still has 1A rights).

                --Sam
                "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

                Comment


                • #38
                  Originally posted by Cow Poke View Post
                  What's amazing to me is that the Democrats have Shifty Shiff as the face of their prosecution.
                  IMO Schiff seems to be one of the few people in current democratic leadership to be both competent and have a spine (unlike Pelosi, Schumer etc).

                  The Republican propaganda machine seems to have done its usual job though and run endless whip-the-rabid-base-into-a-frenzy stories about how terrible <insert democratic party personality here> is (in this case Schiff). It's amusing how gullible you guys are and how easily you get trained to hate people.

                  Comment


                  • #39
                    Originally posted by Cow Poke View Post
                    What's amazing to me is that the Democrats have Shifty Shiff as the face of their prosecution. That's like putting Al Capone in charge of IRS Collections.
                    Not as amazing as having a Mafia don running the once great USA. Trump’s communications with Ukraine, as reported in a WH memo, are equivalent to the actions of a mobster. The US president's conversation with his Ukrainian counterpart represented a standard mafia-style shakedown of a foreign leader.
                    “He felt that his whole life was a kind of dream and he sometimes wondered whose it was and whether they were enjoying it.” - Douglas Adams.

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                    • #40
                      Originally posted by Sam View Post
                      ...someone just noted on Twitter that House voted to impeach Johnson in 1868 before even adopting the articles of impeachment!...
                      It's also considered the worst abuse of the impeachment process by Congress in US history, so not a great precedent to hang your hat on.
                      Some may call me foolish, and some may call me odd
                      But I'd rather be a fool in the eyes of man
                      Than a fool in the eyes of God


                      From "Fools Gold" by Petra

                      Comment


                      • #41
                        Originally posted by Sam View Post
                        It is not a criminal trial ... and it seems strange to lean heavily on White's concurrence while knocking out one of the key legs his reasoning rests on.

                        Trump doesn't have constitutional 6A protections in a Senate trial; he will get some by negotiation.

                        You continue to mistake the issue and make a category error. The argument isn't "In a Senate trial, the Senate can arbitrarily decide to do whatever it wants, laws be damned." Congress is still bound by the law. Trump doesn't have constitutional 6A protections in a Senate trial not because the Senate has decided to waive them but because it's not a criminal proceeding. Other constitutional and statutory protections still apply (i.e., Trump still has 1A rights).

                        --Sam
                        Special pleading...

                        And, yes, it is - the Constitution only discusses impeachment as a criminal trial.

                        Sauce for Goosey is sauce for Gander - no Constitutional rights for the accused then no statutory protection for the accuser.

                        Sunshine!

                        "He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot


                        "Forgiveness is the way of love." Gary Chapman

                        My Personal Blog

                        My Novella blog (Current Novella Begins on 7/25/14)

                        Comment


                        • #42
                          Originally posted by Teallaura View Post
                          Special pleading...

                          And, yes, it is - the Constitution only discusses impeachment as a criminal trial.

                          Sauce for Goosey is sauce for Gander - no Constitutional rights for the accused then no statutory protection for the accuser.

                          Sunshine!
                          You're not responding to the points being made with reasonable or consistent counterpoints. At this stage, it's just gainsaying.

                          --Sam
                          "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

                          Comment


                          • #43
                            Originally posted by Tassman View Post
                            Not as amazing as having a Mafia don running the once great USA.
                            The Drama Queen is back!
                            "Neighbor, how long has it been since you’ve had a big, thick, steaming bowl of Wolf Brand Chili?”

                            Comment


                            • #44
                              Originally posted by Sam View Post
                              You're not responding to the points being made with reasonable or consistent counterpoints. At this stage, it's just gainsaying.

                              --Sam
                              All you've done is continue your fallacious special pleading. Your argument is ridiculously convoluted and makes no legal or political sense.

                              Your points so far:

                              The White House has to respond to the House demands - but the Court won't step in to impeachment procedings. So, who's gonna make the White House respond?

                              The Senate has to have a trial (about the only point we agree on) but the Court won't step in... wash, rinse, repeat.

                              Statutory law must be observed in a trial where the Senate makes its own rules - but the Court won't - aw, come on!

                              Statutory law must be observed in a Senate trial - but the Sixth Amendment to the Constitution can't be observed - despite the Senate setting its own rules and no judicial oversight to prevent it.

                              Impeachment not a criminal trial, despite Constitutional clauses clearly indicating otherwise - and somehow this applies to the Senate trial magically because the Court won't step in.



                              "He is no fool who gives what he cannot keep to gain that which he cannot lose." - Jim Elliot


                              "Forgiveness is the way of love." Gary Chapman

                              My Personal Blog

                              My Novella blog (Current Novella Begins on 7/25/14)

                              Comment


                              • #45
                                Originally posted by Teallaura View Post
                                All you've done is continue your fallacious special pleading. Your argument is ridiculously convoluted and makes no legal or political sense.

                                Your points so far:

                                [1] The White House has to respond to the House demands - but the Court won't step in to impeachment procedings. So, who's gonna make the White House respond?

                                The Senate has to have a trial (about the only point we agree on) but the Court won't step in... wash, rinse, repeat.

                                Statutory law must be observed in a trial where the Senate makes its own rules - but the Court won't - aw, come on!

                                Statutory law must be observed in a Senate trial - but the Sixth Amendment to the Constitution can't be observed - despite the Senate setting its own rules and no judicial oversight to prevent it.

                                Impeachment not a criminal trial, despite Constitutional clauses clearly indicating otherwise - and somehow this applies to the Senate trial magically because the Court won't step in.



                                I don't think you've been reading what I actually write.

                                Your argument is that impeachment is a criminal trial and so Trump is afforded 6A protections as a constitutional right. I have demonstrated, by referencing the Congressional Research Service report, the historical record, and your own reliance on White's concurrence in Nixon v. USA that this is false. It's not a poor reading of the Constitution, necessarily, but it is fighting against the historical precedent, scholarly interpretation and case law.

                                Your second argument is that if the Senate gets to define its own rules then it can do what it wants, waiving or granting constitutional or statutory protections at will. This is also false: it's simply a category error, as I described earlier. Trump's lack of 6A protections as a constitutional right does not stem from the Senate deeming it to be so but because the Senate trial is not a criminal trial and 6A therefore does not apply.

                                Your argument fails on those two points. To your depiction of my argument:

                                [1] The court has a place in affirming that Congress has the power to issue lawful subpoenas and that this power is broad. Since this is the case, contempt of a subpoena can be a criminal offense. While the court will not force compliance of a subpoena, the fact that contempt can be a criminal charge means that failure to comply can be prosecuted by this or a subsequent DOJ.

                                But I imagine we'll have to look toward Congress' power of inherent contempt before this is over.

                                [2] See above.

                                [3] See above.

                                [4] See Paragraph 2 above.

                                [5] See Paragraph 1.

                                --Sam
                                "I wonder about the trees. / Why do we wish to bear / Forever the noise of these / More than another noise / So close to our dwelling place?" — Robert Frost, "The Sound of Trees"

                                Comment

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