BECAUSE we are at a moment of national crisis,
& IMPEACHMENT is the
Last tool in the CONSTITUTIONal toolbox,

I am going to re-post my thread from almost a year ago explaining Impeachment so it can be rolled into one page. It is an 80 tweet thread; I may add new info.

THREAD
So a coworker brought this to my attention—law review article from 1975 outlining the definitions of impeachable offenses. I will be threading it over the course of the weekend! Folks seriously need to understand you don’t need indictment to impeach!! Cc ⁦
@AlanDersh
1/ Let’s begin at the beginning, there are misconceptions about what is an impeachable offense. It is defined in the US Constitution as “high crimes and misdemeanors.”

Now words matter. Each and every word in the Constitution matters when it comes to legal interpretations.
2/ Before we begin to dig into the misconceptions let’s first understand—what the heck is “impeachment”⁉️ ...let’s define our terms, shall we?
3/ “Oxford Dictionary tells us that impeachment originally meant ‘to impede, to impair, to fetter’ or chain.” 2nd ed @MerriamWebster States it now means an “accusation, a calling to account for some high crime or offense before a competent tribunal, ...
4/ ... an arraignment, especially of a public officer for misconduct while in office.”

Key word is *misconduct* done *while in office*

So what level of misconduct are we talking about?
5/ Back to the misconceptions:

Broad view: “whatever a majority of the House of Representatives considers it to be at a given moment in history; ...whatever...[the Senate] considers to be sufficiently serious to require removal of the accused from office...” Rep. Gerald Ford
6/ “Few, if any, scholars would concur with this broadest of ‘broad’ definitions. Fewer yet would adopt the narrowest of ‘narrow’ views which requires an indictable offense for impeachment.”

You read that @AlanDersh ? (Aside: Maybe Al's impeachment view is related to #Epstein?)
@AlanDersh 7/ “An impeachment and impeachment trial are not judicial activities. That is, they are devices designed to resolve an essentially political question: shall this person continue to hold this office to which he was elected or appointed?”

We don’t want tainted public servants.
8/ “[Impeachment] uses a political forum: the Congress. And, upon conviction, it’s sanction is political: removal from office and disqualification for office.”

“Regardless of the trappings, the process’ forum, question and sanctions remain essentially political.”

*IMPORTANT*
9/ “The critical focus should be, therefore, not on political animus, for this is the nature of the beast, but on **whether Congress is proceeding within the limits of ‘high crimes and misdemeanors**.’”

Limits of HIGH crimes and misdemeanors--so much general confusion here.
10/ Justice Joseph Story noted that impeachment was “a proceeding purely of a political nature. It is not so much designed to punish an offender as

**TO SECURE THE STATE AGAINST GROSS OFFICIAL MISDEMEANORS**.”

Get it @realDonaldTrump ? It's NOT about YOU it's about the USA 🇺🇸
@realDonaldTrump 11/ IMPEACHMENT is about securing our nation, preserving our perpetuity for future generations.

We DO NOT WANT NOR CAN WE TOLERATE public officials that BESMIRCH their office and thus bring INSECURITY to the state IMPEDING its function for future generations.

But I digress.
@realDonaldTrump 12/ I want to just post here the #MuellerReport which outlines many ways @realDonaldTrump has brought insecurity to the US while POTUS; and yet this is not even exhaustive of all his impeachable offenses.

Post 7/24/19 the ball needs to start rolling.

documentcloud.org/documents/5955…
@realDonaldTrump 13/ BACK 2 HISTORY: Attorney Owens, writer of the article, takes us back to England, as we Americans must know that we adopted British common law and concepts on July 4, 1776, and so their thinking helps shed light on our own laws and mores. So come with us, won’t you?
@realDonaldTrump 14/ Pause (must of been watchin' MPT) — JFC @MeetThePress you really need to read this thread because the dumb conversation about impeachable offenses HURTS AND ROBS the people from getting out of our Constitution the more functional government it demands.

Okay back to England
@realDonaldTrump @MeetThePress 15/ “American law, of course, is the child of English law. We take the concept and procedures of impeachment from the English, too. But, here, the debt is owed to Parliament, not the common law and equity courts.”
16/ “The British recorded impeachment trials as early as the 14th century. The king, often the adversary of the Parliament, was unimpeachable.

[that is until they cut off his head!!! But that was later...]

But, his ministers were not.”
17/ “Commons could show it’s displeasure of the king’s policies by impeaching those who carried them out. Parliament also used this weapon against the corrupt. (Eg Francis Bacon, the giant of the philosophy of science, was removed from the office of Lord Chancellor of England)”
18/ “BUT IN NO SENSE WAS A CRIMINAL OFFENSE REQUIRED [FOR IMPEACHMENT].” (Emphasis added.)

This is the **REALLY** important part👉 “The phrase ‘high crimes and misdemeanors’ is NOT derived from criminal law. IT IS PARLIAMENTARY IN ORIGIN.”
19/ Let's pause and see what Trump tries to spin about this-- He is so dumb, maybe he should read this thread. You can see in the media coverage from just March 2019 how the press doesn't know how to talk properly about impeachment. Now back 2 history
20/ “Thus, Commons impeached government officials for procuring offices for persons unfit and unworthy for them, neglecting to safeguard the seas as a Great Admiral was required, putting a seal on an ignominious treaty, misleading the sovereign.”

🤔 ignominious treaty like NK?
21/ Back to America—the word “impeachment” is found in the US Constitution seven (7) times.

Art. I, Sec. 2, Cl. 5-House impeachment power

Art. I, Sec. 3, Cl. 6 & 7–Senate power to try & convict for removal only, but once removed still liable to criminal law. *key point*
22/ I’ll come back to that key point but the hint is double jeopardy.

Art. 2, Sec. 2, Cl. 1–POTUS pardon power EXCEPT for “cases of impeachment”

Art. 3, Sec. 2, Cl. 3–trial of all crimes, except in cases of impeachment, shall be by jury
23/ Art. 2, Sec. 4–“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

Okay so here we have a list—is this a complete list?
24/ That is something which lawyers like to debate. When there is a list, especially in a governing document or legislation, we like to argue over if the list is closed, or does the language leave room to add new similar instances?

Lawyers actually have Latin terms for this.
25/ Before I go further, just want to let you know that you are now entering the world of law. Legalese. Law school. The court. So as is custom, first we look at the language itself, then we look at legislative intent, and then we look at precedents.

Grab a cup of coffee!
26/ Lawyers get paid by the word (jk but not really) so we like to sprinkle Latin in here and there when we are making really important points that everyone agrees on, doctrines. Here they are rules of statutory construction.

What are we referring to? Treason and Bribery, no.
27/ We are going to use the Latin terms

Noscitur a sociis (the meaning of the word is or may be known from accompanying words)

And

Ejusdem generis**

to understand the phrase: “Or other high crimes and Misdemeanors.”
28/ **Ejusdem generis (that where specific things are enumerated, followed by a general phrase, such as ‘and other things,’ the general words should be construed as limited to things of the same kind as those enumerated.)

Okay now let’s dive into “high crimes and misdemeanors”
29/ “Or other high crimes and Misdemeanors” is a confusing phrase.

“Misdemeanors as a class of crimes, the other class being felonies. This suggests that high crimes and misdemeanors was not the thought intended, for a misdemeanor is a minor crime by definition. ...
30/ ... A felony is a high crime, of course, and contrasts with a simple misdemeanor.”

Of course it is our legal history that puts this logic on its head. The following is scholarship from Raoul Berger in “Impeachment: The Constitutional Problems”
31/ Taking a break listening to the great @JoyceWhiteVance and @PreetBharara discuss the historic developments of August 21, 2018 (when I wrote this thread... my how so much other crazy stuff happens in a year! More mounting high crimes & misdemeanors) podcasts.apple.com/us/podcast/sta…
@JoyceWhiteVance @PreetBharara 32/ SIDEBAR omg at 17:10 in link above @PreetBharara
and @JoyceWhiteVance touch on why @MichaelCohen212 didn’t cooperate, e.g give info on OTHER CRIMES—scared of MOB cc
@LincolnsBible @ninaandtito @JamesFourM
@JoyceWhiteVance @PreetBharara @MichaelCohen212 @LincolnsBible @ninaandtito @JamesFourM 33/ Bringing the side bar back to Impeachment, this news broke while #StayTuned was recording, which doesn’t help the misconception that you need criminal behavior for impeachable offenses. Trump has numbed our nerves with his constant corruption.
@JoyceWhiteVance @PreetBharara @MichaelCohen212 @LincolnsBible @ninaandtito @JamesFourM 34/ Put in better English, folks believe you need to have criminal behavior by a President for them to be impeached. This weakens the point of impeachment in the Constitution. Hence my frustration with Mr. Stephens’ sentiment, although I welcome his conclusion.
@JoyceWhiteVance @PreetBharara @MichaelCohen212 @LincolnsBible @ninaandtito @JamesFourM 35/ Now back to Mr. Berger’s Impeachment scholarship << At the time when the phrase “high crimes and misdemeanors” is first met in the proceedings against the Earl of Suffolk in 1388, there was in fact no such crime as a “misdemeanor.”
36/ Lesser crimes were prosecuted as “trespasses” well into the 16th century, and only then were “trespasses” supplanted by “misdemeanors” as a category of ordinary crimes. As “trespasses” itself suggests, “misdemeanors” derived from torts or private wrongs;
37/ and Fitzjames Stephen stated in 1863 that “Prosecutions for misdemeanor are to the Crown what actions for wrongs are to private persons.”
38/ In addition, therefore, to the gap of 150 years that separates “misdemeanors” from “high misdemeanors” there is a sharp functional division between the two.
39/ 🔥🌟”High crimes and misdemeanors” were a category of ⚡️political crimes ⚡️against the state⚡️, where as “misdemeanors” describe criminal sanctions for private wrongs. 🌟🔥
40/ An intuitive sense of the difference is exhibited in the development of English law, for though “misdemeanor” entered into the ordinary criminal law, it did not become the criterion of “high misdemeanor” in parliamentary law of impeachment.
41/ Nor did either “high crimes” or “high misdemeanors” find their way into the general criminal law of England. As late as 1757 Blackstone could say that “the first principal [high misdemeanor] is the mal-Administration of such high officers, as are in the public trust...
42/ ...& employment. This is usually punished by the method of parliamentary impeachment.” Other high misdemeanors, he stated, are contempts against the King’s prerogative, against his person & government, against his title, “not amounting to treason,” in a word, political crimes
43/ Treason is plainly a “political” crime, an offense against the State; so too bribery of an officer attempts to corrupt administration of the State. Indeed, early in the common law bribery “was sometimes viewed as high treason.”
44/ Later Hawkins referred to “great Bribes...and...other such like misdemeanors;” and Parliament itself regarded bribery as a “high crime a misdemeanor.” In addition to this identification of bribery, first with “high treason” and then with “misdemeanor”...
45/ ... the association, as a matter of construction, of “other high crimes and misdemeanors” with “treason, bribery” which are unmistakable political crimes, lends them a similar connotation under the maxim noscitur a sociis. [Latin! Cha-ching! 💰 jk jk]
46/ In sum, “high crimes and misdemeanors” appear to be words of art confined to impeachment, without roots in the ordinary criminal law and which, so far as I could discover, I had no relation to whether an indictment would lie in the particular circumstance. >>
47/ This brings us back to earlier up in the thread, supra. Oh Latin, you dead language that we still use here and there.
48/ Noscitur a sociis limits impeachable crimes to political crimes. Adding into this the discussion of ejusdem generis, supra, the phrase “Or other high crimes or misdemeanors” should be limited to offenses of the same genus as “Bribery, Treason...”
49/ Clearly, these are the offenses of a person who entrusted with governmental office, violates this trust. These are what we meant by “political offenses.” [Scott Pruitt is a great example of bribery, omg it’s insane; 2019 ain't any better]
50/ “They are Constitutional wrongs that subvert the structure of government or undermine the integrity of office and even the Constitution itself.”

This concludes the analysis of the language itself.
@realDonaldTrump has clearly gone past that line pretty much from day one.
51/ Now let’s move onto the second part, the legislative intent, what the framers of the Constitution meant by impeachable offenses.

The separation of powers in the Constitution in the House and Senate reflect the legacy of the prerogatives of Commons and the House of Lords.
52/ the Emperor Palpatine situation was exactly what the British revolted against in their civil war and what the American Framers sought to encapsulate with the US Constitution—split up power, so power and can check power. A perpetual Reservoir Dogs situation if you will.
53/ ”Although English impeachments did not require an indictable crime they were nonetheless criminal proceedings because conviction was punishable by death, imprisonment, or heavy fine.”
54/ The American approach was to decriminalize the [impeachment] proceedings by sharply limiting the sanction to political consequences. Having done so, they could in good conscience, allow for possible criminal indictment for the same actions without double Jeopardy applying.
55/ Taking another break ( threading takes forever!) and was listening to @PodSaveAmerica
(link: itunes.apple.com/us/podcast/pod…… and at 53:20 @jonfavs makes the same flawed argument that you need a criminal indictment, as agrees @TVietor08

I love you guys! Please read this thread!
56/ The legislators or really Framers intent is colored by British history. There was one instance when a British monarch pardoned a peer whom the House of Commons had impeached, but the Lords had not yet tried.
57/ To forestall any such “mischief,” the framers of the Constitution explicitly forbad it in Article II. If they had not, civil officers would be a little concerned with the prospect of impeachment, and the power of Congress would be thusly blunted.
58/ The separation of the function of accusers and the functions of jury makes obvious procedural sense. The 2/3 Senate vote requirement lessons the prospects of capricious removal and of a faction’s denial of the executive’s mandate.
59/ Currently, [in 1975 remember] there is much concern that impeachment will somehow “destroy” the presidency. But, clearly, the impeachment process was planned by the constitutional fathers concurrently with their planning of the presidency and the executive branch.
60/ The original draft for this portion of the Constitution for the President was worded “the Executive is to be removable on Impeachment and conviction (for) malpractice or neglect of duty.”
61/ In the debate of the Federal Convention on the 20th of July, 1787, Col. George Mason of Virginia, known as the Father of the Bill of Rights argued: “No point is of more importance than that the right of impeachment should be continued. Shall any man be above Justice?...
62/ ...Above all, shall that man be above it who can commit extensive injustice? When great crimes [are] committed, [I am] for punishing the principal as well as the coadjutors...
63/ ... Shall the man who has practiced corruption and by that means procured his appointment in the first instance, be suffered to escape punishment by repeating his guilt? ...
[Flash forward to present...in 2018] 👇washingtonpost.com/politics/trump…
64/ ... .” Impeachment was provided by a vote of 8 to 2, but the impeachment offenses were redefined. Treason and bribery were grounds agreed to by all parties. Edmond Randolph suggested adding “abusing his power.”
65/ Col. Mason again spoke: “Treason as defined in the Constitution, will not reach many great dangerous offenses...Attempts to subvert the Constitution may not be treason as above defined.”

EXHIBIT A
66/ He moved to insert “Or maladministration” after the word “bribery.” James Madison countered that “so vague a term will be equivalent to tenure during the pleasure of the Senate.”

Hahaha good one, Madison

Oops wrong Madison
67/ Mason withdrew the motion and substituted “high crimes and misdemeanors,” borrowing from the English parliamentary history that he knew so well. Use of this language implied a carryover of the English concepts of the non-criminal nature of the offenses required,
68/ the requirement of graveness and seriousness of the offense, and the political nature of the process. The phrase was adopted without further debate.

And thus concludes the section on legislative intent!
69/ Now we turn to the precedents of impeachment (prior to 1974)—sidenote: for a good history of impeachment of Nixon and Clinton, please listen to #SlowBurn the podcast...so good.

Okay so before Nixonland came tumbling down, there were 12 Federal Impeachments.
70/ One thing about Nixon, per Wikipedia—he was never formally impeached. “With impeachment by the House and removal by the Senate all but certain, on the night of August 8, 1974, Nixon took to the airwaves and delivered an address in which he announced his decision to resign.”
71/ So Back to the 12 prior impeachments, they resulted in four convictions and removal from office. All of which were Federal Judges. The other eight, some resigned prior to trial and others were acquitted.

The most famous impeachment was of the 17th POTUS Andrew Johnson.
72/ Johnson’s trial was “such a shabby political action that it provides few legal guidelines.”

Doh!
73/ 1st Judge convicted was John Pickering due to being drunk on the bench and using profanity in the court room.

Next—W.H. Humphreys due to acting as a judge in a Confederate state, and was tried by the Senate during the civil war.

Both these cases provide little help.
74/ But the last two give us some guidance as to what the heck are “impeachable offenses.”

1912–Judge Robert W. Archbald was impeached and convicted due to accepting money from wealthy parties who did not have cases before him, speculating in the coal biz, and...
75/ ...for accepting money solicited by his clerk from attorneys who practiced in his court. This conduct, while not illegal, was “exceedingly reprehensible and in marked contrast with the high sense of judicial ethics and probity.”

Sound familiar?
76/ the Senate found removal of Judge Arhbald proper for unethical behavior.

Well damn, we’ve been there for @realDonaldTrump from Day One *cough* *emoluments*

Trump wouldn’t know ethics or probity if it smacked him in the face

or became part of his hair weave.
77/ Lastly was 1936, Judge Halstead L. Ritter, who was impeached, convicted and removed from Federal bench in Southern Florida (probably near where Roger Stone lives now lol), for 7 total offenses.

6 of them were splitting fees with former law partner from a case in which...
78/ Ritter gave judgment to his partner’s client, collecting other forbidden fees, and not reporting it on his tax return.

The Senate had a majority to convict but not 2/3 for 6 of the 7 articles.

On the last article, conviction occurred with 56 to 28 votes in the Senate.
79/ So what was the seventh charge that brought the Senate to convict?

The actions of the Judge brought “his court into scandal and disrepute, to the prejudice of said court and public confidence in the administration of justice therein, and to the prejudice of public respect...
80/ ...for and confidence in the Federal Judiciary, and to render him unfit to continue to serve as a Judge.”

This is really important. Even though the Senate didn’t convict on the behavior at issue, it did convict based on the dragging the public office through the mud.
81/ Put another way by Judge Leon Yankwich in a 1938 Georgetown Law review article:

”This ruling definitely lays down the principle that even though upon specific charges amount to legal violations, the [Senate] finds the accused not guilty, it may nevertheless...
82/ ...find that his conduct in these very matters was such as to bring his office into disrepute and order his removal upon that ground.”

You don’t need to be a criminal, you just need to bring your office into disrepute through repeated scandal.

HELLO DONNIE!!!

/FIN
CODA/ This is a good read on the case for moving forward!
"Congress must again decide whether the greater risk lies in executing the Constitution as it was written, or in deferring to voters to do what it cannot muster the courage to do itself." theatlantic.com/magazine/archi…
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