In response to @kyledcheney this AM: Headline from @nytimes: “Judiciary Committee Report Offers Legal Rationale for Impeachment Case” nytimes.com/2019/12/07/us/…. That’s what it is. The majority’s legal rationale, its explanation...the case it can make.
Much in the report is unobjectionable and indeed what I have taught about impeachment almost every year for the past 25, e.g. “As Justice Robert Jackson wisely observed, ‘the purpose of the Constitution was not only to grant power, but to keep it from getting out of hand.’”
I am all for legislators and especially members of the media to reacquaint themselves with Founders’ intent. It’s good to see. We need more judges so inclined. We are getting them in great numbers from @realDonaldTrump and @senatemajldr.
The Nadler report takes some liberties with the record, such as its assertion that Nixon impeachment was predicated on RN having “injured the constitutional plan.” P. 19. The Judiciary Committee of that era published a 700+ page report on the underpinnings of impeachment, not 55
That report and those proceedings had a lot to work with, including the criminal trials of Nixon’s staff relevant to the impeachment inquiry of 1974 and direct evidence of Nixon’s conduct as provided by the tapes. nytimes.com/1973/10/21/arc…
As Nadler report concedes, “President Nixon’s case is instructive. After individuals associated with his campaign committee committed crimes to promote his reelection, he used the full powers of his office as part of a scheme to obstruct justice.” P. 20
Students of that cover-up know federal crimes were involved. To repeat: White House aides of that era were convicted of crimes. Nixon could not be charged, of course, but there are no staff convictions here. (The grab bag of process crimes Team Mueller assembled are unrelated.)
Lacking this obvious element of modern impeachment —Nixon’s obstruction, Clinton’s lying under oath— the Nadler Report reverts back to a more general theory: “As should now be clear, the Framers feared corruption most of all, in its many and shifting manifestations.”
The “history lesson” of the Nadler Report runs 30 pages. Then it shifts suddenly to “The Criminality Issue” and begins “It is occasionally suggested that Presidents can be impeached only if they have committed crimes.”
“That position was rejected in President Nixon’s case, and then rejected again in President Clinton’s, and should be rejected once more.” P. 31
My point is that there is a reason for these pages on “The Criminality Issue.” The Nadler Report emphasizes it: “The Framers were not fools. They authorized impeachment for a reason, and that reason would have been gutted if impeachment were limited to crimes.” P. 36
Nadler feels obliged to stress this again and again: “There are also general characteristics of the criminal law that make criminality inappropriate as an essential element of impeachable conduct.” P. 37 But, a page later, “ Yet the criminal law is not irrelevant.”
Absolutely correct. Not irrelevant, but absent from this report. Why? Why are details of the crimes of @realDonaldTrump omitted? “Because President Trump has committed no crime” is a fair, indeed compelling inference.
What Nadler Report admits by omission —what it implies— is that despite all the exertions of Special Counsel Mueller, of Chairman Schiff and Nadler, of the thousand journalists at work on finding one, there is no crime to be detailed.
The frenzied response to my noting the obvious implication of the Nadler Report —that he and the Democrats concede that no crime has been committed— is in the category of “The lady doth protest too much, methinks"
This is obvious: There is an omission and a defense of the omission —“We don’t need no stinking badges” — that will define the Senate trial. The GOP will say “Thanks very much, but where’s the crime? We don’t think your critique of policy is an impeachable offense.”
The President may insist on witnesses to prove not that he didn’t commit a crime —a negative not being provable— but witnesses to prove that this was a purely political inquiry from start to finish, and one destructive of due process owed presidents. Which it has been and remains
One dressed up in ill-fitting Constitutional garb that will satisfy #TheResistance, a thoroughly politicized media and an almost wholly politicized and polarized academy. The good news is that it will fail and the undertaking of this process will be on the ballot in 2020.
It could be the actions of the House Democrats in pursuing this reckless endeavor —the effects of which are sketched in Federalist 65– that decide the outcome in House and presidential races. If so, the Marquette University Law School Poll may be an outlier or, my view, an omen.
But to borrow from the response of track coach Sam Mussabini to sprinter Harold Abrahams’ plea in the movie Chariots of Fire to make Abrahams fast: “You can’t put in what God left out.” Nadler left out crimes. You can’t put them back in Kyle.
Even if every journalist of Manhattan-Beltway media elite, all pulling together and assisted by novelists and law professors, they can’t amend the Nadler Report. There is no crime discussed within it. All the D”s horses and all the D’s men...
The obvious —indeed overwhelmingly obvious— inference I make and I suspect most people will make, is that had there been a crime by @POTUS, it would have been detailed. But many will press on obscuring the central fact. As with the Mueller Report, people ought to read the report
They ought not be disappointed when no crimes are discovered, no “turning” of Americans to Putin’s side revealed, and perhaps in the IG report, no criminal wrongdoing in the FBI as early leaks suggest. We will see. It’s much better that they not have occurred
But let’s not pretend they did when they didn’t. That’s inflaming political argument to incendiary and unnecessary levels. When no laws have been broken, the first job of the media is not to divert attention from that fact, but to it.
