Is Presidential Impeachment Constitutional Dead Letter?

(At least the removal part)

On Thursday, Susan Hennessy tweeted the following about the (then-pending) vote on witnesses in the Senate, which inspired the following response from me:

I have been thinking about this notion during the entire process and I am essentially convinced that impeachment leading to removal, as it pertains to presidents (as opposed to judges), is essentially dead letter. James Joyner’s post, We Don’t Need Witnesses, also fits into this discussion (as I will touch on below).

The argument is straightforward: the role that political parties play in our system means that the incentives for members of the president’s party to vote to remove are almost zero.  All the structural conditions promote sticking with the party: re-nomination, re-election, and status and influence within the party (to include fundraising and legislative influence). Even if one is leaving office and wishes to stay connected to one’s group, especially for employment (and even socially), the incentives to defect are low.

And it isn’t that the contemporary Republican Party broke the impeachment process. Rather, the advent of political parties two centuries ago started the demise of the process and whatever life it may have had has been squelched by polarization and the structure of modern mass media.

To James’s point in the post I noted above: the vote about removal has been a foregone conclusion from the beginning, so it makes sense (from an incentive structure POV) that GOP members would vote against witnesses. I understand, and indeed have substantial sympathy, for the normative position that witnesses should have been called, but from a dispassionate point of view, it makes sense that the vote went as it did.

Fundamentally, this is a feature of representative democracy: members of the Senate want to please their constituents (first in the primary, and then in the general election) so that they can keep their seats. And, so, one can be angry (or happy) with the given action of the given Senator–the bottom line is that the blame for the vote in the Senate is housed with the voters (and the ways in which our constitutional order empowers certain voters).

Forget the romance of civic virtue or the notion that Senators should put country over party. The bottom line is that David Mayhew was correct back the mid-1970s when he argued that members of congress are single-minded seekers of reelection. * I would add to that that they are self-interested in general and also, like all human beings, heavily influenced by their peer group and prone to rationalizing their positions.

Remember: for all who are deeply convinced that Trump deserved to be removed, there are a lot of people out there sincerely convinced of the opposite. Only a large plurality (48.3% when I write this) of Americans want Trump removed. Not only is that not enough support to create electoral pressure on the Senate, that plurality is not evenly distributed across the various states. Throw in the importance of primaries as a major step in re-election and the unrepresentative nature of the Senate to begin with, and the incentives to vote to remove are obviously low. Add in the super-majority threshold for removal and the hopelessness of any president ever being removed should be clear.

By the way: even if the Senate was a far more representative body, public support is such that even a more representative Senate would have been unlikely to muster a super-majority for removal.

So, rather than current events, to Hennessy’s lament, being some new threat to the impeachment process as a check on executive excess, I think this is just an illustration of how toothless a mechanism it has always been.

And, really, if we can divorce ourselves from the passions of the moment, we should note that the historical record demonstrates the difficulty of removal (granted, N=3, so it is hard to talk about solid trends). Toss in the short-circuited-by-resignation Nixon process and N goes to 4.

Nixon provides an interesting thought experiment, as I am of the mind that in the contemporary setting of modern media and polarization that Nixon would have survived Watergate and would not have resigned.

Keep in mind: impeachment and removal as conceived of by the Framers would have been done is radically different media and political environment. There would not have been instant analysis of every action and the arguments would have been made in very, very different conditions. They would have operated in an almost private fashion compared to now. (And none of that even takes into account the role parties now play).

Ultimately, it is difficult to see a scenario wherein the legislature would use impeachment and removal against a president save some action so egregious that it really would turn the public against the president in an unprecedented way (and that would probably lead to resignation before it would lead to removal by the Senate). The partisan tendency to protect its own and the human capacity to rationalize the actions of one’s own team is quite powerful.

Maybe shooting someone on Fifth Avenue would do it, but maybe not.

At a minimum, the notion that the impeachment process can actually act, in Hennessey’s words, as “a genuine check on executive overreach” is almost certainly dead letter (and has been maybe since the beginning, but certainly in now).

I would add: the odds are huge that only a party opposite that of a sitting president would impeach in the House to begin with. As such, the partisan nature of the process is pretty much overwhelming in any realistically conceivable scenario. Impeachment and removal is therefore only a real possibility where the party opposite the president holds the House and an overwhelming number of seats in the Senate. But in what scenario could party X win the Senate in such a fashion and yet not hold the presidency?


*Giving credit where credit it due, occasional OTBer Chris Lawrence reminded me of that phrase on Twitter recently.

FILED UNDER: *FEATURED, Best of OTB, Donald Trump, Impeachment, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. James Joyner says:

    I think this is exactly right. At best, the bar for removal is extraordinarily high. But, then, maybe that’s as it should be.

    You’ve noted that there have been only three/four incidences of Presidential impeachment (depending on how one counts Nixon). Our system has been In operation since 1789. The first instance took almost a century—1868–and was arguably a fallout from a civil war. Nixon’s quasi-impeachment took another century. We’ve now had two in 19 years.

    And, as noted in an earlier post this morning, in none of the three true impeachments did even a single member of the President’s party vote to convict.

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  2. James Knauer says:

    @James Joyner: “We’ve now had two in 19 years.”

    The same can be said of electoral college “victories” placed next to losses of the popular vote.

    It joins the the U.S. Senate as the two corrupt institutions that have brought the tyranny of the viscous minority since 2000.

    The GOP has no interest in “saving the country.” Their goal has always been to usher in the theocratic oligarchy. The nonsense speech of Murkowski, Alexander, Rubio exemplifies their willful intent to destroy anything that prevents self enrichment posing as a tent revival.

    November 2020 will be a soul-searching election. Or not. The GOP excels in the lies that make people consistently vote against their own interests.

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  3. Michael Reynolds says:

    Oh, well, OK then. We’re just going to say fck that part of the Constitution and move on because what’s the alternative? Suggesting a radical notion like public virtue? Suggesting that there is a right and a wrong, a good and an evil, and then expecting politicians to behave morally and ethically?

    Or, let’s just shrug when all notions of virtue are destroyed. Because, hey, political parties.

    It’s a lovely morning here at OTB for prosperous, straight white males to pour oil on troubled waters and tell everyone to calm down ’cause whaddya gonna do? Hey, the system’s corrupt, and the only way to fight corruption is by shrugging it off and redefining corruption downward. How about you people who aren’t safe within a corrupt system? Black, brown, women, immigrants, members of unpopular religions, the poor, you’re all fine with us well-off white dudes just accepting the fact that politics is now nothing but a white supremacist party and a non-white party bludgeoning each other without concern for decency, mores and ethics because hey, we’re safe!

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  4. @Michael Reynolds: No. The first step to fixing a problem is identifying what the problem actually is. Pretending like virtue alone will save us has never worked in the entire history of humanity.

    Black, brown, women, immigrants, members of unpopular religions, the poor, you’re all fine with us well-off white dudes just accepting the fact that politics is now nothing but a white supremacist party and a non-white party bludgeoning each other without concern for decency, mores and ethics because hey, we’re safe!

    BTW: I have no idea how my explanation of how a process works results in that assessment.

    I would note: have you not read the thousands of words I have written as to why our constitutional system is screwed up, specifically in terms of representation? (A rhetorical question, because I know you have).

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  5. @Michael Reynolds:

    Or, let’s just shrug when all notions of virtue are destroyed. Because, hey, political parties.

    Not a shrug: an explanation and a diagnosis.

    Primaries are part of the problem.
    Single-seat plurality elections are part of the problem.
    A too-small House is part of the problem.
    The Electoral College is part of the problem.
    The way the Senate is apportioned is part of the problem.

    I could go on.

    And there is the very real problem that half of the country disagrees with the other half.

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  6. @Michael Reynolds: One more thing:

    tell everyone to calm down

    Where did I ever say that?

    Indeed, what I am trying to do (and have been for years) is to convince as many people as possible that institutional reform is needed in the US. That is a tall hill to climb, but not one step will be taken if people don’t understand what the problem is. (And even then, people will disagree over what is virtuous and what deserves punishment).

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  7. Michael Reynolds says:

    @Steven L. Taylor:
    Cart before horse. Institutions are changed because we believe in virtue. Right? Otherwise there is no incentive for change that does not go right back to brute force politics.

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  8. Michael Reynolds says:

    @Steven L. Taylor:
    As for minorities, they are protected within the system by law, but law predicated on notions of morality and equity and enforced by same. Vulnerable Americans are not protected by law alone – witness, oh, let’s say our entire post Civil War history. It wasn’t law that ended Jim Crow, it was moral outrage that precipitated laws.

    Without virtue democracy is nothing but mob rule and no one is safe. But of course relatively speaking some of us – say a well-off white, male writer in LA – are far safer than others.

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  9. Modulo Myself says:

    Look, if powerful Americans were held accountable for their actions, it would be elderly hippies, cranks, and 20-somethings running everything. Trump is a resentful white chud’s version of a VIP who gets away with it. That’s all he is. And this is the reason young people are turning out for Bernie and not some new Third Way clone. They see how bleak the entire enterprise is. No one intelligent rich or poor and under 30 is looking at America and thinking man what this is needs is less polarization and a new party system. No, America is The Shithole and it’s collapsing, even with 4% unemployment and a bunch of half-rich people pretending that this is the best and most practical of all possible worlds while they sigh, say meh, and burn shit down.

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  10. Jay L Gischer says:

    I would definitely include Nixon. Nixon resigned because he faced certain impeachment in the D-controlled House, and Barry Goldwater told him he had at most 15 votes against removal in the Senate. So lots of R Senators would have voted to remove him. That’s worth examining how things are different now from them.

    And by the way, the worst things Nixon did, the thing that drove this moment, was the release of a tape that showed he had lied to the people, and had known very early on about the burglary and its connection to CREEP. This does not strike me as a greater crime than anything Trump did. So what’s different about now?

    Maybe it’s the polls? Well I found a source here that shows polling for Nixon’s removal ran a little higher (58%) for his removal than it has for Trump. But I don’t consider that high enough to ensure removal. I think the number has to go to maybe 70 percent. GW Bush polled as high as 51% and it went nowhere.

    The poll in the link for Nixon was taken August 2-5, 1974. The “Smoking Gun Tape” was released on August 5, so that information was almost certainly not included. I have no idea if the fast-data “tracking polls” that exist now existed then, but the political calculation from Senators was that it was really bad, and support for removal had moved a lot.

    I’m not sure we have a “smoking gun tape”. We do have “smoking gun testimony” from Bolton. We have the phone call tape from Parnas/Fruman. They are pretty bad. The Senate managed to keep both of these from gaining the spotlight, plus some other damaging testimony. I think the testimony did matter, but in terms of the politics and popular opinion.

    Yeah, I think polarization and the media climate matter a lot between Nixon’s moment and this one. In particular, it was nearly impossible to push an alternative narrative through the networks and newspapers. These days its trivial.

    I’m not sure how you reform the Senate. The House is easy, it doesn’t require consititutional change, just the determination of the House to spend some money and build a new chamber that works for 1000-ish Representatives. The main trick is getting it through the Senate. The EC is harder, but probably can be done by joint state action. I note that Texas is shifting blue, once that happens, things will be very different.

    I think that, inconvenient as it is, blowing up the filibuster is probably a good move because it reduces the influence of a Senate that is strongly anti-democratic.

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  11. @Michael Reynolds:

    Cart before horse. Institutions are changed because we believe in virtue. Right? Otherwise there is no incentive for change that does not go right back to brute force politics.

    Actually, not really. Virtue didn’t lead to US Independence, brute force did. And the Articles of Confederation were replaced not because virtue overtook the Framers. It was because they had the political power to solve a problem.

    We (the human race) have been looking to virtue to solve political problems since at least the Greeks, but we have also been schooled in the limitations of only virtue since then as well.

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  12. @Michael Reynolds:

    Without virtue democracy is nothing but mob rule and no one is safe. But of course relatively speaking some of us – say a well-off white, male writer in LA – are far safer than others.

    I think you are asking the word “virute” to do a lot of work this morning.

    The fact that the Senate GOP is not acting virtuously in the Senate doesn’t mean that the entire structure of the rule of law has collapsed.

    I understand, and share, your moral outrage at Trump’s behavior and regarding his enablers. And I further agree that values are important to governance. But power is also key and simply calling for virtue solves less than calling for specific structural changes–and the study of human politics for millennia demonstrate this.

    Plato’s Republic and Aristotle’s Politics are both arguments (at least in part) about how the design of government either promotes, or fails to promote, virtuous governance.

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  13. Gustopher says:

    So, rather than current events, to Hennessy’s lament, being some new threat to the impeachment process as a check on executive excess, I think this is just an illustration of how toothless a mechanism it has always been.

    I think the modern Republican Party is the first time anyone has been brazen and shameless enough to exploit the toothlessness of the mechanism.

    And I have no doubt that it sets a precedent going forward with regards to the balance of power.

    It also leaves government shutdowns as the best lever that congress has. Well, that and any guns that individual congress-critters might have, I suppose, but I don’t really expect a shootout at the State of the Union.

    I do expect a government shutdown over failure to provide documents and witnesses required for congressional oversight though, just because it’s the last lever. (Am I missing other clubs held by the legislature?)

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  14. Moosebreath says:

    @Gustopher:

    “I think the modern Republican Party is the first time anyone has been brazen and shameless enough to exploit the toothlessness of the mechanism.

    And I have no doubt that it sets a precedent going forward with regards to the balance of power.”

    This. I think Congress has a few other pressure points, most notably in authorizing spending, though Trump has been trying to work around them as well (as seen by transferring money from other programs to pay for the wall).

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  15. @Gustopher:

    I think the modern Republican Party is the first time anyone has been brazen and shameless enough to exploit the toothlessness of the mechanism.

    I am not so sure. The Democrats were willing to let Clinton get away with perjury.

    (And if you want to say that perjury over sex wasn’t worth removal, then you are at least in part using an argument similar to Lamar Alexander’s “inappropriate, but not impeachable” stance).

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  16. Kit says:

    @Steven L. Taylor:

    an explanation and a diagnosis

    And your prognosis? I ask both because I’m interested and because I feel that your prescription is impossible:

    @Steven L. Taylor: what I am trying to do (and have been for years) is to convince as many people as possible that institutional reform is needed in the US

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  17. @Kit:

    And your prognosis?

    The likelihood is the ongoing erosion of democracy.

    However, I do have some optimism that Democrats will take opportunities to address these issues in ways that they would not even consider in the past–such as increasing the size of the house, or adding states, or even packing the Court.

    These are actually doable, albeit still extremely difficult. (I lean more on on the idea that the best possible-but-very-difficult move is increasing the size of the House, which would help ameliorate the problems created by the EC).

    I do not foresee the deeper kinds of reforms I would like to see.

    I do think another possible route is a deeper and more dramatic crisis and then a breakdown of the current constitutional order.

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  18. BTW: more people are talking about institutional issue now than was the case even 5 years ago, so my prescription may have some force (but not just because I am talking about it 😉

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  19. mike shupp says:

    Lots of other fun charges to bring against Trump — emoluments, failure to make appointments in constitutional order, nepotism, tax fraud, etc. House Democrats ought to feel free to open new impeachment hearings, and this time they should take the path Nancy Pelusi didn’t want to follow. Appeals for whistleblowers. Lots of requests for witnesses pursued through the federal courts, taking as long as necessary. Frequent public complaints about Federalist Society judges who stretch proceedings from days into years. Invite scrutiny of procedures and evidence by foreign governments and newsmen. Have some websites — non-social media sites! — to explain precisely what is occurring to people who are not sophisticated web users. Etc. Take as much time as it takes — there’s almost five years yet to run, and one of the side benefits of this approach is to keep the Trump administration tied up .

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  20. Just nutha ignint cracker says:

    @Michael Reynolds: I get your frustration. Allowing me to be cynical for a moment, the Constitution guarantees a government “of the people [who matter], by the people [who matter], and for the people [who matter]”–in other words, a (hopefully) benign and mostly beneficent aristocracy. Government by “us” (with “us” being the sort of people with the time, inclination, and resources to spend several months away from their lives and livelihood arguing the fine points of the question of how to make town meetings and Houses of Burgesses work on a national scale). If things had stayed as they were in those times, you would, undoubtedly be part of “us.” You wouldn’t be part of the “ruling us” because you came to your “us”-ness relatively late in life, but your voice would have been important in ways that mine isn’t even under the current circumstances, let alone back then.

    Given the above, let’s allow that impeachment was established to be a genuine mechanism rather than just a sham. What might the purpose have been? To correct for the discovery that the person elected President wasn’t “one of us” at all. To have this correction be something not subject to the whims of partisanship, though, “we” would have to be fairly unanimous that such was the case. Ergo, a supermajority (actually over super–which can be as little as 60%) have to agree. (And of course–because I’m being cynical–the “high crimes and misdemeanors” referred to in the Constitution refer to demonstrations that the accused isn’t one of “us” at all.)

    In essence, the current problem is that who “us” is has changed–dramatically. As Dr. Taylor has noted, only a plurality of us believe that what Trump has done constitutes crimes at all (granted, significant numbers of the balance are lying, but we go to argument with the data we have not the data we wish for–to paraphrase a significant figure in a recent ruling “us”). While it is frustrating, it is the situation, and complaining about morality, honor, and whatnot will not change the status “on the ground” until we get better and more thoughtful people using their vote to make a better society for all of us. And when has that ever happened, at least in my lifetime?

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  21. @Just nutha ignint cracker:

    I get your frustration.

    For the record (just in case it isn’t clear): I do too.

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  22. Just nutha ignint cracker says:

    @Steven L. Taylor: Never doubted it at all. 😉

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  23. dmichael says:

    @Steven L. Taylor: Whoa. I didn’t see this one coming from you: “The Democrats were willing to let Clinton get away with perjury.”
    Did you miss my comments about the Democrats proposing that Clinton be censured? Or do you believe (as apparently James does) that the ONLY punishment befitting perjury in a civil proceeding is removal from office? And no, it is not remotely like Sen. Alexander’s “inappropriate but not impeachable stance.” Trump’s behavior was directly related to his constitutional duties as president. Clinton’s was not. Trump’s behavior created (and will create) significant risks to our elections. Clinton’s did not. Finally, did the Democrats attempt to shield Clinton from being held in contempt of court and fined and lose his law license? Color me stunned.

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  24. Moosebreath says:

    @Steven L. Taylor:

    “(And if you want to say that perjury over sex wasn’t worth removal, then you are at least in part using an argument similar to Lamar Alexander’s “inappropriate, but not impeachable” stance).”

    With the significant difference that a motion to censure Clinton would have received near unanimous support from Democrats in 1998-99 (indeed, that we the stated position that Move On was founded for — that the appropriate action was to censure Clinton, then move on). I will be shocked if a motion to censure Trump gets 10 Republicans between the House and Senate to support it.

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  25. Kit says:

    @Steven L. Taylor:

    The likelihood is the ongoing erosion of democracy.

    Again, honestly, I’d really like to hear you be more specific. What’s next, in your opinion, if democracy further erodes? What are the future barricades?

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  26. steve says:

    I am totally with you here Steve. The way our system functions now these is close to a zero chance a president will be impeached. As long as they dont leave an obvious money trail the POTUS can do most anything. The POTUS can control whatever information is released and then people who want to be purists will really just be played as chumps when they claim you dont have 100% proof.

    Steve

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  27. @dmichael:

    “The Democrats were willing to let Clinton get away with perjury.”
    Did you miss my comments about the Democrats proposing that Clinton be censured?

    Censure would have been meaningless, in my opinion. And censured and still in office is still in office. And that was letting him get away with it.

    And no, it is not remotely like Sen. Alexander’s “inappropriate but not impeachable stance.”

    Yes. It is. Is the stance that the president did a bad thing, but he doesn’t deserve to be removed. (That one may be more defensible than the other doesn’t change the basic nature and structure of the reasoning).

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  28. @Kit: Obviously, answering completely would take more time than comment response.

    But the main issue, to me, is the degree which the congruence of public opinion and public policy continues to erode. It can be seen in less and less actual legislation. More and more executive unilateralism. More ways to block voters from voting. And so forth.

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  29. @Moosebreath:

    With the significant difference that a motion to censure Clinton would have received near unanimous support from Democrats in 1998-99 (indeed, that we the stated position that Move On was founded for — that the appropriate action was to censure Clinton, then move on). I will be shocked if a motion to censure Trump gets 10 Republicans between the House and Senate to support it.

    To be blunt: who cares about censure? I thought it was pointless at the time and still do. The fact that he was impeached is the highest constitutional censure he could have received in any event.

    What would have been the consequences of a censure?

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  30. gVOR08 says:

    @Jay L Gischer:

    I’m not sure we have a “smoking gun tape”. We do have “smoking gun testimony” from Bolton. We have the phone call tape from Parnas/Fruman. They are pretty bad. The Senate managed to keep both of these from gaining the spotlight, plus some other damaging testimony.

    Somebody observed months ago that Nixon was driven out by the smoking gun audio tape, but in the 21st century we’d need to have a smoking gun video. Testimony might have provided some pretty good video.

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  31. An Interested Party says:

    Is the stance that the president did a bad thing, but he doesn’t deserve to be removed. (That one may be more defensible than the other doesn’t change the basic nature and structure of the reasoning).

    But the two things are radically different in degree…one is like getting scratched on your arm while the other is like the threat of having your whole arm amputated…the rather dangerous precedent that is being set now could lead to something really bad in the near future…forget erosion, the congruence of public opinion and public policy could be completely washed away..

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  32. @An Interested Party: I agree that they are different by degrees (although having the head of the executive branch lie under oath is not a small thing, so I don’t think your analogy is apt).

    But I stand by the fact that the logic is the same.

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  33. Ken_L says:

    There’s a quite plausible hypothetical scenario where senators from the president’s own party decided their own political interests were served by removing the president. Imagine, for a moment, that the Access Hollywood tape hadn’t surfaced until after his inauguration, followed by multiple credible accusations of sexual assault and pedophilia. Imagine that the unpredictable media hivemind had decided this was both utterly intolerable and the starting point for nothing but negative stories about Trump’s corruption and sexual depravity. By 2019, Trump could have been so much on the nose that it was politically impossible to continue to support him; better to remove him from office, swear in President Pence and campaign in ’20 on a platform of ‘Family Values’.

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  34. Gustopher says:

    @Steven L. Taylor: Out of curiosity, are there any crimes for which a president could conceivably be impeached where you think removal would not be appropriate?

    I think there’s a world of difference between Trump’s crimes and Clinton’s — Trump’s is an abuse of power targeting the institutions and the foundation of our democracy, while Clinton’s is a crime in a private matter — and I think that’s a distinction that really does matter.

    That said, if we discovered that Jimmy Carter was a high end art thief, or Ronald Reagan was conducting illegal experiments in human cloning, entirely separate from their official duties, I would probably grudgingly have supported their removal…

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  35. James Joyner says:

    @Jay L Gischer:

    And by the way, the worst things Nixon did, the thing that drove this moment, was the release of a tape that showed he had lied to the people, and had known very early on about the burglary and its connection to CREEP. This does not strike me as a greater crime than anything Trump did.

    I think that’s true in totality but not in terms of the impeachment inquiries themselves. Trump wasn’t impeached for his continuing corruption, Emoluments Clauses violations, Russiagate, his horrendous actions on the border, etc. but for trying to coerce the Ukranian government to investigate the Bidens–or at least announce they had—and trying to cover that up. Nixon ordered a break-in of the Democratic Party headquarters and a massive cover-up once it was discovered. Objectively, that’s worse.

    I think polarization and the media climate matter a lot between Nixon’s moment and this one. In particular, it was nearly impossible to push an alternative narrative through the networks and newspapers. These days its trivial.

    I think those things, plus the fact that the parties are much more neatly sorted, is what matters. Remember, in 1974 most of the South was Democratic—and California consistently voted Republican for President. Consequently, public opinion was much less divided by party then than now.

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  36. Moosebreath says:

    @Steven L. Taylor:

    After writing in this post sentences like:

    “All the structural conditions promote sticking with the party: re-nomination, re-election, and status and influence within the party (to include fundraising and legislative influence). Even if one is leaving office and wishes to stay connected to one’s group, especially for employment (and even socially), the incentives to defect are low.”

    and

    “Forget the romance of civic virtue or the notion that Senators should put country over party. The bottom line is that David Mayhew was correct back the mid-1970s when he argued that members of congress are single-minded seekers of reelection.”

    if you cannot see the point of having the majority of members of the President’s party state that his conduct was wrong, even if they do not believe he should be removed from office, then nothing I can say will move this discussion forward.

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  37. Kurtz says:

    @Steven L. Taylor:

    Well, Steven didn’t say it, so I will.

    Everyone, calm the fuck down.

    All the anger and frustration is doing no one any favors.

    First of all, we have known the ultimate outcome of this since Trump was impeached.

    Check that, since before the impeachment started.

    Hold up, we have known it since 11/8/16.

    Shit, sorry, we have known it since Trump won the nomination.

    Once the party of the moral majority and Helen Lovejoy nominated that guy, it should have been obvious to everyone that no matter what he did, means don’t matter for the GOP.

    Second, all the garment rending just makes everyone look like chicken little. Focus on figuring out how to look like the side to join for fence-sitters who don’t pay attention until after the conventions.

    Third, any potential damage ought to be assessed after the administration leaves office. There is no sense gaming scenarios in which Trump refuses to leave after losing the election, or what a President may be able to do in the future that s/he could not do before. You’re trying to appraise damage during the eye of a hurricane.

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  38. @Moosebreath:

    if you cannot see the point of having the majority of members of the President’s party state that his conduct was wrong, even if they do not believe he should be removed from office, then nothing I can say will move this discussion forward.

    I am saying that it would have no constitutional effect and be largely meaningless.

    I also think that it would not happen now, especially with an election coming up.

    I am not even convinced, when push came to shove, that it would have happened for Clinton. Why vote for condemnation when you know that removal vote will be one to acquit?

    This is why I think it is an empty notion. It doesn’t mean anything, save symbolically (and impeachment itself is the bigger symbol already) and his party really didn’t have the incentive to vote that way (but they could talk about something that wasn’t going to happen because it made them look reasonable).

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  39. @Gustopher:

    Out of curiosity, are there any crimes for which a president could conceivably be impeached where you think removal would not be appropriate?

    Gaming the totality of scenarios is impossible (or, too time-consuming to embark upon).

    The fundamental point I am trying to make is that when one views one’s own president through partisan lenses, one is very likely to rationalize. Indeed, there is ample research to this end.

    As such, like it or not, when Democrats in 1999 said that what Clinton did was bad, but did not warrant removal from office is exactly the logic Alexander and other Reps are using. Some (most?) are dong so cynically. Some are doing so sincerely. Yes, they are applying motivated reasoning. But all I am saying is that it seems like a lot of this discussion assumes that while Republicans use motivated reasoning, Democrats don’t.

    But the reality is, all of us who want him removed have to admit that our overall assessment of Trump likely makes us even more willing to boot him over this than if we were truly neutral.

    I thought the obstruction actions in the Mueller report warrants removal. I thought his post-escalator speech should have disqualified him from running. I thought the Access Hollywood tape should have driven a dagger in the heart of his campaign. I thought surely attacking John McCain for being captured and going after a Gold Star family would lead to many GOP voters rejecting him.

    All of that has to influence my thinking on Ukraine. And, likewise, his supporters, or those who need him politically, have their list that affects the way they think.

    I think a neutral arbiter would see my position to be morally superior to those of his supporters. But we aren’t dealing with neutral arbiters. I have not been trying to assess morality. I am trying to analyze behavior and explain it.

    Fundamentally, Senators are partisan. They want votes. They want to keep their friends. They want jobs when they leave office. And they swim in a sea of like-minded folks who reinforce all of that.

    As such, to get to the point of the post: impeaching and removing a president strikes me as essentially impossible.

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  40. (And that above reply is really more for the general discussion than to Gustopher specifically).

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  41. @Kurtz: A deep breath is definitely in order.

    Trump was always going to be acquitted by the Senate–whether there were more witnesses of not.

    At least Alexander, and others, are at least acknowledging that what Trump did was wrong. That’s something.

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  42. Just nutha ignint cracker says:

    @Gustopher: Re: Reagan and Carter. On Reagan, yes, human cloning is wrong outside of whether the law permits it or not. On Carter, only if the purpose for impeachment is that it is necessary to secure his arrest and trial. I’m not in favor of another one of those “he’s leaving office, he’s suffered enough” Nixon-esque things.

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  43. Michael Reynolds says:

    FYI, I’m not bailing on this conversation, but somehow spending 8 fcking hours with a relative in the waiting room of USC’s ER has given me the flu. Yes, I got the shot. Yes, I washed my hands obsessively, used Purelle, threw all my ER clothing straight in the wash and jumped in the shower, and yet…

    So I’m going to focus on coughing and shivering for a while. Up side: I’ve lost three pounds! Yay!

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  44. @Michael Reynolds: Sorry to hear that. I hope you feel better soon and that the relative who had to go to the ER is okay.

    Rest up.

    Flu sucks.

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  45. Gustopher says:

    @Steven L. Taylor: I agree that the argument for not removing Clinton vs. not removing Trump is roughly the same within quibbling distance.

    But that quibbling distance — the severity of the crime — makes a huge difference.

    With everyone attacking you for your statement that Clinton should have been removed, I was hoping you could explain why Clinton’s crime crosses the threshold where removal is required, or whether there is no threshold, or what… because there’s clearly something there that either you aren’t explaining or people aren’t getting.

    Why is the executive lying under oath in a private lawsuit regarding unofficial activity more damaging to the country than the removal would be? Is that the wrong question? Do you not think removal of the president would be damaging to the country?

    I’m missing something. The people who need to calm down are also missing something.

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  46. Gustopher says:

    @Michael Reynolds: Yuck. Good luck with your flu, this year’s shot was not a good match. Also remember that you’re old now*, so don’t just assume things are going to suck and then get better. If you’re feeling too weak to go to the doctor, then go to the doctor.

    And I hope your relative is doing well, and that they avoid getting the flu on top of their emergency.

    *: you had a big birthday recently, right?

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  47. @Gustopher:

    I was hoping you could explain why Clinton’s crime crosses the threshold where removal is required

    As a matter of principle, I think that committing perjury violates the presidential oath of office and directly undercuts a core role of the president, i.e., the head of federal law enforcement.

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  48. But, I can see the practical/political argument for not removing Clinton for what he did..

    Look, I can see how Alexander reaches his conclusion, given that the election is pending–I just disagree with him.

    I think a lot of folks seem to miss that I am not writing about my moral preferences here. And, further, that an honest assessment of behavior is not an endorsement of the outcomes that the given behavior creates.

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  49. Also: not removing Clinton has downstream effects, as it raised the bar for removal. And not removing Trump also has that effect.

    But, as I argue in the OP, removal is all but impossible (and the argument to keep Clinton, let alone to keep Trump, just underscores that fact).

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  50. Moosebreath says:

    @Steven L. Taylor:

    “I am saying that it would have no constitutional effect and be largely meaningless.”

    I’ll agree with the first part, but not the second.

    “I also think that it would not happen now, especially with an election coming up.”

    And yet the Democrats were pushing for it with the 1998 mid-terms coming up.

    “I am not even convinced, when push came to shove, that it would have happened for Clinton. Why vote for condemnation when you know that removal vote will be one to acquit?”

    Because in spite of your belief that party trumps all in the impeachment area, in the not too distant past, there was a feeling among Democrats that condemning Clinton’s actions without removing him from office was the right thing to do. Maybe the Democrats felt that saying so would help their reelection chances, but that is a hard thing to prove was their motive when Clinton’s favorable ratings were so high.

    “This is why I think it is an empty notion. It doesn’t mean anything, save symbolically (and impeachment itself is the bigger symbol already) and his party really didn’t have the incentive to vote that way (but they could talk about something that wasn’t going to happen because it made them look reasonable).”

    I don’t think that impeachment by the House on nearly straight party lines, followed by acquittal in the Senate on nearly straight party lines will look great symbolically for the Republicans. It says they are OK with the actions of Trump, even as slightly over half the public is not. So if there is no vote to censure Trump, or if there is one, but it runs largely on party lines, I think it hurts Republicans running this year unless their district is so deeply red that they only need to appeal to Republican partisans to get reelected.

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  51. @Moosebreath:

    And yet the Democrats were pushing for it with the 1998 mid-terms coming up.

    Yes, as a way to avoid an actual impeachment in the House. You are ignoring the fact that the entire censure debate was a way to avoid the more indelible stain of being the second impeached president in history.

    You are making the censure debate into something that it wasn’t. It was a way to make the whole impeachment thing go away.

    Because in spite of your belief that party trumps all in the impeachment area, in the not too distant past, there was a feeling among Democrats that condemning Clinton’s actions without removing him from office was the right thing to do.

    See the above. It was a way to avoid impeachment and to avoid any significant actions against Clinton. A joint resolution condemning Clinton, with no teeth, is not some example of party being subordinated to principle. It was a political maneuver to avoid the more serious actions that unfolded.

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  52. Let’s not forget the timeline:

    Mid-terms: November 3, 1998

    Impeachment articles voted out of committee: December 11, 1998

    Impeachment vote: December 19, 1998

    The censure talk started before the election (although it did continue afterward).

    But most important of all: if impeaching Clinton did little harm to him, what would censuring him have done (save given the Dems talking points that they did something)?

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  53. Moosebreath says:

    @Steven L. Taylor:

    “You are ignoring the fact that the entire censure debate was a way to avoid the more indelible stain of being the second impeached president in history.”

    No, I am not. Are you seriously arguing that being impeached and acquitted (as was certainly going to happen and everyone knew it) was anything other than, to use your phrase, something which “would have no constitutional effect and be largely meaningless”. If so, what Constitutional effect and what meaning did it have?

    “It was a political maneuver to avoid the more serious actions that unfolded.”

    Ditto. What serious action happened because Clinton was impeached and not convicted?

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  54. Moosebreath says:

    @Steven L. Taylor:

    “But most important of all: if impeaching Clinton did little harm to him, what would censuring him have done (save given the Dems talking points that they did something)?”

    It would have said, very clearly, that the Democrats did not consider Clinton’s conduct appropriate. As I said before, it looks like the number of Republicans in Congress who feel that way about Trump’s actions can be counted on both hands.

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  55. Moosebreath says:

    @Steven L. Taylor:

    “As a matter of principle, I think that committing perjury violates the presidential oath of office and directly undercuts a core role of the president, i.e., the head of federal law enforcement.”

    @Steven L. Taylor:

    “I think a lot of folks seem to miss that I am not writing about my moral preferences here.”

    I think you doth protest too much.

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  56. @Moosebreath: Look, we disagree and continuing to go in circles is not going to be productive.

    I will say that you are right: impeachment without removal had little effect, ultimately (save for the historic Scarlett Letter it put on his presidency). So if that is true, I am not seeing how censure even rates.

    And you are misunderstanding my point about party and impeachment: my point is about removal, not a hand-slap (which is what censure would be).

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  57. @Moosebreath:

    I think you doth protest too much.

    You know, all this makes me think is that I should engage less.

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  58. @Moosebreath: And really, you are being a bit of jerk here. You are comparing a specific answer I gave to a commenter who asked to explain my specific position I had taken in conversation.

    The second statement was about my general discussion about the content of the OP.

    So, again, it makes me think that engagement just leads to frustation.

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  59. And, as if it is not clear, I think as a matter of principle Trump should be removed.

    Sigh.

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  60. Moosebreath says:

    @Steven L. Taylor:

    “I will say that you are right: impeachment without removal had little effect, ultimately (save for the historic Scarlett Letter it put on his presidency). So if that is true, I am not seeing how censure even rates.”

    It depends on who votes for the censure. If the President’s own party votes for censure, then I believe that the expression of disapproval that it creates has a far greater meaning than if only the opposition party votes for it.

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  61. Moosebreath says:

    @Steven L. Taylor:

    I am sorry that you think my words came off as being a jerk, as it was not my intent to antagonize you. Rather, I was pointing out that your first statement is very much setting forth your moral preference that perjury is disqualifying for a President, regardless of the circumstances. That is a position which is not universally held.

    I likely should have phrased it in a less personal manner, and for that I apologize.

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  62. @Moosebreath: I appreciate you saying so.

    Let me clarify:

    1. I certainly have moral preferences regarding both Trump and Clinton in terms of removal (in a perfect world, both would have gone).
    2. I agree that Trump’s acts are far, far worse than Clintons.
    3. I honestly don’t think censure would have meant much. If being impeached doesn’t really mean all that much, an essentially made up sanction would have meant even less, Dem votes or no.
    4. I agree that having Dems vote to censure would be better than nothing, and there is symbolism to having the president’s party vote in such a fashion. I also think that there attempts to do so had more to do with trying to short circuit impeachment than it did with a true moral stance by the party.
    5. I think that the party would not have suffered any negative consequences for a censure vote, and hence why I don’t think it ultimately would have meant much (after all, Clinton was willing to apologize and acknowledge wrong-doing).
    6. My overall analysis is about human behavior within a certain incentive structure (i.e., the OP–which is generally what I am trying to emphasize in my responses in the comments).

    Keep in mind, too, I try to interact with everyone and sometimes exactly what thread of what conversation I am responding to can get a tad jumbled. I think that there is a moral outrage component to this conversation that I both understand and share, but that I also don’t think changes one bit what I wrote in the OP.

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  63. Kurtz says:

    @Steven L. Taylor:

    I think a neutral arbiter would see my position to be morally superior to those of his supporters. But we aren’t dealing with neutral arbiters. I have not been trying to assess morality. I am trying to analyze behavior and explain it.

    This is a fundamentally difficult task. It also seems to be difficult for people to grasp, no matter their political leanings.

    No matter what, people want to draw a line of scrimmage, and a neutral observer appears to be across the thin line from each person.

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  64. Kurtz says:

    @Moosebreath:

    I think you’re getting a little caught up with Steven using Clinton as a comparison. You aren’t the only one here doing that. I think all of us can agree that there is more reasonable grounds for disagreement in Clinton’s case.

    I’m curious about something, though. One of your comments says that forcing the GOP to acquit along party lines is good politics. Do you think your political desires are shading your concerns about the systemic effects of the implicit endorsement of Trump’s actions via acquittal?

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  65. Gustopher says:

    @Steven L. Taylor:

    I certainly have moral preferences regarding both Trump and Clinton in terms of removal (in a perfect world, both would have gone).

    In a perfect world, I think the Senate would have two votes for each article of impeachment:
    1. Did the President commit the crime?
    2. Does that merit removal?

    The second might be “does this merit removal at this time?”, as repeating an offense is more worthy of removal.

    Anyway, this would have the censure option pretty much built in. As a practical effect, it’s a slap on the wrist, but a lot of times, a slap on the wrist is the appropriate response.

    Take an obstruction of congress article — it can be remedied by the administration at any time. The slap on the wrist should tell the president to stop that, and can be followed by removal if the president doesn’t.

    Also, in a perfect world, a whole lot more presidents would have been impeached…

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  66. Kurtz says:

    @Gustopher:

    Damn good idea.

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  67. @Gustopher:

    Also, in a perfect world, a whole lot more presidents would have been impeached…

    Indeed.

    At times like this, I am reminded of that great philosopher. Huey Lewis, who noted “ain’t no living in a perfect world. Ain’t no perfect world, anyway.”

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  68. mike shupp says:

    The latest fun thing, (stealing from SLATE: https://slate.com/news-and-politics/2020/02/lindsey-graham-warns-investigations-whistleblower-biden-impeachment-trial.html)

    Republicans are getting ready to flip the tables and launch their own investigations after the Senate acquits President Donald Trump. Sen. Lindsey Graham warned that the Senate Intelligence Committee will call the whistleblower whose complaint ended up launching the impeachment inquiry against Trump while the Foreign Relations Committee will investigate Joe Biden.

    “The Senate Intel committee under Richard Burr has told us that we will call the whistleblower,” Graham said on Fox News’ Sunday Morning Futures. “Why is it important? I want to know how all this crap started.” Graham went on to say that he wants to know what ties the whistleblower who first raised a red flag regarding Trump’s phone call with Ukrainian President Volodymyr Zelensky has with Democrats. “If the whistleblower is a former employee of, associate of, Joe Biden, I think that would be important. If the whistleblower was working with people on Schiff’s staff that wanted to take Trump down a year and a half ago, I think that would be important. If the Schiff staff people helped write the complaint, that would be important. We’re going to get to the bottom of all of this to make sure this never happens again,” Graham said.

    I think whistleblower statutes are about to become a dead letter also.

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  69. Ken_L says:

    @mike shupp: Lindsey Graham is a worthless bag of wind who feels the day has been wasted if he doesn’t get to bloviate on television. He’s been making grandiose threats/promises about all kinds of things for years, none of which ever eventuates. But it will be interesting, should he actually be serious, to see how he intends to go about calling somebody whose identity he doesn’t know.

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  70. James Joyner says:

    @Kurtz:

    This is a fundamentally difficult task. It also seems to be difficult for people to grasp, no matter their political leanings.

    No matter what, people want to draw a line of scrimmage, and a neutral observer appears to be across the thin line from each person.

    Yes. Especially in the heat of events. People are still passionate about the 1999 impeachment trial and 2000 election fight and those happened two decades ago. There hasn’t even been time for the bleeding to stop, much less a scab to form, on the Trump impeachment aftermath.

    I’m in almost perfect agreement with Steven L. Taylor on all six points above. In the Trump case, I argued in a separate post that it would have been good for the country if the Senate had a “guilty but not worthy of removal” option, simply because it would have allowed virtue signaling from Senate Republicans. While I agree with Steven’s larger assessment that it would have been Constitutionally meaningless—especially since impeachment itself is a permanent stain—it would still have been better than the inevitable outright acquittal.

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  71. Moosebreath says:

    @Kurtz:

    “One of your comments says that forcing the GOP to acquit along party lines is good politics. Do you think your political desires are shading your concerns about the systemic effects of the implicit endorsement of Trump’s actions via acquittal?”

    If you are talking about @Moosebreath: “I don’t think that impeachment by the House on nearly straight party lines, followed by acquittal in the Senate on nearly straight party lines will look great symbolically for the Republicans. It says they are OK with the actions of Trump, even as slightly over half the public is not. So if there is no vote to censure Trump, or if there is one, but it runs largely on party lines, I think it hurts Republicans running this year unless their district is so deeply red that they only need to appeal to Republican partisans to get reelected.”, then my point was that with removal for office winning a narrow majority, if Republicans vote along party lines to acquit, then it risks losing them support among independents and conservative Democrats who support conviction, which could cause them to lose some close races.

    If you disagree with that logic, please explain why.

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  72. David S. says:

    @Gustopher:

    In a perfect world, I think the Senate would have two votes for each article of impeachment:
    1. Did the President commit the crime?
    2. Does that merit removal?

    This matches the questions that a jury has to answer fairly well, which I think is a good sign.

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  73. Kurtz says:

    @Moosebreath:

    No, the logic is sound. And I agree with you. But I was asking an honest question, more to see if you thought that your logic is the only possible legitimate way to parse events.

    But that’s the thing about partisanship–it often manifests in overt, predictable ways. However, like any of other form of bias, sometimes it is more subtle. It’s not so much that it makes people believe illogical things as it results in a logically sound view that excludes the possibility of other reasonable interpretations. The latter is the more pernicious form of bias

    It’s worth reiterating here that I was making an honest, good-faith inquiry. But, like your logic about the politics of impeachment, I often agree with criticisms of “bothsiderism” in media that get voiced here. But I dont always agree that the authors here are engaging in it.

    This is why one of my comments included this:

    No matter what, people want to draw a line of scrimmage, and a neutral observer appears to be across the thin line from each person.

    Because there is a difference between analyzing how and why a person behaves the way they do and endorsing that behavior. Merely explaining a politician’s calculus isn’t a form of apologetics–it’s the only way to properly diagnose systemic problems.

    This is the second time I have had to point this out in the comments in defense of our hosts. Their approach is often mistaken as something else. And that is a hallmark of pernicious partisanship.

    ReplyReply

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