IMPEACHMENT REPORT--A Critical Review-- IRAN-CONTRA NOT

JOUR107.1004
James L'Angelle
University of Nevada, Reno
Spring 2020

A Brief Summary of a Very Long Document.

     The official report, the long-version of the House Resolution 755, has been released today and consists of several sections. The opening still includes "Treason," and "Bribery" along with "High Crimes and Misdemeanors," even though the president is only being charged with the latter. The resolution is repeated in the opening.
     Following the table of contents, the Introduction divides the report into four sections; the first gives a look at the process, the second refers to impeachment standards, the third examination of the abuse of power charge, the fourth obstruction in line with the subpoenas. Page 3 gives a hint as to intent of the House;
    "Although the 2020 election is less than a year away, Congress cannot wait for the next election to address the President’s misconduct." The part of "cannot wait for the next election" confirms a cause for alarm by the President's foes to address their concern over defeat. Note in the same paragraph, the following;
     "the President’s private attorney was back in Ukraine to promote the same sham investigations,"
a politically charged statement with no direct evidence to back it up. The President's attorney, Rudy Giuliani, had not testified officially regarding his mission to Kiev.
     In Part B of Section II, on page 8, the key inquiry components are mentioned: the allegation that investigation into the opposition candidate's  son was directly related to political gain for the President, the business with Ukraine being related to more political gain and the coverup by subpoena denial. This was initiated by HR 660. It was noted that no independent prosecutor was appointed. Witnesses gave testimony related to supposed vital national security interests related to military assistance to Ukraine. The report consumes the next 20 pages with justification for the impeachment inquiry and what protections the President has, citing various past efforts including those directed at Presidents Nixon and Clinton.
     The next section beginning on page 29 finally gets around to definitions of impeachable offenses, where again treason and bribery are dangled in front of the reader, enticing but unconvincing, and, irrelevant. As for the other;
     "In identifying 'other high Crimes and Misdemeanors,' we are guided by the text and structure of the Constitution, the records of the Constitutional Convention and state ratifying debates, and the history of impeachment practice."
The category appears to be a catchall for all the other non-treasonable offenses and at the same time, a minefield for the executive branch where its actions can be construed as abuse of power, betrayal to foreign powers and corruption. Nixon is mentioned in the first, no one else in the other two. The criminality argument is dismissed on page 32, again referring to Nixon and Clinton;
     "Some crimes, like jaywalking, are not impeachable."
Six falsehoods are then addressed, in number four, the motives of the President are addressed. Abuse, Betrayal and Corruption aren't addressed again until page 42, following another history lesson, possibly a result of appearance by academia at the hearings. Note also, the saturation of this section with definitions of treason and bribery, charges that are not brought against the President, intended possibly to create the illusion of criminal activity, although crime isn't necessarily a requirement for impeachment. Again we are treated to another long-winded legal history lesson into definitions, precedents and at least one reference to Nixon. On page 46, it is noteworthy that reference to impeachment during the state ratifying conventions related to pardon power, for some reason hardly convincing that it relates to national security. In fact, the reference to national security has yet to be mentioned. At least the background on President Johnson's interference with post Civil War reconstruction might be considered in the interests of national security. In Section D., the conclusion offers little to support the charges against the President;
     "“the House has never, in any impeachment inquiry or proceeding, adopted either a comprehensive definition of ‘high Crimes and Misdemeanors’ or a catalog of offenses that are impeachable."
     Article V discusses the "Criminality Issue" where A through D discuss the similarities of congressional and civil cases; including witness tampering. The document finally gets around to addressing the charges in HR755 on page 78.
     "President Donald J. Trump used the power of his office to solicit and pressure a foreign nation to interfere in the 2020 United States Presidential election."
Again, we hear more political academia about what the "Framers" intended for high crimes and misdemeanors. On page 83, the so-called facts surface as are already known, the phone call, the arm-twisting, the withholding of aid for anti-tank armaments. All of it makes sense but connecting the dots in the conspiracy is still far-fetched, even with expert professional testimony beyond the college historian crowd. On page 85, the document insists the "conclusion is straightforward." A long review of the wrong doing is then summarized, in detail no less, citing such reliable official sources such as The Washington Post on page 90.
     Next, the report brings up the suffering of Ukraine in the face of Russian aggression and that the military assistance was vital to the nation. It doesn't mention the fact that Ukraine is not part of NATO and thus could easily become a security threat to the alliance should the weaponry fall into the wrong hands. Again, on page 94, the report cites another reliable official government source, CNN. On a sidenote, it is curious that of all the assertions and assumptions made in the report thus far, that another, even more similar affair in foreign meddling has yet to be mentioned, Iran-Contra.
     Section 4 on page 115 attempts to establish a bribery effort, reviewing various US Codes related to the charge. None of this is included in the HR document passed by Judiciary.
     Next, if evidence doesn't support the case, what about "lack of remorse" and "egregiousness," in other words, character assassination. The report has now hit a low point and hopefully it will recover before fully read and understood by the public. On page 138, the second article of the impeachment resolution is examined. Once again, a long winded justification, historically based, on authority to impeach. The subpoena defiance list is included on page 156. It concludes with a brief review under the heading;
     "Judicial Review is Unnecessary and Impractical Here"
Many would agree the entire process of judicial review was unnecessary throughout the entire resolution. The entire preliminary justification ends on page 169 and the rest of the material in the pdf file released is actual hearing related text and testimony. Dissenting views begin on page 196 of the pdf document. It includes the refusal by the committees to hear minority arguments, witnesses, the failure of Article I to establish impeachable offense and lack of evidence. "Hyperbolic" is mentioned on page 205 but goes uncredited as to who said it. Criminality basis of prior impeachments is mentioned. The rebuttal, in effect, categorically refutes the charges and the methods used to lay the foundation for impeachment. It's signed by Doug Collins, Ranking Member of the House Judiciary Committee. The next rebuttal begins on page 217. It appears to be the long version of the Collins complaint and apes the information in more detailed description. It's documented with a John Bolton tweet on page 258. Most of the second, long-winded rebuttal is laced with testimony. Anyone who has been following the hearings with serious interest could wade through this without being surprised by the conclusions drawn.
     The next rebuttal is by Mike Johnson, in a neatly organized quasi power-point line-by-line examination of the resolution that begins on page 340. The appendix begins on page 360. Some of it reads like assumptions made by the prosecution when no evidence is available, or even better, that written by an aspiring investigative reporter out to establish journalistic credentials. One highlight, on page 400, reads;
     "Rudy Giuliani, on Behalf of President Trump, Led a Smear Campaign to Oust Ambassador Yovanovitch"
Refreshing to see that indictment by associate is still a popular method to convict the boss. On page 407, one of Giuliani's "tweets" is mentioned as proof of impeachable activity. We have now moved from the official Washington Post and CNN official sources to Twitter. On page 416, the New York Times becomes an official government source of information. ABC news officially enters the document on page 425. Again, most of the following is just a repeat for those who have good knowledge and have been following the story. Thankfully, "EndNotes" begin on page 511.
     On page 561, yet another long-winded document appears, similar to the others, alleging just about the same, with the same introductions, historical precedents and assumptions.

     Conclusion: Reading this entire document word for word is an enviable task but certainly, the recurrence of the vocabulary and text alludes to redundancy and a basic understanding can be gained without a close reading. Some parts require it, others can be skimmed. To what degree this will convince the Senate of guilt remains to be seen.

Back to Iran-Contra-- (pdf, Page 144)
     A search of the entire pdf actually indicates one, just one, reference to Iran-Contra;
     "Past Presidents have also produced documents and permitted senior officials to testify in connection with other Congressional investigations, including inquiries into Presidential actions.
 For example, in the Iran-Contra inquiry, President Ronald Reagan’s former National Security Advisor, Oliver North, and the former Assistant to the President for National Security Affairs, John Poindexter, testified before Congress.29  President Reagan also produced “relevant excerpts of his personal diaries to Congress. (809 See id. at 721-22; see also Ukraine Report, at 205-206)

Further Reading:

HR755 IMPEACHMENT REPORT--Determinism vs Relativism--THE BENEDICT CITATION

JOUR107.1003 James L'Angelle University of Nevada, Reno Spring 2020 PAGE 53-- The ML Benedict Citation-- (239)--A Close Reading "Scholars now largely agree that President Johnson's impeachment was motivated not by violations of the Tenure of Office Act, but on his illegitimate use of power to undermine Reconstruction and subordinate African-Americans following the Civil War.

This Just In: The Subpoena SNAFU  et. al. : According to at least two opinions from Justice, advisers to the President are not required to testify to Congress if ordered to do so. There is also some evidence to show that DOJ is not required to submit grand jury testimony of the Mueller inquiry to assist in the impeachment effort:

Congressional Demand for Deposition to the President, 23 July 1982
Memorandum to Edward C. Schmults
The Grand Jury Document:  "As discussed more fully below, HJC has identified the requisite “judicial proceeding” to be a possible Senate impeachment trial, which is an exercise of judicial power the Constitution assigned to the Senate." (Page 20)
     "Notwithstanding the weight of these precedents, DOJ maintains that an impeachment trial
cannot be a “judicial proceeding” under Rule 6(e) because the plain and ordinary meaning of the
term refers to 'legal proceedings governed by law that take place in a judicial forum before a
judge or a magistrate.' " (Page 25)
     Note here the discussion falls back on the "determinist" vs. "relativist" interpretation of authority of the House with respect to impeachment being a criminal indictment. (see above: The Benedict Citation)
Grand Jury Disclosure, Rule 6(e)  "

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Sources
Report, https://rules.house.gov/sites/democrats.rules.house.gov/files/CRPT-116hrpt346.pdf
Oliver North image, https://nationalpost.com/news/world/oliver-north-set-to-become-the-next-nra-president
President Reagan image, https://www.theatlantic.com/politics/archive/2018/02/why-the-russia-investigation-could-end-more-like-iran-contra-than-watergate/554345/

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IMPEACHMENT--High Crimes and Misdemeanors--WHERE'S THE BEEF?

JOUR107.1002
James L'Angelle
University of Nevada, Reno
Spring 2020

High Crimes and Misdemeanors, a background---& The House Resolution

     At the heart of the effort to bring down the President of the United States is the clause written into the effort by the House of Representatives' opposition;
  "Impeaching Donald John Trump, President of the United States,  for high crimes and misdemeanors." (House Res.,)
Lines 4-16 in the document provide the background of the Constitutional authority for impeachment as "Treason, Bribery, or other High Crimes and Misdemeanors."
     The impeachment resolution is divided into two sections, the first titled "Abuse of Power," and the second titled "Obstruction of Congress." Lines 15-26 in Article Two repeat the allegations of Treason, Bribery etc. However, the initial line of accusation is for "high crimes and misdemeanors" only and it appears the other charges of "Treason" and "Bribery" are without merit and inserted to prejudice not just the proceedings, but the media and public opinion as well. If the House intended to try the President on the latter charges, they should have been included in the line immediately following the Resolution title. The President is not accused of Treason, and not accused of Bribery, but of "high crimes and misdemeanors." A background in historical context of the phrase is in order.
     The phrase originates in early 18th century British law and was coterminous with treason, sedition and other allegations that might not have been directly proven due to the inflammatory nature of those accusations. A catchall for whatever couldn't be pegged on the accused, it appeared a convenient way to tag someone if the evidence didn't support the indictment. A case in point was the trial of Henry Sacheverell in 1710. An Anglican clergyman and Tory sympathizer, he was brought up on charges due to his condemnation of the opposition;

     "However, when the government lawyers examined the sermon, they discovered that Sacheverell had chosen his words carefully to such an extent that they considered it uncertain whether he could be prosecuted for sedition. They considered bringing Sacheverell to the Commons' Bar on the charge of displaying contempt for the Commons resolution of December 1705. A vote in the Commons would be enough to convict him. However this approach would deny the Whigs the publicity they sought in prosecuting Sacheverell and he would be at liberty once the Commons' session ended. The Whigs wanted a punishment sufficient enough to deter other High Churchmen. A vote in the House of Lords on a charge of high crimes and misdemeanours had the power to achieve what the Whigs wanted and could also inflict a heavy fine with confiscation of goods and imprisonment for life." (Wikipedia)

The phrase became a catchall for the inability to exact a particular, more damaging charge of sedition, against the accused. Britannica notes that he was indeed tried for sedition and found guilty and notes he was found guilty but at least one publication at the time infers this was not so.




     Again, this time related to the governor-general of Bengal in the late 18th century, the dealings of Warren Hastings were brought under scrutiny and eventually led to a long drawn out affair that was engineered by the influential Edmund Burke;

     "But Hastings was vulnerable on episodes such as the execution of Nandakumar and his treatment of the begums of Oudh and Chait Singh and even on some aspects of his personal finances, where he had acquired money in excess of his official allowances. In 1786, when Burke introduced an impeachment process against him (a prosecution by the House of Commons before the House of Lords), these blemishes were enough to persuade the House of Commons and in particular William Pitt the Younger, the prime minister, that Hastings ought to be sent to trial. The trial before the House of Lords lasted from 1788 to 1795, when he was acquitted." (Hastings, Britannica)

     The prospect of getting a conviction that would stick, much less to more serious charges, appeared in these two cases weak even with the influence of high-profile actions by historical heavyweights such as Edmund Burke. Curiously, Burke was no stranger to the rights of the colonists during the War for Independence even as he engaged in prosecution of his own countrymen over "high crimes" charges. (Burke) In fact, the nature of the charge involved a rather convoluted interpretation of how Hastings achieved peace following a war involving the East India Tea Company and accepting offers from those who sought conciliation. (Hastings 001) His enemies interpreted it as a bribe. It appears again that the actual nature of high crimes skirts the requirements of sedition and treason and becomes useful to at least shame the accused for questionable behavior that can't actually be considered criminal.
     In the case of Judge John Pickering, the Vermont Gazette reported in 1804;

     "the said John Pickering, being a man of loose morals and intemperate habits, on the eleventh and twelfth days of November, in the year one thousand eight hundred and two, in and for the district of New Hampshire, for the purpose of administering justice, appear on the bench of the said court, in a state of total intoxication, produced by the free and intemperate use of inebriating liquors, invoke the name of the Supreme Being, to the evil example of all the good citizens of the United States; and was then and there guilty of other high misdemeanors," (The Vermont Gazette)

     Note here the reference to ill-will toward the people of the nation and not necessarily he badrapped the Lord, drunk on duty being the more realistic charge against the judge. However, it still does not give us a solid ground to walk on concerning the charge of high crimes. If spouting obscenities and intoxicated on the bench are grounds for removal from office, then falling back on the Whig-Tory disputes over impeachment in 18th century England have plenty of merit. In fact, just about anything can be considered high crimes and misdemeanors.

     Returning to the current case involving the President of the United States, an overview of the process can be found in the Congressional record;
     "The Constitution's grant of the impeachment power to Congress is largely unchecked by the other branches of government. Impeachment is primarily a political process, in which judgments and procedures are left to the final discretions of the authorities vested with the powers to impeach and to try impeachments." (Congress)

Looking back at the file, the redundancy of at least two sections, that of inferring treason and bribery in both articles doesn't  help convince the Senate that a high crime, much less a misdemeanor, was committed. Lines 20-24 in Article 1, The Abuse of Power, infer the President;
     "through a scheme or course of conduct,"
attempted to influence the upcoming national election by digging up dirt on his opponents, in particular  Joe Biden, through his  son's business connections in Ukraine. In addition, it is inferred that military aid was withheld as some "quid pro quo" until the dirt was sent over. The weak wording of "scheme or course of conduct" indicates the opposition may not have concrete proof it was the President's intent at all, as with the necessity of public opinion influencing the bribery interpretation against  Hastings from above.
     If we also consider the fact that impeachment may well have a criminal basis, as by the Henry Tazewell interpretation during the William Blount case in 1798, then the call for a jury would be in order. (Tazewell) The problem with a jury, and a "criminal basis" as such,  is that some of the basic rights of the defendent would surface, such as the very notion of "intent." The case would then represent more of a criminal, instead of a political, nature and evidence that appears fact may become circumstantial at best, weakening the case.
     In Article 2, Obstruction of Congress, it is unclear that any influence of the President to prevent witnesses to appear can only be judged in the eye of the witness. In the end, it is the responsibility of the individual to appear when handed a subpoena, regardless of pressure from the boss, the media, public opinion, or Congress itself. The allegation is extremely weak.
     In spite of the polls, the determination politically of his opponents in Congress, and the fact that the resolution, considering all of the months long effort in coming up with a concrete proposal, there appears little in the resolution to make the charges stick.

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Recommended Reading:

Column: Democrats impeachment of Donald Trump is way too thin, like butter scraped over too much bread

Where did the Trump impeachment go? When House Democrats began selling tickets to their President Donald Trump Impeachment Theater - shouting their outrage, preening on those late-night talk shows - it was much meatier business. It would be full of collusion with Russia, blackmail of Ukraine, it would contain extortion and go heavy on bribery.

GOP lawmakers jockey for positions as managers

The GOP members most often mentioned as potential candidates include Reps. (Texas), (Ohio) and (Ga.). "I don't know the extent of the lobby from Capitol Hill. I think there's a general consensus that there's a small group of members that would be, certainly, in the first tier, and another group would be in the second tier," one GOP lawmaker told The Hill.

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Cited
House Res., https://assets.documentcloud.org/documents/6572308/Articles-of-Impeachment.pdf
Sedition,  https://www.britannica.com/biography/Henry-Sacheverell
High Crimes, The Penny London Post, 06 Dec, 1749, Page 1.
Hastings, https://www.britannica.com/biography/Warren-Hastings/War-in-India
Hastings, The Public Advertiser, 20 April, 1786,  Page 1.
Burke, https://theimaginativeconservative.org/2016/04/edmund-burke-and-the-american-revolution-the-whole-story.html
Hastings001, The Newcastle Weekly Courant, 31 March, 1787)
Pickering, The Vermont Gazette, 03 April 1804
Congress, https://constitution.congress.gov/browse/essay/artI_S2_C5_1_1/
Tazewell, https://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2867&context=mlr
Where's the Beef Image, https://www.tampabay.com/blogs/80s/2018/01/10/on-this-date-wendys-first-asked-wheres-the-beef/