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John Wickett
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Joined: 12 July 2016
Location: United States
Posts: 184
Posted: 11 February 2021 at 11:45pm | IP Logged | 1 post reply

"Put simply: the threat of impeachment is meant to keep public figures honest. It is, in fact, the ONLY tool in the constitution for keeping a bad president in check."

It even is simpler than that.  Impeachment is meant to remove a president and disqualify him from serving in public office again if h commits crimes while in office.   

Impeachment becomes moot if the president has already been removed.  

And it is not the ONLY tool tool we have.  If you believe Trump is guilty of inciting a riot or an insurrection then charge him with a crime.  Send him to prison.  That is a far worse penalty than being removed from office, and being incarcerated would certainly prevent him from running again.

So I agree with you that the founding fathers must have considered this scenario, and I believe they concluded that if a president committed a crime that was serious enough to justify his removal, then the former president could be charged with and punished for that crime after leaving office.  

The constitution says that an impeached president is not immune from criminal prosecution.  Here, Trump has been impeached (even though he wasn't convicted and removed from office), so the constitution expressly states you can charge, convict and punish him for any crime he committed in relation to the siege on the capital.   
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Marc Baptiste
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Joined: 17 June 2004
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Posted: 12 February 2021 at 1:29am | IP Logged | 2 post reply

Although I admit to being a little confused myself - upon further study of the relevant portions of the Constitution (and applying a little logic) I came to my own conclusion that the trying of FORMER officials by the Senate is something the constitution DOES permit.  

The relevant portion here being: Article 1,Section 3, Clauses 6 & 7 
"The Senate shall have the power to try ALL (emphasis added) impeachments". It does not say 'ALL impeachments, except those of former officials or private citizens".

If the founders intended for the power to try impeachments to have an expiration date, they could have and surely would have included that in this clause: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" -- it seems to me that those the use of the word "FURTHER" means that those two punishments are simply listed as a CEILING of punishments that congress cannot ADD to.  If not applicable, one of them, for example the removal from office portiion, need not even be voted on at all.

And Rebecca brings up an excellent point - the "logic" I alluded to earlier  in my post.  IF the founders did NOT intend former high officials to be tried by the Senate if those high officials can just "run out the clock" then there is NOTHING to stop a President, for example, from doing truly horrible and mind blowingly destructive things if they just wait until a few days before they leave office.  

Marc
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Michael Roberts
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Joined: 20 April 2004
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Posted: 12 February 2021 at 2:03am | IP Logged | 3 post reply

It also needs to be noted that George Mason, the Founding Father who came up with the “high crimes and misdemeanors” language for impeachment, cited the impeachment of Warren Hastings, the Governor-General of Bengal as an example of the need for language to encompass abuses of power in office that don’t fall under treason. 

Hastings had resigned in 1785 and was impeached two years later in 1787. This was the framework that the Founders were working with when writing impeachment into the Constitution. 

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Michael Penn
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Posted: 12 February 2021 at 7:54am | IP Logged | 4 post reply

A sitting president's removal is self-executing upon conviction. The instant he is convicted, he becomes a former president. Any president impeached and convicted would be a former president then facing the further punishment of disqualification.
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John Wickett
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Joined: 12 July 2016
Location: United States
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Posted: 12 February 2021 at 8:04am | IP Logged | 5 post reply

"it seems to me that those the use of the word "FURTHER" means that those two punishments are simply listed as a CEILING of punishments that congress cannot ADD to"

That's an interesting argument because it introduces the possibility that a president could be convicted by the senate and receive a penalty that is less than removal and disqualification, which is a scenario we've never seen.

Personally that strikes me as wrong because a lesser punishment would almost certainly include some curtailing of presidential power, and that would erode the balance of power between the branches.

"The Senate shall have the power to try ALL (emphasis added) impeachments"

Here I don't think the use of the word "all" is intended to expand the senate's power, but rather to restrict the power of other bodies.  It just means that the senate is the only body that can conduct an impeachment trial on the president.  

This, and the fact that a 2/3 majority must vote to convict, suggest the founding fathers wanted it to be very difficult to remove a president, because they were concerned about the impeachment mechanism being used inappropriately for political reasons, or impeachment charges being brought on grounds that are weak (not arguing that is the case with Trump).

That's another reason why I think the possibility of criminal charges is a greater deterrent against the president "doing truly horrible and mind blowingly destructive things" at the end of his term than impeachment is.  If a former president clearly committed a crime while in office, it may be easier to convict him in a court than it is to get 2/3 of an evenly divided partisan body to agree.

"Hastings had resigned in 1785 and was impeached two years later in 1787. This was the framework that the Founders were working with when writing impeachment into the Constitution."

This is a great point.  I guess my counterpoint would be that there were plenty of instances where the founding fathers incorporated things that worked from other governing bodies, but left behind parts that didn't fit.

At the end of the day, all of this is just opinion.  Fortunately, we have had very few impeachments.  Maybe unfortunately, that means there is no binding precedent that clearly sets forth when the impeachment power ends, and there may never be, since there is no mechanism for a president or a former president to appeal a conviction by the senate.  So while I have my opinion, I also respect yours, and consider it to be just as valid.  You guys have made some good points.
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John Wickett
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Joined: 12 July 2016
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Posted: 12 February 2021 at 8:06am | IP Logged | 6 post reply

"A sitting president's removal is self-executing upon conviction. The instant he is convicted, he becomes a former president. Any president impeached and convicted would be a former president then facing the further punishment of disqualification."

Why?  It appears to me that removal and disqualification occur simultaneously (rather than in sequence), such that a president who is removed is automatically disqualified.  


Edited by John Wickett on 12 February 2021 at 8:09am
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Brad Wilders
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Joined: 15 December 2008
Posts: 158
Posted: 12 February 2021 at 8:23am | IP Logged | 7 post reply

Even putting aside absurd results, the interpretation you argue, John W, is not a textual, nor reasonable, one.

As noted, Trump was impeached while in office and the constitution authorizes the Senate to try all impeachments.  Nothing suggests his impeachment expires and the Senate is stripped of its authority after he leaves office.  You point to Article 1 but it only states that a judgment "shall not extend further than to removal from Office, and disqualification," not that a judgment must require both removal and disqualification to be valid.  

Think of it this way, if your boss tells you that if you show up to work late again, "I shall fire you and not give you your discretionary bonus" and then you show up late and quit minutes before he fires you, would you really think he is going to give you the bonus?  Of course not.  

The further fact that the language says the judgement shall not "extend further" than the two penalties listed also shows that the inability to impose the first penalty does not prohibit the other. It merely precludes other penalties than those listed. Consider that you bought an auto insurance policy that says coverage shall not extend further than medical costs and the costs of repairing you damaged vehicle. You were in an accident that damaged your vehicle, but didn't need medical care. Do you think the insurance company can deny your claim?

Your point that impeachment requires a criminal offense has been roundly refuted elsewhere. The phrase High Crimes and Misdemeanors was a term of art that was not limited to criminal acts, but included malfeasance of office as evidence throughout relevant history.  The Framers understood this.

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Michael Penn
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Joined: 12 April 2006
Location: United States
Posts: 11249
Posted: 12 February 2021 at 8:30am | IP Logged | 8 post reply

Conviction/removal and disqualification are separate punishments. Conviction/removal requires a super-majority, disqualification a simple majority. Disqualification is not self-executing upon conviction/removal.
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Marc Baptiste
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Joined: 17 June 2004
Location: United States
Posts: 3530
Posted: 12 February 2021 at 9:11am | IP Logged | 9 post reply

John W.,

I agree wholeheartedly with Brad - no one would ever accuse you of being a textualist.  In fact, from the very language you use in your post you sound like you adhere to the pretty universally discarded practice of original intent.  Discarded because it involves trying to READ MINDS - the minds of people that have been DEAD for centuries.

Also, you speak of how imposing a "lesser" punishment then removal from office would be "wrong" because it would be "curtailing presidential power, and that would erode the balance of powers between the branches".  My goodness man, impeachment is MEANT to strike at the heart of the balance of powers.  One branch is potentially removing by extraordinary means the occupant of a duly elected co-equal branch.  And it is the very constitution that sets up the co-equal branches that GIVES this one branch that power OVER the other.  

Another thing, you keep referring to prosecuting a former President for crimes committed while in office - I think you don't fully understand the difference between Impeachment/Removal and the criminal justice process.  They are two very different things.  The former is a purely political process where clearly stated in the Constitution, Congress has SOLE power - including the power to "write its own rules' - that's why I laugh when I hear certain big name legal scholars defending Trump by saying the House denied him "due process" by moving so fast to impeach him.  The House by its CONSTITUTIONAL power to make its own rules DEFINES due process in any given impeachment.

They can impeach, remove, disqualify AND prosecute the hell out of him/her when they are done, John W.

Marc


Edited by Marc Baptiste on 12 February 2021 at 9:19am
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Brian Miller
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Joined: 28 July 2004
Location: United States
Posts: 28198
Posted: 12 February 2021 at 9:31am | IP Logged | 10 post reply

Guys, you’ll never convince him Trump isn’t humanity’s savior and is
wrongfully accused yet again. Just ignore him and you won’t have to
read his blatant disregard for truth any more.
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John Wickett
Byrne Robotics Member


Joined: 12 July 2016
Location: United States
Posts: 184
Posted: 12 February 2021 at 9:36am | IP Logged | 11 post reply

Brad,

Article 1 says "the Senate shall have the sole power to try all impeachments."  So the word "all" is being used here to exclude other bodies like the house from exercising this power.  Its not discussing the circumstances under which it is appropriate for the senate to exercise its jurisdiction.  

If it were appropriate to try a formal official, where would you draw the line.  In your view, if we suddenly discovered tomorrow that Barack Obama committed a crime while in office, would it be appropriate for congress to impeach him today (so we could ensure that he'd never run for public office again)?  That seems like a very gratuitous exercise of power that is inconsistent with the founders' view of a very limited government. 

I understand your argument and appreciate the examples, but I don't believe they are analogous.

"The phrase High Crimes and Misdemeanors was a term of art that was not limited to criminal acts, but included malfeasance of office as evidence throughout relevant history."

I think that's debatable.  Clinton's defense counsel argued for a very narrow interpretation of the term, where "high crimes and misdemeanors" is "a standard that the framers set at this extraordinarily high level to ensure that only the most serious offenses and in particular those that subverted our system of government would justify overturning a popular election."  I suppose its possible that you could have serious enough malfeasance to meet that standard, so I'll concede the point.  

Michael Penn,

Article 1 says that "no person shall be convicted without the concurrence of two thirds of the members present."  So  you need a 2/3 majority just to get a conviction.  And without a conviction you can't have either penalty.


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John Wickett
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Joined: 12 July 2016
Location: United States
Posts: 184
Posted: 12 February 2021 at 9:49am | IP Logged | 12 post reply

"that's why I laugh when I hear certain big name legal scholars defending Trump by saying the House denied him "due process" by moving so fast to impeach him."

We agree on this point.  The due process element of impeachment happens during the trial by the senate.  I don't see anything wrong with what the house has done.  As pointed out by Pelosi after the first impeachment, even if Trump is acquitted, the fact that he was impeached (twice) will always be on his record as a rebuke of his actions during his presidency.

So impeaching President Trump during his final days in office is a perfectly legitimate action for the house to take.  But whether the Senate should exercise its jurisdiction to hold a trial after the president has left office is a separate issue.

I think you're missing my point about the balance of power.  If a president is removed by impeachment, then he is replaced by a new president, and all of the powers of the presidency remain intact.  The office of the presidency remains unaffected. 

Conversely, if a president was convicted by the senate, and a penalty was imposed that was less than removal, what would that be?  You could censure him, but that is a slap on the wrist with no real consequences, so I assume (and correct me if I'm wrong) that you would want something more than that.

The problem is that If you imposed some penalty that reduced his ability to exercise presidential power but left him in office, then the institution of the presidency would be diminished and the balance of power would be disrupted.

"They can...prosecute the hell out of him/her when they are done, John W."  

Agreed.  And they should, if the Justice Department thinks they have enough evidence to prove a crime occurred.  




Edited by John Wickett on 12 February 2021 at 9:53am
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