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Tuesday, January 28, 2020

A Necessary Implication

Professor Dershowitz said yesterday that the articles of impeachment are defective because abuse of power and obstruction of Congress without a violation of law is not an impeachable offense. He added, therefore, that the Bolton revelations, even if true, are irrelevant.

If the Senate decides to call Bolton as a witness or subpoena his draft book, though, then that means that the Senate does not see those facts as irrelevant. It follows from that, I think, that the Senate would then be rejecting the President's legal position that an abuse of power can never be an impeachable offense. 

Posted by Gerard Magliocca on January 28, 2020 at 02:23 PM | Permalink


I agree with RQA. Also, the supermajority rule for conviction complicate things here. Calling Bolton only means a majority wants to hear from him, but a minority can still acquit based on a view that makes his testimony legally irrelevant.

Posted by: Jr | Jan 30, 2020 11:55:24 AM

This series on impeachment would probably have been really good if the author wasn't using it to play out their fantasy of being one of the Dems' managers.

Posted by: thegreatdisappointment | Jan 28, 2020 4:39:11 PM

I think the post overstates matters. The Senate can call Bolton as a witness before determining whether to accept or reject Dershowitz’s argument. Judges in bench trials often admit testimony “for what it’s worth,” deferring the decision on relevance. Calling Bolton would only imply the Senate hasn’t already concluded Dershowitz is right.

Posted by: RQA | Jan 28, 2020 3:59:35 PM

Important and central issue indeed. Worth to note:

First, there in no connection necessarily, between, rejection of the testimony of Bolton, and relevancy to the issue of impeachable offense. Whether abuse of power is impeachable offence or not, is question of law, not of facts. Yet, his testimony, notwithstanding may be relevant, for the facts it may bear ( strictly, issue of facts, not law necessarily ).

Second, subpoena of his draft book, may be problematic of course. For then, we deal here with hearsay testimony. If Bolton in not present, and cross examined, one may consider it, as hearsay. Yet, this is the Senate, and they can deviate from ordinary legal principles. In accordance:

One may suggest, that the book itself can be examined, and as they find fit and admissible and correct, granting it zero to ten weight, again, only and if they find it fit and deem and necessary, in light of the aggregate evidentiary picture.


Posted by: El roam | Jan 28, 2020 3:04:45 PM

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