Thread by @CBHessick

Olsen says that, even though Trump committed impeachable acts, it’s wrong for Congress to impeach him because they are acting out of partisan animosity.
He’s not the only person making this sort of argument. So let’s discuss what’s wrong with that idea. washingtonpost.com/opinions/parti…

What is Olsen’s evidence for the claim that House Democrats are just acting out of animosity? Just the fact that their voters wanted Trump impeached early in his presidency.
It should go without saying, but the motives of one person aren’t evidence of the motives of another.

Also, Olsen's claim that Dem voters' early call for impeachment is only explained by the idea that they wanted to undo the election is not particularly strong.
*A lot* happened in the first month of the Trump presidency, including the Muslim ban, that could explain those polls.

Even if we assume that Olsen is correct--that House Democrats impeached Trump only because of partisan hatred--is Olsen correct that impeachment itself is wrong even in the face of what he says "is about as basic an abuse of power as there is"?
No, at least not as a legal matter.

The law often has to deal with the fact that people act with mixed motives. Here is an excellent article by Andrew Verstein that catalogues these different legal rules:
papers.ssrn.com/sol3/papers.cf…

So which of the legal standards should we use for impeachment?

It’s not clear

But we probably care the constitutional tests courts have used (rather than statutory tests). And, to the extent impeachment in the House is like an indictment, we should look at tests for prosecutors

Yes, I know that impeachment in the House is different than an indictment by a grand jury. And a trial in the Senate is different than a criminal trial. But the people who are most likely to be persuaded by Olsen’s argument are the “Due Process!” crowd, so let’s use their analogy

So what happens if a defendant claims that a prosecutor indicted her only because of personal dislike?
Not much.
Unless the defendant can show that the prosecutor acted out of racism or to punish the defendant for exercising constitutional rights, most judges won’t care.

That doesn't mean claims of personal animosity will always be dismissed out of hand. But the sorts of factors that courts have tended to find relevant for such claims don't seem to help Olsen here.
Here's an overview of those cases from an article on the topic in @PennLRev

@PennLRev I recommend that entire @PennLRev article, Steven Alan Reiss, Prosecutorial Intent in Constitutional Criminal Procedure, 135 U. PA. L. REV. 1365 (1987), if you are interested in this topic. scholarship.law.upenn.edu/cgi/viewconten…

@PennLRev If you don't want to wade through the whole article, here's the upshot for this sort of personal animosity claim: It depends on what crime defendant is charged with committing, the strength of the evidence against him, and the reasons for the animosity.

@PennLRev When looking at the crime the defendant committed, courts care about whether it was a serious crime and whether it is regularly prosecuted.
Here, I suppose reasonable people could differ about whether this is serious misconduct by Trump (tho Olsen seems to admit that it is)

@PennLRev Re: whether the House "regularly" prosecutes this conduct, that's a hard standard to import into impeachment because it happens so rarely.
Even so, abuse of power was one of the Nixon articles of impeachment, and one could read some of the Johnson articles to be abuses of power

@PennLRev How strong is the evidence against Trump?
Personally, I'd like to see more executive officials testifying about what happened when.
But Trump's own words both on the call with Zelensky and on several occasions since then make it hard to say that the evidence here is weak.

@PennLRev And what about the basis for the House Democrats' animosity?
That's an interesting question. Because the sort of animosity that courts care about is *personal* animosity--like the defendant was having an affair with the prosecutors' spouse--not ill will based on suspected crimes

@PennLRev Does this mean that Olsen's argument is a loser?

I have no idea whether it will prove politically convincing. It certainly seems to be lurking in the background of many GOP statements against impeachment.

But as a legal matter, it's a pretty weak argument. /end