Why hasn't congress ever passed a law clarifying "High crimes and misdemeanors"?

[Sheilbh]

No. It is a mechanism to prevent criminals from seizing the executive branch. It is far more severe than simply losing an election. It is a label that this person is abusing power and is a criminal and a tyrant.

I think that is the problem here. You think this is like some kind of parliamentary vote of no-confidence. It is not.

Yes it's more severe than losing an election, my point was those are the only two ways a sitting president can lose office. Which makes sense because it's the only nation-wide office with a mandate so either they need to lose an election (the electors remove them) or they do something so severe that Congress impeaches them.

And that's the key question in impeachment - is what the President has done so severe that he should be removed? I think that is a healthier and more important thing to focus on than "did what the President do factually fall within one of these categories of crimes?"

I get the difference between a vote of no-confidence, but that also operates differently because it doesn't remove x person from office it causes the government to fall and a new election. So it's a way of basically returning things to the electors to make their choice. We do technically still have impeachment, but it's not clear if it's an obsolete power.

So a process that intended to be a criminal process should have laws. If it is a political process then the whole thing needs to be reworked because it is not designed to function that way. It would say something like the Congress can remove the President if they lack confidence in their leadership or something.

I disagree that it was ever intended to be a criminal process or should be thought of as one. I think it was designed as a political process with political consequences.

In any event even if you had a list of crimes you would still need someone to make a finding of fact: did this crime occur? And that process would be political because you're removing the President from office. You'd end up politicising the criminal/justice process rather than somehow de-politicising the process.

For example just off the top of my head, would it be a list of "normal" crimes that exists in the US or would it be separate, more political crimes (inciting insurrection, for example)? And if it's the latter what's the appeals process to work out the meaning or scope of those crimes? You'd either end up in the same position - Congress has to make a decision and it can't be appealed or you'd end up with a lot of time spent in the courts without a much more conclusive answer.

[Razgovory]

The impeachment process has never worked, and can not work if this is simply a political question. The question senators ask themselves is not "is what the President has done so severe that he should be removed?" it is "Is it politically advantageous for me to remove the President?"  The question of whether or not the President committed any given act must still be answered in an good faith impeachment.  It is useful to know whether or not the event everyone is debating is actually happened.

Providing an agreed upon list of impeachable acts gives Senators less wiggle room in avoiding the removal of an unfit President and less traction in trying to remove a fit President for purely political reasons.  An agreed upon list of impeachable acts won't fix all the problems but cutting out the question of "Is this an impeachable act?" and moving right on to "did this act occur?" at least removes one stumbling block.

[alfred russel]

The impeachment process has never worked, and can not work if this is simply a political question. The question senators ask themselves is not "is what the President has done so severe that he should be removed?" it is "Is it politically advantageous for me to remove the President?"  The question of whether or not the President committed any given act must still be answered in an good faith impeachment.  It is useful to know whether or not the event everyone is debating is actually happened.

Providing an agreed upon list of impeachable acts gives Senators less wiggle room in avoiding the removal of an unfit President and less traction in trying to remove a fit President for purely political reasons.  An agreed upon list of impeachable acts won't fix all the problems but cutting out the question of "Is this an impeachable act?" and moving right on to "did this act occur?" at least removes one stumbling block.

Raz, you skipped over my point earlier: what is the point of such a list? The constitution authorizes congress to remove a president (among others) provided there is impeachment and conviction for treason, bribery, or other high crimes and misdemeanors.

Why would it matter if a previous congress passed a bill clarifying what they wanted that to mean? The modern day congress has constitutional authority to do something--to remove or augment that authority you need an amendment.

More to the point: suppose that before the Bill Clinton impeachment the House and Senate passed a resolution defining "high crimes and misdemeanors" to include lying about banging your intern by majority vote. Would all the democrats in congress be like, "well that settles that...I disagree with the resolution but I guess I'm bound by it" and then the following votes would be unanimous in both houses of congress to impeach and remove Clinton?

[Sheilbh]

The impeachment process has never worked, and can not work if this is simply a political question. The question senators ask themselves is not "is what the President has done so severe that he should be removed?" it is "Is it politically advantageous for me to remove the President?"  The question of whether or not the President committed any given act must still be answered in an good faith impeachment.  It is useful to know whether or not the event everyone is debating is actually happened.

But it's a political process. It's not mechanical where there's a clear yes/no answer for some sort of technocratic state to answer; it's not clearly often a legal issue and for the reasons I've said it's not suitable for the legal process. I don't agree that they're asking if it's advantageous for them I think they are going to generally stick with the herd/their party line. If they think what a President did is serious enough they may break that line. I don't Romney voted the way he did because it was politically advantageous for him - I think he thought it was so serious he should break the party line, other Republicans disagreed.

And I'm not sure good faith is a useful concept in politics, because very often it just means did they agree with us. You can be in good faith and reach different conculsions or fail to agree something in negotiations. I think the key in this sort of act where you're removing the President is really that it is legitimate and perceived to be legitimate.

If you have a quick list then I think it's very possible that you reach the position of a party that controls congress impeaching a President from the opposite party on a technical breach of that list- which is good faith. They're just executing the law, but it would be (rightly) perceived as illegitimate. Alternately it's easy to imagine congress not impeaching a President of the same party on something egregious that wasn't foreseen, so it isn't in the list. Which again would be in good faith - just applying the law - but not legitimate.

Providing an agreed upon list of impeachable acts gives Senators less wiggle room in avoiding the removal of an unfit President and less traction in trying to remove a fit President for purely political reasons.  An agreed upon list of impeachable acts won't fix all the problems but cutting out the question of "Is this an impeachable act?" and moving right on to "did this act occur?" at least removes one stumbling block.

But it doesn't. Juries divide on a regular basis over whether something happened or not. There are entire shelves of case law by courts of appeal delineating what constitutes criminal acts and what doesn't, not to mention we'd have to develop thoughts around whether you need the sort of "mens rea" element to be impeachable. You're not cutting out the questions or the politics you're just displacing them onto other points - or alternatively you remove the politicians and you displace the politics from the elected officials to the judiciary.

[Razgovory]

Why must this be a purely political process?  What is your antipathy toward a "technocratic" solution?

[Razgovory]

The impeachment process has never worked, and can not work if this is simply a political question. The question senators ask themselves is not "is what the President has done so severe that he should be removed?" it is "Is it politically advantageous for me to remove the President?"  The question of whether or not the President committed any given act must still be answered in an good faith impeachment.  It is useful to know whether or not the event everyone is debating is actually happened.

Providing an agreed upon list of impeachable acts gives Senators less wiggle room in avoiding the removal of an unfit President and less traction in trying to remove a fit President for purely political reasons.  An agreed upon list of impeachable acts won't fix all the problems but cutting out the question of "Is this an impeachable act?" and moving right on to "did this act occur?" at least removes one stumbling block.

Raz, you skipped over my point earlier: what is the point of such a list? The constitution authorizes congress to remove a president (among others) provided there is impeachment and conviction for treason, bribery, or other high crimes and misdemeanors.

Why would it matter if a previous congress passed a bill clarifying what they wanted that to mean? The modern day congress has constitutional authority to do something--to remove or augment that authority you need an amendment.

More to the point: suppose that before the Bill Clinton impeachment the House and Senate passed a resolution defining "high crimes and misdemeanors" to include lying about banging your intern by majority vote. Would all the democrats in congress be like, "well that settles that...I disagree with the resolution but I guess I'm bound by it" and then the following votes would be unanimous in both houses of congress to impeach and remove Clinton?

Sorry I didn't respond earlier.   Providing an agreed upon list of impeachable acts gives Senators less wiggle room in avoiding the removal of an unfit President and less traction in trying to remove a fit President for purely political reasons.  Congress accepts the validity of laws that were passed before by the former Congress, I don't see why that should change concerning an impeachment law.

I don't know if all Democrats, or an even the majority would go for impeachment if they had already agreed that lying under-oath and obstructing justice were impeachable, but it would at least undercut the argument that Clinton's actions weren't impeachable.  I've thought a lot about the Clinton case since Trump became President and I think not removing Clinton was a mistake.

[The Minsky Moment]

Congress accepts the validity of laws that were passed before by the former Congress

Congress often repeals or amends the acts and laws of prior terms, as they please.

[Oexmelin]

Why must this be a purely political process?  What is your antipathy toward a "technocratic" solution?

Because a technocratic solution doesn't solve the problem, as Sheilbh explained. It simply pushes it out of politics, and into different arenas, which we have clearly set up for different purposes, and which draw their strength precisely from being different from politics. A government is neither a court, nor a managerial board.

In fact, a technocratic solution rather heightens the problem of our current circumstances, where a lot of people, left and right, feel, rightly or wrongly, disenfranchised from the political process itself. The solution doesn't seem to be to make politics even more removed from people and their representatives.

[Razgovory]

Pushing the problem out of politics (which is currently broken) and into a realm like the judiciary (which currently functions) sounds pretty good to me.  The most pressing problem we have at the moment is the President of the United States attempting to over throw the government.  A problem we don't have a solution for at this time.  Fixing our broken political system so that we can implement a process that will never work might be too ambitious a goal for the next three days.  If such action disappoints people who feel disenfranchised because they aren't allowed to murder large swaths of the American public then we must be prepared to make that sacrifice.

[Admiral Yi]

Which crimes should be on the list Raz?

[Razgovory]

Which crimes should be on the list Raz?

I'd like to see obstruction of justice on the list.  Obstruction of Congress is good as well.  Maybe something for failing to follow the orders of the court.  I'd very much like to see Presidency weakened.

[Sheilbh]

Why must this be a purely political process?  What is your antipathy toward a "technocratic" solution?

So what Oex said.

Also I think technocratic solutions work when there is consensus on what the "correct" solution is, it's just up to the experts/managers to implement. So it's most common in central banking, I think there was a technocratic turn in economic policy until fairly recently - in the UK I wouldn't be surprised to see technocratic institutions around climate in the next few years. Outside of those areas of consensus, in a democracy, I think those decisions need to stay in politis to be legitimate.

[The Minsky Moment]

Even if you got a technocratic consensus and were able to set some criteria and even if you could convince Congress never to alter it, there would still be politically charged disputes about how to interpret or apply that criteria.  In criminal cases, this is resolved by by describing the charge and handing it to a jury whose secret deliberations are basically a black box. 

In an impeachment those deliberations are open and so you'd have to resolve e.g. what is "obstruction of justice"?   As an example here are the federal jury instructions on obstruction:

n order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant influenced, obstructed, or impeded, or tried to influence, obstruct, or impede the due administration of justice; and

Second, the defendant acted corruptly, or by threats or force, or by any threatening communication, with the intent to obstruct justice.

I see a lot of interpretive issues and judgment calls in there.

[Razgovory]

But fewer judgement calls than if you haven't already decided that obstruction of justice is an impeachable offense.  I don't know why convincing Congress to never alter it is a requirement.  So long as they don't attempt to alter it retroactively I don't see the problem.  Congress alters laws all the time.  That's sort of their thing.  If Congress decides to pass a law saying that a President can't be removed for obstruction how does that differ from Congressmen standing up during an impeachment hearing saying "obstruction of justice is not an impeachable offense?"  At worst it puts us at back at square one.

The impeachment process simply doesn't work and yet we need a process to remove a president that will work.  Simply shrugging your shoulders and saying it isn't working because of the current political climate is not particularly helpful.  We need to alter the current system so that it will work in this political climate or replace it with one that will work.

We are only staving off disaster because some people in government are at least somewhat dedicated to rule of law and the US constitution.  Trump has already order the arrest of his political enemies.  We have only avoided a massive crisis before the election because Bill Barr did not follow Trump's order.  If Barr arrested Biden (even for just the few hours before an irate judge demanded the immediate release) does anyone still think Republicans in Congress would do anything?  We are having an inauguration this week because Trump knows that the Pentagon would ignore orders to declare martial law and make Trump dictator. We can't rely on key people in power ignoring illegal orders anymore.  We need something that can remove a dangerous and lawless president quickly.

[Oexmelin]

Yes, democracy is fragile. Always has been. And corruption always has been, purposefully, one of the hardest crimes to prove.  Which is why the whole "the army protects our freedom" type of speech that is so prevalent in the US has actually been quite corrosive. It made it as if it was always under threat from armed foreigners, and has allowed legislators to easily dispense with the uncomfortably vague notion of duty, and a bunch of fascists to simultaneously claim to be true to the constitution, while doing everything to subvert it. At least historic fascists were clear eyed about their desire to dismantle their hated constitutions.

The solution you propose may work in a different system, where the president doesn't have considerable executive leeway, and considerable discretion with regards to "national security" - far from the oversight that Congress surrendered. As of now, I don't see how it would solve anything (provided it would even pass in Congress), and would simply undermine further the judiciary.

Again, to reiterate: to push such matters purely into the policing / judiciary arena would further undermine your goal. It would simply allow people to assume the responsibility of maintaining clear lines is up to the police; the decision, up to a (politicized?) judge. The conversation about the nature of the obstruction would take place in a venue shielded from the public's eye. At best, you'd deal with the current circumstances, and would simply provide clearer guidelines for future would-be tyrants to avoid.