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Ash writes: "Judge Daniels's assertion, even if it does not stand, speaks to the heart of presidential privilege and insulation from the legal process. It is also revealing of the mindset that dominates the impeachment debate."

New York Representative and House Judiciary Ranking Member, Democrat Jerrold Nadler. (image: Albin Lohr-Jones/Sipa/AP/Thanh Do/The Atlantic)
New York Representative and House Judiciary Ranking Member, Democrat Jerrold Nadler. (image: Albin Lohr-Jones/Sipa/AP/Thanh Do/The Atlantic)

The Impeachment Question

By Marc Ash, Reader Supported News

16 December 18


n dismissing a 2017 Emoluments Clause lawsuit against Donald Trump brought by Citizens for Responsibility and Ethics in Washington (CREW), Judge George B. Daniels of the Southern District of New York said in part:

“As the only political branch with the power to consent to violations of the Foreign Emoluments Clause, Congress is the appropriate body to determine whether, and to what extent, Defendant's conduct unlawfully infringes on that power … If Congress determines that an infringement has occurred, it is up to Congress to decide whether to challenge or acquiesce to Defendant's conduct. As such, this case presents a non-justiciable political question.”

The key phrase there being “non-justiciable political question.”

Daniels had better be wrong or: a) The president really is above the law, and b) The rule of law is dead in America. It's important to note that CREW has appealed, and the appeal appears to have some traction. In addition, a separate Emoluments Clause lawsuit brought by the state of Maryland and the District of Columbia has cleared an important legal hurdle as Federal District Judge Peter Messitte has denied the Department of Justice's request to dismiss the case.

The Political Question

Judge Daniels's assertion, even if it does not stand, speaks to the heart of presidential privilege and insulation from the legal process. It is also revealing of the mindset that dominates the impeachment debate.

The overriding question for lawmakers and pundits alike is “What would be the political ramifications of an impeachment of President Trump?” The real question is “What do the facts and the Constitution dictate?” Who will follow the evidence wherever it goes? This is what the Constitution demands and what the American people have a right to expect. The Republicans, while in control of the House, have categorically put political considerations before the facts and the law. Where did it get them?

The facts are daunting. On obstruction, violations of campaign finance law and the Emoluments Clause, and tax evasion, the evidence is as overwhelming as it is unprecedented. What adds significant urgency is the National Security risk of leaving in office a president who appears to be beholden to a hostile foreign power.

An impeachment proceeding would originate in the House Judiciary Committee, likely under the guidance of now ranking member Jerrold Nadler and the leading candidate to be named chairman. It would fall to Nadler and the Democratic members of the committee to document the case in preparation for proceeding with impeachment. They are likely to get more interference from the Republican members than participation.

The facts clearly meet the high crimes and misdemeanors standard. The question for Democrats is the same question it was for the Republicans. One the Republicans got wrong. It's a political question, one of political will, and moreover one of national and global security.

As long as impeachment remains a matter of political theater, Donald Trump's reality-TV style is ideally suited to ride out the storm. If, however, it becomes an evidence-based prosecution of the facts, Donald Trump is in deep trouble.

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Marc Ash is the founder and former Executive Director of Truthout, and is now founder and Editor of Reader Supported News.

Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News. your social media marketing partner


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+28 # Wally Jasper 2018-12-16 13:27
Well said, Marc. This is precisely what is at stake for this country: political theater versus the integrity and viability of this experiment called the United States of America.
+5 # lfeuille 2018-12-16 16:49

"The facts are daunting. On obstruction, violations of campaign finance law and the "Emoluments Clause, and tax evasion, the evidence is as overwhelming as it is unprecedented. What adds significant urgency is the National Security risk of leaving in office a president who appears to be beholden to a hostile foreign power."

The president is not beholden to a "hostile foreign power'. He is beholden to a foreign mafia who has business dealings with that nations oligarchs who have under influence over the government. But US oligarchs have undue influence over our government as well. This does not make them a "hostile power". They are not an existential threat to the US they are merely an economic rival. Economic competition is something the US government professes to believe in but in practice doesn't tolerate. That is not where the urgency lies. The urgency is to keep Trump from killing more people. More people at the border. More people through poisoning the air and water. More people by encouraging police brutality. More people in the wars. And from selling off national resources that will be impossible to recover when he is gone. And then there is the climate denial. We don't have time to wait for his term to be up to act.
+3 # lfeuille 2018-12-16 17:00

And since the case for obstruction, campaign finance and emoluments violations and tax evasion is so strong and the case for "collusion" with Russia so feeble, they should proceed with their strongest case in order to get rid of him as soon as possible.
+6 # BuzzDavis 2018-12-16 22:57
There is great discussion about what about this and what about that. These issues and formal impeachment articles can be added later.

Right now the House should impeach Trump for continuing the illegal wars in Afghanistan and Iraq, continuing the illegal torture and continuing the illegal spying on all of us.

Rep. D. Kucinich laid out the articles of impeachment years ago for Bush II. Dust them off, edit them and the House has basic articles of impeachment to give to the Judiciary Committee to commence work.

All the rest of the articles you mentioned can be added in along with Mueller investigation results if appropriate.

But the only way we will start to scale back the military industrial complex is to impeach presidents for going to war illegally.

Buzz Davis member Veterans for Peace
-6 # Rodion Raskolnikov 2018-12-17 12:03
BD -- you are 100% right. Impeach him for something that matters -- illegal wars, torture, drone assassination, and sanctions against many nations that starve and kill children.

Who gives a shit about "emoluments." Do people really realize that only means he rents hotel room or collects golf course fees from people like the Saudi Royals. Who really cares about that. I do care about his selling hundreds of billions of dollars of weapons to the Saudis which they use to kill Yemenis and Syrians.
-7 # Rodion Raskolnikov 2018-12-17 08:21
Impeachment would be political theatre no matter what anyone does or what the circumstances are. I really think that the charges Marc cites are just too insignificant and so the debate would be all partisan and grand standing.

1. there was no obstruction of justice. Comey was fired for cause and asking a cop to go easy on someone is what everyone does. Mueller asked the Judge to go easy on Flynn. Comey was free to make up his own mine.

2. The emoluments case is just too petty. We would need some real deep corruption like selling the office of the president as Hillary clearly did with the state department. Maybe evidence for this exists. Trump has done a lot for world class bribers like the Saudis.

For me, I think Democrats should work like hell on their legislative agenda. They can't get bills completed because of republicans in the senate and Trump, but they can develop bills and educate the public about them so that the are ready to go in 2020.

The Cortez Green New Deal is horrifically complex and radical. It would take a decade to get people to understand it. The time to start is NOW. The same applies to comprehensive immigration reform, universal healthcare.

The way I see it, we can either have the impeachment circus OR we can have a democratic party focused on the big and difficult policy issues. Not both. Impeachment will bring to power loonies like Adam Schiff and push democratic socialists to the back. Maybe that is the underlying motive.
+12 # alchemist 2018-12-17 10:01
The average citizen in the USA fears the wrath of the regulatory system if he lets a parking ticket or the dog's license slip past the due date, yet Trump and other politicos are able to commit egregious illegalities and slide blithely along. This double standard is appalling and embarrassing evidence that our stated standards are only for those not in power. I am infuriated and saddened, but impotent.
+7 # jazzman633 2018-12-17 14:24
Well said, Buzz. Eisenhower's warning about the military-indust rial complex was, unfortunately, prophetic. But good luck finding a President who does not conduct illegal wars. The M/I complex (and the President's manhood) require that the US not retreat one inch from any military venture.
+4 # Citizen Mike 2018-12-17 16:39
At this time impeaching Trump would be a tactical error. An attempt at impeachment which fails in the senate would leave Trump strengthened and in a position to seek re-election with full Republican support. A better tactic would be to allow the various charges of wrongdoing on the part of Trump and all his associates to pile up while allowing the man to continue to make a fool of himself and demonstrate incompetence and ignorance as his supporters and appointees desert him one by one. In a nice continuous drawn-out process and lots of press attention. This will erode his standing to run for a second term and undermine his Republican support as he becomes a heavier and heavier albatross around the elephant's neck, imperiling the re-election of Republican senators and governors. Just let Trump run out his own game, destroying himself and doing maximum damage to the Republican Party.
+1 # sashapyle 2018-12-19 11:17
Just what I have been thinking. Impeachment will invariably be seen as a partisan ploy, whereas letting him destroy himself—well, that will speak for itself and fracture the party of wrongdoers that call themselves the GOP. I am sick of the two parties, but they do continue to exist, so we have to be strategic because we don’t have any more time to waste. And the Green New Deal is beautiful, despite its detractors above. And it speaks to the very real reasons we don’t have time to waste.
+1 # Robbee 2018-12-17 20:16
The Impeachment Question, Marc Ash, Reader Supported News, 16 December 18

- i can't wait till guliani says dickhead can't be impeached during his term in office

that will be a condom moment in the fall of dickhead?
+4 # 2018-12-18 05:32
As the 9th district has not been particularly Trump-friendly, Judge Daniels may well be right that, unlike paying hush money as a disguised campaign donation to influence an election,, “emoluments” is in fact a constitutional term related to impeachment rather than an indictable offense punishable by a determined jail sentence. However, Trump has clearly committed other legally indictable crimes. Most Democrats seem more concerned with pragmatism than ethics and my personal sympathies are with Steyer rather than with Democrat pundits and policies makers, like Pelosi, Schumer, Axelrod, etc. But they do have a point that an impeachment that falks short in the Senate may well backfire and rally the Trump base. The real question is why have the GOP Senators abandoned their moral compass and consciences en masse? Is it just that they’re willing to overlook everything for the sake of tax cuts for the rich who fund them and pro life judges? Or does Trump actually have something on quite a few of them and that’s why they’ve sold their souls? I definitely wouldn’t put it past our Mafioso Don “POTUS” and there are rumors in this regard,
+1 # RICHARDKANE.Philadelphia 2018-12-18 20:55
Before Trump many were only mildly for gun control. Now the ones opposed to guns are more angry and adamant. Before Trump many in the pro choice movement were upset with many young woman. Trump’s insults got many young women to declare themselves pro-choice. Eisenhower opposed immigration without undo crudity and stimulation of backlash.

Trump is getting everyone in trouble and hassle regardless of what side they tend to be on.
Getting everyone to see they are getting hurt is how the new Charles Ponzi will fall

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