What does a BIDEN Presidency look like?

[crazy canuck]

I mean the Senate does have procedures for conducting a form of trial for impeachment, it just chose not to use them. Lawfare blog did a good podcast on "Late Impeachments" that covered some of this, impeachment as per Senate rules is conducted much like a trial. It's not the same form of trial we use in our ordinary criminal or civil courts, but it has counsel for both sides, an adjudicator, rules of procedure, the ability to submit evidence and call witnesses, to mount a defense, etc etc.

If you are referring to the process where Senators have 5 minutes to ask questions of witnesses, you and I have very different ideas of what a cross examination looks like.

[OttoVonBismarck]

The Senators are jurors, the actual counsel in a normal impeachment trial can do more cross examining. In a typical trial the jurors don't ask many questions at all.

[crazy canuck]

The Senators are jurors, the actual counsel in a normal impeachment trial can do more cross examining. In a typical trial the jurors don't ask many questions at all.

You are correct, in a typical trial the jurors don't ask questions, never publicly take a position before they have heard the evidence presented at trial, and certainly don't meet with the defendant.

But of course all of that happens in a Senate hearing and so I don't find your answer very compelling.

[OttoVonBismarck]

I mean like I said it's a form of trial, I specifically said it is not the same kind of trials you'll find in civil or criminal courts.

[crazy canuck]

I mean like I said it's a form of trial, I specifically said it is not the same kind of trials you'll find in civil or criminal courts.

That avoids the question.  It is a form of trial in a very very remote sense.

[Oexmelin]

I agree with this but I don't think it works in practice. It's the same challenge that pervades so much of US politics - how does it work when one side stops operating in good faith. And that would just be the Democrats' witnesses.

It's true that in the current operating mode of the American democracy, the process would have required a thorough deconstruction. The temptation to turn this into grandstanding, cheap one-liners, infantile presentations may have been too strong on both sides of the aisle, and the compulsion of 24h news network would have been to exhaust every possible talking point within a couple of days. But I still think that part of the solution - in this case - would have been to stretch procedures to a very long time. Or perhaps to simply hold the same type of trial, but removed from the immediate moment, if only for Democrats to hone the message and the delivery. Some things take a long time to set in. Let some police inquiries unfold. Get some of the Capitol stormers arrested. Use that time to hone message and delivery.

I think there are two things going on for me - one is that I don't think corruption should be fundamentally a political judgement and I think it can go through the normal justice process.

Just a nuance: corruption is a fundamentally political judgment because it concerns the appropriate uses of authority, which transforms what is either theft, or a personal act, like gift-giving, into something reprehensible. And it thrives on ambiguity and time (which is why people indicted for corruption have usually left office). This is why it is often quite difficult to prove, in courts, and why the idea that someone is corrupt ought to rest upon non-judiciary criteria. In other words, one should be able to judge Sarkozy as corrupt, even if courts don't find him guilty of such. Danger comes when either people think politicians are *all* corrupt (and thus, like Berlusconi, it doesn't matter much), or that corruption is only a legalistic matter - for which a ton of loopholes and reasonable doubt can easily be found.

I think the only solution is ultimately political and relies on voters - the Republicans need to lose (at state, local, congressional and national levels) and lose so badly that they change. But I'm not sure that's likely.

Indeed, it's not likely at all. This is why any hope of change requires a multi-pronged strategy by Democrats. Aggressively disempower Republicans at every level, which requires dropping a lot of stupid ideals about bipartisanship. Aggressively invest in local politics, which Democrats have abandoned for much too long. And a continuous effort of education in the media and in the institutions about principles. Reclaim the language of ideals and the Constitution. Democrats have been afraid to talk of big ideas, because they always feared to be tarred with the brush of the evil "Isms". The Republicans were the party of principles. That is clearly gone now. Republicans can't claim principles. They don't have good parry against such speech today.

[crazy canuck]

Oex, I disagree with both the proposition that corruption is fundamentally a political judgment and the proposition that it is difficult to prove.

There have been a number of convictions now for leaders who have engaged in corruption.  It does not seem to be all that difficult to prove. The reason these prosecutions occur after a person leaves office is because of immunities which attach to the office which make prosecution while a person is in office very difficult. 

As for judging someone to be corrupt even if tried and not convicted, that is problematic.  On what basis would one do that?  Simple belief based on whatever incomplete information one might have at hand? 

[OttoVonBismarck]

There's a difference in the United States between 'ethical corruption' and 'legal corruption.' Trump has done both. However, it's worth noting that both things for which Trump was impeached, any sort of conviction in a regular criminal court would have been very unlikely. Other than the article referring to obstruction in the Ukraine impeachment, Trump was really being accused of an ethical lapse. His dealings with Ukraine fall into vague areas of law that would be difficult to prosecute on in a normal court (even a prosecutor looking to try the case after he left the White House.) Inciting a riot is an actual crime, but it's one with a lot of precedential protections for the accused and a broad assumption to try not to infringe on speech except where absolutely necessary. With that framework getting convictions for inciting a riot is incredibly difficult at all in the United States, even moreso in a case like Trump's.

These are because of "process failures" in our politics, it's because the specific things Trump did and how they did them, don't easily constitute unambiguous violations of law, at least sufficient to overcome the burden of proof on the prosecution. Note that right now I'm restricting myself to the two things he was impeached for--and in the case of Ukraine there were two articles of impeachment--in a traditional criminal court he'd have been in more peril of being convicting on the obstruction article than anything else he was impeached for, but even that has barriers.

I do think Trump committed crimes while President that would result in fairly easy convictions, but I think a lot of the evidence of those crimes was successfully stonewalled out of making it into the public eye for the entirety of Trump's Presidency. One big process failure Trump really exposed is the absolute inability of Congress to get any information from an unwilling executive, about any matter. The norm used to be the executive was entitled to secrecy around things relating to his advisors giving him advice on running the country, things of that nature. Not refusing to let entire agencies of government respond to normal congressional inquiries.

Trump also almost certainly has a long list of business related crimes he committed prior to his Presidency, some of which I suspect will see the inside of a criminal court.

[Oexmelin]

There have been a number of convictions now for leaders who have engaged in corruption.  It does not seem to be all that difficult to prove.

It is very difficult to prove. Corruption is a quid pro quo exchange, which - if you are wise - you never really tie very explicitly. It also frequently evolves very gradually from acceptable forms of sociability: people you meet, services you give, people that have mutual friends. A service is rendered that may easily be camouflaged under a lot of others. It requires considerable resources to go through books, administrative correspondance, etc. It usually involves people who have extraordinary means at their disposal. Compared with other types of crimes, it requires a ton of efforts. Quebec recently had a whole extraordinary commission tasked with analyzing corruption in the construction industry, tied to political parties. It mobilized considerable resources, and ended up with precious few results. It wasn't the first time. I had followed closely the sponsorship scandal in Canada, and it followed the same script. A lot of things revealed to be clearly unethical, and money disappearing for little service rendered. Very few condemnation. One guy plead guilty to save a lot of others.

As for judging someone to be corrupt even if tried and not convicted, that is problematic.  On what basis would one do that?  Simple belief based on whatever incomplete information one might have at hand?

Yes. That's the essence of political judgment. The same way that I could judge Andrew Scheer to be less than straightforward about his intention regarding social conservatism, or that I can say that Trudeau's involvement in the appointment of judges is a form of ordinary political corruption.

To illustrate: I think it very clear that Trump is incredibly corrupt. I also think it is very likely, considering all of the above, that he is never found guilty of corruption in a court of law. Would I therefore reserve my judgement, and find Trump fit to serve? Absolutely not. If not found guilty in a court of law, I don't think he should go to jail. But I don't think he should be rewarded with office, time, or consideration.

[crazy canuck]

If you are proposing making judgments on rumour and innuendo rather than a fact based analysis (which occurs in a real trial) then that is definitely where we part company.  I don't think that approach is any better than the Q nutters.  Truth then becomes a matter of whoever has the best pitch devoid of facts.

[Oexmelin]

If you are proposing making judgments on rumour and innuendo rather than a fact based analysis (which occurs in a real trial) then that is definitely where we part company.  I don't think that approach is any better than the Q nutters.  Truth then becomes a matter of whoever has the best pitch devoid of facts.

This is not what I wrote. Not all facts are those established by a court of law. Nor are political judgments reducible to facts. Some facts are incontrovertible and yet, will support very different political judgement about whether or not one is fit for governing or not. That's the essence of the philosophical problem of the "reasonable nazi". And some "facts" are quite open for interpretation - those of the court being only one among many.

I can judge Trump unfit for duty based on his demonstrable behavior, even if the very same facts may not land him in jail. It doesn't mean either that such judgment is only whim and detached from principle. An impeachment procedure, even if the outcome is foreordained, plays that role. Much like the Charbonneau commission was able to expose the mechanism of corruption, even if few people were convicted. We are far from QAnon territory.

[crazy canuck]

If you are proposing making judgments on rumour and innuendo rather than a fact based analysis (which occurs in a real trial) then that is definitely where we part company.  I don't think that approach is any better than the Q nutters.  Truth then becomes a matter of whoever has the best pitch devoid of facts.

This is not what I wrote. Not all facts are those established by a court of law. Nor are political judgments reducible to facts. Some facts are incontrovertible and yet, will support very different political judgement about whether or not one is fit for governing or not. That's the essence of the philosophical problem of the "reasonable nazi". And some "facts" are quite open for interpretation - those of the court being only one among many.

I can judge Trump unfit for duty based on his demonstrable behavior, even if the very same facts may not land him in jail. It doesn't mean either that such judgment is only whim and detached from principle. An impeachment procedure, even if the outcome is foreordained, plays that role. Much like the Charbonneau commission was able to expose the mechanism of corruption, even if few people were convicted. We are far from QAnon territory.

I am not sure I see a distinction.  You agreed that even if a court does not find someone guilty, people should still make their own judgment based on whatever information they have at hand.   How is that any different from making judgments based on rumour and innuendo.  I have no problem with political judgments being made based on facts.  But it must be based on facts.  For example, I have no problem with someone taking the view that ,after reading a decision of the court, they come to the conclusion that the court got it wrong.  But all too often people come to a conclusion based on what they read on social media.  Hardly a fact based analysis.

[Jacob]

I am not sure I see a distinction.  You agreed that even if a court does not find someone guilty, people should still make their own judgment based on whatever information they have at hand.   How is that any different from making judgments based on rumour and innuendo.  I have no problem with political judgments being made based on facts.  But it must be based on facts.  For example, I have no problem with someone taking the view that ,after reading a decision of the court, they come to the conclusion that the court got it wrong.  But all too often people come to a conclusion based on what they read on social media.  Hardly a fact based analysis.

Do you think Trump is unfit for office? Even if he hasn't been convicted in a court of law?

[crazy canuck]

I am not sure I see a distinction.  You agreed that even if a court does not find someone guilty, people should still make their own judgment based on whatever information they have at hand.   How is that any different from making judgments based on rumour and innuendo.  I have no problem with political judgments being made based on facts.  But it must be based on facts.  For example, I have no problem with someone taking the view that ,after reading a decision of the court, they come to the conclusion that the court got it wrong.  But all too often people come to a conclusion based on what they read on social media.  Hardly a fact based analysis.

Do you think Trump is unfit for office? Even if he hasn't been convicted in a court of law?

I think that is a different and purely political question.  I think he is unfit for reasons other than whether he can be proven to be corrupt. 

The question I posed to Oex was a hypothetical of what occurs after a court has made its finding and only on the question of whether or not he was corrupt.

[crazy canuck]

I should add that five years ago I probably would have agreed with you Oex.  But, particularly in the US, the news has been viewed as something which is created to serve a political agenda.  If there is no reporter of record which people trust as a source for factual information, then you are just left with Trump world where facts are irrelevant.