17 votes

An impeachment trial without witnesses would be unconstitutional

16 comments

  1. [15]
    daychilde
    Link
    It is my humble opinion that this is one of the most important articles in the news right now. Regardless of your personal politics, if Trump is acquitted in an unconstitutional process, it means...

    It is my humble opinion that this is one of the most important articles in the news right now. Regardless of your personal politics, if Trump is acquitted in an unconstitutional process, it means he is not accountable to the law, and we have lost our constitutional democracy.

    If he is acquitted in a constitutional manner, of course I still think it would be a miscarriage of justice, but that is an entirely different debate that I'm not trying to start.

    Either we live in a constitutional democracy, or we do not.

    14 votes
    1. [12]
      skybrian
      Link Parent
      This article is one person's argument about what's constitutional. Ultimately it's up to the Supreme Court to decide that. Also Chief Justice Roberts is presiding over the trial and can rule on...

      This article is one person's argument about what's constitutional. Ultimately it's up to the Supreme Court to decide that. Also Chief Justice Roberts is presiding over the trial and can rule on this.

      In terms of mechanics, what does it mean to "lose our constitutional democracy?" Nothing happens if Trump is acquitted. The courts still function. Lawyers continue to make arguments about what's constitutional. There will be another election this year, and hopefully Trump is out then.

      It doesn't seem like there is any unrecoverable loss if things don't go the way you hope?

      3 votes
      1. [7]
        Diet_Coke
        Link Parent
        Basically the argument of the Trump administration is that the president can do anything they want and Congress can't investigate, can't indict, and can't impeach them for it unless the president...

        The courts still function. Lawyers continue to make arguments about what's constitutional.

        Basically the argument of the Trump administration is that the president can do anything they want and Congress can't investigate, can't indict, and can't impeach them for it unless the president agrees to it.

        15 votes
        1. [6]
          skybrian
          Link Parent
          This seems overbroad? This Senate seems unlikely to do anything to stop Trump, but a future Senate could do things differently. Or, though it seems unlikely, even the same Senate could change...

          This seems overbroad? This Senate seems unlikely to do anything to stop Trump, but a future Senate could do things differently. Or, though it seems unlikely, even the same Senate could change their minds and do things differently next time.

          Also, I don't see this trial as placing any limits on the what the House can do. They can still investigate and impeach. (It might make impeachment fairly pointless without a more cooperative Senate, but they can still do it.)

          3 votes
          1. [5]
            Diet_Coke
            Link Parent
            It might seem insane, because it is, but that's exactly what they're claiming. In a different case the president's lawyers argued he could literally shoot someone on Fifth Avenue and wouldn't be...

            It might seem insane, because it is, but that's exactly what they're claiming. In a different case the president's lawyers argued he could literally shoot someone on Fifth Avenue and wouldn't be indictable until after leaving office. Everything in our legal system is based on precedent, which is why there have been so many references to previous impeachments in this one.

            7 votes
            1. skybrian
              Link Parent
              They can make whatever arguments they want and the current Senate might use these arguments as their justification to vote against conviction. A future Senate could dig up these arguments and use...

              They can make whatever arguments they want and the current Senate might use these arguments as their justification to vote against conviction. A future Senate could dig up these arguments and use them again, or they could forget about them. It seems like it's up to them? There's not much that the Senate can do to bind future Senates.

              A respect for precedent in the Senate means there are Senate rules that get passed along to future Senates, but not always. They do change the rules sometimes. (This would be especially likely when the Democrats get in again.)

              1 vote
            2. [3]
              callmedante
              Link Parent
              I hadn't heard about that, although I do remember then-candidate Trump saying he could shoot someone in the middle of Fifth Avenue and he wouldn't lose a vote. Did his lawyers actually argue the...

              In a different case the president's lawyers argued he could literally shoot someone on Fifth Avenue and wouldn't be indictable until after leaving office.

              I hadn't heard about that, although I do remember then-candidate Trump saying he could shoot someone in the middle of Fifth Avenue and he wouldn't lose a vote. Did his lawyers actually argue the same thing in court, or is it possible you've accidentally conflated two separate events?

              1 vote
              1. [2]
                Diet_Coke
                Link Parent
                No, it happened. https://thehill.com/regulation/court-battles/467108-trump-attorney-president-could-shoot-someone-on-fifth-avenue-and-not

                is it possible you've accidentally conflated two separate events?

                No, it happened.

                https://thehill.com/regulation/court-battles/467108-trump-attorney-president-could-shoot-someone-on-fifth-avenue-and-not

                5 votes
                1. callmedante
                  Link Parent
                  Holy shit, that's an absolutely absurd argument for a lawyer to make in court. Thank you for the link.

                  Holy shit, that's an absolutely absurd argument for a lawyer to make in court. Thank you for the link.

                  3 votes
      2. [3]
        Loire
        Link Parent
        Setting the precedent of the President being unbeholden to the constitution and rule of law seems like a fairly unrecoverable loss, but IANAL. Unfortunately, irregardless of everything else that...

        Setting the precedent of the President being unbeholden to the constitution and rule of law seems like a fairly unrecoverable loss, but IANAL.

        Unfortunately, irregardless of everything else that will be written about this trial, if Donald Trump is not removed (which he won't be) no President will ever be removed through impeachment. No other President has risen to this level of simultaneous corruption, incompetence and damage to the Republic as #45, and yet even that is not enough to convince the President's party to do their constitutional duty.

        11 votes
        1. skybrian
          (edited )
          Link Parent
          I don't think precedent works that way? It seems very unlikely that Mitch McConnell's Senate is going to remove Trump, but this doesn't place any limits on what future Senates can do. If the...

          I don't think precedent works that way? It seems very unlikely that Mitch McConnell's Senate is going to remove Trump, but this doesn't place any limits on what future Senates can do. If the Democrats get a senate majority and another president gets impeached, they could run the trial differently.

          2 votes
        2. KapteinB
          Link Parent
          I'm not so sure. If one party ever manages to get 67 senators while somehow not having the president, that president (and the vice president) will likely be removed through impeachment within a month.

          if Donald Trump is not removed (which he won't be) no President will ever be removed through impeachment.

          I'm not so sure. If one party ever manages to get 67 senators while somehow not having the president, that president (and the vice president) will likely be removed through impeachment within a month.

          1 vote
      3. envy
        Link Parent
        This is spot on. The supreme court and congressional houses are supposed to act as checks and balances to the president. Right now, the entire GOP party and most voters are fully on board with...

        This article is one person's argument about what's constitutional. Ultimately it's up to the Supreme Court to decide that. Also Chief Justice Roberts is presiding over the trial and can rule on this.

        This is spot on.

        It doesn't seem like there is any unrecoverable loss if things don't go the way you hope?

        The supreme court and congressional houses are supposed to act as checks and balances to the president.

        Right now, the entire GOP party and most voters are fully on board with voter suppression, gerrymandering, foreign interference in elections, as long as these things give them an edge. And the Supreme Court has backed them all the way, ignoring voter purging, allowing obscene gerrymandering, and now this.

        The voters that matter (swing/ unlikely to vote) don't care, because there is no sustained outrage in the news media they watch.

        So I don't care that this article is factually questionable, we need more articles like the above, and like this other one "Weeks after saying 'I'm not an impartial juror,' McConnell pledges impartiality in oath"

        7 votes
    2. [2]
      reese
      (edited )
      Link Parent
      Anything that isn't explicitly, meticulously codified with dry and redundant language is prone to McConnellism. That is, after all, what he'll be known for, along with pretty much all of the other...

      Anything that isn't explicitly, meticulously codified with dry and redundant language is prone to McConnellism. That is, after all, what he'll be known for, along with pretty much all of the other Senate Republicans: subverting the spirit of the law and procedural norms. As for this specific case, the Constitution says the following in Article I, Section 3, Clause 6:

      The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

      Try and tried as in trial, contextually established by the fact that the Chief Justice shall preside, and, you know, words like convicted. You don't have to be a lawyer to know what a trial is. But hey, if this is the road we're going down, then I take the Chief Justice to mean Judge Judy. I would consider her the Chief Justice, wouldn't you?

      Edit: Typo.

      3 votes
      1. skybrian
        Link Parent
        This gets into the philosophy of how the law works. Why do words on paper matter? Why does anyone care what a judge writes, versus what anyone else writes? How do written words result in...

        This gets into the philosophy of how the law works. Why do words on paper matter? Why does anyone care what a judge writes, versus what anyone else writes? How do written words result in real-world actions?

        I basically go by what's called legal realism. Words matter because judges use them to decide what to do, and judges do try to interpret words to be consistent with previous rulings. The judges write more words (in their rulings and legal orders) and the police do what say.

        So, ultimately, it comes down to the police obeying the courts, which they do because courts are fairly consistent with each other and well-respected. (And usually it doesn't come down to the police showing up. Most people follow court orders without police action.)

        Note that the courts having ultimate say over what the Constitution means is a modern interpretation; originally it was assumed that it would up to everyone. The President would consider whether laws are constitutional and veto any that aren't, and Congress has a duty to follow the Constitution as well. It's not like any institution in particular was trusted to always follow the Constitution, but that enough would to keep the others in line.

        Lately, not so much, but we still have the courts. And we do still see the Senate following most of the mechanics of how an impeachment trial should work, even if there's an argument that they're not fully doing it.

        Ultimately, lawfulness isn't binary; people do respect some laws more than others. There are laws on the books that are ignored. But this changes based on who gets in power and on cultural changes. A written law, even if long-ignored, can be revived by a judge.

        1 vote
  2. Kuromantis
    Link

    If the impeachment process conducted by the Senate is unconstitutional, the unavailability of either criminal prosecution or a legitimate impeachment trial as a means of presidential accountability, according to the OLC opinion’s own reasoning, would “subvert the important interest in maintaining ‘the rule of law.’”

    An unconstitutional verdict of acquittal would present Americans with something far worse than a constitutional crisis. The nation will have blundered its way into creating an accidental autocracy governed by a president who, even if not reelected, would remain in office until January 20, 2021, beyond the reach of the rule of law.

    “Wherever law ends, tyranny begins,” John Locke cautioned in his Two Treatises of Government. This is how autocracy comes to America: not with a declaration of martial law and tanks in the street, but by a roll-call vote in the Senate whipped by the leader of the Senate in violation of the Constitution.

    If on the day the Senate returns its verdict, history records the failure to convict the president following a trial without witnesses, that will be the day the rule of law dies in America. The courts will remain open for business. Congress will be in session. Citizens will still be able to vote. And a free press will continue to launch withering attacks on President Trump. But the American people will no longer be living in a constitutional democracy.

    2 votes