Because impeachment un-does a constitutional election, the president’s conduct must shock the conscience to justify the proceedings. Trump’s does not.
One of the things that is most disturbing about the impeachment kabuki we’re watching now is that it is an entirely partisan effort. Not a single Republican has signed on to the effort.
The law professors that Schifty called only reinforced that perception. They didn’t talk about law; they talked about their own partisan hatred.
And believe me, these are true partisans who stand in opposition to most American values. We’ve all learned what a crazy Leftist Pamela Karden, the proudly Leftist, Jewish, bisexual, conservative-hating Stanford Law professor is, but Noah Feldman, from Harvard Law, also has an ugly, anti-American, anti-Constitutional side. Although Feldmanwas raised in a modern Orthodox Jewish community, he deeply disliked that community and has put his Leftist bias ahead of his faith and ethnicity, and ahead of the Constitution. My friend Cinnamon Stillwell caught him all the way back in 2008 being incredibly supportive of sharia law, which is decided not philosemitic:
[K]eynote speaker and Harvard Law professor Noah Feldman is a notorious champion of Sharia law. In a March, 2008 New York Times Magazine article on the subject, Feldman claimed:
In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by Shariah for a handful of offenses, we rarely acknowledge the high standards of proof necessary for their implementation.
…At its core, Shariah represents the idea that all human beings — and all human governments — are subject to justice under the law.
Reviewing Feldman’s latest book, The Fall and Rise of the Islamic State, Jonathan Schanzer elaborates on this disturbing thesis:
Feldman’s central premise is that the scholars of early and medieval Islam were guardians of justice. These independent scholars, he argues, kept the all-powerful caliph in line by judiciously ensuring that his decrees were in accordance with Shari’a law. The proper application of Shari’a ensured fair governance. Thus, Feldman claims, resurrecting the scholarly class is needed today.
Yet Feldman’s book, Schanzer concludes, “fails to convince the informed reader that Islamic law and democracy are destined for marriage.”
In an aptly titled piece on Feldman’s scholarship, “Shilling for Sharia at Harvard,” Hillel Stavis warns that “it can only be a matter of time before the professor, having asserted that Sharia law is desirable, will assure us that its introduction in the United States is inevitable.”
The people whom Democrats called to testify may be credentialed, but they’re not smart, they’re not moral, and they’re clearly unversed in American constitutional principles.
But back to the extraordinary partisanship driving these bizarre proceedings against Trump. As many have pointed out before, past impeachment proceedings either drew support from both sides of the aisle in Congress or came from a Congress with a huge, veto-proof single party majority. What distinguished them, I think, from what’s happening now is presidential behavior that literally “shocked the conscience.”
That’s an interesting turn of phrase, isn’t it? The United States Supreme Court first articulated the phrase “shocks the conscience” in Rochin v. California, 342 U.S. 165 (1952). In that case, police broke into a suspected drug dealer’s apartment and, when they saw him swallow two capsules, dragged him off to a hospital, where, quite against his will, doctors used a feeding tube to administer a powerful emetic, causing him to throw up. The capsules emerged and proved to be filled with morphine, justifying the defendant’s arrest. He was convicted in California and appealed to the U.S. Supreme Court on the ground that the police’s conduct violated the 14th Amendment’s guarantee that the state will accord Due Process to accused criminals. Thus, Amendment 14, § 1, holds that no state shall “deprive any person of life, liberty, or property, without due process of law….”
In its statement of facts, the Supreme Court noted that the California Supreme Court only reluctantly ruled against the defendant, finding the police officer’s conduct repugnant, but consistent with the requirements of California law. The Supreme Court, however, concluded that, while states have significant control over defining crimes and implementing substantive and procedural rules for catching and prosecuting criminals, that right is not greater than an almost emotional sense of conduct that’s beyond the pale in a civilized society. And that’s where the catch-phrase that something “shocks the conscience” first came into being:
Applying these general considerations to the circumstances of the present case, we are compelled to conclude that the proceedings by which this conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combatting crime too energetically. This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents — this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.
Rochin v. California (1952) 342 U.S. 165, 172 (emphasis mine).
When you look back at past presidential impeachments, there was shocking conduct at issue. The most complicated case to understand is that involving Andrew Johnson, but it’s worth a factual overview to appreciate how offensive his conduct was at the time, and how it challenged congressional authority (even when that authority later proved to be wrong).
Andrew Johnson did not get impeached because Congress disagreed with his post-Civil War pro-Confederacy leanings (unpleasant though they were). That fact alone is already a distinctive difference from what we saw on Wednesday, when alleged scholars (other than Turley) advanced a brand new legal doctrine soundly grounded in the principle of “I hate Trump and his values so much that he makes me want to vomit and that’s a good reason to use impeachment to boot him from office.” Here’s what happened a little over 150 years ago:
By 1866, Johnson, a Democrat, was faced with a a veto-proof Republican Congress that set about enacting various Reconstruction Acts aimed at integrating blacks into American society and culture. These acts were quite draconian, in that they viewed the American South as a region that needed to remain under continuing military control until it abandoned its bad old ways and embraced the victor’s values. (In retrospect, the approach was similar to that which America used in post-war Germany and Japan. If Americans hadn’t abandoned the effort, it is likely that America’s journey to genuine integration might have lasted decades, as opposed to more than a century.)
Johnson, as a Democrat, strongly disagreed with these policies and, as Commander in Chief, he believed that he could soften the effect of these laws by essentially ordering the military to stand down. His problem was that his Secretary of War, Edwin Stanton, was a Lincoln-era holdover who believed firmly in Republican Reconstruction policies.
Congress knew that Johnson was desperate to fire Stanton, so Congress enacted the Tenure of Office Act requiring a president to get the Senate’s Advice and Consent, not just to appoint Secretaries, but to fire them too. The loophole was that the president could suspend an official when Congress was not in session, which is exactly what Johnson did to Stanton.
When Congress returned to session, it adopted a resolution of non-concurrence. Ulysses S. Grant, who had stepped into Stanton’s shoes, when he learned of Congress’s hostility to Johnson’s dismissing Stanton, promptly quit. This led to a giant, and public, rift between Grant and Johnson, one that left Grant smelling like a rose.
Rather than backing away from his recess dismissal of Stanton, Johnson found a substitute, Lorenzo Thomas, who accepted the position as Secretary of War and formally told Stanton that the latter’s tenure was over. Perhaps one should not expect a Secretary of War to creep away meekly. Certainly Stanton didn’t. Instead, he rejected the notice to depart, barricaded himself in his office, had Thomas arrested, and complained to Congress.
Johnson’s blatant challenge to Congressional authority was the final straw and led to an official impeachment resolution. The House voted 126 to 47 (with 17 members not voting) in favor of impeachment. While Republican Senators refused to impeach Johnson on some of the 11 articles drawn against him, thereby missing the two-thirds threshold for conviction, enough of them voted “yea” to convict him on other charges. While Democrats did not cross the aisle for impeachment, Republicans crossed the aisle to oppose impeachment – and keep in mind, again, that it was an overwhelmingly Republican Congress that was acting, rather than one divided roughly 50-50.
Ironically enough, in 1887, Congress repealed the Tenure of Office Act, which was almost certainly unconstitutional. Nevertheless, the point in 1867 and 1868 was that Andrew Johnson intended to violate laws that Congress had passed (and that had not, as of that time, been declared unconstitutional). He was a rogue executive, something that could reasonably be said to have “shocked the conscience.”
What about Nixon? Richard Nixon was definitely on the receiving end of a bipartisan impeachment process predicated upon the fact that he was actively involved in covering up a clown-like break-in at the Democrat National Committee headquarters. It shocked the nation’s conscience, both left and right, that a president would be an accessory after the fact to blatantly criminal activity intended to undermine a national election.
Because of the bipartisanship behind the impeachment proceedings, Nixon saw which way the wind was blowing and left office voluntarily. Later, because he had been a good president, if not an honest one, Nixon returned to Washington as something of an éminence grise, but he was still the only president to quit under a cloud.
And then there’s Bill Clinton…. While the rising Left wing of the Democrat Party – the same wing purportedly horrified by Anita Hill’s unsubstantiated and suspect claims that Clarence Thomas had made jokes about porn stars and pubic hairs – insisted that sex was just sex, most of the nation, and most of Congress, was not so sanguine.
When it emerged that Bill Clinton had perjured himself under oath in the sexual harassment lawsuit Paula Jones brought against him and, worse, that he had defiled the Oval Office by engaging in seriously gross sex play with an intern almost young enough to be his granddaughter, most Americans found that disgusting. In other words, his conduct shocked the conscience. The proceedings, although driven by Republicans, were a somewhat bipartisan effort. In both the House and the Senate, people crossed party lines for and against either impeachment or conviction.
With Trump, though, things are different from what happened in prior impeachment proceedings. He stands accused of asking a foreign leader to investigate a potential crime that a former American Vice President publicly boasted about committing: namely, openly threatening to withhold American taxpayer funds from the foreign country unless that country cease investigating the company from which the Vice President’s son received $83,000 a month, despite he fact that the man’s only professional asset was being the Vice President’s son. Certainly, Burisma didn’t hire Hunter for his mad skills at drug abuse, wife-cheating, and strippers.
Oh, and it’s worth noting that, to the extent Trump was withholding money from the foreign country, he never told that to the country’s president. In other words, if you’re going to extort someone or bribe them or enter into a quid pro quo with them, it’s normal for them to know what’s at stake.
In this case, though, all the evidence is that (a) Trump told bureaucrats involved with the funds’ disbursement that he was waiting for evidence that Ukraine’s new president was going to quash the country’s infamous corruption; and (b) Trump released the funds well before the time that Congress has set for their release. As I’ve noted in another post, Trump should be celebrated, not reviled for attempting to keep American taxpayers from funding foreign corruption and for trying to stop members of the American political class from profiting, directly or indirectly, from those same taxpayer funds once they land in corrupt foreign nations.
Even someone like Paul Mirengoff, who just can’t bring himself to like Trump and views him with deep suspicion and disdain, concedes that Trump’s conduct is small potatoes in the wheeling, dealing world of both domestic and international politics. In a post about the disgraceful conduct of the law professors who brought their biases, but no law, to the House, Mirengoff had this to say:
The three anti-Trumpers argued that our very democracy is at stake in this impeachment. To be sure, our democracy is implicated, inasmuch as the Democrats are trying to remove the democratically elected American president.
However, the notion that Trump’s actions threaten our democracy or resemble those of a dictator is laughable. Trump tried for a little while to gain a very small advantage over one potential political opponent in a democratic election.
He shouldn’t have. But to claim that his abortive (and aborted) stunt threatens our democracy — as if our elections have ever been pristine — or that it represents the act of an aspiring dictator is preposterous.
Dictators don’t throw a banana peel in front of a political opponent (as Trump did), much less pick up the banana peel because of rumors about a whistleblower or because he realizes Congress will override him. Dictators arrest political opponents and shut down Congress if it demurs.
Dictators also don’t resist congressional subpoenas, thereby inviting Congress to take the matter up with the courts. If anything, Congress is acting like a dictator by threatening to remove the president over a subpoena dispute, rather than following the legal process for resolving this kind of dispute.
Put another way, if Trump’s conduct shocks your conscience, somethings wrong with your conscience, which has lost its moral compass, rather than there being something shocking in Trump’s conduct.
I believe that the American people understand what’s going on here. When the proceedings first began, and they were primed by mainstream news hysteria, Americans were prepared to be shocked by what they heard. They therefore gave their approval to an investigation, no matter how slender and pathetic it might be.
However, as the investigation has progressed, complete with secret hearings, leaked testimony, increasingly hysterical Democrat rhetoric, and a total lack of the Due Process that’s bred in American bones, it’s become obvious that there’s no “there there.” All that Democrats can point to are policy quibbles, their deep anger that Trump has dared to exert his constitutional authority to guide foreign policy, and their own desperate dream to undo the 2016 election and foreclose a Trump victory in 2020.
No wonder, then, that American voters, especially independents, are not shocked by Trump, but are instead disgusted by Democrats. They understands that Trump was fighting, even if ineptly, to protect taxpayer money, and that Democrats are engaging in undemocratic conduct that is the true shock to the American conscience.
It’s becoming increasingly logical to see why Trump is desperate for a vote impeaching him. Only in that way can he escape the House’s kangaroo court and defend himself in the Senate. There, he’ll subpoena Obama-era politicians and bureaucrats, whose testimony will reveal behavior that should shock every American conscience. That testimony, combined with Durham’s and Horowitz’s* reports, will provide undisputed evidence that the Obama administration used paid-for-and-faked foreign intelligence, as well as the federal domestic and foreign police apparatus to spy on a political opponent. And then, when that opponent won, the Deep State rump remaining after Obama’s departure used those same mechanisms in an open effort to destroy Trump and everyone connected with him.
What the Democrats and Deep State did is the true banana republic stuff and it’s truly shocking. In other words, the kabuki show in the House is a joke; it’s the behind the scenes activity that should rouse every American to demand that the true malfeasors come to justice and that people such Schiff, Pelosi, Nadler, Green, Omar, Tlaib, Swalwell and every other actor in that whole nasty crew get the boot in 2020.
* As Dan Bongino counsels, don’t be upset if Horowitz’s report gives the FBI a pass for initiating the investigation. After all, the plot/coup almost certainly started in the CIA, which Horowitz had no jurisdiction to search. This means that he’ll probably accuse the FBI in the first instance of being credulous, not corrupt. Of course, if Horowitz is honest, and based upon information already available to the public, he should slam the FBI for stupidity and rank dishonesty in continuing the investigation.