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Belisarius
Australia6233 Posts
On January 31 2020 06:27 IgnE wrote:what would happen if a president were impeached by a congress that decided they simply didnt like him? would he have a court case against congress for unlawful removal? would the supreme court decide it? who would enforce the decision? the whole thing starts to collapse very quickly if you dont abide by legal norms What would happen if a president were egregiously acquitted by a congress that decided they simply liked him? We are about to find out. | ||
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Gorsameth
Netherlands22036 Posts
On January 31 2020 06:27 IgnE wrote: The consitution saysyeah sure. but its lawyers running the show and they play by legal rules. hiring dershowitz makes sense only in a context where impeachment is treated like a trial and we have the chief justice presiding etc plus the limits of presidential power involve deep constitutional questions that go to the heart of the legal system what would happen if a president were impeached by a congress that decided they simply didnt like him? would he have a court case against congress for unlawful removal? would the supreme court decide it? who would enforce the decision? the whole thing starts to collapse very quickly if you dont abide by legal norms 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 so not quite 'because they didn't like him' but as others have said, this is not a legal trial. If congress can come up with a reason that can fall under Treason, Bribery or other high Crimes and Misdemeanors they can get rid of the President.If Congress were to vote a President out for shits and giggles he might be able to get the SC to make a ruling on whether it falls under Treason, Bribery or other high Crimes and Misdemeanors. | ||
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IgnE
United States7681 Posts
On January 31 2020 06:31 NewSunshine wrote: But then the real question is not whether they were breaking the law, but whether they felt like they were. Even if they irrefutably did. That's the basis of this defense. Why would anyone ever not say "yeah, I thought I was doing the right thing" if that was admissible in court? If we're going to go by legal standards, then ignorance of the law isn't an excuse. no, the question is whether what they did can be plausibly said to be in the national interest at the time they made the decision regardless of what they were actually thinking. the whole legal fiction around intention is that its not actually about intention, which is something that can never be proved or known. as kwark intimated, legal intention is established through after-the-fact arguing about objective circumstances | ||
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IgnE
United States7681 Posts
is the president abusing power if he solves the problem in a way that also benefits him? to what extent does he have to find the “best” solution? to what extent is the “best” solution defined by not overlapping with the president’s personal interests? how suboptimal does a solution or action have to be before its an “abuse” of power? | ||
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farvacola
United States18845 Posts
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IgnE
United States7681 Posts
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KwarK
United States43431 Posts
On January 31 2020 06:58 IgnE wrote: my point is that dershowitz is not saying “the president’s intention was X and unless he admits Y you cannot impeach him”. his argument is that what he did was in the nations interest, objectively, and that regardless of other intentions it was within his power. congress either has to say that his proffered objective intention is not in fact in the national interest or they have to basically set a precedent that quantifies what ratio of public/private interest counts as abuse of power. both are not as clear cut as people here seem to think Sorry, when did Dershowitz show that Trump bribing Ukraine with taxpayer money to investigate Trump’s political opponents was objectively in the national interest? I thought his argument was that Trump subjectively believed it to be in the national interest but if we have some objective truths to introduce to the discussion that would definitely clear things up. | ||
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GreenHorizons
United States23563 Posts
On January 31 2020 06:58 IgnE wrote: my point is that dershowitz is not saying “the president’s intention was X and unless he admits Y you cannot impeach him”. his argument is that what he did was in the nations interest, objectively, and that regardless of other intentions it was within his power. congress either has to say that his proffered objective intention is not in fact in the national interest or they have to basically set a precedent that quantifies what ratio of public/private interest counts as abuse of power. both are not as clear cut as people here seem to think I brought this up back when they released the text of the articles. It was obvious then that Democrats argument hinged on the idea that Hunter Biden's situation wasn't corruption or that investigating it wasn't in the national interest and apparently they never fixed that hole. | ||
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IgnE
United States7681 Posts
On January 31 2020 07:11 KwarK wrote: Sorry, when did Dershowitz show that Trump bribing Ukraine with taxpayer money to investigate Trump’s political opponents was objectively in the national interest? I thought his argument was that Trump subjectively believed it to be in the national interest but if we have some objective truths to introduce to the discussion that would definitely clear things up. ok so upon looking at what dershowitz said it appears he is arguing that the national interest was trumps own reelection. i assumed it would be something about investigating corruption involving hunter biden. seems pretty easy for congress to decide that one’s own election is not per se in the national interest so i concede that dershowitz is an idiot and relegate most of my comments as pertaining to a theoretical alternative defense that dershowitz has apparently not made | ||
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farvacola
United States18845 Posts
Apparently, Dershowitz is well known among his Harvard colleagues as someone who routinely makes borderline untenable arguments and defends the indefensible, largely because he has a strong bit of nostalgia for the days in which lawyers paid less attention to the implications of their extremely zealous advocacy. If true, that may explain part of his involvement here and elsewhere, like matters involving Epstein. | ||
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rope123
27 Posts
On January 31 2020 07:11 KwarK wrote: I thought his argument was that Trump subjectively believed it to be in the national interest but if we have some objective truths to introduce to the discussion that would definitely clear things up. Well, I can only speak from the perspective of a german lawyer, but the subjective belief to be justified can in many cases be enough to acquit you. There is this thing called an "Erlaubnistatbestandsirrtum" which has no real equivalent in common law but basically boils down to a mistake of fact which leads a person to commit an act which would be justified if the circumstances which he believes to be true were in fact true. Simply imagine a guy who believes to be in grave danger by an attacker (in reality there is no life-threatening attack happening though) and then kills that attacker in imagined self-defense. Under german criminal law you could not convict him of murder/manslaughter. There is still a debate on the exact "dogmatic" reasoning why such a person wouldnt be convicted (did he truly act "lawfully" or did he act unlawfully but "individual guilt" is missing) but the end result is the same: acquittal. So the argument that the President imagined a situation in which it would have been in the national interest to do what he did (or do sth else objectively illegal like embezzling funds as Igne pointed out) has some theoretical merit. In the specific case though it doesnt hold up at all. Dershowitz has not really shown that Trump actually imagined a factual situation in which he would have been justified. At most - and even that seems barely believable to me - he has shown that Trump convinced himself that his individual actions were justified without actually misinterpreting the facts. An analogy for that could maybe be the following: You get in a fight with a guy and he mildly pushes you around. You realize you might at worst suffer a mild injury but convice yourself that in this situation the law actually allows you to kill sb in self defense. SUch a person would obviously be convicted if he then kills his attacker in "self-defense" (a misinterpretation of the law not the facts) Trump was not imagining a situation in which his actions would have been according to national interest but he was reinterpreting national interest. thats not up to the president | ||
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Gorsameth
Netherlands22036 Posts
On January 31 2020 07:50 farvacola wrote: The issue, as mentioned before, is that if you follow that to its logical conclusion a President is allowed to remove his political opponents for no other reason then to ensure his own re-election because his re-election is always in the national interest according to him. Dershowitz is presenting an unspoken, yet fundamental tenet of the unitary executive theory, that even the use of the trappings of office for self-preservation is a constitutional exercise of executive power (this is quintessential neo-Jacksonian Democracy, to put another gloss on it). Apparently, Dershowitz is well known among his Harvard colleagues as someone who routinely makes borderline untenable arguments and defends the indefensible, largely because he has a strong bit of nostalgia for the days in which lawyers paid less attention to the implications of their extremely zealous advocacy. If true, that may explain part of his involvement here and elsewhere, like matters involving Epstein. For all intents and purposes it gives the President absolute power. | ||
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GreenHorizons
United States23563 Posts
On January 31 2020 07:57 Gorsameth wrote: The issue, as mentioned before, is that if you follow that to its logical conclusion a President is allowed to remove his political opponents for no other reason then to ensure his own re-election because his re-election is always in the national interest according to him. For all intents and purposes it gives the President absolute power. I don't think that is an accident or stupidity he went with that over the "investigating corruption is in the national interest" argument. | ||
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farvacola
United States18845 Posts
On January 31 2020 07:53 rope123 wrote: In US criminal common law, the legal import of subjective belief is built into the hierarchical levels of mens rea (intent) determinations. Each state and the federal government have slightly different criminal codes and mens rea jurisprudence, but I'd guess that most follow what you've described in the German system, that crimes like manslaughter and murder carry high mens rea requirements. For example, negligence tends to only support low level criminal offenses, whereas recklessness, general intent, and then specific intent each support more and more severe charges. And even at the specific intent level (i.e. I meant to kill this person when I killed them) certain defenses can greatly mitigate the charge, with some states allowing even unreasonable belief that self-defense was necessary to lower a charge or sentence. Most jurisdictions also allow heat of passion defenses as a severity lowering defense, using the logic that a man who walks in on a man fucking his wife should be held less culpable for murdering him if he can establish that he was overcome by the emotional impact of seeing what he did. Well, I can only speak from the perspective of a german lawyer, but the subjective belief to be justified can in many cases be enough to acquit you. There is this thing called an "Erlaubnistatbestandsirrtum" which has no real equivalent in common law but basically boils down to a mistake of fact which leads a person to commit an act which would be justified if the circumstances which he believes to be true were in fact true. Simply imagine a guy who believes to be in grave danger by an attacker (in reality there is no life-threatening attack happening though) and then kills that attacker in imagined self-defense. Under german criminal law you could not convict him of murder/manslaughter. There is still a debate on the exact "dogmatic" reasoning why such a person wouldnt be convicted (did he truly act "lawfully" or did he act unlawfully but "individual guilt" is missing) but the end result is the same: acquittal. So the argument that the President imagined a situation in which it would have been in the national interest to do what he did (or do sth else objectively illegal like embezzling funds as Igne pointed out) has some theoretical merit. In the specific case though it doesnt hold up at all. Dershowitz has not really shown that Trump actually imagined a factual situation in which he would have been justified. At most - and even that seems barely believable to me - he has shown that Trump convinced himself that his individual actions were justified without actually misinterpreting the facts. An analogy for that could maybe be the following: You get in a fight with a guy and he mildly pushes you around. You realize you might at worst suffer a mild injury but convice yourself that in this situation the law actually allows you to kill sb in self defense. SUch a person would obviously be convicted if he then kills his attacker in "self-defense" (a misinterpretation of the law not the facts) Trump was not imagining a situation in which his actions would have been according to national interest but he was reinterpreting national interest. thats not up to the president On January 31 2020 07:57 Gorsameth wrote: The issue, as mentioned before, is that if you follow that to its logical conclusion a President is allowed to remove his political opponents for no other reason then to ensure his own re-election because his re-election is always in the national interest according to him. For all intents and purposes it gives the President absolute power. What you describe is why most of the proponents of the unitary executive theory try their best to avoid the path towards the conclusion  | ||
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Nebuchad
Switzerland12379 Posts
How do you guys live like this. | ||
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Gorsameth
Netherlands22036 Posts
In this case Erlaubnis (permission) tatbestand (facts/specifics) irrtum (mistake). Or something to do that effect. | ||
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rope123
27 Posts
Although I am a civil lawyer (torts, contracts and the like) and usually have more fun with messy problems I have a great admiration for the incredibly tidy structure of German criminal law. In its precision it is quite singular and Erlaubnistatbestandsirrtum might not be a beautiful word but it is beautifully clear in its meaning  | ||
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Nebuchad
Switzerland12379 Posts
On January 31 2020 08:20 rope123 wrote: Although I am a civil lawyer (torts, contracts and the like) and usually have more fun with messy problems I have a great admiration for the incredibly tidy structure of German criminal law. In its precision it is quite singular and Erlaubnistatbestandsirrtum might not be a beautiful word but it is beautifully clear in its meaning I can see why that's useful yeah. Of course I'm 75% joking and 25% not sure german is a human language x) | ||
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WombaT
Northern Ireland26225 Posts
On January 31 2020 08:22 Nebuchad wrote: I can see why that's useful yeah. Of course I'm 75% joking and 25% not sure german is a human language x) I like the idea of a language where you can just ram as many words together as possible to make a new word. I take it you’re not from the native German tract of Switzerland? Shame as you miss out on the language of romance | ||
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ChristianS
United States3272 Posts
On January 31 2020 06:51 IgnE wrote: imagine a general case: there is a problem that negatively affects the public is the president abusing power if he solves the problem in a way that also benefits him? to what extent does he have to find the “best” solution? to what extent is the “best” solution defined by not overlapping with the president’s personal interests? how suboptimal does a solution or action have to be before its an “abuse” of power? But I think you’re maybe glossing over the implication of Dershowitz’s argument. Obviously pursuing the national interest is what the president is supposed to do, and doing so effectively is likely to improve his re-election chances; in this sense, by pursuing the national interest he also pursues his self-interest, and no one serious is arguing this is impeachable. What’s being floated, and I think deserves to be explicitly addressed, is that the president believes that his re-election would be in the nation’s interest. That is to say, Donald Trump believes that re-electing Donald Trump is in the US’s interest; so interfering in the machinery of democracy to make his re-election more likely is in the nation’s interest (and therefore legally permissible)! I think you may be glossing over this take because of its obvious stupidity; but I think it’s worth calling out specifically and ridiculing. I don’t know if Dershowitz expressed this explicitly, or if his wording was ambiguous enough that he might have just been arguing the first (obvious) point, not the second (stupid) one. Even if he meant the latter, after much ridicule, he might fall back to the first and say he only meant the former. The trouble is, the GOP needs a position that isn’t contingent on the facts of the case, because they need to be able to say “this is why we shouldn’t bother collecting more facts.” Saying “Trump had reasonable suspicion that Biden’s actions were corrupt, so he believed investigating served the national interest” is fact-contingent. We could learn from witnesses what grounds he had for reasonable suspicion, whether these grounds were stated contemporaneously or only manufactured later, etc. This makes it hard to argue against witnesses, particularly when they themselves have repeatedly attacked the House’s fact-finding as insufficient (e.g. “no first-hand knowledge”). To avoid that contingency, they need an argument that would hold even if the worst possible facts were proven - that is, even if it was proven that Trump’s sole purpose was to baselessly slander Biden and win re-election. The “winning re-election is in the national interest!” argument meets that standard, which is why you see people flirting with it, and why it’s worth explicitly addressing. | ||
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