Impeachment process- from the American bar Association

[bonito]

I do support impeachment and its not hard to imagine them threatening Congress to put it off the table, whatever the case they must be fearful, a taste of their own medicine, this a great resource for some who are not familiar with the process including myself, and can be helpful in our never-ending quest to bring this mob to Justice.
An easy read Q&A link for your information.

http://www.abanet.org/publiced/impeach2.html

[pat_k]

1. It's even more straightforward than the lawyers would make it. . .

Impeachment is a political, not a legal/judicial process. Had we intended it to be a legal process, we would have vested the power in the judiciary, not the legislative branch. We can impeach and withdraw our consent from governement official for anything We the People, through our representatives in Congress, deem it necessary. We gave the power to define the impeachment process exclusively to the HOuse. We gave the power to define the process of judging to the Senate. The All that is required is the polical will. As Wil S. Hylton pointed out in the http://men.style.com/gq/features/full?id=content_5402">March issue of GQ, Impeachment was designed to be simple, swift, and certain.

There's more than enough in the public record for at least a half-dozen impeachments. They just need one charge.

http://journals.democraticunderground.com/pat_k/20

[Triana]

4. Only thing stopping impeachement is a wilted, ineffective Congress...

...they HAVE the power. They just REFUSE to use it. SAME with Iraq, election fraud, the USA scandal, etc. etc. etc.

[bdamomma]

6. thanks for the info

I only wish our state governments would push this more.

[ChairmanAgnostic]

12. and how do we change that?

I agree with you, and in fact, I wrote about that here
http://journals.democraticunderground.com/antifaschits
this morning.

[pat_k]

19. The impeachophobes in Congress are indeed being "left behind". . .

They are trapped in an insular world dominated by irrational "conventional wisdom" and groupthink, but I firmly believe there is hope -- that they can be reached. It'll take more face-to-face confrontation -- back and forth exchanges with citizen lobbyists who ask the hard questions and tenaciously contradict their rationalizations.

Our demands will continue to fall on deaf ears as long as they remain trapped behind the self-destructive assumptions of their insular world. We can get through. We just need to remember that they are just people, and the most effective way to influence people is to TALK to them.

http://journals.democraticunderground.com/pat_k/23">More. . .

[BuyingThyme]

7. That is horribly incorrect.

I wish people would stop reciting this mantra.

Impeachment is a legal process conducted by politicians.

[pat_k]

9. The logical or factual basis for your assertion?

To cite just a couple of the reasons that Impeachment is NOT a legal/judicial process:

Legal/judicial processes are designed to minimize the influence of public opinion on the outcome.

In contrast, the outcome of impeachment is driven by the political will of the people (i.e., public opinion is central).

Legal/judicial processes -- what constitutes a crime; standard of proof; burden of proof; permitted evidence -- is dedicated by our substantial body of written law and precedent.

In contrast, impeachment is guided by only by the intentionally vague guidance provided by our Constitution. Each and every member must determine for themselves what constitutes an impeachable offense, standard of proof, and so on. They can look to the past for precedent, but ultimately Members of Congress must make a personal judgment grounded in moral principle and the intent -- not the letter -- of the law.

The steps of our legal/judicial proceedings are pre-defined. The officials who carry out those steps do not have the power to change them "on the fly."

In contrast, the steps required between the introduction of a resolution of impeachment and the vote on the floor are dedicated by House rules -- rules that the House as a body has the power to change at any time. Likewise, the rules guiding the "trial" in the Senate are defined by the Senate as a body. The Chief Justice presides, but only to ensure that the dictates of the Senate are carried out. The Justice has no judicial authority independent of the dictates of the Senate.

To ensure judicial decisions are constituent with the law and the Constitution, judicial proceedings are subject to judicial review and appeal.

In contract, there is NO appeal on impeachment.

As I have already noted, if we had intended for impeachment to be a legal/judicial process, we would have vested the power in the judiciary. We didn't. We gave the power to the House -- the body closest to the people most capable of quickly turning the will of the people into action.

[BuyingThyme]

10. This is really simple.

Impeachment is a process which is specifically outlined in the Constitution. The Constitution is the law. Thus, impeachment is a legal process. In fact, there's no clearer example of a legal process.

The fact that the Judicial Branch is involved only to a minimal degree has nothing to do with anything. Not all judicial duties were prescribed to the Judiciary. Not all executive duties were prescribed to the Executive. And not all legislative duties were prescribed to the Legislature. We call 'em checks and balances.

In the case of impeachment, I suspect that the Framers gave the power to Congress because the Judiciary is so heavily influenced by the Executive. But just because Congress has a different way of approaching this Constitutionally prescribed legal process does not mean it's in any way a lesser legal process.

[pat_k]

11. None of which refutes the reasons it is NOT a judicial/legal process (nt)

You have simply asserted the contrary without refuting the reasons cited or providing the grounds for you assertions.

Response to the assertions:

Re: "Impeachment is a process which is specifically outlined in the Constitution."

'As Gerald Ford once pointed out while still serving in the House of Representatives, the only real definition of an “impeachable offense” is "whatever a majority of the House of Representatives considers it to be at a given moment in history."' (quoted in http://men.style.com/gq/features/full?id=content_5402">Hylton's article cited in previous post.

The constitution provides guidelines that intentially lack specificity, and thereby by put the judgment completely in the hands of a given Congress at a given time.

Re: "Not all judicial duties were prescribed to the Judiciary."

Examples? What makes impeachment one of those "judicial duties" not prescribed "to the Judiciary"?

Re: "I suspect that the Framers gave the power to Congress because the Judiciary is so heavily influenced by the Executive." Speculation on the "influence" -- which is presumably the power to nominate, although you do not specify -- does not constitute grounds for you assertions.

[BuyingThyme]

14. The sweeping assertions in that article are nonsense.

You don't seem to be getting this. The Constitution is the law. That's it. There's nothing else to it. It doesn't matter how vague or specific the language is, the duty is specifically relegated to Congress. That's it. That's the law. You seem to be using the concept of specifics to commit an equivocation.

Now, as for the fact that not all judicial duties are prescribed to the Judiciary, yes, I was thinking in terms of something called impeachment, but there are others (like confirmation).

The grounds for my assertions are something called the Constitution. It's not complicated. It's the law.

[pat_k]

17. There is no legal/judicial process defined for impeachment.

The Constitution is a contract -- the parties being the people of the nation; the sovereigns.

The provisions of that contract put impeachment under political jurisdiction. (e.g., see Tocqueville, "Political Jurisdiction in the United States").

When it comes to impeachment, no legal authority can trump our will because impeachment is not a process that is subject to judicial authority or statutory law. It is limited only by the provisions of our common contract -- provisions that assign the power to impeach and judge to our political bodies, designate the presiding officer, and require a 2/3 majority vote to remove. Outside of those parameters, the power of our political bodies -- the House and Senate -- to accuse and remove an official (effectively withdrawing our consent) through the process impeachment is absolute. It cannot be trumped by legalisms.

The process defined by the impeachment provisions is a political process, just as the process of creating/passing statutory law is a political process. Impeachment may have some of the trappings of a legal process (e.g., use of the word "try" in "The Senate shall have the sole Power to try all Impeachment"), but the process has none of the key attributes of a legal/judicial process. (See previous post for a few of these attributes.)

Why the distinction is so critical

Recognizing that impeachment is a political process, not a legal/judicial process, is not just a matter of semantics. It is a distinction that is critical if we are to make impeachment a reality. The legalistic view of impeachment is one of the most insidious barriers standing between the people and the impeachment of Bush and Cheney.

Too many Americans have fallen victim to the propaganda that we "can't impeach" for this or that offense, or that impeachment must meet legalistic standards of proof (e.g., beyond reasonable doubt). They have been deceived into believing that arbitrary legal authority can trump our will in the matter. As more of us recognize that the power is truly in our hands -- that impeachment is a political process -- we move closer making the impeachment of Bush and Cheney a reality.

==============
BTW, which of Hylton's "sweeping assertions" do you consider nonesense? On what do you base that conclusion?

[BuyingThyme]

20. You are scaring the hell out of me.

The Constitution is the law. The Constitution is the law of the land. All other laws are based on the Constitution. It's not a contract. It's the law you live under every minute you happen to reside in this country.

Now, whether trials are conducted by prosecutors and juries of peers, or by the House and the Senate, they are equally legal processes as dictated by the Constitution. No difference.

Whether we're talking about violations of code, or the commissions of high crimes and misdemeanors, they are legal standards as dictated by the Constitution. No difference. (And equally vague, by the way.)

Whether the standard for conviction is a vote by the Senate, or a vote by a jury based on reasonable doubt, we're still talking about binding convictions under law as dictated by the Constitution.

As for this Hylton guy, he's way off base. He does not understand any of this. It's very sad, really.

[pat_k]

24. And that "law" defines a political process for impeachment.

[BuyingThyme]

25. We have a political process for everything.

[pat_k]

29. How is this a response. . .

. . .to the points and arguments I have presented?

BTW, regarding the points you make in response to GOTV below -- that is:

I object to people being brainwashed into thinking that impeachment is something less than a legal process which is intended to permit us to deal with the commission of high crimes and misdemeanors by officers of the Executive.

It's not a silly procedure which was added to the Constitution simply to give Congresspeople a sharp poker. It was intended to be supplemental to criminal code. It enables us to reach people who might otherwise be protected by the executive.

Our political processes are not "silly procedures." There is nothing more serious then the expression of the will of the people. It is through our political processes that we create our law. Our political processes are as significant as our legal processes.

Given that impeachment does not require a violation of statute, and that removal from office is a political, not a judicial, remedy, how do you support your claim that impeachment is "an extention" of criminal code?

[BuyingThyme]

31. We live in a Democracy, thus politics play into everything.

The presence of politics does not make for an absence of legal procedure, particularly when it comes to impeachment (and electing judges, and making appointments, and...).

The people who attempt to frame impeachment as a lesser, political, even inherently-partisan exercise are not doing the Constitution justice.

As for your premise about removal from office (by way of impeachment) being political, it is not a political remedy, but a legal one conducted by politicians, as it is legally binding. That is not to say that politics don't play a role. But I'll answer your false-premised question anyways:

I was paraphrasing James Madison. He said that the Framers intended impeachment to be a supplemental extension of the criminal code which could be used to remove officers who might otherwise be shielded by the executive.

[pat_k]

33. But your argument excludes the notion that there are ANY political processes. . .

. . .defined in the Constitution.

Under your definition, any process provided for in the Constitution is a "legal process."

When Congress employs the power of impeachment in accordance with the Constitution their conduct is certainly lawful, but that does not make the PROCESS they are engaged in a judicial/legal process.

For a process to be a "legal process" it must be possible for the means and the results to be illegal. When you assert that impeachment is a "legal process" it begs the question, What offense could Congress impeach on that would be "illegal"? What standard of proof could they apply that would be illegal? Since impeachment is not subject to judicial review, what authority could declare the process "illegal."

Your assertions reflect a belief that political processes are "lesser" -- a VERY frightening notion. It is through such processes that we create law. It is through such processes that we balance the conflicting interests of the various factions ("partisans") that make up this nation. Such processes precede law, and are therefore superior to the law. Our laws are intended to codify our will. Our Constitution is the foundation on which our nation and its laws rest. The Constitution precedes all law.

We have taken great pains to design, and continue to perfect,

• a legislative system capable of responding to and balancing factional interests as it codifies our collective will in law.
• a judicial system that minimizes the influence of factional interests as it applies the law.

One of the reasons these systems have become so dysfunctional is that too many of us have lost track of our place and have become alienated from our political processes.

When political processes (i.e., the processes designed to respond to and protect our interests) are subsumed under the label "legal process" (i.e., the processes that minimize our influence) the message is "Go back to bed. You have no place here."

Applying a definition that lumps everything under the heading "legal process" is problematic because it fails to make a critical distinction between:

• Constitutional processes in which We the People are the controlling authority (political processes)
• Processes in which the laws we have codified in statute and precedent control (legal processes).

For a process to be a judicial/legal process, it must embody key attributes and principles that define legal processes.

For example, legal processes are guided by the letter of the law -- statute, torts, contract law and precedent built on case law,. Legal processes are designed to minimize the influences of transitory public opinion. Legal processes apply existing -- sometimes conflicting -- "rules" to achieve a result. To ensure the application and interpretation of the law in a legal process is as consistent with our intent as is possible in an imperfect world, legal processes are subject to judicial review.

The process of impeachment embodies none of these characteristics. As Members of Congress judge an official's action there are no "rules" that limit or control their judgment. There is no controlling authority that dictates the means or the principles they employ as they come to their conclusions.

Forgive the redundancy, but these points cannot be overemphasized:

Distinguishing between political processes and legal processes reflects the reality that we have created institutions and processes through which we create and codify our will in law (the political processes), and institutions and processes through which our codified will serves as a controlling authority (legal processes). The results of political processes are direct expressions of our will (electing an official, enacting a law, rejecting presidential electors, confirming; rejecting a nominee, removing an official from office). The results of legal processes are indirect expressions.

The distinction between political process and legal process is so critical because it protects us from mistakenly believing that our sovereignty can be trumped by some abstract and external legal authority. Our political processes empower us to overrule legal processes that go astray or yield a result that conflicts with our common values. When all is "legal" it is very easy to fall victim to the notion that "the law" can trump our will.

When legal processes and remedies go astray or violate our collective values, the American people -- though our Congress -- are always the backstop. Some political processes yield an immediate remedy (e.g., reject illegitimate electors on Jan 6). Some remedies take longer (e.g., changing the law). Length of time is irrelevant to the fact that "the law" is subject to our will -- and that will is expressed through political processes.

The notion that our collective will can be trumped by legal authority is a fascist notion. It is such notions that allowed the Supreme Court to usurp the power of Congress and steal the 2000 election. We empowered Congress, not the Courts, to stand in judgment of the electors, but too many Americans were deceived into believing they were helpless in the face of legal authority.

Your assertion that "We live in a Democracy, thus politics play into everything" further muddles the distinction between policial and legal processes. In essence, you appear to be making the case that "everything is political" AND "everything is subject to legal authority that is superior to the will of the people" -- that it's all just a big, messy, mind-boggling lump. I doubt you intend to promote this view, but this is the view that comes across. And it is a view that distorts of reality, discourages political action, and promotes apathy.

Re: "removal from office (by way of impeachment) being political, it is not a political remedy, but a legal one

Removal is intentionally NOT a judicial/legal remedy. Congress is barred from applying judicial remedies (e.g., incarceration, fine, and so forth -- on this point, you might want to take a look at the Tocqueville reference in the previous post)

Certainly, when 2/3 of the Senate votes to impeach, removal is mandated by the Constitution and therefore "binding." Nevertheless, the process by which that result is achieved is a political process.

In conclusion

The adage "we are a nation of laws, not men" is insidious propaganda. The reality is that we are a nation of People who create law -- law that we consent to abide by because it is our creation and subject to our will.

Contrary to what the new American fascists would have us believe, the three branches of Government DO NOT share power equally. When we established our Constitution for the United States of America, we yielded NONE of our Sovereignty to ANY institution we created, but we did vest more power in Congress -- our voice -- than in the Judiciary or the Executive.

How do we know we gave Congress more power? Simple. We gave Congress the Power to Impeach officials in the executive and judicial branches. Neither the executive or the judiciary can remove a Member of Congress.

Impeachment is our ultimate trump card -- the ultimate political process.

I am so adamant about recognizing that impeachment is a political, not a legal, process because impeachment is a critical component of our sovereignty.

[BuyingThyme]

37. I've never made any such arguments about political processes.

Please don't make up definitions and attribute them to me.

Impeachment is a legal process conducted by politicians.

Treason is illegal. Bribery is illegal. High crimes and high misdemeanors are illegal.

That's why the Constitution provides for a legal process known as impeachment by which Congress can remedy these crimes by permanently banning people from serving in government. Nobody else can do that.

It's exactly the same as the Constitution providing for jury trials by which the Judiciary can send people to prison for treason or bribery. Nobody else can do that.

Both of these processes are legal processes. It is incorrect to say that one is more of a legal process than the other.

It's very simple.

[pat_k]

38. By what process does a given "high crimes" get labeled "illegal"?

In what sense would such an act, in and of itself, be "illegal" when a subsequent congress could deem the exact same act not to be a "high crime."

The key point of my post is that lumping impeachment under the heading "legal process" is inaccurate and problematic. Adding "carried out by politicians" to the label "legal process" still puts impeachment under the heading "legal process." Since you have certainly labeled impeachment a "legal process" I have to assume that you are referring to something else when you say "I've never made any such arguments about political processes." Since you do not cite the things that mischaracterize your position or arguments, I am unable to determine the source of the misunderstanding and respond.

[BuyingThyme]

39. They do the same thing with "murder."

Some prosecutors/courts will decide a killing is a murder and others will decide it's self defense. Same deal with high crimes.

Impeachment is a legal process conducted by politicians.

You tried to lessen impeachment by claiming that it is not a legal process at all. Then you tried to claim that I was lessening impeachment by claiming that politics are not involved in the process. But I never made such a claim.

[pat_k]

41. Apples and oranges

• Re: Some prosecutors/courts will decide a killing is a murder and others will decide it's self defense. Same deal with high crimes.

A judgment based on objective criteria is not "the same deal" as a subjective judgment.

Criminal code defines objective criteria. Every member of a jury makes a commitment to base their decision on the same objective criteria. They commit to limiting themselves to the facts presented in trial.

There are no statutes-- no objective criteria -- that define "High Crimes and Misdemeanors." Each Member of the House or Senate bases their decision the principles and facts they judge to be appropriate.

Rendering a verdict in a prosecution is designed to be as objective as possible. Given the infinite variability of human experience, criminal code can't cover all circumstances, but over time, case law fills gaps. Subjectivity is minimized throughout. If a trial judge deems a verdict contrary to objective standards, they can vacate it. The entire process is subject to judicial review.

Impeachment is subjective by design. Constituents, "experts," and fellow members can make the case that the question of impeachment should be driven by certain principles, standards, or facts, but ultimately each member must make a personal, subjective, decision. They are bound only by their oath to support and defend the Constitution. On the question of impeachment, no external authority can overturn the collective judgment of the House and Senate. Without objective criteria, there can be no review. The only authority individual members will inevitably answer to is the electorate.

On the question of impeachment, Members of Congress are not politicians carrying out a "legal process." They are representatives of the people, sworn to defend the Constitution, engaged in a political process to answer a a political question that will be judged in the political arena.

• Re: You tried to lessen impeachment by claiming that it is not a legal process at all.

While I am certainly making the case that impeachment is a political process, not a legal/judicial process, since I don't consider political processes to be "less than" legal processes, my case is absolutely not an effort "to lessen impeachment by claiming that it is not a legal process at all."

• Re: Then you tried to claim that I was lessening impeachment by claiming that politics are not involved in the process. But I never made such a claim.

You argue that impeachment is a legal process because there are provisions for it in the Constitution. What necessarily follows from that argument is that all processes provided for in the Constitution are "legal process." I pointed out that under your definition of "legal process" there are no constitutional process that fall under the label "political processes." In other words, your definition of "legal process" precludes "political process," no matter how one might define it.

I did not assert that you claim that politics are not involved in impeachment. I acknowledged your assertion that "everything is political" (and impeachment is presumably included in "everything") when I noted that "Your assertion that "We live in a Democracy, thus politics play into everything" further muddles the distinction between political and legal processes.

Unfortunately, without agreement on what defines a legal process and what defines a political process, it is impossible to have a rational discussion about the nature of the processes and the relationship between the them. (subordinate to, product of, lesser than, superiors to, whatever). If every constitutional process is a "legal process" and simultaneously, if "everything is political," then every process is an ill-defined heap of legal and political. There are no categories to relate or discuss.

[BuyingThyme]

40. It's the same exact process by which anything gets labeled illegal.

Impeachment is a legal process conducted by politicians.

At this point I must point out the fact that you are no longer trying to be honest. You write:

Since you have certainly labeled impeachment a "legal process" I have to assume that you are referring to something else when you say "I've never made any such arguments about political processes."

If you would like to have an honest discussion, let me know. This kind of silliness does not fool me.

[pat_k]

42. What exactly is "the same" about

1) The outcome of a criminal prosecution being tossed out on appeal. (i.e., a process subject to review, which can therefore be rejected by authority as illegal)

2) The outcome of impeachment, which no authority can overturn. (i.e., a process not subject to review)

WRT your accusation that "you are no longer trying to be honest" -- I honestly fail to see the problem that you consider to be self-evident.

[BuyingThyme]

32. Link:

...

During the debate in the First Congress on the “removal” controversy, it was contended by some members that impeachment was the exclusive way to remove any officer of the Government from his post, but Madison and others contended that this position was destructive of sound governmental practice, and the view did not prevail. Impeachment, said Madison, was to be used to reach a bad officer sheltered by the President and to remove him “even against the will of the President; so that the declaration in the Constitution was intended as a supplementary security for the good behavior of the public officers.”

...

http://www.law.cornell.edu/anncon/html/art2frag43_user.html

[pat_k]

34. I see nothing here that contradicts my argument. . .

. . .I don't see a clear line from "supplementary security for the good behavior of the public officers" to "an extension of criminal code." "Supplementary" could also be viewed as supplementary to elections" -- I'll need to check out the original context.

[BuyingThyme]

35. Officers are generally not elected.

But it really doesn't matter.

[ChairmanAgnostic]

13. used to be simple, but the

growth of agencies and departments, (and their growth of decision-making power) have changed that equation.

[BuyingThyme]

15. How so?

[ChairmanAgnostic]

26. a commission, an agency, a department

any of those are not the legislative, the executive or the judicial. They are created by either an act of congress, or an executive order. Often the judiciary provides the venue for their actions.

Because these entities are separate from the executive and legislative, and while the intent of either may be given to the entity, they create their own rules and regs, they even create the standards of review and how the courts may deal with certain issues. they also exert a great deal of control.

Take FDA. On drugs alone, the agency controls everything about how drugs and medical devices are approved, tested, put on the market, and more. Congress can do little to impact and micromanage it, the president can only affect it indirectly, by choosing an industry lapdog, instead of a real scientist.

Same goes for any of the 100s agencies, departments, commissions that now exist.

[BuyingThyme]

27. Are you saying it's become more difficult to determine

who can and cannot be impeached?

[ChairmanAgnostic]

28. no, I suggest that there are no longer 3 branches of govenment

these creations are an unwritten 4th branch, supported by the Supreme Court as a "convenient" way to delegate the power of either the executive or the legislative.

Collectively it is a huge entity, with incredible inertia. Given the last 7 destructive years, it will take more than impeachment to reverse course.

[BuyingThyme]

30. That's for sure.

[GOTV]

18. The constitution also specifies how the president is chosen. So elections are not political?

[BuyingThyme]

21. I never said anything wasn't political.

I object to people being brainwashed into thinking that impeachment is something less than a legal process which is intended to permit us to deal with the commission of high crimes and misdemeanors by officers of the Executive.

It's not a silly procedure which was added to the Constitution simply to give Congresspeople a sharp poker. It was intended to be supplemental to criminal code. It enables us to reach people who might otherwise be protected by the executive.

[GOTV]

22. Ok then. It's a floor wax AND a dessert topping n/t

[BuyingThyme]

23. Those environment-friendly floor waxes can be very political.

[porphyrian]

2. I'll kick that. - n/t

[proud2BlibKansan]

3. Great resource!

Thanks

[Morgana LaFey]

5. K&R nt

[Lugnut]

8. K&R n/t

[dogday]

16. I like the last question and answer

Q. What is most important to any process of presidential impeachment?

A. What is essential is that the process proceed in a manner that promotes public confidence in it for the good of the nation, consistent with the rule of law as embodied in the Constitution.

[Quantess]

36. Very informative. Thanks.