NYT: The President is Not Above the Law

The Editorial Board of the Newspaper of Record urges Congressional Republicans to steady themselves for a constitutional crisis.

The New York Times Editorial Board has issued a full-page editorial with the stark headline “The President is Not Above the Law.” After a long prologue about the 1999 impeachment of Bill Clinton, they declare:

News reports point to a growing possibility that President Trump may act to cripple or shut down an investigation by the nation’s top law-enforcement agencies into his campaign and administration. Lawmakers need to be preparing now for that possibility because if and when it comes to pass, they will suddenly find themselves on the edge of an abyss, with the Constitution in their hands.

Make no mistake: If Mr. Trump takes such drastic action, he will be striking at the foundation of the American government, attempting to set a precedent that a president, alone among American citizens, is above the law. What can seem now like a political sideshow will instantly become a constitutional crisis, and history will come calling for Mr. Hatch and his colleagues.

I’m not convinced they are right here. While the President is very much not above the law, both the Constitution itself and the laws in question make it clear that he has the authority to fire Executive Department employees who aren’t civil servants. While a hypothetical firing of Rod Rosenstein or even Robert Mueller would be problematic, they wouldn’t in and of themselves trigger a constitutional crisis.

That said, the Board is right in their implication that the ball would then be in the court of Congressional Republicans.

But if the president does move against the investigators, it will be up to Congress to affirm the rule of law, the separation of powers and the American constitutional order.

Again, while firing Rosenstein and/or Mueller to obstruct an investigation into his own wrongdoing would very much be a violation of norms of the sort Steven Taylor highlighted yesterday, it wouldn’t be a separation of powers issue. Rosenstein and Mueller are employees of the Executive branch and Trump is the nation’s Chief Executive. It would, however, arguably constitute obstruction of justice.

So, the NYT is absolutely right when it continues:

The miserable polarization and partisan anger that have been rising in American life for decades will hit a new crescendo, and that will present congressional Republicans with a heavy burden indeed.

Many of them are not fans of this president. Republicans used to warn the nation about Mr. Trump openly, back when they thought they could still protect their party from him. Here’s a short sampling“malignant clown,” “national disgrace,” “complete idiot,” “a sociopath, without a conscience or feelings of guilt, shame or remorse,”“graceless and divisive,” “predatory and reprehensible,” flawed “beyond mere moral shortcomings,” “unsound, uninformed, unhinged and unfit,” “a character and temperament unfit for the leader of the free world,” “A bigot. A misogynist. A fraud. A bully.” Some still say these sorts of things, albeit anonymously. Just last week, one of the president’s defenders in Congress told a conservative columnist, “It’s like Forrest Gump won the presidency, but an evil, really [expletive] stupid Forrest Gump.”

Yet if Mr. Trump goes after Mr. Mueller or Mr. Rosenstein, even Republicans who have misgivings about the president might be inclined to fall into line. They may resent what feels like an endless investigation, one that is endangering their agenda; or they may resent partisan attacks on Mr. Trump. Such frustrations — like ones Democrats vented when Mr. Clinton was in investigators’ sights — are certainly understandable. Republicans may also find themselves tempted by the political running room they would have with the investigation ended and the three branches of government under their control.

Maybe — and this is the scariest contingency to contemplate — Republican leaders would calculate that with their support, or mere acquiescence, Mr. Trump could get away with it. The overwhelming majority of Americans, including most Republicans, want Mr. Mueller to keep his job, and perhaps a groundswell of revulsion at unchecked presidential power would follow any action against the special counsel. But many Americans, weary of the shouting in Washington, might dismiss the whole thing as another food fight. We can be fairly certain that the pressure on Republican lawmakers from the minority of Americans who support Mr. Trump, as well as from the likes of Fox News and Sinclair, would be intense.

Of course, it’s when overriding your principles is the easy thing to do that you have an urgent responsibility, and opportunity, to demonstrate that you have some.

‘While there has been a smattering of spine from Republicans in Congress it has been almost exclusively from those on the way out. Like it or not, Trump remains very popular with the Republican base and standing up to him to the level of serious impeachment talks would be bold, indeed.

The editorial led with the Lewinski scandal and, of course, obstruction of justice was indeed one of the articles of impeachment passed by the House against Bill Clinton on a near-party line vote. Eighteen Senators remain from those days, all but two of whom voted along party lines. That doesn’t exactly bode well for putting party above country in an even more politically charged environment almost two decades later.

Indeed, given the embarrassing lengths that Congressional Republicans have gone to in order to back Trump, it’s just about inconceivable that they’d impeach him simply for firing investigators. Realistically, absent radically more information than is publicly available now, it’s just not going to happen.

That might change come January if Democrats take back the House. But, of course, the prospect that a Democratic House means the impeachment of a Republican president helps motivate Trump’s base to turn out to support him in November.

FILED UNDER: Congress, Donald Trump, Presidency, Russia Investigation, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. teve tory says:

    The next few decades will be Liberals vs. Authoritarians. Even though demographics is already turning against authoritarians, structural bullshit is on their side, like the Electoral College, and this:

    Norman Ornstein

    @NormOrnstein
    Apr 14

    Most disturbing thing: by 2040 or so, 70 percent of Americans will live in 15 states. Meaning 30 percent of Americans will elect 70 senators. Wholly unrepresentative of the diversity in the country. And an immense challenge to the legitimacy of our system




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  2. MarkedMan says:

    Trump, his campaign leadership and his family members colluded with a a hostile foreign power to interfere in our election in order to put a corrupt president in office. Pretending that we don’t know enough to reach that conclusion is self delusion at best.

    The fact that Republican Party leadership is rallying around Trump tells us all we need to know about them. They are a danger to our country, and a betrayal to every value.

    And Trump himself better watch out. In “The Prince”, Machiavelli advised a ruler that if a cabal from a neighboring principality invites him in to help overthrow the existing power then once victory is established he must immediately destroy everyone in the cabal. After all, you know they are traitorous schemers. I suspect that once Putin realizes Trump can’t deliver anything of value to him he will contemplate how he can best harm the United States via his corrupt orange stooge. I would guess that would mean to throw the country into disarray where we become paralyzed by an impeachment crisis. Say hello to the Pee Pee Tape and perhaps much, much more.




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  3. Mu says:

    Of course, the “70 percent of Americans will live in 15 states” is exactly why we have a senate to begin with, because the reverse of “15 states dominate the other 35” would be true without it. You’d end up with half a continent being controlled by coastal dwellers representing 5% of the total area.




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  4. James Joyner says:

    @MarkedMan:

    Trump, his campaign leadership and his family members colluded with a a hostile foreign power to interfere in our election in order to put a corrupt president in office. Pretending that we don’t know enough to reach that conclusion is self delusion at best.

    We really know very little on this score.

    We know a whole lot more about the daily corruption crisis, wherein we funnel federal monies into Trump bank accounts. And we’re not doing anything about that, either.




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  5. Kathy says:

    I guess the question is: how low does Trump’s approval rating must get with GOP likely voters for the Republicans in Congress to consider impeachment and removal?




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  6. An Interested Party says:

    You’d end up with half a continent being controlled by coastal dwellers representing 5% of the total area.

    Area means nothing…people need representation, not land…

    …how low does Trump’s approval rating must get with GOP likely voters for the Republicans in Congress to consider impeachment and removal?

    Of course…Republicans aren’t going to do anything about him until he hurts their reelection chances…




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  7. drj says:

    @Mu:

    You’d end up with half a continent being controlled by coastal dwellers representing 5% of the total area.

    So?

    I’d venture it’s people rather than acres that need representing.

    Following your logic, Alaska should be able to claim more senators than any other state.




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  8. James Joyner says:

    @teve tory: @Mu: @drj: @An Interested Party: I don’t think we need to relitigate Federalism in this particular thread.




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  9. teve tory says:

    Yeah you’re right.




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  10. Grumpy realist says:

    @Mu: I suggest you read up on your English political history and what were called “rotten Burroughs.”




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  11. Todd says:

    The editorial led with the Lewinski scandal and, of course, obstruction of justice was indeed one of the articles of impeachment passed by the House against Bill Clinton on a near-party line vote. Eighteen Senators remain from those days, all but two of whom voted along party lines. That doesn’t exactly bode well for putting party above country in an even more politically charged environment almost two decades later.

    The Democrats continue to have a Clinton problem.

    Just as Hillary Clinton was very likely the only Democratic nominee that Donald Trump could beat, the late 90’s party line vote on Bill Clinton’s impeachment gives at least tacit justification for many Republicans to plan to do the same now. I’m not saying that the Presidential misdeeds are necessarily comparable, but given the benefit of hindsight, Bill Clinton’s actions, both in office, and before he got there are harder and harder to defend without admitting to a partisan double-standard.

    There’s also the excerpt from the Comey book where he implies that his taking the lead on the email “matter” may have resulted from lack of confidence in Attorney General Lynch’s impartiality. There’s no indication that she (Lynch) did anything wrong (other than that bone-headed tarmac meeting with Bill Clinton). But at the same time, it doesn’t take a huge stretch to imagine that the Clinton’s could have had some dirt on her, and used that as leverage to pressure her to (at least subtly) influence the investigation.

    None of this of course excuses Donald Trump’s crimes, and Republicans in Congress who don’t hold him to the same rule of law that others are accountable to should face consequences. The thing is, I’m not really convinced that they would/will … suffer consequences.




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  12. Bill Blather says:

    Impeached for what exactly? Or just because you don’t like him?




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  13. grumpy realist says:

    The great mystery remains what Trump thinks is in the Cohen files that could damage him so. There is a range of liabilities: We know about payments to ex-mistresses, past associations with mafia figures, violations of federal and state laws and casino regulations, sketchy development deals overseas, and sexual-assault allegations—but whether the files contain damaging details about these things, or about something novel, is something only Cohen and Trump really know. Regardless, the past few days have made plain something that has, for years, been hiding in plain sight: The president views his personal business history as his real liability.




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  14. OzarkHillbilly says:

    @Mu: States don’t vote. Citizens do.




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  15. Todd says:

    @Bill Blather: I

    mpeached for what exactly? Or just because you don’t like him?

    If we get to a point where President Trump starts firing and pardoning people in order to impede an investigation into his own (or his close associates) potential misdeeds, impeachment and removal by Congress is the “check” that is built into the constitution.

    At this exact point in time, I think an impeachment vote is premature. But once investigators start digging through the records that were seized from Michael Cohen, it seems quite likely that the President being guilty of at least “high crimes and misdemeanors” will become rather hard to deny.




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  16. OzarkHillbilly says:

    @Todd:

    But at the same time, it doesn’t take a huge stretch to imagine that the Clinton’s could have had some dirt on her, and used that as leverage to pressure her to (at least subtly) influence the investigation.

    So who had the massive leverage on Comey to actually take action in contravention of long standing DOJ policy that was not subtle at all, that did in fact influence the election? I mean as long as we are letting our imaginations run wild here and inventing dark and evil conspiracies.




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  17. Mister Bluster says:

    Or just because you don’t like him?

    It’s not just because I don’t like him. The fact that he is this dumb and not qualified to hold the office has more to do with it.

    TRUMP: I assumed when I won, I would ‘sit down at my desk and there would be a healthcare bill’




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  18. Charon says:

    @James Joyner:

    Trump, his campaign leadership and his family members colluded with a a hostile foreign power to interfere in our election in order to put a corrupt president in office. Pretending that we don’t know enough to reach that conclusion is self delusion at best.

    .

    We really know very little on this score.

    Really? One word:

    Prague




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  19. MarkedMan says:

    @James Joyner:

    We really know very little on this score.

    I couldn’t disagree more. The standard isn’t whether Mueller can prove in a court of law that Trump made corrupt deals with Putin. The question is whether Trump has proven beyond a reasonable doubt that he cannot be trusted to hold the highest office of the most powerful country in the world.

    We can demonstrate by taking it out of the moment and into the hypothetical. Let’s say it is 2014 and we are BS’ing about impeachment powers and I propose the following thought experiment: A President is suspected of having been suborned by the Russians. He denies any and all involvement with Russia repeatedly and with heat. But One by one his campaign manager, his family, one of his cabinet members get caught in lies about their Russian dealings during the campaign. In fact the family member is known to have contacted the Russian embassy to create a back channel meansof electronic communication explicitly for the purpose of cutting out the US government. The cabinet member and campaign manager are charged with crimes, and the cabinet member starts cooperating with the prosecutor.

    In my hypothetical I point out that there are really two possibilities. Either these guys were freelancing or the President was in on it. I think we would both agree that given the public fact that three high level people in his administration were making secret deals with Russia and its proxies and lying about it, the only way an innocent President could show his good faith would be call for an aggressive and complete investigation, as well as serious retaliation against the Russians. Instead the President attacks those investigating and fires the head of the FBI, then invites the Russian ambassador into the Oval Office and brags about how firing the FBI director took the pressure off. In the months that follow he maintains an obsequious and fawning position towards Russia.

    James, can you honestly claim that if I had presented this hypothetical, and given the fact that that President was doing everything in his power to stop the investigation, that you would have had any hesitation in calling for impeachment?

    And Trumps case is an order of magnitude more damning. It’s not “a” family member, it’s three. It’s not one member of his campaign team, it’s at least a half dozen. It’s not one guy he bought into his government at the highest level, it’s multiple. We know that cabinet member was literally on the payroll of a Russian proxy all during the campaign and perhaps even after assuming his position. It’s not just back channel communications with the Russians, it’s hacked emails from his political opposition, and Cambridge Analytica and on and on. And still Trump will not countenance an investigation that would be the only way to prove his innocence.

    Remember, we’re not talking about whether this attempted sabotage of the investigation is enough to convict him of a crime, it is only whether it is enough to decide it is too dangerous to leave the nuclear football in his hands.




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  20. KM says:

    @Bill Blather:
    Hey, congrats on waking up from that coma! Now, there’s this thing called the internet that will allow you to catch up on all that missed stuff, including the answer to the stupid question you just asked.

    A President can be impeached for whatever Congress determines are “high Crimes and Misdemeanors.” Jackson got impeached for firing Edwin Stanton and Clinton for lying on whether or not he did something sexual in the Oval Office. Frankly, Trump’s offered up a plethora of options to chose from and it really doesn’t matter if you think it’s “petty”. The Constitution and precedent both have Trump right in the firing line…..




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  21. Todd says:

    @OzarkHillbilly: I’m not excusing James Comey’s actions either. But it certainly seems that Loretta Lynch ceding oversight of the investigation after the meeting with Bill Clinton is what put James Comey in the position to make the (public) mistakes that he made.

    http://abcnews.go.com/Politics/comey-describes-loretta-lynchs-credibility-gap-propelled-clinton/story?id=54488306




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  22. Todd says:

    The commentariat on this blog cracks me up sometimes. The belief that any and all talk of Clinton faults or misdeeds is simply a product of “the vast right-wing conspiracy” is almost as laughable as Trump supporters claims of “fake news” to any facts that make them uncomfortable.

    Don’t get me wrong, the problem of partisan hypocrisy is orders of magnitude worse on the right, but there is no way to claim that Democrats are innocent when we look at the reflexive defense of the Clintons, especially Bill, against virtually any criticism.




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  23. KM says:

    @Todd:
    One of the things that gets lost in all this is that of the two examples of we have of impeached Presidents, both were for things that were not “big league” crimes and were politically driven. Instead, they were for a firing and for perjury, nothing like conspiracy with a hostile power to gain office or financial crimes. In both cases, the opposite party clearly wanted to get rid of the sitting President and manufactured a crisis to take advantage. The Tenure of Office Act was passed as bait Johnson eagerly fell for when he fired Stanton – likewise Whitewater and the Starr investigation went hunting for things to take out Clinton. Both Presidents had their party rightly point out that for all their faults, these were charges in search of a verdict and not truly guilty people being stripped of an office they don’t deserve for committing a heinous crime.

    But Trump…. Trump made his own bed. His crimes are his own and he continues to pile on to them. This Russia crap flirts with treason and conspiracy with foreign powers for the highest office in the land. His supporters are desperately trying to claim a frame-up or other equivalent where one doesn’t exist. If it were literally anyone other then Donald Trump that did a fraction of what he’s done, the impeachment would be over by now. They HAVE to claim it’s like Clinton to gain even the slightest moral grounds for objections and how sad is that? They think the Clintons are EVILZ but hey, solidarity in a storm, yeah?




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  24. Todd says:

    I’m personally embarrassed that I ever made excuses for Bill Clinton’s behavior … and any reasonable, objective person on the Democratic side should be too.




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  25. CSK says:

    @KM:

    Speaking of “Russia crap,” Trump has just refused to implement the sanctions against Russia Nikki Haley just announced.




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  26. KM says:

    @Todd:
    No one should make excuses for bad behavior, that’s true. But what are you classifying as “excuses”? It’s eminently fair to point out that not all “bad behavior” is equal and note the broad brushes being used to tar a person. Was Bill Clinton sleazy? Duh. Did he deserve to get yanked in front of a judge? Yeah but not for what the GOP used. I’ve always found it strange that Lewinsky was the path they choose to the impeachment trial. I think a lot of the excusing came from what people perceived as the “piddling” nature of it all. As Chris Rock put it:

    “He got impeached for what? Lied about a blow job so that his wife wouldn’t find out. Is that against the law? Do you need the Supreme Court for that one? You could’ve taken that one to the People’s court. You could’ve took that one to Judge Judy.”

    Granted it was much more then that but it’s remarkably easy to reduce it down to nearly losing the Presidency over some sex on the side. Plenty of Republicans who didn’t like Clinton felt the same way. Had the charges been of a more serious tone, it would have been a lot harder to crack jokes and dismiss. Moral relevance is hard to quantify. But it takes a hell of a lot of Moral Twister to compare Bill Clinton at his worst to Donald freaking Trump. That man’s in a sleaze class all his own and has been before I was born. The reduction down to “fake news” or “Deep State” doesn’t even make sense as a theory, logical excuse or a joke. It really is apples and oranges to compare supporters excusing the two.




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  27. Todd says:

    But it takes a hell of a lot of Moral Twister to compare Bill Clinton at his worst to Donald freaking Trump. That man’s in a sleaze class all his own

    I absolutely agree.

    Which is part of the reason why I am disturbed that while I can take the relative moral high ground when it comes to lamenting the partisan hypocrisy on the right, I can’t claim absolute moral high ground, because there have clearly been times in the past where I (and almost everybody else) have viewed (what should have been unambiguous) questions of right and wrong through a partisan lens.




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  28. Joe says:

    While I am sympathetic to @Mister Bluster‘s reasons for impeachment, I think that is exactly who the American people – through the electoral college – voted for and I am loathe to overturn the election on facts everybody knew going in. What @MarkedMan says is a much more sound reason for impeachment, but the Republicans are like slow boiling frogs to figure out the magnitude of the problem.




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  29. grumpy realist says:

    @KM: I forget who it was who said “This is an issue that should have been privately solved by Bill, Hillary, and a rolling pin.”




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  30. OzarkHillbilly says:

    @Todd:

    But it certainly seems that Loretta Lynch ceding oversight of the investigation after the meeting with Bill Clinton is what put James Comey in the position to make the (public) mistakes that he made.

    She did that because Republicans felt that any contact with Bill must have corrupted her ability to supervise the investigation into his wife. Just like you did above with your “It’s not to hard to imagine…” Not wanting to add to the furor she took herself out of it. Comey did what he did despite what the DOJ rule book said about investigations and elections, which not to put too fine an edge on it was STFU. You seem to be trying to blame her for Comey’s inability to hold up to political pressure.

    It’s not her fault he was an egotistical idiot more concerned with his own reputation than he was with the integrity of an election.




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  31. OzarkHillbilly says:

    @Todd: When you start imagining great conspiracies happening at a meeting on a tarmac because Bill Clinton was part of it…. Jaysoos Chrispo, Do you even read the crap you type before you hit the post button? Bill Clinton has committed many sins, why don’t you write about them instead of inventing new ones? Oh wait a minute, those sins aren’t relevant anymore. Guess what, your new imaginary ones aren’t either.

    Save us the sanctimonious bullsh!t.




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  32. Todd says:

    @OzarkHillbilly: No, I’m not trying to shift blame for Comey’s actions. I’m saying that if there wasn’t such a presumption that the Clintons would be capable of trying to influence the investigation, Attorney General Lynch would have been able to announce the findings herself, and Comey almost certainly would have been more than happy to STFU and stay out of the spotlight.




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  33. Todd says:

    @OzarkHillbilly: J

    aysoos Chrispo, Do you even read the crap you type before you hit the post button?

    Do you even read what people actually wrote before you make accusations?

    Where did I ever say anything about thinking anything nefarious happened during that tarmac meeting? I said it was politically bone-headed, and the optics did pretty much necessitate Attorney General Lynch removing herself from the decision making process in the investigation … which gave us Director Comey in front of microphones.

    As for what I did write in my first comment, yes, I said “it’s not hard to imagine” that the Clintons would try to influence an investigation (because they have a history of doing just that during Bill’s time in White House). I didn’t say they actually did it in this specific case, I just said it’s not hard to imagine. There is a difference. Words matter.




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  34. Todd says:

    … and my “imagination” is not driven by right-wing bias. I voted for Hillary Clinton. In fact, I’ve voted for Democrats in all but one election during my lifetime (lol, my Perot vote in 1992 is one history has not done much to justify).




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  35. dmichael says:

    @Todd: Trying to figure out what you are attempting to say is like nailing jello to a wall. Since your first post, you have tried to explain, qualify or change what you said. In this case, what behavior of Clinton are you embarrassed for making excuses? Lying about a sex encounter?




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  36. An Interested Party says:

    Just as Hillary Clinton was very likely the only Democratic nominee that Donald Trump could beat, the late 90’s party line vote on Bill Clinton’s impeachment gives at least tacit justification for many Republicans to plan to do the same now.

    I don’t recall Clinton benefiting from, and perhaps having a relationship with, a hostile foreign power…do you? Who knew that past party line votes could give justification to excuse possible treason…




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  37. TM01 says:

    @KM:
    So you just want him impeached because you don’t like him.

    That’s a great precedent to set.

    It’s almost like you’re a Russian puppet trying to undermine a duly elected President.




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  38. TM01 says:

    @OzarkHillbilly: “great conspiracies”

    Yet you fall for the MuhRussia conspiracy?




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  39. KM says:

    @TM01 :
    Why is it always a popularity contest with you people? You get presented with evidence of at very least highly questionable ethical behavior if not outright crime and ya’ll keep reverting back to kindergartenish “you don’t like him!” Are you 5 or something? Why is “liking” anyone so important to Trumpkins – y’all will forgive anything as long as he’s your kinda man. What does that say about you?

    Look, we get that projection is a way of life for conservatives. The whole point of this is that “duly elected” bit – it looks like that was tampered with so how legit is it? It’s circular reasoning that when someone’s pointing out there was a problem with the election to use the election results as proof of veracity. That’s like cheating on a test and using the A+ as proof you’re a good student who doesn’t need to cheat to pass a test. And my other point still stands – the Constitution doesn’t spell out in fine detail what can cause an impeachment in order to give Congress leeway. So yeah, if they really didn’t like him and wanted to use his frequent lying as grounds (perjury’s gonna happen at some point), they’re actually allowed to start proceedings and it’s Constitutionally-valid as “misdemeanor”. Take it up with the Founding Fathers if you think a specific crime needs to have happened; in their foresight, they realized they couldn’t anticipate it all and left wiggle room for their descendants.




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