“Well, when the president does it, that means that it is not illegal.” — Richard M. Nixon (1913-1994)

As public hearings on impeachment begin this week, we will see the case for and the case against impeaching President Donald Trump. The facts are largely undisputed, but each side has its version of them.

The Democrats will argue that in his July 25, 2019, telephone call with his Ukrainian counterpart, seen in the context of months of negotiations between American and Ukrainian diplomats, Trump made it known that if the Ukrainian government wanted the $391 million in military and financial aid that Congress authorized and ordered, it first must offer, or announce that it was seeking, dirt on his likely 2020 political opponent, former Vice President Joe Biden or his son Hunter. That implicates a presidential violation of two federal statutes: One is the prohibition of solicitation of campaign help from a foreign government, and the other is the prohibition of bribery.

Federal election laws prohibit as criminal the mere solicitation of foreign help for a federal political campaign, whether the aid arrives or not. Federal law also prohibits and defines as bribery the intentional withholding or offering to withhold the performance of an official duty until a thing of value arrives, whether the thing of value arrives or not. Solicitation of foreign campaign assistance and bribery are the rare federal crimes that are defined by an attempt or an offer to commit them, even if they are never consummated.

All this is magnified, the Democrats will argue, by the immediacy of Ukraine’s financial and military needs. Since 2014, Ukraine has been fighting a bloody war with Russia, resulting in the deaths of 13,000 Ukrainians. In that year, Russia invaded the Ukrainian province of Crimea, which Russia continues to occupy. Since the end of World War II, the stated American policy toward Russia has been to resist and to help allies resist its territorial expansion.

The Democrats will also argue that Trump’s orders to executive branch employees to dishonor congressional subpoenas constitute the crime of obstruction of Congress. This is what New York Yankees pitching great Roger Clemens was tried for when he was acquitted of lying to Congress about the contents of his urine. All of these crimes — solicitation, bribery and obstruction — are subsumed under the constitutional rubric of high crimes and misdemeanors or bribery. These constitute two of the three permissible bases for impeachment.

None of these crimes requires pressure, coercion or success. Congress considers them so odious to our system that merely offering to commit them constitutes guilt. Presidents Richard Nixon and Bill Clinton both were charged with obstruction of Congress by ordering subordinates to refuse to cooperate with congressional investigators — even though many of them did cooperate.

The Republicans will argue that under the Constitution, the president — not Congress — sets the foreign policy of the nation. In foreign relations, the Supreme Court has ruled, Congress is limited to declaring war, appropriating funds, ratifying treaties and confirming ambassadors. All else foreign is presidential. Thus, whatever Trump wanted of the Ukrainian government, unless there is proof of evil intent, he was free to ask for. They will argue that there is no evidence of evil intent such as self-dealing or harming an ally or frustrating a congressional purpose.

Republicans will also argue that the impeachment process is irretrievably compromised by the personal involvement, partisan advocacy and secretive methods of the chairman of the House Select Committee on Intelligence, Rep. Adam Schiff (D-Calif.). From this, they will argue that Schiff, and the evidence he developed, should be excluded from the proceedings. As well, to House Republicans, the crimes of illegal solicitation, bribery and obstruction of Congress require proof of Trump’s guilty state of mind, and such proofs are lacking.

Stated differently, Republicans will contend that because the president was ignorant of federal law and ignorant of his constitutional obligations to spend money as and when Congress directed, he cannot be punished for what he did not know.

This is dangerously close to the Nixonian view of the American presidency — that the president can do no wrong. Of course, Republicans will not state this plainly, as the lessons of Watergate and Nixon’s resignation have soundly and universally repudiated that view.

Finally, Republicans will argue that impeachment cheats democracy. Here they are correct. However, that is not an argument against impeachment. It is an argument against history. James Madison — the scrivener of the Constitution — intentionally included anti-democratic features in the Constitution to preserve personal liberty from the tyranny of a congressional majority and the tyranny of presidential ignorance. The whole purpose of an independent judiciary, for example, is to be anti-democratic — to preserve the life, liberty and property of the minority from the tyranny of popular laws. And the whole purpose of impeachment is to correct an election after the elected person has demonstrated that he is unfit for office.

The House is operating under rules adopted in 2015, when Republicans ran the House. Schiff is no more secretive about or partisan against the president than my old boss, then-Judiciary chair Rep. Peter Rodino, was toward Nixon or then-Judiciary chair Rep. Henry Hyde was toward Clinton. Both acquired evidence from secret proceedings and both decided to impeach before any public hearings were held.

Impeachment is political, not juridical. Former President Gerald R. Ford was essentially right when he argued that under the Constitution, impeachable offenses are whatever a majority of the House says they are — for Nixon, covering up a break-in; for Clinton, lying about consensual sex; for Trump, solicitation, bribery and obstruction.

Whose behavior was arguably the gravest?

(27) comments

jsklinelga

somewhat unbelievable. One comment suggested I and I assume others have ;lost our sense of objectivity. Well let's be objective. Consider one of the first statements:

"n his July 25, 2019, telephone call with his Ukrainian counterpart, seen in the context of months of negotiations between American and Ukrainian diplomats, Trump made it known that if the Ukrainian government wanted the $391 million in military and financial aid that Congress authorized and ordered, it first must offer, or announce that it was seeking, dirt on his likely 2020 political opponent, former Vice President Joe Biden or his son Hunter." That statement is absurdly false but it fits the Democrat narrative perfectly. People please read the transcript and at least have a hint of objectivity.

phydeaux994

jsk, could you give us a brief synopsis of the “Deep State” agenda you believe the Democrats are using to de-Throne Trump. It seems to be terribly complicated and must have hundreds of people involved in the alleged conspiracy. Who are the main characters that are leading this Coup?? The Republicans just said.... “Here’s John Boehner, the likely speaker if Republicans take the House, offering his plans for Obama’s agenda: “We're going to do everything — and I mean everything we can do — to kill it, stop it, slow it down, whatever we can.”....

Senate Minority Leader Mitch McConnell summed up his plan to National Journal: “The single most important thing we want to achieve is for President Obama to be a one-term president.”...why do you think the Democrats are using a “Deep State” conspiracy to achieve the same result with Trump....???

jsklinelga

phydeaux994

I am not a rabid conspiracy nut but I have learned some interesting things lately. Up to just recently I have always thought of the Deep State as a combination of entrenched power and entrenched bureaucracy. Luckily in America we have had competing factions and a free press to somewhat check the power but we still have our entrenched power brokers. And we have the life long bureaucrats that tow the line for security sake. With the advent of the CIA, NSA etc. and the large military contractors accumulation of power, and, protection of power. became easier. This new culture alarmed Eisenhower who famously warned us.

Did you wonder how Ms. Yovanovitch taught at Georgetown as a salaried employ of the State Department? How many State Department funded NGO's did she work with as Ambassador? If you can wade through it watch Glenn Beck's You Tube expose on Ukraine. It is 2hrs. I almost turned it off several times but was glad I suffered through to the end. I posted about it yesterday but then the article was removed. It may or may not still be on You Tube. If you want an insight into my new thought process that would be a good example.

phydeaux994

So you’re using the words of another Conspiracy Theory promoter (Glen Beck?) to explain a Democratic “Deep State” Conspiracy to “take down” a President elected by a Minority of the voters. I”ll ask again, why didn’t Nancy and Adam and Jerry just say “our first priority is to deny Donald J. Trump a second term” like Mitch and John did to Barack H. Obama....??? It would have been a lot less trouble than organizing a DSC.

jsklinelga

phydeaux

I only said that that it gave me a new perspective. If there was not such an alarmed an orchestrated effort to block any revelation of the corruption in Ukraine I may have never watched it. There was no bribe,nor quid pro quo no matter how you twist the facts but there certainly is a monumental effort to block any effort to look at the corruption in Ukraine from 2011 to 2916, How deep was the involvement of the State Department and the Obama Administration. President Trump was the one that supported Ukraine against Russia as the Ambassador acknowledged.

phydeaux994

I know you wouldn’t stoop so low as to legitimize the hearings by watching them, but the hearing next week with “Ambassador” Sondland about his call to Trump overheard by third parties could prove to be very informative as well as entertaining. Just a suggestion.

hayduke2

Just proved you are not objective and ignore testimony under oath, Mulvaney’s statements, Rudy’s actions, etc. Instead , you cite Glenn Beck. Sad

matts853

All I can say, JSK, is that you are utterly ignorant of the facts and circumstances. I’m going to assume you’re allowed to vote, and that concerns me.

MRS M

Wait now! Help me out! Doesn't this legal-eagle work for Fox State TV? Looks like another attorney-at-law who's pulled a veritable Jeff Sessions..........hoping to survive the post-Trump return to normalcy and the respect for the rule of law in America, by salvaging his reputation and with his license to practice law intact. How could he be so DISLOYAL to Herr Trump?

awteam2000

You got to love it when Fox News groupies are pissed off 😡 with their commentators.

You think Judge Nap lacks objectivity? Maintaining one's objectivity is the most important job of a judge unlike Judge Jeanine who is always objectionable. Trump should nominate Jeanine if Ginsberg seat opens up, also sell naming rights of the Supreme Court building and pocket the proceeds. ‘Charmin Hall’ sounds pretty catchy.

Obadiah Plainsmen

You seem to know a lot about Fox news and their commentators. I would like to welcome you to our group. Come as you are, pissed off or happy.

enufalready

Ignorance of the law is no excuse. Elect a clown, expect a circus.

Obadiah Plainsmen

Judge,

"Whose behavior was arguably the gravest"? You insult you own intelligence by attaching a degree of severity to impeachable crimes. When articles of impeachment are passed in the HOR, they do not include recommendations if found guilty of those crimes. There are only two outcomes of the trial, removal or acquitted. So plainly if a President behavior is impeach that behavior is grave. After all "impeachable offenses are whatever a majority of the House says they are".

hayduke2

Glad you agree that the behavior is grave and impeachable.

Obadiah Plainsmen

If the majority of the House votes Yea it must be. However if the Senate believes the crime doesn't fit, they must acquitt. Then he can continue on the job and probably win reelection.

timothygaydos

Judge Nap still upset that POTUS selected Brett over him for the supreme court...I would swear that Nap, Shep, and Chrissie Wallace sit around getting their talking points in order... anyone comparing this impeachment sham with the Watergate Impeachment need to go back and view the video of it and read the transcripts and the process. Totally different than what is currently happening - this is a clown show!

olefool

Maybe, just maybe the Judge knows a Russian mole when he sees one. I suggest you read your comment tim, it appears to be written for third graders, and you're right, it is a clown show.

hayduke2

Timothy - just curious, what are your credentials compared to the author. Instead of addressing the issue, you create yet another conspiracy theory.

FCPS-Principal

Ford was right.

jsklinelga

Contrary to many assertions Fox News tries to offer some balance. Judge Nap has been anti- Trump from the start on an almost daily basis. Throughout the Mueller report and collusion allegations he has been proved wrong many times.

He starts his opinion immediately implying guilt by association. Nixon/Watergate/Trump. Much like the Democrats tried with John Dean.

But his first summary of the Democratic position would make Agam Schiff proud. He states as fact things that never happened. Then the crux of his argument is it does not matter if they happened it is still what he infers as "high crimes."

People like myself mention "Deep State."' It could be labeled conspiracy nuttiness or it could be labeled Jeffersonian. The reason Jefferson advocated revolution every generation or 19 years is because he was an avid student of history. Entrenched power corrupts "Poor Joe" may just be the very, very top tip of the iceberg.

Thewheelone

JSK have you given thought that the reason that "Judge Nap" is anti Trump is because he is is steeped in the law and understands the legal ramifications of the President's actions?

jsklinelga

the wheelone

Or could it be:"Napolitano told friends in 2017 that President Donald Trump has told him he was considering Napolitano for a United States Supreme Court appointment should there be a second vacancy.[4] Ultimately, Judge Brett Kavanaugh was chosen instead." Wikipedia

olefool

That's pretty bad when a child sexual molester is picked ahead of you for a judgeship, but that's how your hero trump rolls, ain't it jsk???

shiftless88

jsk; I find it interesting that after all you and your like-minded colleagues have complained about Wikipedia as an information source, and hearsay evidence, that you trot out a Wiki statement that is hearsay to defend your position.

Dwasserba

[thumbup]wheel

olefool

jsk: I suppose that when those you mention disagree with your twisted sense of reality that gives you leave to brand him anti trump.... Maybe if you listened to him, and paid attention to the impeachment evidence available, at least on this issue, you might agree with him. A Closed Mind Is A Wonderful Thing To Lose

hayduke2

jsk - your posts have lost any semblance of objectivity. What in the article is not valid and open to reasoned debate? Is bribery a constitutional right of the president of the United States? Is that behavior acceptable for any future president?

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