“It Depends”: Trump Casts Doubt On White House Legal Theory As Republican Senators Declare It Invalid

As I discussed yesterday in the Washington Post, the White House defense in the Senate impeachment trial is built again the dubious constitutional argument that a president cannot be impeached without an alleged criminal case. That argument will be presented by Harvard Law Professor Alan Dershowitz but it is based, in my view, on a flawed reading of both impeachment and specifically the trial if Andrew Johnson. It was a mistake that will make it more difficult for Republican senators to sign on to a defense tied so closely to an untenable constitutional argument. Today, more Republican senators, including Sen. Lindsay Graham, came forward to say that they categorically reject the interpretation. Even more concerning was the response of President Donald Trump when asked if abuse of power can be an impeachable offense. He responded that “it depends.” That is actually the correct answer but it is not the position being taken by the White House on the Senate floor.

While the New York Times described the answer as “equivocal,” it is an accurate reduction of the law. It does depend on the underlying allegation of abuse of power. I have expressed my reservations about the allegations in this case and whether it warrants the removal of a president. However, the most important aspect of the President’s comment is that such an abuse can be impeachable. It really does depend.

That is precisely the nuance that is missing in the White House.

During Trump’s impeachment hearing, I argued against four articles of impeachment being touted by the the leadership of the House of Representatives, including bribery. The problem is that the allegations against Trump fall well outside of definitions and case law of these crimes. While such definitions are not controlling, Congress has always looked to criminal cases on the meaning of such offenses. The reason is simple. The criminal code offers an objective and neutral source for defining acts free from political manipulation.

Not only do such cases put a president on notice of the range of impermissible conduct, but it shows the public that the president is being held to a clearly defined and understood standard. Ultimately, I was relieved when the House Committee rejected those four articles and went forward with the two that I testified would be legitimate, if proven.

However, this absolutist argument presents the inverse problem of adopting too narrow of an impeachment standard. That is a view clearly shared by a majority if not a super-majority of senators. The question is why build a defense around a flawed theory that it is so widely rejected, including by the Senate itself.

Ideally, abuse of power articles go forward with actual alleged criminal conduct but it is not required. To put it simply, abuse of power can be an impeachable offense but “it depends.”

82 thoughts on ““It Depends”: Trump Casts Doubt On White House Legal Theory As Republican Senators Declare It Invalid”

    1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty weeks, and needs to cite all his work from now on. – Since The Donald is in Davos protecting our interests, instead of giving them away, he seems to be full witted. Now, I do agree that others on this site are lack-witted.

  1. After the 2020 election the Trump will be re elected, the Republicans will win the Senate and House and other jobs in the state levels. Schiff and his cronies are dumb as toast.
    It is boring and horrible to watch this apCray on TV. The indictments (impeachment articles) should be discharged and the case closed. The impeachment articles are lame duck. It is an insult to ducks to compare them to the Dems. The Dems do not have all their ducks in a row. Schiff is the weirdest thing on television ever. Nadler is close behind.
    Bye, bye, Miss American Pie. Drove my Chevy to the levee and the levee was dry. Schiff and Nadler drinking whiskey and rye— singling… this will be the day that I cry!

    1. Schiff straight up spanked Trump’s b.s. talking points yesterday. Six Dems polling higher than Trump nationally. He’s going to have to rely on a 2016 like low turnout model to squeak by with an electoral college tko again. Pipe dream.

      1. Elvis – what until Trump’s team gets their turn. 25 Attorney’s General asked the Senate to dismiss the House charges, because they have no standing in law.

        1. Can’t wait for the hyperventilating white people to shit their pants in public. I agree, it’ll be a show. 25 Attorney’s General being flagrantly wrong at the same time is, unfortunately, not a rarity.

  2. Democrats: “We will make Apocalypse Now for Trump!”
    Republicans: “We’ll acquit him and wipe up the Dems with this Sham…Wow!”

  3. So….it seems that JT agrees with that great constitutional scholar Gerald Ford: impeachment is whatever the House says it is

    1. Mespo, Bill Clinton entered his impeachment crisis with a much higher approval rating than Trump has ever had.

  4. The Dem ‘prosecution’ argument for ‘abuse of power’ rests 100% on the demonstrably false allegation that Trump was motivated to withhold aid in the hopes of gaining advantage over Biden in the 2020 election.

    But the call transcript clearly demonstrates Trump was seeking to uncover the source of Ukrainian corruption with the intended beneficiary clearly being America and We the People….

    The· President: I would like you to do us a favor though
    because our country has been through a lot and Ukraine knows a
    lot about it. 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. There are a lot of things that went on, the whole situation
    .. I think you’re surrounding yourself with some
    of the same people. I would like to have the Attorney General
    call you or your people and I would like you to get to the
    bottom of it. As you saw yesterday, that whole nonsense ended
    with a very poor performance by a man named Robert Mueller, an
    incompetent performance, _but they say a lot of it started with
    Ukraine. Whatever you can do, it’s very important that you do it
    if that’s possible.

  5. “Alan Dershowitz Hasn’t Changed One Bit”

    “The celebrity attorney has spent much of his career defending the interests of scandal-plagued elites—and profiting from it.”

    By MATT FORD
    January 22, 2020

    “This wasn’t always Dershowitz’s stance on impeachable offenses. “It certainly doesn’t have to be a crime,” he said in a 1998 TV interview during the Clinton impeachment saga. “If you have somebody who completely corrupts the office of the president and abuses trust and who poses great danger to our liberty, you don’t need a technical crime.” In an MSNBC interview last week, however, he argued the opposite point. “Abuse of power, even if proved, is not an impeachable offense,” he claimed. When pressed on the change of heart by CNN’s Anderson Cooper on Sunday, Dershowitz explained that he now had “a more sophisticated basis for my argument.”

    “This is a far cry from the young law clerk who perceived the fundamental forces shaping American executions in the civil rights era. The result that flows from Dershowitz’s approach to impeachment is more than a blank check for an American monarchy. It is an argument for the sake of argument—cold, sterile, and bereft of any attachment to morality, honor, or other higher principles. It portends a world in which Dershowitz and his wealthy and powerful friends will thrive, and everyone else will suffer.”

    1. The celebrity attorney has spent much of his career defending the interests of scandal-plagued elites—and profiting from it.”

      So Nadler, Schiff, Schumer, et al are actually thankful they have one of their own in their midst. Nice!

    2. Who was right on the Russia Hoax? Dershowitz promised no indictments! What did Jeffrey Toobins say? And what did he rest of the Liberal Activist Media predict? Let me remind you. Indictments for Ivanka, Jared. And Don Jr, and the removal of Trump. Get your head out of your Ass! Now removal by phone call, LMAO! Good luck in November. Can you say LANDSLIDE? Probably not but good luck with your socialists.

  6. Well, if this is all a hoax, as you Trumpsters claim, then why hide documents? Why not produce the actual transcript of the call with the Ukrainian President? Why not let all witnesses come forward: Pompeo, Bolton, all of them? Why not have Trump himself appear and answer questions?

    You can argue the implications of what we have already seen and whether it constitutes an impeachable offense, but hiding documents and procuring the absence of witnesses by lying about a nonexistent blanket privilege of immunity smacks of hiding the truth. If Trump had blanket immunity it would be different, but the SCOTUS ruled, in Nixon’s case, there is no such thing. Trump is clearly obstructing justice. You have to ask yourself: WHY, if he did nothing wrong? You don’t have to be a lawyer to see through this charade.

    1. …see through this charade

      Actually, Americans finally have seen through the charade of the ideology hoisted upon them by your ilk. Thats really obvious and you refuse to go with the truth

      Americans no longer believe the US Congress
      Americans no longer believe the liberal media,
      Americans no longer believe Democrats in particular
      Americans no longer believe and have outright rejected progressivism.

      They chose a different direction; they chose Trump and your ilk is trying to undo their decision.

      Trump will most likely win 2020 because Sanders, Biden, Mayor Pete, etc are more of the same of DNC elites telling Americans how they hate America. Major Tulsi Gabbard would have been a wise choice but your DNC elitists feel threatened by an intelligent, attractive, decorated female war hero Army Officer. The joke is on you

      1. …for many Americans, the political process has indeed been revealed as a sham—a long time ago. After decades of elite incompetence and corruption, from illegal immigration to the Iraq war to Katrina, the housing crash and ensuing recession, the sluggish recovery and the dismal reality of Obamacare, Americans have plenty of reasons to think the Constitution has been trashed, voters have been ignored, and the entire political process exposed as a sham run by our elites for their benefit at the expense of everyone else.

        https://thefederalist.com/2020/01/22/as-the-impeachment-trial-begins-democrats-are-losing-their-minds/

    2. Since the House Democrats seem to believe that they have “an infallible case” against Trump, I guess they were not that interested in going to the trouble of issuing and/ or enforcing subpeonas for documents and testimony.
      If there is a more complete transcript of the Trump-Zelensky phone calls and they feel it might be incriminating, I guess they weren’t that interested in getting it.

  7. Even more concerning was the response of President Donald Trump when asked if abuse of power can be an impeachable offense. He responded that “it depends.” That is actually the correct answer….

    Bah. You’re as bad as Fox News and TMZ. Me thinks you love all of this political football. Nearby you wrote:

    I simply welcome the return to 18th century standards and lexicon

    Double bah. Youre more like Bluto in Animal House

  8. “The question is why build a defense around a flawed theory that it is so widely rejected, including by the Senate itself.”

    Because they have no other defense, besides having Trump’s lawyers lie about the facts.

    1. “Because they have no other defense, besides having Trump’s lawyers lie about the facts.”
      ****************
      Well there’s always the manifestly true argument that the complained of coercion never happened as everyone directly involved has stated over and over. It’s sort of like me charging you with downing the Hindenburg and then castigating you for not turning over your tax records. What do you have to hide enigma???

        1. Enigma:
          The witnesses are on the transcript. Trumps walking, you’re wrong and re-election looks brighter and brighter. What country are you moving to in 2020?

          1. I can think of a few witnesses with relevant information that Trump wouldn’t allow to testify, though the ones that did come forward were damning. Although every remaining witness is quite capable of lying their ass off as they have during Trump’s whole term thus far. Facing a potential perjury charge might cause them to tell the truth. Are you interested in what Bolton, Perry, Mulvaney, et al, have to say or would you rather nobody knows?

          2. I do agree with you that Trump will walk, given the lack of spine of Republican Senators. But the country is hearing all about his behavior. And after impeachment, we can still look forward to hearing about his finances and the Summer Zervos deposition and the criminal case against the Trump Organization. If you think this is over in a couple weeks, you’re so wrong.

            1. Enigma:
              Sore losers are constant losers. Let em whine for 5 more years while Trump destroys the globalists, builds the wall and restores America. I’m hoping for the indictments from Durham to start soon. Love it when small rats eat big rats to get leniency. Can you imagine a reinvigorated Trump with both Houses, SCOTUS and the Dims scurrying from a rout. Not heaven but close.

          3. Mespo has already been corrected on his ignorant assertion that the phone call was the only event in the month long effort of Trump to shakedown Zelensky, which of course was completely consistent with those efforts.

      1. Another ignorant comment by Mespo on the facts of the case. The Ukrainians knew of the hold by the July 25 phone call. If had the gonads he would benefit by watching the House managers case. Fox “News” or wherever he gets his info is keeping him in the dark.

        1. bythebook – Schiff has been lying so much in his presentations that I would not lay any money on anything he said about the Ukraine.

  9. This spectacle has certainly been providing teachable moments for anyone watching. There’s a reason the Senate has specific powers that the House does not. And Pelosi’s impeachment crew are proving why voters need to have a voice every 2 years. They are coming off as primary school student council whiners trying to convince adults why free vending machines, unlimited recess and no homework are reasonable considerations. And they believe the parents watching this debacle are going to all side with the whiners. One thing is certain, this effort by the Democrat’s to influence the 2020 election will work, just not in their favor.

    1. And Pelosi’s impeachment crew are proving why voters need to have a voice every 2 years.

      Disagree. Almost none of them will lose their seats and few of their partisans object. We have a rotten political culture. Having legislators spend more time on fundraising isn’t going to improve it. High age thresh-holds to run for office and rotation-in-office rules, not biennial elections, might be beneficial.

      1. Almost none of them will lose their seats and few of their partisans object.

        Absolutely true. However I said they are proving why they need it. A 90% reelection rate proves the voters have no idea what to do with this information. It’s like a magician that exposes how he does his tricks and the audience is still applauding the deception.

  10. “As for ryme or reson, ye forewryter was not to blame,

    For as he founde hit afore hym, so wrote he ye same.”

    – John Russell, The Boke of Nurture, 1460
    __________________________________

    If juries paid any attention to laws, regulations and admonishments by judges, O.J. Simpson would be in the ground and Casey Anthony would be in prison.

    A communist (liberal, progressive, socialist, democrat) majority of 435 votes in the House were cast for zany political purposes to falsely impeach the President. A majority of 100 votes in the Senate will likely be cast to counter the hysteria in Congress. Elected officials vote one way; their singular path to reelection, regardless of irrelevant opinions. Nancy Pelosi et al. refuse to patriotically accept the 2016 election results, have politicized and weaponized the impeachment process and are engaged in crimes of their high offices as impeachable abuse of power, usurpation of power, subversion and treason. Nancy Pelosi and the DNC are, dangerously and at great risk, presenting a stage play of politics for the voters in November; nothing more and nothing less.

  11. Maybe a.shift will get all the hate out of his system. He has not seen a camera he didn’t like. So I say Adam keep going you look more like and idiot. All the time

  12. Does it really matter at this point. Consider no evidence worth spit on the two charges have been presented. Followed by the only defense Trump needs is the six word ability clause, Followed by or just presented it insured Obama after the fact or he wouldn’t have invoked it, There is NO way around it. However if used against Pelosi, Spiffy and Schumer they could use that defense. And that only requires the Judge to demand their presence as the accusers to face the accused. If they refuse it’s an automatic self conviction.

    1. There is plenty of evidence. Some of it is being withheld by the president and the Republicans are refusing to allow witnesses to be subpoenaed. Republicans are engaged in a coverup. As to the President’s comment, he means it Demond’s on whether I’m going to allow it or its a Republican who abused the power of the office. “It depends” is not an answer it’s a dodge!

      1. Correct. But there is plenty of evidence to convict regarding the Ukraine affair. Does anyone doubt the fact (the evidence) that Trump held up the Congress-approved military aid of $300 million dollars in order to try to extort from Zelensky a public statement that Ukraine would investigate the Bidens?

        Let the non-believing fools stand up and explain why that is not a high crime and/or misdemeanor under the Constitution.

        1. RDKAY:

          “Let the non-believing fools stand up and explain why that is not a high crime and/or misdemeanor under the Constitution.”
          *************
          Well you can read the OMB letter or use your head to conclude the basic civis that the Congress appropriates the money and the POTUS makes sure it’s used free of corruption. Either option requires firing neurons and that, based on your previous pompous proclamations and childish challenges, is in serious doubt. Still, I’m happy to play unlicensed fool to your raging Lear.

            1. RDKAY:

              “Mespo, it is very clear, cannot provide an answer to my question.”
              ****************
              You don’t have a question. You have an assertion masquerading as a question for which you will accept no contrary information and which you believe is the last word on the topic. It isn’t. You’re close-minded, blinded by hatred and unwilling to accept that organizations like the OLC, OMB and DOJ all say this was perfectly within Trump’s Article II powers.

              I don’t know what your background or employment is but you’re handicapping yourself refusing to even consider you’re wrong.

        2. But there is plenty of evidence to convict regarding the Ukraine affair.

          You may want to share that with the House managers, because they have gone begging the Senate for the opportunity to gather it.

          Does anyone doubt the fact (the evidence)

          Yes. The number is most certainly in the millions if not billions.

          Let the non-believing fools stand up and explain why that is not a high crime and/or misdemeanor under the Constitution.

          Because your feelings of the truth do not qualify as evidence of fact.

      2. The Republicans can not stop subpeonas from being issued for witness testimony or documents, Justice Holmes.
        It’s been pointed out numerous times that you have to go to the trouble of issuing those subpeonas, or enforcing them if they are challenged.
        The House Democrats failed to do that in multiple cases, and now seem to expect the Senate to do the incomplete House homework for them.

  13. Now Schiff is replaying a video from Trump’s campaign about Russia finding Hillary’s emails. They did well in choosing Schiff for this job because he has absolutely no shame. I can’t imagine being a senator on either side of the aisle and having to sit through Schiff re-reading a laundry list of everything he hates about Trump whether it has to do with the impeachment or not. I say let him run his mouth, as it will catch up to him eventually. He knows he is going to lose, so he’s going to use his time to do as much damage as possible. But, those watching will remember what a petty and disgusting little mite he is, and I’m not sure whining about stuff outside of the case will help you make the case. But, carry on…

  14. I am currently listening to Schiff throw every thing at Trump except the kitchen sink. Still, there is no underlying crime. As for depends, in this case, no.

    1. In a press conference today at Davos the President said: “But honestly we have all the material. “ “They don’t have the material,” he said, referring to the House impeachment managers. Just saying…obstruction. He has all the material but he won’t share. If they proved he was innocent wouldn’t he want to? Of course, he would. He obstructed their production. As a result, have a right to assume, as we would at trial, that they are NOT exculpatory!

      1. JH:
        The problem with your … er … theory is that he is under no legal duty to produce them. I have my Catholic school records and wish as you might to see them, I’m under no obligation to satiate your creepy inner desires.

        1. If he was innocent, it would be in his best interest. Criminals never have a legal duty to self incriminate but keep playing, you’ll catch on eventually.

          1. “If he was innocent, it would be in his best interest.”
            ***************
            Spoken like a babe-in-the woods undergrad not an adult with any life experience – legal or otherwise. It would be legal malpractice for a lawyer to say it.

            1. You like answering questions that aren’t asked, what does ”legal malpractice for a lawyer…” have to do with the populous recognizing that if you are innocent, you provide evidence to support your claim. Duh, I am sure you’ll frame your response with more non relevant bs since the facts don’t fit your truth.

                  1. That train left the station.

                    What train are you talking about? The innocent until proven guilty train? That was what my response regarded.

                    Evidence proved Trump guilty long ago.

                    Guilty of what? Evidence of what? Trump is guilty of triggering the Democrats to pursue impeachment. There is no evidence of crime. There is no crime included in the articles. The entire case has not gotten better than Schiff’s parody.

                    1. Solicited foreign help for personal help in a domestic election. High crime. Guilty of corruption. As far as the train, well, who is caught up in an impeachment “trial” where witnesses and documents are being blocked?

                    2. Solicited foreign help for personal help in a domestic election. High crime. Guilty of corruption.

                      Without actual evidence, it amounts to a thought crime. The Democrats thought by the way, not the President’s. There is actual evidence of a QPQ. There is actual evidence of corruption. There is actual evidence of abuse of power. There is an ongoing effort to influence the 2020 election. And when it’s finally time for the President’s legal team to present their case to the Senate, everyone, including the viewers at home, will finally have the opportunity to see who the real bad actors have been.

                      Grab some popcorn.

            2. In civil cases, which this is, failure to testify or provide available evidence may rightly be taken as counter to the argument of the person withholding it.

        2. If they proved he was innocent wouldn’t he want to? Of course, he would.
          __________________________________________
          Eventually yes but if Trump can get the Dems to make complete fools of themselves before releasing it would that not be an effective strategy?
          ________________________________________
          [we] have a right to assume, as we would at trial, that they are NOT exculpatory!
          ____________________________________________
          You have a right to assume anything but its kinda stupid to assume this.

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