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Ginsburg Warns Senate Not to Pre-Judge Impeachment

Justice Ruth Bader Ginsburg is in England talking about, among other things, impeachment. She tells the BBC we should not look to the defendant for legal analysis:

Earlier this month, the president suggested in a tweet that the Supreme Court could step in.

“Radical Left has NO CASE. Read the Transcripts. Shouldn’t even be allowed. Can we go to Supreme Court to stop?”

When the BBC’s Razia Iqbal asked the justice what her reading of the constitution was in this context, she replied: “The president is not a lawyer, he’s not law trained” [“Trump Is Not a Lawyer—Ruth Bader Ginsburg,” BBC News, 2019.12.17].

Justice Ginsburg also indicates that Senators called on to judge impeachment and convict the President for abuse of power and obstruction of Congress should watch what they say before the trial:

There was criticism over the weekend of Mitch McConnell, who leads the Republican party in the Senate, for saying an acquittal was a foregone conclusion.

When asked about senators making up their minds before the trial, the Supreme Court Justice said: “Well if a judge said that, a judge would be disqualified from sitting on the case” [BBC, 2019.12.17].

Senator M. Michael Rounds appears to be failing the Ginsburg test: on Friday, he said the House has “not provided the evidence to substantiate an impeachable offense” and said that “After reviewing the accusations made by the House, the Senate should be able to move expeditiously to bring this to a close and get back to things that matter to South Dakota families.”

Aside from sending Chief Justice John Roberts to preside at the trial, the Justice Bader and the Supreme Court will have no role in impeachment… other than perhaps to act as legal conscience for our leaders.

12 Comments

  1. bearcreekbat 2019-12-18 11:13

    Justice Roberts will have a unique opportunity to expand or restrict the role of the judiciary in impeachment proceedings. Since the Constitution explicitly declares that

    . . . “When the President of the United States is tried, the Chief Justice shall preside. . . . ”

    Roberts has a clear constitutional authority to claim, and duty to define, this express power for the judiciary in the constitutional balance of power among the three branches of government.

    Logically, this power would include the power to exclude Senators who openly defy the Constitution’s required “oath or affirmation” from participating in the proceedings, along with any other traditional judicial determinations necessary to create the appearance of a fair and impartial trial.

    Indeed, the Senate’s published rules for impeachment of a President seem to recognize this judicial power. The Senate rules grant virtually all power to the “Presiding Officer of the Senate” and in an impeachment trial of the President the rules provide:

    IV. When the President of the United States or the Vice President of the United States, upon whom the powers and duties of the Office of President shall have devolved, shall be impeached, the Chief Justice of the United States shall preside; and in a case requiring the said Chief Justice to preside notice shall be given to him by the Presiding Officer of the Senate of the time and place fixed for the consideration of the articles of impeachment, as aforesaid, with a request to attend; and the said Chief Justice shall be administered the oath by the Presiding Officer of the Senate and shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached therein.

    https://www.govinfo.gov/content/pkg/SMAN-104/html/SMAN-104-pg177.htm

    This rule declares that the Chief Justice temporarily serves as the “Presiding Officer of the Senate” and thus “shall preside over the Senate during the consideration of said articles and upon the trial of the person impeached therein.” This is an explicit delegation of the powers the rules otherwise vest in the “Presiding Officer of the Senate” to the Chief Justice during the impeachment trial. This would seems empower the Chief Justice to remove any Senator that openly defies the oath required by the Constitution and Senate Rules:

    `I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of —— ——, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”

    Yet, when Chief Justice Rehnquist presided over the Clinton Senate impeachment trial, Rehnquist seemed to abandon the duty of assuring compliance with the oath to be impartial by ruling that Senators were not really jurors, but more like judges.

    Rehnquist upheld an objection of Democratic Iowa Sen. Tom Harkin to the House managers’ referring to senators as “jurors.” Declared Rehnquist, “The Senate is not simply a jury. It is a court in this case.”

    https://www.cnn.com/2019/09/29/politics/william-rehnquist-impeachment-trial-senate/index.html

    It will be interesting to see whether Roberts asserts a strong judical power, or abandons that power by deference to the wishes of McConnell.

  2. Debbo 2019-12-18 14:56

    Jennifer Rubin, Wapo columnist, has written an article republished in the Strib so it’s unfortunately paywalled, about how the trial might be conducted. Rubin addressed the issues BCB raised in the previous comment. In addition, she suggested 5 steps Democrats might take in an effort to secure a fair trial, or at least come near one. In this order …
    1. A letter from Schumer to Moscow Mitch has already been sent. “That includes subpoenas issued by Chief Justice John Roberts for acting White House chief of staff Mick Mulvaney; Robert Blair, a senior adviser to Mulvaney; former national security adviser John Bolton; and Michael Duffey, a top official at the Office of Management and Budget. Mulvaney, Blair and Duffey had been subpoenaed by the House committees and defied the summons; Bolton has not been subpoenaed but indicated he would fight one in court.”
    Schumer also requested other steps in line with the 1999 agreement forged by the GOP.
    2. “A group of Republican senators (three to deprive of a majority) can object to rules that do not incorporate most of Schumer’s proposals. This would take some political courage from Republican senators who claim to be interested in a factual inquiry and do not want to be seen as President Donald Trump’s stooges. Sens. Mitt Romney of Utah, Susan Collins of Maine and Lisa Murkowski of Alaska.”
    3. “Speaker Nancy Pelosi, D-Calif., could, after the House vote on the articles, decline to send over the articles until such rules for a real trial can be agreed upon. Give McConnell, say, 30 days to get this right. While the House makes clear that impeachment is urgent, there is no remedy for a clear and present danger in a farcical nontrial. Pelosi’s time frame could raise pressure on McConnell, further unhinge Trump and give Democrats a chance to get out there, as they have failed so far to do, with a full-blown ad campaign to convince voters of what is at stake.”
    4. “Unless McConnell agrees, Pelosi should never send over the articles. The impeachment would be a permanent stain on Trump’s presidency, he would be denied his sham trial, and once more the Republicans’ contempt for the Constitution would be on full display. The risk, however, is that House Democrats become the constitutional malefactors in Republicans’ telling, that they lose the high ground and that they stand accused of wasting everyone’s time on impeachment.”
    5. “Democrats to make a motion, appealing to Roberts, who will preside at the Senate trial, to allow for the presentation of evidence and issuance of subpoenas of key witnesses. Roberts could well decline, ceding to the Senate the right to make the rules, but at the very least, Republicans would have to publicly defend their sham. If, at the end of the proceedings, Democrats have not had access to witnesses, they could ask Roberts to declare a “mistrial.” That is highly unlikely to be granted, but it would cement in the public’s mind a key argument: The Senate did not acquit (or decline to remove) by a full and fair trial. The stain of impeachment should remain, Democrats can argue.”

    Rubin says we, the voters, are the final backstop. She does not address the election rigging the GOP is actively engaging in at this moment and up to Election Day.

    is.gd/jkyEcX

  3. Robin Friday 2019-12-18 16:37

    LONG LIVE Ruth Bader Ginsburg.

  4. Robin Friday 2019-12-18 16:41

    I think Roberts has the strength within him. I’m breathless waiting to see how he uses it. Somebody has to smack the three amigos Trump, McConnell and Barr, down until they understand that Executive, Legislative, and Judicial are CO-EQUAL and must remain forever that way.

  5. Robin Friday 2019-12-18 16:43

    Debbo, your info from the Star Tribune are always so valuable and informative. Thank you so much for taking the time to inform the rest of us who don’t have subscriptions. Happy Holidays to you.

  6. kj trailer trash 2019-12-18 16:44

    Can anyone give me a synopsis of what the lovely Dusty Johnson said in the impeachment hearings today (assuming he spoke)? I have only been able to watch part of it.

  7. Robin Friday 2019-12-18 17:26

    kj, I just saw him speak. He only had 30 seconds. He said he was voting no and We should not impeach. Sorry, can’t give you verbatim. Nothing surprising.

  8. Cory Allen Heidelberger Post author | 2019-12-18 18:33

    Interesting, Bear, to think that the Chief Justice will have all the powers of the presiding officer of the Senate. But we have to be careful: if he can remove senators for not strictly following the oath they swear, he could just as easily boot Democratic senators who have stated that Trump has committed impeachable offense is and who is stated they will vote to convict him. Have any Democratic senators gone there?

  9. bearcreekbat 2019-12-18 20:04

    Debbo, I really used to enjoy reading Ruth Marcus when the RC Journal included her with the Journal subscription. Since that disappeared I haven’t read many of her columns.

    Another favorite of mine that I can still read on a regular basis is Dahlia Lithwick who writes on legal matters for Slate. She has a current piece addressing what Roberts might do as he “resides” over the impeachment trial. Let’s hope he doesn’t assume the role of another Rehnquist “potted plant.”

    https://slate.com/news-and-politics/2019/12/senate-impeachment-trial-mitch-mcconnell-john-roberts-rules-norms.html

  10. Debbo 2019-12-18 20:29

    That’s a good article BCB, and Ms. Lithwick makes very good points. The Senate will be the Jury in a Trial with Chief Justice Robert’s serving as Judge. Those are good points to hammer home, especially to pressure Roberts to act as a judge should.

    Cory, if Roberts were to recuse senators who’ve stated they’ve already made up their minds, I think that would oust 3-5 Democrats and at least a dozen GOP, probably more. IOW, the GOP would have completed their self-destruction.

    Just to be clear, several Democratic representatives said they wanted to impeach Pootie’s Puppet months ago, but few Democratic senators said the same. In addition, I don’t think wanting to impeach him is the same as deciding his guilt or (chuckle) innocence.

    Moscow Mitch is so confident and arrogant about all this that I’m worried he’s already made some kind of crooked deal with Roberts. I guess we’ll know soon enough.

  11. leslie 2019-12-27 01:08

    “The Democrats have had it out for him from day one, and therefore nearly everything they do is under a cloud of partisan suspicion. This has led many to suspect not only motives but facts in these recent impeachment hearings. And, no, Mr. Trump did not have a serious opportunity to offer his side of the story in the House hearings on impeachment.”

    This is the trope Republicans have been foisting ever since they obstructed President Obama for eight solid years.

    “Billy Graham explains that Christianity Today (CT) will help evangelical Christians interpret the news in a manner that reflects their faith.”

    CT said: “the facts in this instance are unambiguous: The president of the United States attempted to use his political power to coerce a foreign leader to harass and discredit one of the president’s political opponents. That is not only a violation of the Constitution; more importantly, it is profoundly immoral.

    The reason many are not shocked about this is that this president has dumbed down the idea of morality in his administration. He has hired and fired a number of people who are now convicted criminals. He himself has admitted to immoral actions in business and his relationship with women, about which he remains proud. His Twitter feed alone—with its habitual string of mischaracterizations, lies, and slanders—is a near perfect example of a human being who is morally lost and confused.” https://www.christianitytoday.com/ct/2019/december-web-only/trump-should-be-removed-from-office.html

    Evangelicals stand behind President Obama during those eight years? https://www.huffpost.com/entry/8-years-did-little-to-sway-white-evangelicals-views-on-obama_n_58752b13e4b02b5f858b8032

    WaPo famously counts his mischaracterizations as daily lies now numbering more than 12,000.
    12,000 lies- Donald Trump. President of the United States.

    12,000 lies- Donald Trump. President of the United States.

    Vlad Putin told Trump Ukraine hacked the 2016 election, says Trump. Is anything Trump says aimed at anything other than Trump’s cover up?

    12,000 lies- Donald Trump. President of the United States? Really?

    The claims that Ukraine sought to tilt the 2016 election have taken several forms. One early version was promoted by Paul Manafort, Trump’s then-campaign chairman, who suggested to campaign aides as early as the summer of 2016 that Ukrainians may have been behind a hack of the Democratic National Committee (DNC), rather than the Russians, his deputy, Rick Gates, later told federal investigators.

    Gates said that Manafort’s theory “parroted a narrative” that was advanced at the time by Konstantin Kilimnik, an employee of Manafort’s whom the FBI has assessed to have connections to Russian intelligence. (Kilimnik, who is believed to be in Moscow, has denied such ties.)
    Two weeks after Trump took office, Putin floated another claim: that figures in Ukraine had helped boost Democratic nominee Hillary Clinton.

    “As we know, during the election campaign in the U.S., the current Ukrainian authorities took a unilateral position in support of one of the candidates,” Putin said at a news conference in Budapest on Feb. 2, 2017. “Moreover, some oligarchs, probably with the approval of the political leadership, financed this candidate.”

    Ukrainian steel magnate Viktor Pinchuk’s foundation donated millions of dollars to the Clinton Foundation, but there is no evidence that he contributed money to Hillary Clinton’s campaign, which would be prohibited under federal law. Pinchuk has also supported Trump: In 2015, he made a $150,000 donation to Trump’s foundation.

    RT, the Russian government-funded media network, spotlighted other arguments that Ukraine worked to help Clinton’s campaign, focusing on contacts between a part-time DNC consultant and Ukrainian Embassy officials in Washington.

    “Democrat-Ukraine collusion seems far deeper than anything so far proven between the Trump campaign and Russia,” an op-ed columnist wrote in July 2017.
    Trump added his own twist on the conspiracy theory in April 2017, in his first public allegation about Ukraine’s role.

    In an interview with the Associated Press, the president claimed that CrowdStrike, a computer security company the DNC hired to investigate the breach of its email systems, was based in Ukraine and played some role in hiding evidence from the FBI.
    “Why wouldn’t [Clinton campaign chairman John] Podesta and Hillary Clinton allow the FBI to see the server? They brought in another company that I hear is Ukrainian-based,” Trump said. “I heard it’s owned by a very rich Ukrainian, that’s what I heard. But they brought in another company to investigate the server. Why didn’t they allow the FBI in to investigate the server?”
    In fact, CrowdStrike is based in California, and it is not owned by a Ukrainian. Dmitri Alperovitch, the company’s co-founder, is a Russia-born U.S. citizen who is an expert in cybersecurity and national security.

    It is unclear where Trump first got the idea of a Ukrainian connection to CrowdStrike. At the time, the notion was not yet being widely discussed on Twitter, his social media platform of choice and a fertile bed for disinformation, according to social media experts.
    “Prior to Trump’s mentioning it in his interview with the Associated Press, the idea that CrowdStrike was Ukrainian based and concocted the story of the DNC hack existed on social media but was far from mainstream,” said Darren Linvill, an associate professor of communication at Clemson University who studies social media and online disinformation and conducted an analysis of tweets during that period for The Washington Post.
    “On Twitter, messages pushing the argument can be measured in the hundreds, not even the thousands, and in this context those are small numbers,” Linvill said.

    Trump has returned to the false Ukraine-CrowdStrike connection many times, arguing that the company had covered up Ukraine’s hacking of the DNC and that it had even spirited the DNC server to Ukraine, former White House officials said.

    In June, for instance, he called in to Sean Hannity’s Fox News program and repeated his complaint that the FBI hadn’t taken possession of the DNC email server.
    “How come the FBI didn’t take the server from the DNC? Just think about that one, Sean,” Trump said.

    That same day, Breitbart News had published a story about the FBI relying on information from CrowdStrike.

    In fact, the bureau’s forensic experts had taken complete copies of dozens of servers used by the DNC, which then-FBI Director James B. Comey later testified was an “appropriate substitute” for examining the actual equipment. The intelligence community also knew months before CrowdStrike was hired that the Russians had infiltrated the DNC.
    Most significantly, Trump raised CrowdStrike in the July 25 phone call with Ukrainian President Volodymyr Zelensky that led to his impeachment.

    “I would like you to find out what happened with this whole situation with Ukraine, they say Crowdstrike . . . I guess you have one of your wealthy people. . . . The server, they say Ukraine has it,” Trump said, according to a memorandum the White House released of the call.
    Privately, officials tried in vain to convince the president that CrowdStrike was not a Ukrainian company and that it would be impossible for the server to be located there, a former administration official said.

    One of the officials who Hill said tried to convince Trump, former homeland security adviser Thomas P. Bossert, publicly pleaded with the White House in September to drop the Ukraine theory, which he called “completely debunked.”

    “The DNC server and that conspiracy theory has got to go,” he told ABC News’s “This Week.” “If he continues to focus on that white whale, it’s going to bring him down.”
    Bossert pointed to Giuliani, Trump’s personal lawyer, as a persistent source of the server claim. “I am deeply frustrated with what [Giuliani] and the legal team is doing in repeating that debunked theory to the president. It sticks in his mind when he hears it over and over again.”

    https://www.msn.com/en-us/news/politics/former-white-house-officials-say-they-feared-putin-influenced-the-presidents-views-on-ukraine-and-2016-campaign/ar-BBYaSx4?li=BBnb7Kz

    This is what you get when you nominate known pathological liars. Republicans. Evangelicals.

    Billy Graham, people.

    RBG’s guiding principle: https://www.myjewishlearning.com/article/tikkun-olam-repairing-the-world/?_ga=2.145548660.1786765327.1577430150-614126247.1577430150

    Trump’s? Apparently “avoid responsibility for screwing people to get what he wants.”

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