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Wednesday, October 09, 2019

Not A Constitutional Crisis Yet

The claim that we are in a constitutional crisis is as common as it is incorrect. The fact that an impeachment inquiry is underway is not a crisis. The Constitution expressly provides for impeachment. The fact that the President is not cooperating with the impeachment inquiry is not a crisis. He is not required to cooperate. Richard Nixon did not cooperate and was, in part, subjected to an Article of impeachment by the House Judiciary Committee for that.

The real constitutional crisis will come next year if the President loses the election and refuses to leave office because he says he won. (And the deep state or the bogeyman or the Loch Ness Monster sabotaged the vote count against him.). Then we have a problem. Until then, we merely have politics. 

Posted by Gerard Magliocca on October 9, 2019 at 08:12 PM | Permalink


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Posted by: Daniellesherry | Oct 30, 2019 8:58:21 AM

One may read here, and understand different opinions. Titled:

"Are we in a constitutional crisis yet?

Thirteen legal experts respond to the Trump administration’s refusal to comply with the House’s impeachment inquiry."



Posted by: El roam | Oct 11, 2019 6:01:16 AM

Very recommended in this regard, titled:

"Daily Read: The Contempt Power of Congress"



Posted by: El roam | Oct 10, 2019 7:56:15 PM


we've already established that obstruction is not a serious enough offense to warrant removing a president from office. we have a 20 year old precedent.

Posted by: thegreatdisappointment | Oct 10, 2019 7:50:21 PM

"He is not required to cooperate."


If an obstruction charge for failing to "cooperate" (in quotes, because I'm not sure refusing to comply with legally valid subpoenas issued by a co-equal branch of government should be diminished as refusing to "cooperate") would be a legitimate basis for an impeachment charge, it would imply that what the President is doing is illegal--or, more accurately, that it represents a high crime or misdemeanor. If the President is openly engaged in high crimes or misdemeanors designed to frustrate Congress' efforts to investigate his allegedly corrupt behavior, then yes, he is instigating a constitutional crisis. If he succeeds, he's instigated something well beyond a "crisis," something closer to literal breakdown in the Constitutional order.

Now, if you don't think that an impeachment charge based on his behavior would be legitimate, ok--by that interpretation, maybe no Constitutional crisis. But I don't see how you can have it both ways.

Posted by: Hither & Anon | Oct 10, 2019 10:28:28 AM

Just clarification to my comment:

As written, both sides, hold legitimate ( prima facie) contradicting standings or interpretations or positions. But this concerning a strategic issue. Strategic means, can cause strategic rupture. That may shape, or, may reshape the whole regime or identity of those holding power.

This is not like ordinary debate, concerning side issues (like minimum wage or alike of course ).And it is more aggravated seemingly in this current case. For, courts can't intervene ( apparently). Courts are always on top. Must be so. Not here.


Posted by: El roam | Oct 10, 2019 5:42:04 AM

"The real constitutional crisis will come next year if Hillary loses the presidency and the democrats spend all of Trump's first-term trying to overturn the election by trying to impeach him."

I think you have to give the democrats more credit than that. They're not going to spend all of Trump's first-term trying to overturn the 2016 election just because they lost. That's like spending all of Bush's presidency saying the supreme court stole the election for him after there were two legitimate re-counts in Florida that said he won.

Posted by: Atom Schiff | Oct 9, 2019 11:04:52 PM

The respectable author of the post, had to define first, what is constitutional crisis it seems. For, "if the president loses the election and refuses to leave office, because he says he won " that doesn't render it yet, constitutional crisis. It can be simply because of fraud, or arbitrary or capricious conduct. Why then to call it constitutional crisis?

In fact, the current one, is more similar to it. This is because, both sides, hold contradicting perception ( legal and constitutional ) and, that's what creates the crisis or impasse so far. Not arbitrary or capricious conduct so far ( seemingly).

Yet, nothing that courts or the Supreme court can't solve one may argue. So, it is no more then temporary constitutional impasse. Why ? Because, it is nothing that courts can't solve it seems. Why it seems ? This is because, the Supreme court, held in Nixon v. US ( not president Nixon) that when dealing with impeachment process, courts can't intervene.For several reasons, but here some, I quote:

The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, James Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179,186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to try all Impeachments." Art. I, §3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its Members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature-the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442.

End of quotation:

So, if courts can't intervene, that is to say, that the House is the boss here. And no one else. But, if the house is the boss, Trump may think, that he is the " co- boss".Why ? Because only courts can compel him finally. This is normal thinking apparently. That is why there are courts! To prevail whatsoever! And how if the Supreme court held, that the Congress is a " Selfie boss " ?

So, it smells indeed like such crisis.But let's hope that common sense and patriotism shall prevail finally.


Posted by: El roam | Oct 9, 2019 9:05:58 PM

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