The Johnson Fallacy: Why Dershowitz Is Wrong About The Prevailing Argument In the Johnson Trial

Below is my column in The Hill newspaper on the Andrew Johnson impeachment trial and its reliance by Harvard Professor Alan Dershowitz to support the argument that impeachable offenses must be based on criminal conduct.

Here is the column:

Oliver Wendell Holmes Jr. once observed that “lawyers spend a great deal of their time shoveling smoke.” If that is the case, the briefs filed by both sides in the impeachment of President Trump may be enough to give the nation emphysema. The briefs are filled with dubious factual, historical, and constitutional claims that seem directed more at the public than at the Senate. For the most part, such claims will dissipate with the fog of advocacy. However, one argument could have a more damaging impact.

The White House briefs appear structured around the claim, to be argued by Harvard law professor emeritus Alan Dershowitz, that the Constitution is literal in when it refers to “high crimes and misdemeanors” as criminal violations. So Dershowitz maintains, without an article of impeachment based on an actual crime, then there is no legitimate impeachment. For my testimony before Congress during the impeachment hearings of both President Clinton and Trump, I took the opposing view that a president can be impeached for a noncriminal act. This view is based on the history of impeachment in both England and the United States, where articles commonly included noncriminal acts. In England, impeachments were based on a wide variety of acts, including “mischiefs done to our Lord,” “pernicious advice to the crown” and “malversations and neglects.”

In the United States, the Framers adopted the English standard of “high crimes and misdemeanors,” but they warranted a higher standard so that a president would not be forced to serve “at the pleasure of the Senate.” Yet the Framers referred to nonpublic offenses, including violation of the public trust, as falling within the scope of the standard in the Constitution. Indeed, the majority of impeachments in the United States have contained noncriminal allegations. What is different in this case is that it is the first time a president has been impeached solely on noncriminal grounds. As I said in my testimony, that makes this a much more difficult impeachment, particularly on the rushed and incomplete record created by the House.

Notably, Dershowitz and I both believe that the case most relevant to the Trump impeachment is the 1868 impeachment of President Johnson, but for very different reasons. I testified that both impeachments were narrow and propelled by deep hatred for each president. Moreover, the Johnson impeachment was largely based on a trap door crime created specifically for him. Congress expected Johnson to fire his war secretary because of political differences, and lawmakers made it not just a crime but a “high misdemeanor” to do so. It was a manufactured crime for their malicious political purpose. The House has shown the same blind rage in the Trump impeachment, and its second article alleging obstruction of Congress by the president is as manufactured as the Johnson impeachment articles.

The House created arguably the shortest period of investigation in history for a presidential impeachment, and then declared that Trump had to turn over evidence and release witnesses in that brief time rather than litigate the underlying issues in the courts. President Nixon and Clinton both were able to litigate such claims all the way to the Supreme Court before facing impeachment in Congress. But Dershowitz is now relying on an argument made by Supreme Court Justice Benjamin Curtis in defense of Johnson.

Dershowitz claimed that Curtis “argued successfully to the Senate that criminal like conduct is required. That argument prevailed.” But I believe Dershowitz is mistaken in his interpretation of the argument, along with the basis for the acquittal of Johnson. First and foremost, Curtis primarily addressed the violation of the Tenure in Office Act, which no one denied as being statutorily defined as a criminal “high misdemeanor.” Indeed, it was clearly defined and Johnson himself knew he was committing it. He had rightfully believed that the criminal provision was unconstitutional.

It was that criminal violation which was the subject of all 11 articles of impeachment against Johnson, and most of the argument of Curtis. He declared, “As to those articles there is some law unquestionably, the very gist of that charge being that he broke a law.” It was only at the end of his argument that Curtis turned to the tenth article, which indeed drew the lowest vote in the House. It was an absurd collection of noncriminal acts, which Curtis referred to as “extraordinary peculiarities” such as bringing Congress “into disgrace, ridicule, hatred, contempt, and reproach,” as well as making “with a loud voice certain intemperate, inflammatory, and scandalous harangues.” Curtis rightfully ridiculed the articles as evidence that the House “erected itself into a school of manners” in the process.

Johnson was saved by seven Senate Republicans who switched sides to reject his illegitimate impeachment. It was not due to the absence of a criminal allegation but due to the manufactured quality of the charges. The underlying conduct did not warrant conviction as a high crime and misdemeanor. While Curtis argued that the language of the Constitution mirrored criminal lexicon, his statement that it “designated impeachable offenses as offenses” was meant to argue that the Senate should consider itself a court rather than some heated political forum on impeachment.

The most powerful argument made by Curtis concerned his attack on the criminal allegation itself as a crime created solely to impeach Johnson. That was the position that had “prevailed” rather than an argument that impeachment cannot include any noncriminal allegations. Not only do I believe the interpretation of the Johnson trial is fundamentally mistaken, but it is a mistake to ask senators to base their votes on such a widely rejected theory. Impeachments can be based on noncriminal acts, but that does not mean the noncriminal acts in this case are impeachable.

Furthermore, Trump should not wish to prevail on such a flawed theory, leaving history to debate whether he was acquitted on the weight of the evidence or on an erroneous interpretation. There are ample reasons to vote against this impeachment. The witnesses who testified along with me in the House impeachment inquiry described the case against Trump as an “attempt to abuse power.” It is already difficult enough to bring a purely noncriminal impeachment, but to do so on an attempt at abuse of power raises serious concerns over the subjectivity and fluidity of such claims.

So that is the true meaning of the Johnson trial. It was an impeachment formed in rage and devoid of all reason. Indeed, it was the fourth such attempt to impeach Johnson and his leading opponent, Representative Thaddeus Stevens, confronted reluctant House members by demanding, “What good did your moderation do you? If you do not kill the beast, it will kill you.” They responded by impeaching Johnson on trumped up charges. Ultimately, what began as a disgrace for the House turned into one of the finest moments for the Senate when those seven Republicans upheld their oaths and decided to cross the aisle and acquit a president they despised.

The Johnson impeachment showed us that even criminal acts can be rejected as falling short of the standard of the Constitution. Before his trial, Johnson declared, “Let them impeach and be damned.” He was right. Had the Senate convicted him, we would have invited endless contrived impeachments. That is the argument that “prevailed” in the Johnson case.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.

114 thoughts on “The Johnson Fallacy: Why Dershowitz Is Wrong About The Prevailing Argument In the Johnson Trial”

    1. The Obama Coup D’etat in America is the most egregious abuse of power and the most prodigious scandal in American political

      history.

      The co-conspirators are:

      Bill Taylor, Eric Ciaramella, Rosenstein, Mueller/Team, Andrew Weissmann, Comey,

      Christopher Wray, McCabe, Strozk, Page, Laycock, Kadzic, Yates, Baker, Bruce Ohr,

      Nellie Ohr, Priestap, Kortan, Campbell, Sir Richard Dearlove, Steele, Simpson,

      Joseph Mifsud, Alexander Downer, Stefan “The Walrus” Halper, Azra Turk, Kerry,

      Hillary, Huma, Mills, Brennan, Gina Haspel, Clapper, Lerner, Farkas, Power, Lynch,

      Rice, Jarrett, Holder, Brazile, Sessions (patsy), Nadler, Schiff, Pelosi, Obama et al.

    2. All roads lead to Obongo.

      The problem is that the Deep Deep State arbitrarily and summarily ensconced the eminently ineligible Obongo and would likely embarrass itself among tyrannical regimes and despots if it were compelled to admit the truth; the facts.

      To be sure, Obongo, the son of a foreign citizen, was a foreign, direct or indirect, witting or unwitting, agent, not a “natural born citizen” and ineligible for that very reason. Obongo’s culpability is that, as a constitutional scholar, he knew, obstructed and concealed that crucial fact.

      Barack Obama will NEVER be eligible to be U.S. president.

      Barack Obama’s father was a foreign citizen at the time of his birth.

      – A “citizen” could only have been President at the time of the adoption of the Constitution – not after.

      – The U.S. Constitution, Article 2, Section 1, Clause 5, requires the President to be a “natural born citizen,” which, by definition in the Law of Nations, requires “parents who are citizens” at the time of birth of the candidate and that he be “…born of a father who is a citizen;…”

      – Ben Franklin thanked Charles Dumas for copies of the Law of Nations which “…has been continually in the hands of the members of our Congress, now sitting,…”

      – The Jay/Washington letter of July, 1787, raised the presidential requirement from citizen to “natural born citizen” to place a “strong check” against foreign allegiances by the commander-in-chief.

      – Every American President before Obama had two parents who were American citizens.

      – The Constitution is not a dictionary and does not define words or phrases like “natural born citizen” as a dictionary, while the Law of Nations,1758, did.

      ________________________________________________________________________________________________________________________________________________________________________________________________

      Law of Nations, Vattel, 1758

      Book 1, Ch. 19

      § 212. Citizens and natives.

      “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.”

      ________________________________________________________________________________________________________________________________________________________________________________________________

      Ben Franklin letter December 9, 1775, thanking Charles Dumas for 3 copies of the Law of Nations:

      “…I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author…”

      ________________________________________________________________________________________________________________________________________________________________________________________________

      To George Washington from John Jay, 25 July 1787

      From John Jay

      New York 25 July 1787

      Dear Sir

      I was this morning honored with your Excellency’s Favor of the 22d

      Inst: & immediately delivered the Letter it enclosed to Commodore

      Jones, who being detained by Business, did not go in the french Packet,

      which sailed Yesterday.

      Permit me to hint, whether it would not be wise & seasonable to

      provide a strong check to the admission of Foreigners into the

      administration of our national Government, and to declare expressly that the Command in chief

      of the american army shall not be given to, nor devolved on, any but a natural born Citizen.

      Mrs Jay is obliged by your attention, and assures You of her perfect

      Esteem & Regard—with similar Sentiments the most cordial and sincere

      I remain Dear Sir Your faithful Friend & Servt

      John Jay

  1. At home we have been busy with our usual weekend chores. The day is gorgeous tho’.
    Hope everyone is enjoying their weekend with family, friends, a great economy, liberties and the best country in the world

    🇺🇸

    …..

    “Even DC is ignoring impeachment: 63% have watched ‘none’ of trial”

    According to an online “InstaPoll” from Fox 5, a whopping 63% haven’t watched a lick of the trial.
    Another 22% are watching “some.”
    And 15% check in for “updates,” but from the “news,” not the televised trial.
    Those poor ratings echo Nielsen data that found daily soap operas twice as popular as the impeachment trial.

    – Wash Examiner

    1. Wait. Liberties?

      Are you referring to the liberty to pay massive taxes, even ridiculous non-taxes such as the corporate tax which is not paid by corporations but by the customers of corporations, on the orders of the “dictatorship of the proletariat” to effect unconstitutional communist, socially engineered redistribution of wealth?

      That is not the “liberty” of the American Founders.

  2. JT, please look at what is happening to the First Amendment. It is happening right now, in plain sight. This will effect even you and your family. Wealth is no shield from this lawlessness.

    “After the US has stated that it will deny Julian the protection of the 1st Amendment and will put him under Special Administrative Measures, there has never been a more important time for all lawyers with a conscience to join #Lawyers4Assange. Write to Lawyers4Assange@gmail.com

  3. Let’s talk about the advice and consent of the Senate. The consent part means that the senate will decide if there is a meeting, or any foreign contact in the name of the United States. The advice part means the senate decides the content of those meetings, the parameters of all decisions, and what constitutes an agreement based upon those discussions.

    So unless the President is just talking about the weather, then he must contact the Senate for their consent, and after receiving their consent they must also provide their advice for what they want out of those meetings. If the President doesn’t get this consent and advice from the senate prior to the contact with the foreign entity, then the President is in violation of Article 2 Section 2 Clause 2 of the Constitution and is subject to impeachment and removal from office for this act of insubordination and disregard for the Power and authority of the united States, in Congress assembled, as they are assembled in the Senate to make all decisions of foreign relations and policy!

    It’s not the content of the meetings Trump had with Ukraine, it’s the fact that he made the contacts without the Consent of the Senate. By and With means Before and During, not After!

    There is nothing Partisan or Political about the violation of Article 2 Section 2 Clause 2 of the Constitution, and it’s not a partisan decision to impeach and remove any Government Official for violating these conditions placed upon executive powers, up to and including the President!

        1. Thus you would have preferred the phone call to have proceeded like in the film the Right Stuff

          Reporter: I’m going to place a long distance call to Los Angeles.
          Air Force Major: [resets the phone] Who are you calling?
          Reporter: The press! This is big news! The sound barrier’s finally been broken!
          Air Force Major: No, sir, no press!
          Reporter: What?
          Air Force Major: No word of this going beyond the flight-line!
          Reporter: [inserts a coin] Hey, come on, now! This is big news! We need coverage for this!
          Air Force Major: No, sir, sorry! No press! Those are orders. National security.
          Reporter: But the war’s over!
          Air Force Major: Well, look, pal. Maybe they don’t want someone to know.
          Reporter: Who?
          Air Force Major: The Russians, maybe.
          Reporter: The Russians?! They’re our allies!
          Air Force Major: Well, anyway, somebody wanted it that way. And that’s the way it is.

        2. Executive Branch.

          Legislative Branch.

          I’m thinking the executive executes like an executive and the legislative deliberates and approves or legislates; makes legislation.
          ________

          Executive

          Merriam Webster

          executive adjective

          ex·​ec·​u·​tive | \ ig-ˈze-k(y)ə-tiv
          , -kyü- \
          Definition of executive

          2a : designed for or relating to execution or carrying into effect executive board
          b : having administrative or managerial responsibility executive director

          from ex- “out” (see ex-) + sequi “follow” (from PIE root *sekw- (1) “to follow”).

          The executive branch leads per the Constitution and legislation, after which the nation follows.
          ________________________________________________________

          Legislation

          Merriam Webster

          legislate verb

          leg·​is·​late | \ ˈle-jə-ˌslāt
          \
          legislated; legislating
          Definition of legislate

          intransitive verb
          : to perform the function of legislation specifically : to make or enact laws

          From the Latin: lex – law and latio – affording

          1. The definition of legislative is decision making, if you go further in your efforts past finding a definition that suits your purposes then you will find the definition that defines the intent of Article 1 Section 1 of the Constitution; “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”, and just in case you were wondering “ALL MEANS ALL”, therefore all authority to make decisions in this country is granted to the united States, in congress assembled, just as it has since the Declaration of Independence, which I would suggest you consult, and the Articles of Confederation too, where it explicitly grants all decision making to the united States, in congress assembled; the Constitution, and the Articles of Confederation before it, explicitly define all protocols, principles, and laws, not laws like; if you break this law you are going to jail, but the laws of physics like; if you break this law the wing is going to fall off or the bridge will collapse, meaning they are laws of assembly not society, which defines the assembly, distribution of Suffrage to reach Majority Consensus, and what constitutes a Majority Consensus for every category of decisions to be made by the united States, in congress assembled.

            Yes, I intentionally wrote one sentence just to upset your sensibilities!

            Just in case you were wondering, all the bridges that unite the States into a Union have collapsed, and more than just the wings have fallen off our Government.

            1. You deny that there are three branches, albeit with various powers: The Legislative, Executive and Judicial. The legislative sets the parameters, the executive takes the actions and judicial decides if the parameters and actions comport with law and fundamental law. In a republic, ultimate power resides in the people entitled to vote and the ultimate power is that of impeachment, conviction and removal of all officers of the United States and elections. The president puts forth proposals regarding foreign relations or appointments and the legislative branch advises and consents. European explorers would captain their ships and traverse the globe. They would ultimately return to the crown that funded them with successes or failures and be judged by the crown either favorably or harshly.

              1. I don’t just deny that we have three coequal branches of government, I state that we definitely do not have three coequal branches of government, and I dare you to find a single reference in the constitution which supports this interpretation.

                Article 1 section 1 gives all power and authority to Congress, period. Article 2 defines the subordinate role of the executive and puts the executive directly under the control of Congress, and Article three designed the judicial department for dispute and conflict resolution between the States or a state(s) and the Union as original jurisdiction.

                That is all the constitution says and that’s All the constitution established.

                The two coequal branches of government are the House and Senate, the assembly of the States by two distinct modes of assembly with corresponding rights of suffrage to reach majority consensus!

                The Bicameral Legislature is the More Perfect Union where the States are assembled to make all the decisions of Their Union!

    1. White House Secretary: Mr. President, President XYZ is on the phone and would like to speak with you.
      POTUS: Unless he is calling to discuss the weather, put him on hold until I get permission from the Senate.

      Wow! Yeah? No. I certainly hope your comment was intended as sarcasm, because if this is your actual understanding of the Article II powers, you would be hard-pressed to pass a middle-school civics examination.

      1. Absolutely not, if a foreign government official calls the President the President has the authority to take his call and discuss whatever is on their mind, but when it crosses into the area of negotiations or expressing the position of the United States, then that is when he must bring the topic to the Senate for their consideration and their advice and consent for their interest and the position of the United States.

        I know you probably don’t read but Jay covered this topic in full in Federalist #64, including the topic of secrecy and where the secrecy of initial discussions ends and where the power and authority of the Senate takes over.

        But, it’s just John Jay, our first Chief Justice of the Supreme Court, what he says doesn’t matter, we can disregard him and do what we want!

        My comment meant that the President has absolutely no right or authority to contact a foreign government to discuss anything in the name of the United States without the consent of the Senate, but he does act as the point of contact for foreign governments, but he has to bring those matters to the Senate for their consideration.

        1. My comment meant that the President has absolutely no right or authority to …

          Purpose and Intended Audience of the Federalist Papers:

          In a letter written late in his life, James Madison succinctly explained the purpose of the Federalist Papers: “The immediate object of them was to vindicate and recommend the new Constitution to the State of New York, whose ratification of the instrument was doubtful, as well as important.
          source below this text

          They were intended to persuade the voters of New York as to why they should ratify the US Constitution. You use them otherwise and that is unfortunate.

          Maybe you should take up gardening, a musical instrument or mindfulness therapy?

          POTENTIAL GROUNDS FOR IMPEACHING CLAIMS ABOUT THE ORIGINAL MEANING BASED ON THE FEDERALIST PAPERS

          1. Delegates to the state ratifying conventions could not or did not read many of the Federalist Papers.

          2. The Federalist Papers may not have been persuasive to the ratifiers.

          3. The Federalist Papers are often self-contradictory.

          4. Hamilton and Jay are not ideal expositors of the original intent of the Framers.

          5. The secrecy of the Constitutional Convention makes the Federalist Papers an unreliable source of the original intent of the Framers

          6. Statements in the Federalist Papers often conflict with other sources.

          7. The Federalist Papers provide questionable evidence of the original objective meaning of the Constitution because partisan bias may have influenced the authors’ choice of words and phrase

          8. The Federalist Papers were not treated as an authoritative exposition of the meaning of the Constitution in the early years of the Republic.

          9. The Federalist Papers were not written to provide a definitive interpretation of the Constitution, but instead to address the question of whether the Constitution should be adopted.

          Gregory E. Maggs, Judge, US Court of Appeals
          Professor, George Washington University Law School
          https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1821&context=faculty_publications

        2. but when it crosses into the area of negotiations or expressing the position of the United States, then that is when he must bring the topic to the Senate for their consideration and their advice and consent for their interest and the position of the United States.

          I suggest you re-revisit #64. The topic regards treaty-making authority of the Senate. The President has the Article II authority to negotiate with foreign governments, but the President must pursue the advice and consent of the Senate to actually make a treaty.

          From #64:
          The convention have done well, therefore, in so disposing of the power of making treaties, that although the President must, in forming them,[treaties] act by the advice and consent of the Senate, yet he [President] will be able to manage the business of intelligence in such a manner as prudence may suggest.

          From #75
          The qualities elsewhere detailed as indispensable in the management of foreign negotiations, point out the Executive as the most fit agent in those transactions; while the vast importance of the trust, and the operation of treaties as laws, plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.

          From #69
          It is a circumstance which will be without consequence in the administration of the government; and it was far more convenient that it should be arranged in this manner, than that there should be a necessity of convening the legislature, or one of its branches, upon every arrival of a foreign minister, though it were merely to take the place of a departed predecessor.

          1. Funny that you stopped where you did, because the following words of Jay clearly contradict the point you are trying to make. Try again, you haven’t proven anything that would suggest that the president can act without the advice and consent of the Senate. It would be insane for the States to empower one person to do anything in their name over their power and authority.

            Get real!

            1. Try again, you haven’t proven anything that would suggest that the president can act without the advice and consent of the Senate.

              That would be because I haven’t even remotely made an attempt to suggest that. This issue regarding Advice and Consent in this context is regarding the act of making treaties. Negotiations are not treaties. Moving from there to the act of formalizing a treaty requires advice and consent of the Senate. Until that latter stage, the executive does not need to loop in the Senate.

              It would be insane for the States to empower one person to do anything in their name over their power and authority.

              That insanity occurred during the last administration. Obama even got a standing ovation from the Democrats during a SOTU, proving that insanity.

              Next time you want to reference the words of another, use their actual words and not your interpretation.

          2. Since I know you won’t go further because it disproves you’re point, I have taken the liberty to provide the excerpt which is appropriate to this discussion;

            Federalist #64 Jay, The Powers of the Senate”

            “Those matters which in negotiations usually require the most secrecy and the most despatch, are those preparatory and auxiliary measures which are not otherwise important in a national view, than as they tend to facilitate the attainment of the objects of the negotiation. For these, the President will find no difficulty to provide; and should any circumstance occur which requires the advice and consent of the Senate, he may at any time convene them.”

            Hopefully you can comprehend his meaning without too much difficulty.

            1. Not a problem. I read it and comprehended it before you posted it.

              You haven’t just “revisited” the Federalist Papers. You’ve rewritten them to your satisfaction. Your version is hideous.

                1. Dear diary,
                  I just love you, you are so arrogantly ignorant, and even when the evidence to the contrary of your arguments is staring you in the face, you still claim your assessment is correct.

                  There, FIFY. You’re welcome.

                  1. Olly, And the crowd roared!!!

                    But the Leeds Mummy, Nesyamun, could only muster “eeuuughhh”

                    Some “vocal tract”.

                    Yes, Darren, you are right in your assessment on how “scientists” and others in society take liberties with the dead. The first thought that crossed my mind about the Nesyamun “voice tract” was lack of consent. No researcher or physician today would touch a body, dead or alive, if consent were not obtained.

                    Had they used the body of Hillary Clinton, though….

                    “eeuuughhh, eeuuughhh, eeuuughhh“

                    😉

            2. The U.S. Constitution holds dominion and the Federalist Papers do not bear and have no weight or force in the United States.

              The only reference to limitations on time or any chronology of events regarding treaties and appointments is that which allows the President to fill vacancies “…during the recess of the Senate,…”

              The President submits treaties and appointments at his pleasure and convenience and the Senate approves or denies them thereafter.
              _____________

              Article 2, Section 2, Clause 2 & 3

              He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.

              The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.

    2. The Senate must advise and consent to MAKE TREATIES, NOMINATIONS and APPOINTMENTS after the President delivers the particulars of those matters to the Senate.

      A222 does not restrict the President in any other aspect of foreign relations such as meetings and negotiations.

      1. By and with means Before and during not after, I don’t care what kind of semantics you want to use, it’s clear what the President shall have Power, by and with the advice and consent of the Senate, to make Treaties, provided 2/3 of the Senators Present Concur. What part of that conditional statement don’t you understand? It doesn’t say the President makes the treaties then comes back to the senate for their ratification, it says that the senate will consent to and participate in the making of the treaty, unless you learned to read some other language other than English!

        1. fpr,

          I’m not sure which personality to respond to – the black or the red. I’ll make it the top; the first. You are simply being argumentative and adversarial for argumentative and adversarial’s sake. That makes you an expletive. The President is the head of the executive branch. The Senate is part of the legislative branch. I’m gonna take a wild guess that the legislative branch supports or disapproves (i.e. veto) the executive branch on the treaties, ambassadorships and appointments and the executive branch supports or, occasionally, vetoes the bills of the legislative branch. Foreign relations are conducted by the executive branch and approved or disapproved by the legislative branch making the effort of the executive branch first and primary. The Senate has no power to conduct foreign relations.

          1. There is no executive branch, and the Senate is a branch of the Bicameral Legislature, and there is no separation of powers between the Executive Department and the Legislative Department, the Executive Department is under the control and authority of Congress at all times.

            Executive authority consist of implementing laws as legislated by Congress, overseeing those laws in practice and giving feedback to Congress as to their effectiveness, acting as the head of State to receive foreign dignitaries, acting as the point of contact for foreign governments, acting as the negotiator for foreign interactions and agreements, acting as the headhunter to fill vacancies in the Executive and Judicial Departments, and to manage the day to day operations of the government. But in all cases these executive powers are conditionally based upon the decisions made by the united States, in congress assembled, the Union, the Union which makes our Country the United States of America.

            Separation of Powers refers to the separation of the powers of the States as they are assembled by the principles of republican Government In the House of Representatives from those of the States as they are assembled by the Federal Principle in the Senate. Checks and Balances also refers to this dual mode of assembly and distribution of Suffrage to reach Majority Consensus. The Senate was designed also to act as the stabilizing force in our Government by granting the Senate the power of concurrence over all laws and all treaties, and they designed in Continuity and Stability of Government through the mode of assembly of the Senate, the term lengths of Senators, and the offset of senatorial elections.

            The Federal Government is the united States, in congress assembled, not the President’s assembled Administration, and the assembly of the Federal Government was rendered unalterable by Article 1 Section 2 Clause 1 of the Constitution; “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”, which forces a direct dependance on the State legislature’s, the people of each State in their collective capacity, which assembly is defined in each State’s own Constitution which is unalterable by State or Federal laws or Statutes, and is unalterable by amendments to the Federal Constitution, leaving the only way to alter this part of the Constitution is for each State to alter their own constitution’s which would deny them Rights they are entitled by the Federal Constitution.

            The Constitution was written in a way that it is unalterable and the Articles cannot be Amended, as a review of the first 11 amendments will attest to because they neither amended or altered any part of any of the Articles of the Constitution, and even the 12th Amendment actually didn’t fundamentally change Article 2 Section 1, it only compelled the electors to indicate their choice of President and Vice President on their ballots, but every amendment after the 12th violates the multiple parts of the Constitution, Article 5 being the least among them. and therefore are invalid.

            Yes, even the 13th amendment is improper, if they had just said that Slavery was abolished throughout the Union, which they could have done by Law or Statute, which would have been valid as an amendment to the constitution, but they took the further inappropriate step of saying that slavery could still be used as a punishment upon conviction of breaking the law, which quickly was abused by convicting persons to return them to slavery.

            You may be an educated person, but you have no capacity of seeing the big picture, and spend too much time trying to be right about insignificant Symantec interpretations which support your partisan views.

            Remember, this is the United States of America, and the States are assembled in Congress to make all the decisions of their Union.

            1. When did you develop these psychiatric problems and why are you not taking your psych meds?

              You really need to get a handle on these antics

      2. Why would the president have a meeting and what would the president be negotiating, if the Senate didn’t think it was 8n the interest of the United States. If the President wants to talk about the weather, or his next golf outing, then knock himself out, but if it concerns the United States, then he must get the consent of the Senate first, that’s what by and with means, and their consent is conditional on a 2/3 majority Consensus of the Senators Present, that means that there is no possibility of partisan negotiations for partisan policy.

        I’m loosing respect for you, if I had any to start with!

  4. How is it OK that Senators Warren, Sanders and Klobuchar are voting in a trial to impeach their likely opponent in the 2020 election? They have a clear conflict of interest. Shouldn’t they be required to recuse themselves?

    1. The selection of the President has no declared candidates or opponents. Try reading Article 2 Section 1 or the 12th Amendment and tell me where the President has the inside lane for re-election or that all others that are considered are opponents of the sitting president.

      I swear no one can read and comprehend the English language. Reading between the lines is not a tool of comprehension, especially when you are adding content that doesn’t exist and is inappropriate.

    2. @Federalist- Each of them – Warren, Sanders, and Klobuchar – have an obvious personal interest in the outcome. Their votes will be forever tainted.

      Oh, and I forgot Michael Bennett.

      1. All may have a personal interest in the outcome, but we don’t have any obligation to be interested in them, none of them. Article 2 Section 1 and the 12th Amendment were both written in a way which prevents declared candidates, party nominations, the participation of sitting representatives, and even the States themselves in the initial selection of candidates for president, then and only after the candidates are identified by the electors, the The States make the final selection if no person received the votes of a majority of the electors, in a vote by State, 1 vote per State, and a majority is necessary to the Choice.

        This includes the sitting President who has absolutely no advantage for re-election, the electors must place his name on one of their ballots for him to be reconsidered just like everyone else considered for the office of President or Vice President (The President of the Senate).

        And if you are so ignorant that you cannot read and comprehend the processes established in Article 1 Section 2 or the 12th Amendment, then your partisan allegiance has definitely diminished your ability to reason!

  5. Not literal? So we don’t have the right to free speech? own guns? due process? etc…
    Turley’s reaching, for what, no one knows. Setting a dangerous precedent.

    1. Not taking the constitution literally, is the main reason the country is so screwed up, the “I do what I want” attitude. The FED, the abdicating of powers to other branches, the spying, the illegal wars ………………..

  6. Jonathan Turley has the right of it. Or, at least, agrees with Alexander Hamilton in The Federalist papers.

  7. When America considers impeachment for “…Treason, Bribery, or other high Crimes and Misdemeanors,” the most deserving, prominent and recent candidates are Ruth Bader Ginsburg and Barack Obama, aside from much of the rest of the judicial branch, with emphasis on the Supreme Court, and much of the legislative branch.

    Ginsburg committed a clear act of treason by disparaging America in a foreign country to a foreign audience. Ginsburg adhered to enemies [of the Constitution] and gave them aid and comfort. Ginsburg holds such contempt for America and its Constitution that she said, “I would not look to the U.S. Constitution, if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa. That was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, have an independent judiciary. It really is, I think, a great piece of work that was done.” Further, Ginsburg said, [nations] “should certainly be aided by all the constitution-writing that has gone on since the end of World War II,” “why not take advantage of what is else there in the world,” “I’m a very strong believer in listening and learning from others,” and “the notion that it is improper to look beyond the borders of the United States in grappling with hard questions has a certain kinship to the view that the U.S. Constitution is a document essentially frozen in time as of the date of its ratification,”

    Obama committed a clear act of war and treason, and other crimes of high office by declaring a conspiracy (i.e. we) to transform the fundamental condition of America – the fundamental law – the Constitution of the U.S. – when he said, “We are five days away from fundamentally transforming the United States of America.” Presuming the United States conformed to its Constitution, “fundamental change” must include abrogating fundamental law. Obama’s declaration was an absolute act of war to effect “regime change” in the U.S. Obama adhered to the enemy, Iran, which has conducted acts of war against America for 41 years, and gave them aid and comfort as he allowed them to produce nuclear weapons of mass destruction to be used against America and its allies, and he delivered $1.5 billion in cash which Iran used for acts of terrorism as acts of war.
    ____________________________________________

    Article 3, Section 3

    Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

  8. When the media talks about “the Johnson trial” they should use his first name. Some people think that Lyndon Johnson got impeached. When the word “impeached” is used it should be said “articles of impeachment charging the President…” and when it goes to the Senate they should say “impeachment trial”. People think that Nixon got convicted at a Senate impeachment trial because the media says Nixon was impeached.

    Also. The photo of Andrew Johnson is the ugliest photo of a President that I have seen. If Hillary had won her photos would be the ugliest. Especially the one used on this blog often.

    As far as Johnson Presidents are concerned, I am all the way with LBJ.

    1. As far as Johnson Presidents are concerned, I am all the way with LBJ.

      What is your location? I need to report to the CDC that I have found an American imbibed with Corona Virus. You could have prevented it by using lime

    2. LBJ is the one who should have been impeached for profiteering off of Viet Nam at the cost of our young troops. He was my mother’s history teacher and she and everybody else couldn’t stand him. He was a sicko slob. she said.

      1. “He was a sicko slob. she said.”

        LBJ was to be indicted, prosecuted and imprisoned for the Billy Sol Estes crimes. That threat was eliminated when LBJ, J. Edgar Hoover, John Foster Dulles, Carlos Marcello, the FBI, CIA, NSA, ONI, Mob, Cuban exiles, the Texas Oilmen et al. conspired to assassinate JFK and cover it up. LBJ was a corrupt crook, philandering, criminal conspirator and murderer.

  9. Notably, Professor Turley reaches his conclusion that noncriminal and “non-criminal like” offences are impeachable by ignoring former Justice Benjamin R. Curtis’s statement that “[W]hen the Constitution speaks of ‘treason, bribery, and other high crimes and misdemeanors,’ it refers to, and includes only, high criminal offences against the United States, made so by some law of the United States existing when the acts complained of were done, and I say that this is plainly to be inferred from each and every provision of the Constitution on the subject of impeachment.” TRIAL OF ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES ON IMPEACHMENT 409 (1868). Professor Turley also does not address the fact that the use of the word “other” to link “high crimes and misdemeanors” with “treason” and “bribery” is indicative of the types and seriousness of conduct encompassed by “high crimes and misdemeanors.” Nor does he consider that the ratifying conventions tended to limit the scope of impeachable offences to actual criminal or even gross criminal behavior.

    1. As an aside, I’d also like to point out that Justice Benjamin R. Curtis also deserves to be held in high regard in American history as one of the two dissenters in the 7-2 Dred Scott (1857) decision, wherein the Supreme Court ignominiously ruled that black people are “property” and “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

      1. Were that it is true, Justice Benjamin R. Curtis must have been impeached, convicted and removed for egregious nullification of a legislated Act of the U.S. Congress, Senate and Presidency and the U.S. Constitution, gross dereliction, gross negligence, abuse of power, usurpation et al.

        Law, statute law and fundamental law don’t exist to be deliberately misconstrued and transformed into vessels of pity, empathy and sympathy. Courts are not legislating or commiserating, they are assuring that actions comport with law, statute law and fundamental law.

        British-cum-American slaves were “property” as established by British law, receipts, deeds of sale and recordings. The slaves certainly knew that they were “property.” Upon the issuance of the unconstitutional Emancipation Proclamation, the status of slaves changed from “property” to “illegal alien,” and, understanding that the Naturalization Act of 1802 was in full force and effect requiring citizens to be “…free white person(s)…,” freed slaves could not become citizens and must have been immediately deported by law.
        _____________

        “…courts…must be to declare all acts contrary to the manifest tenor of the Constitution void.”

        “To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        – Alexander Hamilton

        1. Your comment is unclear. But you seem to be saying that Justice Benjamin R. Curtis, one of the two dissenters in the ignominious Dred Scott decision, was not following the law, but that the seven justices voting against Dred Scott were following the law. If that’s what you’re saying, then you’ve never seriously examined the case. The Dred Scott decision was a political decision, not a genuine legal one. All seven justices voting against him were known pro-slavery advocates. That bias was then applied in their intellectually dishonest “interpretations” of the law.

          Rather than following the applicable law, the majority in the Dred Scott case, instead, ruled that the existing law was unconstitutional. So, for example, when it came to an interpretation of the famous phrase from “The Declaration of Independence” (July 4, 1776) that “all men are created equal,” the majority wrote that Dred Scott must be excluded because the framers did not intend “all men” to include non-White men and that they didn’t mean what they actually wrote.

          However, from among the framers, most historians credit Thomas Jefferson with that phrase and one of the most famous sentences in the English language: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” And Jefferson was very much influenced by the writings of Thomas Paine, who was originally persuaded to come to the “New World” by Benjamin Franklin. In Paine’s “Common Sense” (January 10, 1776), Paine wrote that, “all men being originally equals, no one by birth could have a right to set up his own family in perpetual preference to all others for ever,” which coupled a statement of original equality with rejection of hereditary authority. Consequently, there was an inconsistency between that idea and the institution of slavery because a slave’s status was inherited, and consent had nothing to do with the authority of masters. Therefore, if the intent of the framers is analyzed, they did, indeed, mean what they wrote that “all men are created equal,” with “all men” standing for all of humanity.

    2. Congress may only impeach the president for crimes of high office. A crime is a violation of a code. The qualification, crime of high office, deliberately omits and, thereby, excludes, crimes of low office, general crimes and any crimes that are not only, solely and singularly of high office. Assault, battery, murder, robbery et al. are not crimes that can be perpetrated only, solely and singularly by holders of high office. Congress may not impeach the president for assault, battery, murder, robbery or similar crimes because those can be perpetrated by members of the general population and those crimes cannot be perpetrated only, solely or singularly by holders of high office. To impeach, Congress must establish a code related to high office and a violation of that code. The Supreme Court may be brought in to determine the existence or absence of a code and a potential violation.

      1. Congress can impeach for anything they want, they can define the reasons for impeachment any way that they want, they can impeach anyone they want, and then they can remove anyone they want, and there is nothing the Supreme Court or anyone else can do to Stop them, because it is a decision of the States and it’s by vote, and the requirements for majority Consensus are stipulated in the Constitution, and as long as they reach majority consensus according to the mode of assembly for impeachment and removal, there is nothing anyone can say and it cannot be reversed for any reason.

        However, if a crime has been committed then Congress can turn the person over to the criminal justice system, and then they have all the rights they need to defend themselves to avoid criminal conviction and criminal penalties, but that is not required in the impeachment process.

        The States as the Union can do what ever they want as long as they do it together and meet the requirements for majority consensus, and there’s nothing anyone other than the States themselves can do about it!

        1. Treason, bribery or any and all “…other…”

          “…high crimes…”

          “…high misdemeanors.”

          “…high office…”

          “…crimes of high office…”

          “…misdemeanors of high office.”

          “…not crimes of low office or those that can be committed by the general population.”

          Congress is provided the power by the Constitution to impeach all Civil Officers for Treason, Bribery, or other crimes of high office and misdemeanors of high office. Congress has no power to impeach any Civil Officers for crimes of low office or crimes that can be committed by members of the general population, such as assault, battery, robbery or murder.

          Article 2, Section 4

          The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

          1. Who decides what amounts to a high crime and misdemeanor, the States themselves, the States which have the authority to make the decisions of impeachment and removal, and since it is a vote by State to make both decisions, it means that the States can impeach and remove for anything they want and they don’t have any oversight which can overturn their decision no matter how they interpret that clause, not even the Supreme Court, the protocols for what constitutes a Majority Consensus for each decision is established in the Constitution and cannot be overturned for any reason!

            That’s what it means that the House has all authority for impeachment and the Senate has all authority to try all impeachments!

            Learn to read!

        2. However, if a crime has been committed then Congress can turn the person over to the criminal justice system,
          _______________________________________________
          The current DOJ has taken the position that a sitting president cannot be indicted or tried for criminal behavior.

          There is no federal criminal justice system that will handle this.

          1. The Constitution does not state that any and all local police departments CANNOT arrest the president for crimes of low office or status, or crimes that can be committed by members of the general population.

            The Constitution does not state that the Secret Service or military units under the commander-in-chief have any power to forbid, prohibit or preclude the arrest of a president for crimes charged by any and all local jurisdictions.

  10. OMG! Let me take a moment for the shoveling to stop and the smoke to clear………Okay.

    All prevarication aside, including “English law” (“Toto, I have a feeling we’re not in Kansas anymore.” – L. Frank Baum), the “manifest tenor” of the Constitution and the “manifest tenor” of the Constitution alone prevails. In the case of impeachment and conviction, that relevant “manifest tenor” consists of Treason, Bribery, or other Crimes of high office and misdemeanors of high office. The key is other which is not qualified and irrefutably means any and all unknown and to be discovered “other” crimes of high office – high office meaning unique positions of public trust which “…all civil officers of the United States,…” hold. The use of “other” gives Congress expansive latitude in the creation from whole cloth of Articles of Impeachment.

    Of overriding concern, however, is the “duty” and “latitude” of the jurors to impeachment. It being impossible to prove what is in a juror’s deliberation and thesis, juror’s may vote any way they choose for any reason. If jurors were truly objective and honest and obeyed rules, regulations, laws and judges admonitions, O.J. Simpson would be six feet under and Casey Anthony would be in prison. The only thing that matters in and bears on impeachment and conviction is the unique vote of each juror. And, as there is a national and Trump impeachment, conviction and removal vote in November, this Senate vote will without variation reflect it.

    Extremist radical activists will labor and vocalize intensely in the mistaken belief that they have the acumen and power to “Win Friends and Influence People.” Sorry. The facts are known globally and ubiquitously. Those minds are already made up. In the immortal words of the inestimable FBI Deputy Assistant Director in the Counterintelligence Division, Peter Strzok, “There’s no big there there.”

    The fire requiring “smoke shoveling” will be extinguished abruptly in November.
    ______________________________________________________________

    Article 2, Section 4

    The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

  11. You are using the modern meaning of the words, which JT clearly points out had a quite different meaning back when the Constitution was written.

  12. “leaving history to debate whether he was acquitted on the weight of the evidence or on an erroneous interpretation”

    Neither, there is no question in anyone’s mind that he will be acquitted due to partisanship. No one will even think that weight of the evidence or legal interpretations played any role.

  13. I seem to recall a line in Walker Percy’s Lancelot, “We shall know each other as Lee and Jackson would know each other at a convention of Buick dealers”.

    The Constitution was composed by men of honor. Men of honor are no longer common, much less modal, among our political class (or in institutional leadership generally). Such is our life in these times.

  14. If the law says there has to be high crimes and misdemeanors, how is it that an idiot can pull something out of thin air and impeach. Either the law is broken or it isn’t broken. There should be no gray area to simply dream up an offense and call it an offense when there was no offense in the beginning. This is delusional thinking, in my opinion. If high crimes and misdemeanors don’t have to be there, why did the founding fathers say it has to be there?

    1. John Chubb:
      “If the law says there has to be high crimes and misdemeanors, how is it that an idiot can pull something out of thin air and impeach. Either the law is broken or it isn’t broken.”
      *********************
      Not broken; complicated. The law is more than just words on a page. It is the history of those words and their usage over time as refined by real cases and real people. So like you can’t truly understand a city from merely a road map even though it’s accurate, sometimes the law can’t be understood from simple text. It’s complicated and why you need lawyers. It’s frustrating and not pretty occasionally but it’s the envy of free people everywhere, so I guess we’ll keep it.

      1. I am certain you would agree that Hamilton had some insight into the law and its implementation. His observation below relates his belief that the judicial branch exists merely to assure that acts comport with literal, verbatim law and fundamental law, bereft of any form of empathy, mitigation or modification through “interpretation.” For example, Congress has no power to tax for Obamacare as the ACA does not provide for the “…general Welfare…” but individual or specific welfare and Congress has no power to regulate Blue Cross/Blue Shield because it is private property, the right to private property being unqualified by the Constitution and, therefore, absolute, per Article 1, Section 8 and the 5th Amendment, both of which must be declared void by courts.

        “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

        – Alexander Hamilton

        1. To be sure, Congress has no enumerated power to regulate anything other than the “value” of “money,” the flow of “commerce” to preclude bias or favor and land and naval forces; arguably militias.

  15. “Indeed, it was the fourth such attempt to impeach Johnson and his leading opponent, Representative Thaddeus Stevens, confronted reluctant House members by demanding, “What good did your moderation do you? If you do not kill the beast, it will kill you.”
    ******************
    Schiff makes for a poor man’s (and poor mind’s) Thaddeus Stevens but he does have all the rage and vernacular right. Stevens was Nietzsche before Nietzsche’s “Beyond Good & Evil” in 1886. Schiff ought to remember that even as he rants and gazes at the leviathan that is the popular will, it most certainly is gazing back at him.*

    *“Beware that, when fighting monsters, you yourself do not become a monster… for when you gaze long into the abyss. The abyss gazes also into you.”

    He’d do well to also remember the karma is a real … well … you know.

  16. Jon, you have my utmost respect but you are a legal scholar, which means you offer opinions instead of or to supplement facts. A statement in a constitution, whether it’s of a church, a civic organization or a government is to be followed LITERALLY, not based on what some other entity did. The Constitution is quite clear – “treason, bribery or other HIGH CRIMES AND MISDEMEANORS.” Dershowitz is right, YOU are wrong!

  17. I was listening to Barnes, the attorney for some of the Covington kids last night, and his explanation went back to a 1805 judicial impeachment, in which three of the founders were on the defense team. They were looking for actual crimes and they had to be high crimes or high misdemeanors. I am going with Dershowitz.

    1. Paul:

      ” am going with Dershowitz.”
      **************************

      It’s such a rare event, the legal interpretation is an open question and the SCOTUS won’t get involved unless drug there kicking and screaming. In England it was willy, nilly. The Founders hated that and tried to compromise by excluding the UK silliness. They wanted to leave it flexible but not formless. Hence the tension and misunderstanding. It’s easier when you have a crime but wouldn’t you still want to impeach Biden for manipulating a country to line his kids’ pockets?

      1. mespo – I support an investigation into Joe and Hunter Biden. Right now I am getting conflicting timelines and I do not know which to rely on. I will say the stuff coming out this we on Biden, Inc. seems to muddy them up and Hunter is not helping his case.

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