Category: Columns

Columns, Congress, Constitutional Law, Society

The Art of Impeachment: Why I Still Just See A Banana Taped To A Wall
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Below is my column in The Los Angeles Times on the decision of the House leadership to proceed with an impeachment of President Donald Trump on two articles of abuse of power and obstruction of Congress.

Art and impeachments are rarely an exercise of objectivity.  I testified that the impeachment alleged crimes like bribery, extortion, campaign finance violations, and other crimes (including those based on the Mueller investigation) are wildly outside standard definitions of those crimes.  Where the Committee obviously departed from my position was moving forward with this record. While I testified that Trump could be impeached for non-crimes like abuse of power, the record in this case is far too thin and incomplete to support submission to the Senate. Yet, how one sees this impeachment seems to depend on one’s perspective in the art of impeachment.

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Columns, Criminal law, Justice, Lawyering

Titanic Failure: What The Horowitz Report Actually Says About The Russian Investigation

I previously discussed the bizarre narrative in the media that the main takeaway from the Horowitz report was the debunking of a conspiracy theory. Below is my column in the Hill newspaper on some of the actual findings of the Horowitz report. The report shows that there was not credible evidence to maintain the investigation and that the Steele Dossier was essential to securing the FISA investigation despite repeated media statements to the contrary.

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Columns, Congress, Politics

The House Offers More Passion Than Proof In The Push For Impeachment

Below is my column in the Hill newspaper on continuing rise of rage over reason in the consideration of this rush impeachment. Chairman Jerry Nadler has suggested that his committee may simply move directly to articles of impeachment this week. This rocket docket for impeachment is baffling when you have a record that is incomplete and conflicted. With Johnson, Nixon, and Clinton, the records in the House contained widely accepted criminal acts and extensive records. This record is a short as the schedule set by the Democratic leadership.

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Academics, Bizarre, Columns, Media, Politics

“Agitated Passions”: A Response To Chairman Nadler Et Al.

In the wake of yesterday’s hearing, my office and home have been inundated with threats from people irate over the fact that I would question the sufficiency of this record for impeachment. There has also been a couple of facially false narratives that have been aired and are being widely disseminated without any apparent fact checking or analysis. I have addressed one historical point separately. In recognition of Sen. Pat Moynihan’s view that “everyone is entitled to his own opinion, but not to his own facts,” I have published a column on these attacks: Hill Column

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Columns, Congress, Constitutional Law, International, Lawyering, Politics, Society

Adam Schiff’s Capacious Definition of Bribery Was Tried in 1787
The Trial of Warren Hastings

Below is my column in the Wall Street Journal on case that may be looming in the background of tomorrow’s opening hearing in the House Judiciary Committee on the impeachment of President Donald J. Trump.

I have been called to testify at the hearing. With only a few days to prepare, I will be completing my testimony today and I will hopefully post it before leaving for the hearing in the morning. This is a daunting but not unfamiliar challenge as an academic. It has been 20 years since I testified at the Clinton impeachment hearing with other constitutional and historical experts on this same question. It has been 10 years since I served as the last lead counsel (with Dan Schwartz) in the impeachment trial of Judge Thomas Porteous. The hearing will begin at 10:00 am in the Longworth House Office Building.

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Columns, Congress, Constitutional Law, Politics

Worse Than Watergate? The Calls For Impeachment Outstrip Historical Sources

Below is my column in The Hill newspaper on the recent comparison of Chairman Adam Schiff and others to Watergate. It is not the first time that the rhetoric has outpaced the law of impeachment. However, if we are to have a meaningful exchange about impeachment, we should make a good-faith effort to agree on the historical facts.

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Columns, Congress, Constitutional Law, Criminal law

How Devin Nunes’ Lawsuit Threat Could Undermine Donald Trump’s Impeachment Defense

Below is my column in USA Today on Rep. Devin Nunes, the ranking member of the House Intelligence Committee, threatening lawsuits against the media. It will not come as a surprise of many that I opposed such lawsuits from a free speech perspective, but this effort could also ultimately undermine the position of the White House.

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Columns, Congress, Constitutional Law, Criminal law, Politics

How Democrats Can Build A Stronger Case To Impeach President Trump

Below is my column in the Hill newspaper on what the Democrats would have to do to build an actual case for the removal of the American president. I have previously said that abuse of power is impeachable, but it is the most difficult of potential impeachment claims. Once again, impeachment does not require a criminal allegation but it does require clarity. It also requires a complete and compelling record. This record is neither complete nor compelling on proof of an impeachable offense.

Rather than continuing to criticize the record, below is an effort to lay out a possible case for impeachment.

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Columns, Congress, Constitutional Law, Politics

The Case For Impeachment All Living Presidents
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Below is my column in The Hill Newspaper on the new standard on impeachment emerging from the House hearings. Democrats continue to state an insistence on a vote by Christmas — the shortest period of investigation of an impeachment in history. If impeachment is to be reduced to such an impulse buy item, there are many other choices for voters.

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Columns, Congress, Constitutional Law, Courts, Criminal law, Politics

Democrats Seek To Redefine Crimes To Reframe The Trump Impeachment

Below is my column in The Hill newspaper on the three new crimes being alleged by the Democrats: bribery; extortion; and obstruction. There was a critical shift away from the abuse of power framework this week in favor of these criminal allegations. That may reflect the fact that the hearings have not resonated with voters, or at least have not caused a shift in public opinion. I have previously stated that a president can be impeached for abuse of power, including a quid pro quo. However, when alleging a crime, the elements of such a crime are relevant. Indeed, Schiff has referenced those elements in his comments in the hearings. The problem is that the case law falls far short of the rhetoric surrounding these crimes.

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Columns, Congress, Constitutional Law, Criminal law, Politics

Now For Your Moment Of Zen From The Trump Impeachment Hearings

Below is my column in The Hill on the unfolding impeachment hearings. As I have stated, the hearings have proved damaging for President Donald Trump — damage that was bizarrely magnified by Trump himself with an attack on Ambassador Marie Yovanovitch. The move only pushed many Republicans on the Committee to avoid aggressive questioning of the diplomat. The tweet was unfair and remarkably self-defeating. As with the attacks by Trump on Taylor and Kent as “never Trumpers,” the tweet was wildly off base. While I have raised concerns over these allegations as a basis for impeachment, these diplomats strike me as people who have served our country with distinction and dedication. They are indeed the type of professionals that we need in our foreign posts.

That does not change the difficult questions that lie ahead. Perhaps this week’s testimony will materially change the zen-like questions discussed in this column.

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Columns, Congress, Constitutional Law, Criminal law, Politics

As Impeachment Draws Near, An “Agent Provocateur” May Have To Wait For An Urgent Pardon
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Below is my column in USA Today on the conviction of Roger Stone and his final battle for a presidential pardon to avoid a potentially terminal prison sentence.

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Columns, Congress, Constitutional Law, Criminal law, Politics, Society

Are The Democrats Building A Collapsible Impeachment?

As the impeachment of Donald Trump unfolds, it is inevitable that comparisons are drawn to the Johnson, Nixon, and Clinton impeachments. This column in The Hill discusses the most notable distinction: the narrowness of case for impeachment. While Trump has long been portrayed as a type of perpetual criminal motion machine and many have claimed that an array of crimes are proven from the Russian investigation, none of the crimes discussed over the last three years will apparently be included in this impeachment. The question is why. Democratic members insisted after the Mueller hearings that the impeachable acts were now laid bear on the record. If such violations are so obvious and proven, it is unclear why the Democrats are insisting on proceeding on such a narrow basis — a decision that greatly reduces the chances of success in the Senate.

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Columns, Congress, Constitutional Law, Criminal law

Is Pelosi Saving Trump By Shaping Impeachment To Fail In The Senate?

Below is my column in The Hill newspaper on the curious profile of the emerging impeachment against President Donald Trump. Notably, while Democratic members have been saying for three years that there are established crimes and impeachable offenses found by Special Counsel Robert Mueller, reports indicate that none of those allegations will be the basis for impeachment. Instead, Democratic members are saying that they want to limit impeachment to the Ukrainian controversy. Not only that, but they want to hold just a couple weeks of public hearings and vote an impeachment vote. If so, this would be the most narrow and least developed impeachment of a president in our history.

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