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Jan 30 2020

Impeachment: Senate Trial 1.30.2020

I talked to the computer at great length and explained my view of the universe to it.

What happened?

It committed suicide.

It’s not an exaggeration to say that it’s the end of the United States as a Republic and the beginning of a Fascist Dictatorship.

A referendum on merging the posts of Chancellor and President was held in Germany on 19 August 1934, after the death of President Paul von Hindenburg 17 days earlier. The German leadership sought to gain approval for Adolf Hitler’s assumption of supreme power. The referendum was associated with widespread intimidation of voters, and Hitler used the resultant large “yes” vote to claim public support for his activities as the de facto head of state of Germany. In fact, he had assumed these offices and powers immediately upon von Hindenburg’s death and used the referendum to legitimize this move, taking the title Führer und Reichskanzler (Führer and Chancellor).

Trump legal team advances blanket defense against impeachment
By Erica Werner, Karoun Demirjian, and Elise Viebeck, Washington Post
Jan. 29, 2020

President Trump’s legal team offered a startling defense Wednesday as senators debated his fate in the impeachment trial, arguing that presidents could do nearly anything so long as they believe their reelection is in the public interest.

The assertion from Alan Dershowitz, one of the attorneys representing the president, seemed to take GOP senators by surprise, and few were willing to embrace his argument. At the same time, Republican lawmakers were sounding increasingly confident about defeating a vote expected Friday over calling new witnesses in the trial, an issue that has consumed the Senate for the past several days.

Dershowitz’s remarks came in response to a question from Sen. Ted Cruz (R-Tex.) about quid pro quos, one of the offenses Trump is alleged to have committed. Democrats impeached Trump last month on a charge of abuse of power, alleging he withheld military aid and a White House visit from Ukraine until Kyiv announced investigations into his political opponents, and also charged him with obstruction of Congress.

“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,” asserted Dershowitz.

The law professor went on to say that if a president were to tell a foreign leader he was going to withhold funds unless his foreign counterpart built a hotel with his name on it and gave him a ­million-dollar kickback, “That’s an easy case. That’s purely corrupt and in the purely private interest.”

“But a complex middle case is: ‘I want to be elected. I think I’m a great president. I think I’m the greatest president there ever was. And if I’m not elected, the national interest will suffer greatly,’ ” Dershowitz said. “That cannot be an impeachable offense.”

Dershowitz’s argument Wednesday extended a line of reasoning he had advanced earlier this week, when he contended that even if proved, the charges against Trump would not constitute impeachable offenses. Some GOP senators were quick to latch on to that earlier argument, especially in the wake of leaks from an unpublished book by former national security adviser John Bolton directly linking Trump to the conditioning of security assistance to Ukraine. Bolton wrote about a conversation in which Trump discussed delaying the aid until Ukraine announced politically charged investigations, including into former vice president Joe Biden, a front-runner for the 2020 Democratic presidential nomination, and his son Hunter.

But Dershowitz’s new and more expansive line of defense left some Republicans uncertain how to respond, while infuriating Democrats.

“I couldn’t comment on that because I’m not a constitutional lawyer,” said Sen. Mike Braun (R-Ind.). He also insisted that he put stock in Dershowitz’s argument “only in the context of how it applies to the Ukraine, which has had corruption, and that the Bidens were there with an argument that you can’t say they had their hands clean.”

Meanwhile, Sen. Tim Scott (R-S.C.) slowly separated himself from a defense of Dershowitz — before slipping away from the conversation entirely.

“I think when you conflate all the issues, you can kind of, to a point when you’re asking a question in a silo, which is inconsistent with what we just heard today,” Scott said. “So I want to separate myself from that part of the conversation because ultimately, I think the premise itself is flawed and I don’t want to agree with that necessarily.”

Multiple Democrats, including Sen. Kirsten Gillibrand (N.Y.), skewered Dershowitz’s argument to the point of mockery.

“His argument was beyond absurd. I thought he made absolutely no sense — because he essentially said that if President Trump believes his election is for the good of the American people that he could do whatever he wants,” Gillibrand said. “He is wrong, and I think he’s made a laughable argument that undermines the president’s case.”

Toward the end of the night, Democrats bridled over comments by Philbin responding to a question from Sen. Christopher A. Coons (D-Del.) about Trump’s apparent public solicitation of Russia and China for compromising materials on his campaign rivals. Philbin argued that Trump’s remarks did not, in fact, represent a violation of campaign finance laws that make it illegal to accept or solicit a “thing of value” from foreign sources.

“Apparently it’s okay for the president to get information from foreign governments in an election — that’s news to me,” said Rep. Zoe Lofgren (D-Calif.), a House manager, as fuming Democrats accused Philbin of engaging in a wholesale rewrite of federal law to cover for Trump.

L’État c’est Moi.

Trump’s impeachment team argues that anything he does to win reelection isn’t impeachable
By Philip Bump, Washington Post
Jan. 29, 2020

Over the course of two responses to those questions, Trump’s legal team made a remarkable claim. First, that if an action includes any element of public interest, it can’t be impeachable under the terms set by the House. And, second, if Trump thinks that his own reelection is in the public interest — which he certainly does — that’s a valid claim.

Trump attorney Patrick Philbin made the first point in response to the first question posed by Senate Republicans. He argued that the report from the House Judiciary Committee established that there must necessarily not be any legitimate public purpose to Trump’s requests from Ukraine’s government.

“If there’s both some personal motive but also a legitimate public interest motive,” Philbin said, “it can’t possibly be an offense because it would be absurd to have the Senate trying to consider, ‘Well, it was it 48 percent legitimate interest and 52 percent personal interest? Or was it the other way? Was it 53 percent and 40 —’ You can’t divide it that way.”

“They recognize that to have even a remotely coherent theory, the standard they have to set for themselves is establishing there is no possible public interest at all for these investigations,” he continued. “And if there is any possibility, if there is something that shows a possible public interest and the president could have that possible public interest motive, that destroys their case.”

There are some nuances to that, including the pointed distinction between the president having a possible public interest motive and, as Philbin articulated it, that the president could have that motive. Philbin argues there that if a public interest could be ascribed to Trump’s actions, he can’t be impeached. That itself is a remarkable claim.

In his response to Philbin, lead impeachment manager Rep. Adam B. Schiff (D-Calif.) rejected the idea that the House case necessitated an entirely personal benefit. Remember what’s at issue in the trial: Trump’s withholding of aid to Ukraine and denial of a White House meeting to Ukraine’s president, allegedly in the hopes of pressuring Ukraine into launching investigations of political use to him personally.

“If any part of the president’s motivation was a corrupt motive, was a causal factor in the action to freeze the aid or withhold the meeting, that is enough to convict,” Schiff said. “It would be enough to convict under criminal law.”

To that latter point, stealing money to give to the poor is still illegal.

Philbin’s argument, though, set an important floor for behavior that another member of Trump’s team, Alan Dershowitz, used as the basis for a remarkable argument.

Dershowitz admitted that there were situations in which personal benefit was impeachable, such as when a president benefited financially from his decision-making. But more broadly, Trump could have been acting in the public benefit simply by wanting to be reelected.

According to Dershowitz, this alone constitutes the sort of “possible public interest motive” that, per Philbin, makes it impossible to legitimately impeach the president.

It’s an obviously ridiculous argument. For example, soliciting foreign assistance for an election is a violation of federal law. Trump’s allies argue that his requests to Ukrainian President Volodymyr Zelensky was something other than such a solicitation, but it’s easy to see how, under slightly different circumstances, that line would be much brighter. Had Trump, for example, asked Zelensky to have his eventual 2020 Democratic opponent arrested and detained — an obvious solicitation of benefit — it’s a clear violation of law. But Dershowitz would argue that it’s inherently unimpeachable, since all Trump wanted was to be reelected for the benefit of the country.

Dictatorial Power, Q.E.D.

Republicans’ damaging new line of defense
The Washington Post
Jan. 29, 2020

John Bolton has not yet testified or spoken anywhere in public about the Ukraine affair, but his unpublished manuscript is exerting a gravitational pull on the Senate trial of President Trump. The former national security adviser is reported to have written that Mr. Trump directly connected his freeze on military aid to Ukraine with his demand that the country’s president launch politicized investigations, including of Democratic presidential candidate Joe Biden, the former vice president. The result is that some Republican senators who previously insisted that there was no evidence of such a quid pro quo have now retreated to a new line of defense: Maybe there was but, if so, there is nothing wrong with it.

The new response has the advantage of acknowledging the mounting evidence that Mr. Trump used congressionally appropriated aid to pressure Ukrainian President Volodymyr Zelensky to intervene in the 2020 election campaign. “We basically know what the facts are,” Sen. John Cornyn (R-Tex.) told Fox News on Tuesday. Yet Mr. Cornyn and other GOP senators are now arguing that the behavior is not an abuse of power, merely a routine presidential act. “Presidents always leverage foreign aid,” said Mr. Cornyn.

That contention is as dangerous as it is wrong. Presidents do occasionally wield U.S. assistance to advance foreign policy ends. But Mr. Trump was manifestly seeking a personal gain. An investigation of Mr. Biden was not a goal of U.S. foreign policy. There was no domestic probe of his actions and no evidence that he was guilty of wrongdoing. On the contrary, the proof that the then-vice president was pursuing official U.S. policy when he intervened in Ukraine is overwhelming.

Republicans are relying heavily on the arguments of one of Mr. Trump’s lawyers, Alan Dershowitz, a criminal-defense specialist who has been offering constitutional interpretations sharply at odds with those of constitutional scholars. On Wednesday, he made the extraordinary claim that a president who executed a quid pro quo for his own personal political gain could not be guilty of an impeachable offense; only action for pecuniary return could qualify. Contradicting the position he took when President Bill Clinton was on trial, Mr. Dershowitz said that presidents cannot be impeached unless they commit criminal acts.

The implications of this position are frightening. If Republicans acquit Mr. Trump on the basis of Mr. Dershowitz’s arguments, they will be saying that presidents are entitled to use their official powers to force foreign governments to investigate any U.S. citizen they choose to target — even if there is no evidence of wrongdoing. Mr. Trump could induce Russia or Saudi Arabia or China to spy on Mr. Biden, or on any other of the many people subject to his offensive tweets. In exchange for any embarrassing information, the president might offer official favors, such as arms sales or a trade deal or the lifting of sanctions. Do Republicans really wish to ratify such presidential authority? Will they not object if the next Democratic president resorts to it?

Republicans are finally beginning to accept the facts of what Mr. Trump did — though all the facts will not be known unless they allow Mr. Bolton and other witnesses to testify. They must now draw the necessary conclusion from those facts: that what Mr. Trump did was wrong. After doing so, they could argue that the offense does not merit impeachment, or that any sanction should be delivered by voters. But a conclusion that the president did nothing wrong would inflict grave damage on our political system.

I have a bad feeling about this.

I mean it’s a remarkably dangerous precedent. I’m not kidding when I say I’m seriously thinking about evacuation plans.

Do you want to wait until September 1st?