Law professor witness destroys impeachment case

[jmdrake]

[Swordsmyth]

This short essay does what the House Judiciary Committee’s panel of “expert witnesses” did not successfully do.
First, it explains the meaning of the Constitution’s “high Crimes and Misdemeanors” standard. Next, it discusses how that standard applies to President Donald Trump’s interactions with Ukrainian President Volodymyr Zelensky. Finally, it details the kind of evidence the House Judiciary Committee should gather to determine whether the president committed an impeachable offense.
Many phrases in the Constitution—such as “necessary and proper,” “Privileges and Immunities,” and “Convention for proposing Amendments”—carry specialized 18th century meanings not obvious to the modern reader. Recall that most of the leading Founders were lawyers and the Constitution is a legal document. Some of these phrases derive from 18th century law.

Therefore, to understand them you have to consult 18th century legal materials in addition to better-known sources such as the 1787 convention debates or the Federalist Papers.
Unfortunately, most of the scholars called by the House Judiciary Committee to address the meaning of “high Crimes and Misdemeanors” were not able to do so accurately.
According to the authoritative Westlaw database, two of the three Democratically appointed witnesses have published no scholarly work on impeachment: Their specialties are in other areas. None showed any familiarity with 18th century fiduciary standards—which (as explained below) are part of the law of impeachment. All of the witnesses voted against President Trump, and several have been involved in anti-Trump activity.
It’s not surprising, therefore, that, except for professor Jonathan Turley’s heavily footnoted 53-page written statement, the testimony was biased and superficial.

What Is the Standard?

Impeachment law is not for amateurs. It rests on English parliamentary history extending at least as far back as the 1300s. Furthermore, impeachment standards evolved over time. To understand the Constitution’s rules we must know what the standards were when the Constitution was adopted. We can do so by consulting 18th century parliamentary records and legal materials.
Here’s some of what they tell us:

• The term “high Crimes” means, approximately, “felonies.”
  
• The phrase “high … Misdemeanors” refers to what the founding generation called “breach of trust” and what modern lawyers call breach of fiduciary duty. Fiduciary duties are the legal obligations imposed upon those who manage the affairs of other people—bankers, corporate executives, accountants, guardians, and so forth. In broad outline, fiduciary law when the Constitution was adopted was similar to what it is today.
  
• In the 14th and 15th centuries, an official could be impeached because Parliament disagreed with his policy decisions. However, as several American Founders recognized, by the 18th century this was no longer true. The official must have violated (in the words of several sources) “the known and established law.” This limited impeachment to serious crimes and fiduciary breaches.
  
• The trial in the upper house of the legislature was a judicial proceeding, not primarily a political one. As the 1782 edition of the popular Jacob’s Law Dictionary noted, “the same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.” The hearsay and impressionist evidence gathered by the House Intelligence Committee is not admissible.

The core of the case against President Trump is that he used his political position to seek re-election assistance from a foreign government. Although there’s dark talk of crimes committed, the principal charge is fiduciary rather than criminal. In other words, a “high … Misdemeanor.”
House Democrats have struggled to define Trump’s alleged offense. Initially, they described it as “quid pro quo.” Then they employed the term “bribery.” The legally correct designation is “self-dealing.”
Self-dealing is betraying your employer’s interests to enrich yourself. It’s a violation of the fiduciary duty of loyalty.
We can assume the president might benefit from a Ukrainian investigation, but that doesn’t mean asking for an investigation was self-dealing as defined by fiduciary, and therefore by impeachment, law. There’s nothing unusual or improper about a president asking a recipient of U.S. foreign aid to address corruption. As for seeking political advantage: If we punished every politician who did that, they would all be swinging from the yardarm.
This is as true in foreign as in domestic affairs. When President Barack Obama told the Russian president he would have more flexibility after his re-election, he was saying (1) an agreement now would benefit both Russia and the United States, but (2) I’m going to sacrifice our mutual interests for the present because such an agreement might hurt my re-election campaign. Was this impeachable self-dealing? Almost certainly not.
So where is the divide between “normal” conduct and impeachable conduct? To answer this, we need to weigh at least three factors: impeachment precedent, the national interest, and the practice of other presidents.
Impeachable Conduct

For defining the Constitution’s phase “high … Misdemeanors,” the most important precedents (although not the only ones) lie in 18th century impeachment and fiduciary law.
An 18th century impeachment treatise outlines the specific facts by which several officials were impeached for what we now call self-dealing.
They include the following:

(1) the official enriched himself at the expense of the Crown by arranging for royal pardons,
(2) he stole funds from the Royal Navy,
(3) he confiscated ships and cargos without due process and appropriated the proceeds,
(4) he obtained “exorbitant grants of lands and money, to the great detriment of the revenue,”
(5) he seized forfeited land that should have gone to the Crown, and
(6) acting through a strawman, he took the proceeds from timber sales in the king’s forests.

All these cases boil down to stealing public property. They don’t look like the Trump–Zelensky dealings at all.
Another part of the answer lies in whether President Trump violated the national interest. As a general rule, self-dealing generally is not just enriching yourself. It’s enriching yourself at the expense of your employer. If Trump’s interests were aligned with those of the country, there was no fiduciary breach.
Despite Col. Alexander Vindman’s complaint that Trump violated “the consensus of the interagency,” the question of whether Trump acted contrary to the national interest is a difficult one to answer.
Perhaps we had a national interest in not asking President Zelensky to investigate. But we also had a national interest in asking, because it would be useful to know if Ukrainian officials were trying to meddle in our presidential elections. And it would be useful to know whether the family of a leading presidential candidate is engaged in corruption. Remember: the president asked only for an investigation, not for a pre-determined result.


Thus, you can argue the “national interest” issue both ways. It looks more a policy question than a clear case like theft of public funds.
Still another part of the answer lies in how similar officials act in similar circumstances. In absence of a crime, if you want to determine whether a banker handled funds properly, you should investigate how bankers usually handle funds. If you wish to determine whether an investment adviser gave reasonable advice, you should consult what other reputable advisers recommend in the same circumstances.
Similarly, to decide whether President Trump engaged in impermissible self-dealing, we need testimony about how other officials conduct themselves. We know, for example, that then-Vice President Biden explicitly made aid to Ukraine conditional on firing a Ukrainian prosecutor. If that conduct wasn’t impeachable (and I don’t believe it was) then Trump’s more tepid conduct certainly isn’t impeachable.
Thus, the Judiciary Committee should ask for testimony from officials of prior presidential administrations, and preferably from the former presidents themselves. Did they ever make foreign aid conditional? What were the conditions? Why? And so forth.
Another Panel

It was a good idea to empanel academic experts to provide guidance on the meaning of “high Crimes and Misdemeanors.” It should be done again, and this time correctly.
The next panel should include presidential historians, parliamentary historians, and experts on fiduciary law. It should not consist primarily of law professors, who are notorious for engaging more in advocacy than in true scholarship.
Every panelist should have published research on impeachment, fiduciary law, or related areas. No panelist should be enmeshed in pro-Trump or anti-Trump political activity. They should be limited to discussing constitutional impeachment standards without expostulating on evidentiary testimony. Weighing the evidence is the job of the committee members, not of academics with little judicial or “real life” experience.
Once the scholarly panel has testified, the committee should explore whether the president’s Ukrainian actions clearly violated the national interest and it should gather testimony on the conduct of former administrations in comparable situations.
And only if all those investigations support a “self-dealing” conclusion should the committee recommend articles of impeachment.


https://www.zerohedge.com/political/...eachment-didnt


There is no crime and there never was reasonable suspicion of one.
The House is committing an abuse of power.

[Swordsmyth]

https://twitter.com/JonathanTurley/s...81745038028806

[Swordsmyth]

Rep. Justin Amash (I-Mich.) said Friday that he would vote for the articles of impeachment when House Democrats bring them to the House for a vote.

Amash, who left the Republican party this summer, said on his way to the House floor that he believes that there is "sufficient evidence" against President Trump for obstruction of Congress, obstruction of justice and abuse of power, though he said he would have to see how each of the articles were written before he would vote yes, CNN reports.
"Impeachment is like an indictment. We're just issuing the charges," he continued. "The trial happens in the Senate. There's certainly probable cause to issue charges."

More at: https://thehill.com/homenews/house/4...of-impeachment

[Working Poor]

Rep. Justin Amash (I-Mich.) said Friday that he would vote for the articles of impeachment when House Democrats bring them to the House for a vote.

Amash, who left the Republican party this summer, said on his way to the House floor that he believes that there is "sufficient evidence" against President Trump for obstruction of Congress, obstruction of justice and abuse of power, though he said he would have to see how each of the articles were written before he would vote yes, CNN reports.
"Impeachment is like an indictment. We're just issuing the charges," he continued. "The trial happens in the Senate. There's certainly probable cause to issue charges."

More at: https://thehill.com/homenews/house/4...of-impeachment

Well I guess his vote will make it bi-partisan. I am surprised the media hasn't made any hay with this.

[jmdrake]

Well I guess his vote will make it bi-partisan. I am surprised the media hasn't made any hay with this.

Why are you surprised? The last thing the MSM wants to do is to raise the profile of a true independent like Justin Amash especially in a presidential election year. They didn't mind fawning over Bernie Sanders because he's not really an independent as shown by him running now twice for president as a democrat. And frankly I don't know why @Swordsmyth spammed that into this thread instead of starting a new one....but anyway.

[donnay]

I read Turley is now receiving death threats for his testimony. Those liberals are such a nice bunch, aren't they?

[Sonny Tufts]

The core of the case against President Trump is that he used his political position to seek re-election assistance from a foreign government. Although there’s dark talk of crimes committed, the principal charge is fiduciary rather than criminal. In other words, a “high … Misdemeanor.”
House Democrats have struggled to define Trump’s alleged offense. Initially, they described it as “quid pro quo.” Then they employed the term “bribery.” The legally correct designation is “self-dealing.”
Self-dealing is betraying your employer’s interests to enrich yourself. It’s a violation of the fiduciary duty of loyalty.

If that's the case, and if fiduciary law when the Constitution was adopted was similar to what it is today, then the burden of proof may be on Trump to show that he didn't self-deal.

Perhaps we had a national interest in not asking President Zelensky to investigate. But we also had a national interest in asking, because it would be useful to know if Ukrainian officials were trying to meddle in our presidential elections. And it would be useful to know whether the family of a leading presidential candidate is engaged in corruption. Remember: the president asked only for an investigation, not for a pre-determined result.

But there's testimony that Trump really didn't want an investigation; he only wanted Zelensky to announce an investigation, which suggests that Trump was less interested in corruption than in painting Biden in a bad light in order to weaken his chances in the 2020 election.

Of course, since no investigation or announcement of an investigation was made, Trump may have only attempted to self-deal; but that's still a very serious matter.

[Valli6]

As a general rule, self-dealing generally is not just enriching yourself. It’s enriching yourself at the expense of your employer. If Trump’s interests were aligned with those of the country, there was no fiduciary breach.

I am Trump's employer, not his butthurt democrat opponents!

It is in MY best interest that corrupt officials be discovered, investigated, removed from office and - last but not least - punished! That's how you enrich all American citizens who pay the taxes and cast the votes!

[Anti Globalist]

It doesn't take a genius to figure out how much of a sham this impeachment case is.

[Swordsmyth]

Why are you surprised? The last thing the MSM wants to do is to raise the profile of a true independent like Justin Amash especially in a presidential election year. They didn't mind fawning over Bernie Sanders because he's not really an independent as shown by him running now twice for president as a democrat. And frankly I don't know why @Swordsmyth spammed that into this thread instead of starting a new one....but anyway.

Amash is embracing the destruction of the Constitution and the abuse of power by the House, I put it here to make that clear.

He was either always a sleeper or he sold out.

[Swordsmyth]

If that's the case, and if fiduciary law when the Constitution was adopted was similar to what it is today, then the burden of proof may be on Trump to show that he didn't self-deal.

The burden of proof is NEVER reversed.

But there's testimony that Trump really didn't want an investigation; he only wanted Zelensky to announce an investigation, which suggests that Trump was less interested in corruption than in painting Biden in a bad light in order to weaken his chances in the 2020 election.

Of course, since no investigation or announcement of an investigation was made, Trump may have only attempted to self-deal; but that's still a very serious matter.

The only testimony that said anything like that was all speculation, opinion and hearsay.

You've got nothing.

[jmdrake]

Amash is embracing the destruction of the Constitution and the abuse of power by the House, I put it here to make that clear.

He was either always a sleeper or he sold out.

Spam another thread.

[Sonny Tufts]

The burden of proof is NEVER reversed.

Depending on the type of fiduciary duty involved, it may be, especially in self-dealing cases. For example, suppose the trustee of a trust purchases trust property in his individual name. If the beneficiary of the trust complains that the price paid was below market value and brings suit for breach of trust, the burden is on the trustee to prove that the transaction was fair.




The only testimony that said anything like that was all speculation, opinion and hearsay.

You've got nothing.[/QUOTE]

[TheCount]

His testimony is somewhat less convincing when you know that he was also called to testify during Clinton's impeachment.


Any guesses as to how different his argument was then? If your gut reaction was 'completely opposite,' you win!

[jmdrake]

His testimony is somewhat less convincing when you know that he was also called to testify during Clinton's impeachment.


Any guesses as to how different his argument was then? If your gut reaction was 'completely opposite,' you win!

You can't tell what his argument was back then from the article you posted because you aren't given his argument, just out of context selections from it. Clinton was actually accused of a crime so the argument that your source seems to be making is that in 1988 Turley was arguing that no crime was needed. But that makes no sense because Clinton was being accused of an actual crime! So there must have been some other reason Turley was arguing that presidential impeachment should be on the same standard as judicial impeachment....but we can't see what that is....because we aren't given the context of the statement. Content, without context, is pretext. It is certainly true that every time any impeachment of a president has been seriously considered, it has been in the context of an actual criminal violation, even though in the case of Andrew Johnson the criminal statute was carefully crafted for the sole purpose of catching Johnson. Which begs the question....why bother coming up with a criminal statute for Johnson to violate if the House could have simply gone with some "contempt of Congress" charge? Certainly Andrew Johnson was going against the will of congress.

[jmdrake]

The burden of proof is NEVER reversed.

Wrong. A defendant may have the burden of proof of proving an affirmative defense. The burden of persuasion always rests with the prosecution.

See: https://www.nolo.com/legal-encyclope...nal-cases.html

[Swordsmyth]

Depending on the type of fiduciary duty involved, it may be, especially in self-dealing cases. For example, suppose the trustee of a trust purchases trust property in his individual name. If the beneficiary of the trust complains that the price paid was below market value and brings suit for breach of trust, the burden is on the trustee to prove that the transaction was fair.

WRONG.

The burden of proof rests on the accuser in all cases, the accused is innocent until PROVEN guilty.

[Swordsmyth]

Wrong. A defendant may have the burden of proof of proving an affirmative defense. The burden of persuasion always rests with the prosecution.

See: https://www.nolo.com/legal-encyclope...nal-cases.html

Innocent until PROVEN guilty.

[jmdrake]

Innocent until PROVEN guilty.

What part of "The burden of persuasion always rests with the prosecution" do you not understand? If I shoot you and claim self defense I typically have the burden of proving that affirmative defense. The burden of persuasion still rests with the prosecution.

Edit: Here ya go. The U.S. Supreme Court from 1977.

https://scholar.google.com/scholar_c...en&as_sdt=3,43
We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.

[Swordsmyth]

What part of "The burden of persuasion always rests with the prosecution" do you not understand? If I shoot you and claim self defense I typically have the burden of proving that affirmative defense. The burden of persuasion still rests with the prosecution.

Edit: Here ya go. The U.S. Supreme Court from 1977.

https://scholar.google.com/scholar_c...en&as_sdt=3,43
We thus decline to adopt as a constitutional imperative, operative countrywide, that a State must disprove beyond a reasonable doubt every fact constituting any and all affirmative defenses related to the culpability of an accused.

What Trump did was not anything like shooting someone which may be considered to be a crime on the face of it.

[jmdrake]

What Trump did was not anything like shooting someone which may be considered to be a crime on the face of it.

SMH. I addressed the false particular statement that you made regarding burden of proof. That's all. So now you know that sometimes the burden of proof shifts. You're welcome.

[Swordsmyth]

SMH. I addressed the false particular statement that you made regarding burden of proof. That's all. So now you know that sometimes the burden of proof shifts. You're welcome.

The context of the conversation is that the burden of proof doesn't rest on Trump in this situation.

[Sonny Tufts]

WRONG.

The burden of proof rests on the accuser in all cases, the accused is innocent until PROVEN guilty.

My hypothetical dealt with a civil case, not a criminal one, which should have been obvious. In such cases there is a presumption of unfairness that the fiduciary has the burden to overcome.

Jmdrake is right -- the law may impose upon a criminal defendant the obligation to raise an afirmative defense, such as insanity. Moreover, in most states the burden of proof is on the defendant to prove he was insane once he raises that defense; the prosecution doesn't have to prove he wasn't.

[Swordsmyth]

My hypothetical dealt with a civil case, not a criminal one, which should have been obvious. In such cases there is a presumption of unfairness that the fiduciary has the burden to overcome.

Jmdrake is right -- the law may impose upon a criminal defendant the obligation to raise an afirmative defense, such as insanity. Moreover, in most states the burden of proof is on the defendant to prove he was insane once he raises that defense; the prosecution doesn't have to prove he wasn't.

Which has nothing to do with the impeachment garbage.

[Swordsmyth]

The House Judiciary Committee has issued a report claiming, essentially, that Congress is not bound by any standards of what is impeachable. Citing Justice Joseph Story, who wrote a 19th-century commentary on the Constitution, the report claims that it is impossible to establish any “comprehensive definition of ‘high Crimes and Misdemeanors’ or a catalog of offenses that are impeachable.” Instead, the report says, Congress must collect the facts and then consider whether impeachment is warranted.
This conclusion is not unprecedented. It tracks the conclusions of some writers on impeachment, who (as I note in one of my scholarly articles) have struggled unsuccessfully to define what impeachable offenses are.
In addition to making a muddle of what is, and isn’t, impeachable, the report claims that normal "rules of evidence . . . have no place in the impeachment process"—either in the House or in the Senate. In other words, the politicians may make up rules of evidence as they go along.
There is a name for the committee's “let's see what you've done then we’ll make up the rules” approach: ex post facto.
This ex post facto version of impeachment is objectionable for at least three reasons.


First, it disregards how those who adopted the Constitution understood impeachment. 18th-century legal sources tell us that impeachment may be had only for violations of “the known and established law.” The sources also tell us that “the same evidence is required in an impeachment in Parliament, as in the ordinary courts of justice.” In other words, impeachment is not a political game of hide-the-ball. It is a judicial procedure and subject to the rule of law. Standards must be fixed in advance, not invented to fit the case.
The second problem with the committee’s version is precisely that it violates the rule of law. This, in turn, opens the process to legislative abuse and undermines the Constitution’s structure. By allowing Congress to invent rules after the president has acted, the committee's approach enables Congress to bully and control the president in ways inherently inconsistent with the independent executive office the Constitution creates.
Third, the ex-post-facto approach is inconsistent with the standards that actually prevailed during the founding era: Trials for impeachment (whatever Justice Story said 40 years later) were not politics-as-usual, but scrupulously legal procedures, and had been so at least since the trial of the Earl of Strafford in 1641. People knew what the rules were: An officer was impeachable for the commission of (1) “high Crimes” (felonies) or for (2) what 18th-century lawyers called “breach of trust” and what 21st-century lawyers call “breach of fiduciary duty.”


Admittedly, no Founder stood up during the constitutional debates and explained the standards in detail. This is an area in which, as with some other parts of the Constitution, you have to make inferences from available data. But in this case, the data are copious. They include:
* statements by leading founders,
* the offenses for which officials were impeached in the 17^th and 18th centuries,
* discussions of impeachment in popular 18th-century legal sources, and
* the founders’ almost universal view that government is a public trust and that officials are subject to fiduciary duties.
The committee’s claim that “an impeachable offense is whatever we in Congress decide it is” may be convenient for the committee’s purposes. But it violates both the rule of law and the American constitutional order.

https://townhall.com/columnists/robn...ution-n2557662

[Swordsmyth]

Nadler failed to swear in witnesses at Judiciary Impeachment hearings.

[Swordsmyth]

Line by Line, A Complete Debunking of the Democrats’ Articles of Impeachment