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Tuesday, October 08, 2019

Impeaching Civil Officers

The White House decision to stonewall the impeachment inquiry is not surprising. The House of Representatives could, of course, make that obstruction a separate article of impeachment, as was done with President Nixon. But that probably does not accomplish much. 

There is another path forward though. Other members of the Executive Branch can be impeached. Take Ambassador Sondland, for example. He is not testifying to the House per the direction of the President. If he is impeached, though, he might have to consider to whom his loyalty is owed. The same could be true for others. This is no different than the standard prosecutorial practice of seeking to flip witnesses by threatening them with jail time if they do not cooperate. 

Posted by Gerard Magliocca on October 8, 2019 at 06:53 PM | Permalink


By the way, speaking of impeachment article as stated by me down there. One may read simply, first hand, the transcript of the telephone conversation between Trump and the president of Ukraine, here:


Posted by: El roam | Oct 10, 2019 9:49:21 AM

Just concerning that debate here with the power of the House to impeach in his own way. I quote from Nixon v. US ( again, not the president Nixon, but the judge). Here:

Petitioner finally argues that even if significance be attributed to the word "sole" in the first sentence of the Clause, the authority granted is to the Senate, and this means that "the Senate-not the courts, not a lay jury, not a Senate Committee-shall try impeachments." Brief for petitioner 42. It would be possible to read the first sentence of the Clause this way, but it is not a natural reading. Petitioner's interpretation would bring into judicial purview not merely the sort of claim made by petitioner, but other similar claims based on the conclusion that the word "Senate" has imposed by implication limitations on procedures which the Senate might adopt. Such limitations would be inconsistent with the construction of the Clause as a whole, which, as we have noted, sets out three express limitations in separate sentences.

End of quotation:

This is one reason or argument, among many others. One should read the ruling (I have left the link in the current post ).According to the Supreme court, the power lies in the Senate and Congress, solely on them, including the procedural path. For many other reasons also. One should read and understand.


Posted by: El roam | Oct 10, 2019 8:48:25 AM

What are the odds that the Senate would go along with a House Democrat plans to play Mueller wannabes?

Posted by: Douglas Levene | Oct 10, 2019 8:16:15 AM


Where in the constitution does it say that the House's final decision on impeachment demands a vote? So according to you (admittedly asinine and smart-aleck) comment, how can it be "obvious" that such an action demands a full vote of the House?

This is all the constitution says in impeachment as it regards the House: "The House of Representatives shall [choose] their Speaker and other Officers; and shall have the sole Power of Impeachment."

So, again, I'm curious: where on earth did you get the notion that it's "obvious" that textual understanding of the constitution "demands a vote [of the full house]"?

Posted by: thegreatdisappointment | Oct 10, 2019 5:28:25 AM

Just correcting the quote from the subpoena brought by me:

Should be : " interfere with our 2020 election" ,and not:

"interfere with out 2020 election "

Apologizing ......

Posted by: El roam | Oct 9, 2019 11:03:13 AM


I thought Republicans were supposed to be in favor of textualism and originalism?

Where in the Constitutional text or original understanding do you see any reference to formalization of impeachment "proceedings" via a vote of the full House? The House's final decision on impeachment obviously demands a vote, but there are no set impeachment procedures specified anywhere in the Constitution or its amendments.

No, this is a brand new "requirement" Republicans have "discovered" by means, one assumes, that can only be described as proctological.

Posted by: Hither & Anon | Oct 9, 2019 10:43:39 AM

Just link to the subpoena to Pompeo:


Posted by: El roam | Oct 9, 2019 7:50:39 AM

Just a reminder,or clarification, what is the potential impeachment article so far( emphasizing, so far).And, it is, I quote, from the subpoena to Pompeo (secretary of state) here:

"The Committees are investigating the extent to which President Trump jeopardized national security by pressing Ukraine to interfere with out 2020 election and by withholding security assistance provided by Congress to help Ukraine counter Russian aggression."

Not to confuse it with obstruction of justice.


Posted by: El roam | Oct 9, 2019 7:33:20 AM

@jack, but it can be that only formal impeachment proceedings actually voted on by the entire house are complied with.

Posted by: thegreatdisappointment | Oct 9, 2019 5:39:59 AM

It cannot be that the impeachment power applies only to those presidents and other officials who are willing to cooperate with proceedings and be impeached.

Posted by: Jack | Oct 9, 2019 1:15:44 AM

I should also point out that in 1999 Democrats were clear that obstruction of justice and perjury were not serious enough offenses to warrant a president from office.

So why would you impeach a president for offenses that have already been deemed not serious enough to warrant removal?

Posted by: thegreatdisappointment | Oct 9, 2019 1:01:36 AM

how can it be obstruction to not comply with unofficial inquiries?

Posted by: thegreatdisappointment | Oct 9, 2019 12:57:30 AM

Your post mentioned the proposed Nixon articles of impeachment. Today in my separation-of-powers seminar we were discussing non-judicial (impeachment) precedent. The Shane & Bruff casebook include the Nixon articles of impeachment as helpful background material, but the fact that these articles were never voted on does raise a question about their precedential value. Given that we don't have any formal rule for recognizing non-judicial precedent, what weight should really be given to an article of impeachment that the House never voted? Yes, yes, I know that the House WAS GOING to pass them, but it never had an opportunity to do so and, of course, the Senate never convicted Nixon having been denied the opportunity. So, it's far from clear to me that the third House article for Nixon's impeachment (re failure to abide by the subpoena) is really precedent for anything. Of course, this House could always vote such an article and create a future precedent... and Gerald Ford's ghost may end up ratifying that as a high crime and misdemeanor.

Posted by: TS | Oct 9, 2019 12:37:36 AM

One may reach, Nixon v. US ( not the president as mentioned) here:



Posted by: El roam | Oct 8, 2019 8:01:26 PM

Important. The point is, that in a letter to Chairmen and to Pelosi, the counsel to the president, states clearly that, I quote:

As if denying the President basic procedural protections were not enough, the
Committees have also resorted to threats and intimidation against potential Executive Branch witnesses. Threats by the Committees against Executive Branch witnesses who assert common and longstanding rights destroy the integrity of the process and brazenly violate fundamental due process. In letters to State Department employees, the Committees have ominously threatened without any legal basis and before the Committees even issued a subpoena-that "[a]ny failure to appear" in response to a mere letter request for a deposition "shall constitute evidence of obstruction." Worse, the Committees have broadly threatened that if State Department officials attempt to insist upon the right for the Department to have an agency lawyer present at depositions to protect legitimate Executive Branch confidentiality interests-or apparently if they make any effort to protect those confidentiality interests at all-these officials will have their salaries withheld.

And more:

Not surprisingly, the Office of Legal Counsel at the Department of Justice has made clear on multiple occasions that employees of the Executive Branch who have been instructed not to appear or not to provide particular testimony before Congress based on privileges or immunities oft he Executive Branch cannot be punished for following such instructions. Current and former State Department officials are duty bound to protect the confidentiality interests of the Executive Branch, and the Office of Legal Counsel has also recognized that it is unconstitutional to exclude agency counsel from participating in congressional depositions. In addition, any attempt to withhold an official's salary for the assertion of such interests would be unprecedented and unconstitutional.

End of quotation:

But it seems that it is based mainly on due process issue, and alleged false version made by Chairman Schiff concerning the phone call or conversation of Trump with the Ukrainian president. Will it suffice in light of Nixon precedent? ( not the president, but the district judge at the time ) and the rules of Congress ? We shall wait and see what's next.

One may reach the letter, here:



Posted by: El roam | Oct 8, 2019 7:57:15 PM

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