#Liveblogging the .@NYDLC #Impeachment CLE program featuring #Watergate prosecutor Nick Ackerman, Richard Emer Jerry Goldfeder, and Prof. Rebecca Roiphe.
@NYDLC What's a high crime & misdemeanor, what did it mean when #Constitution was written? It was a well-known term at the time, dating back to 1386 in England. The phrase draws on hundreds of years of case law.
@NYDLC Andrew Jackson impeachment case - he was the Donald Trump of his time. Process related to his firing of Sec'y of War Stanton (Lincoln's Sec'y of War during Civil War). It was a policy difference. Edmund Ross, a partisan Republican, decided he couldn't vote for impeachment -saved
@NYDLC AJ from the 2/3 majority needed.
@NYDLC Today the terms are defined by criminal law. The Nixon impeachment was in a modern context, obstruction of justice was a felony. Tried to cheat during his re-election campaign. Even Republicans couldn't tolerate when tape came out telling Haldeman to get CIA to contact FBI to put
@NYDLC a stop to the investigation into the break-in in the Watergate complex. Went to fairness of our elections and our system of justice.
@NYDLC Clinton case was different - underlying charge was lying about an affair with an intern. Not considered a high crime and misdemeanor.
@NYDLC Alcee Hastings, federal judge, was impeached and removed for bribery. Subsequently was elected to office and has been serving in the House of Representatives - will vote on Trump impeachment proceedings!
@NYDLC Should we be using the term "bribery" pursuant to its definition in the criminal code, or the broader sense of the term as was used at the time of the drafting of the constitution? [Interesting to hear .@RepAdamSchiff taking an originalist view of textual interpretation]
@NYDLC @RepAdamSchiff Does the conduct that Trump admits to constitute a "high crime and misdemeanor"? The phrase is not tied to a statute. There's some precedent but it's unclear - undefined - exactly what it means. Is it whatever the House thinks it is?
@NYDLC @RepAdamSchiff What happens if Senate doesn't agree with House's definition?
@NYDLC @RepAdamSchiff Legal and political struggle to understand the definition of the terms, "High crimes and misdemeanors." You can list the bases on which you're basing the proceedings but which ones have meaning in a legal and constitutional framework?
@NYDLC @RepAdamSchiff Let's look at 3 factors: 1. origins of impeachment are separation of powers. Fundamentally it was about protecting Congress and the people from the overreaching of the President. This leads us to examine whether and how corrosive Trump's actions were to the separation of powers.
@NYDLC @RepAdamSchiff A second lens is preservation of the systems of democracy itself - not undermining the systems by which people vote for their elected officials. That clearly comes into play in the Trump matters.
@NYDLC @RepAdamSchiff Third is transparency or lack thereof. Does the alleged conduct violate transparency?
@NYDLC @RepAdamSchiff Factual bases are the Ukraine conspiracy; the Mueller report matters; other obstruction of justice of the impeachment process - ignoring subpoenas and tampering with/intimidating witnesses. Cf. Nixon, Clinton, Johnson impeachments.
@NYDLC @RepAdamSchiff Using government power to investigate political rivals. Emoluments - but done in the open? Campaign violations, Stormy Daniels - done in secret. Disinformation campaign - "constant lying to the American public." This was held against Clinton in his impeachment case.
@NYDLC @RepAdamSchiff All of this is in the context of politics, of course.
@NYDLC @RepAdamSchiff Now let's discuss future of impeachment. This is about the strength of our institutions, esp. ability of Congress to hold President to account for his conduct. Stakes are high. Legitimacy of Congress and its ability to hold President to account. President is delegitimizing effort
@NYDLC @RepAdamSchiff Have Dems played into this narrative? If Trump's narrative (that Dems have always been out to get him, it's all political, undermining 2016 election) is successful, it undermines future Congress' ability to bring valid impeachment proceedings against future presidents.
@NYDLC @RepAdamSchiff Impeachment proceeding is also a referendum on the nature of government. Is this just the president doing foreign policy, which is his prerogative? Contradicted by civil servants, experts in Ukraine. We know what foreign policy is, we're nonpartisan experts, this isn't it.
@NYDLC @RepAdamSchiff Or are they the Deep State, who are grinding the government to a halt? Who gets to set, coordinate foreign policy? There's a real disagreement on the Republican side about whether the president was within his rights.
@NYDLC @RepAdamSchiff In Andrew Johnson case, his policies were different from Lincoln's. He was a racist, he undermined Reconstruction. That was at the heart of the antipathy against him by the Radical Republicans. They impeached him for violation of statute but politically they deeply resented him.
@NYDLC @RepAdamSchiff House Judiciary report today lays out impeachment case. Senate has said it would like to call witnesses - Hunter Biden, Adam Schiff. Turns it into a circus, or within their rights? Have Dems fallen into a trap, allowing Republicans to delegitimize impeachment, is this a mistake?
@NYDLC @RepAdamSchiff Not just that Trump would be acquitted at trial but that the tool of impeachment would be neutered by this use of it.
@NYDLC @RepAdamSchiff Johnson impeachment was a battle of 2 visions of what America could be. Johnson called the question of Reconstruction - would it prevail or fail? In the aftermath of Johnson, Jim Crow took over the southern states. South won the passive civil war having lost the active Civil War.
@NYDLC @RepAdamSchiff Today, what to Trumpists want? As an economic matter, get rid of the vested state- not unlike Bernie Sanders and Elizabeth Warren. The civil servants are buttering the bread, meantime the people don't have good jobs. Anger at power centers in DC.
@NYDLC @RepAdamSchiff Can these proceedings be saved by narrowly drawing up the charges? Much depends on how CJ Roberts handles himself - activist judge or just calling balls and strikes?
@NYDLC @RepAdamSchiff Barr's job is a hybrid of political and legal. He's opened DOJ to allegations of partisanship. He's failed the test of nonpartisanship but he's not the only AG to do so - far from it.
@NYDLC @RepAdamSchiff Barr's name comes up several times in that call between Trump and Zelensky. He's repeating conspiracy theories. We don't know his involvement. Raises ethical questions.
@NYDLC @RepAdamSchiff Impeachment's roots in the 1300s - the King could not be impeached. It was always focused on his advisors - those around him - in order to undermine the King and upend his policies. This logic would suggest impeaching Barr, Pence, anyone else in power around Trump.
@NYDLC @RepAdamSchiff Roots of the word "impeachment" just pertained to a mere lack of morality, principles, honesty. The context of the constitution makes it a higher bar - high crimes & misdemeanors.
@NYDLC @RepAdamSchiff Focus on the criminal conduct - extorting and bribing the Ukrainian government by threatening to withhold $400m in aid to coerce them to announce opening of an investigation of a political rival. Evidence corroborates it. This is not a political difference. Dems need to focus.
@NYDLC @RepAdamSchiff Have Republicans succeeded in muddying the waters? This plays into a long narrative of the unitary executive. The Ukraine matter didn't arise in a vacuum.
@NYDLC @RepAdamSchiff Do American voters understand? care? Does the sleaze of Hunter Biden collecting $50k /mo play into Americans' suspicion of politicians who line their family's pockets, permanent government?
@NYDLC @RepAdamSchiff In a criminal case, that type of evidence would be tossed out as irrelevant, inflammatory. But this is not a legalistic matter, it's a political one.
@NYDLC @RepAdamSchiff Dems may feel they have to go forward with impeachment, to preserve the integrity of our institutions, the power of Congress.
@NYDLC @RepAdamSchiff Imperial presidency has taken away Congress' role in foreign policy, in staving off emoluments, in enforcing its subpoena power. They have to do this. OTOH, should Johnson have been impeached for overriding congressional vote on Gulf of Tonkin, Reagan for sending $$ to Contras?
@NYDLC @RepAdamSchiff Republican senators going to White House to talk impeachment trial strategy with Trump shows there's greater loyalty to president of their own party than to the branch of government to which they belong. In prior years (Clinton, Nixon), Congress jealously guarded its own branch.
@NYDLC @RepAdamSchiff Shifting focus to scope of executive privilege: are lawyers surrounding president obligated to refrain from testifying and otherwise responding to legal process, until a judge has ruled on their client's assertion of executive privilege?
@NYDLC @RepAdamSchiff Can executive privilege be asserted in an impeachment process, other than national security matters? 51 Republican senators decide the procedural rules. What if CJ Roberts orders a witness to appear? Who enforces contempt?
@NYDLC @RepAdamSchiff Trump is a TV attention hog, a reality TV star. He's going to LOVE this process.
@NYDLC @RepAdamSchiff 51 votes can create a new senate rule, but it takes 67 to amend a rule. Who makes the judgment about whether it's a new rule or an amended rule? CJ Roberts. And then it could take 51 senators to override him.
@NYDLC @RepAdamSchiff Will senate respect its own institutional history or will they adopt rules for their own partisan purpose?
@NYDLC @RepAdamSchiff Turning to collusion, does it make a difference that Trump wasn't president when the break-in to DNC's files occurred? Distinguishing fact from Nixon break-in.
@NYDLC @RepAdamSchiff The Ukraine scheme was different. He was president by then. Another distinguishing fact: in the Ukraine case, unlike the Russian hacking into DNC, he proactively solicited the help, not just benefited from it.
@NYDLC @RepAdamSchiff The Ukraine case is the cleanest and simplest. House should focus on that and put it before the senate, not cloud the issue with Mueller report allegations and findings.
@NYDLC @RepAdamSchiff What if 15 Democratic state AGs indicted the president? should he have to disrupt his work to respond to all those criminal allegations? The OLC memo is a constitutional argument about separation of powers. Query whether it's a serious intrusion on his ability to do his job.
@NYDLC @RepAdamSchiff Arguably a subpoena of his accounting firm's records wouldn't trigger that concern. Courts will have to balance whether President's constitutional role is being undermined by the legal proceedings being pursued.
@NYDLC @RepAdamSchiff Today's report will repeat the testimony that played out in the House Intel Committee hearings, which in turn repeated testimony in the non-public hearings. Repetition as strategy. Also strategic: how many and what type of articles of impeachment Dems will draw up?
@NYDLC @RepAdamSchiff Senate is obligated to meet "daily" except Sundays to try the impeachment case, beginning 1pm the day after articles of impeachment have been filed. CJ will preside every day.
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