Daily News Brief
Daily News Brief
CP Daily News Brief 01/31/2020

CrossPolitic Daily News Brief for Friday, January 31, 2020


Rod Dreher at the American Conservative: Did you hear about Goldman Sachs’s newest diversity policy? From the NYT, reporting from Davos:

Goldman Sachs’s C.E.O., David Solomon, prompted chatter on Wall Street yesterday about his plan to require I.P.O. clients to have at least one “diverse” board candidate before the bank helped them list in the public markets.

It’s a big deal in the I.P.O. world, given that Goldman was the top underwriter of U.S. offerings last year.

And it’s the latest push for diversity within Corporate America, Jeff Green of Bloomberg notes. The money-management firms BlackRock and State Street plan to vote against directors at companies without a female director. And California-based public companies with all-male boards face a $100,000 fine.

As Tucker Carlson pointed out on his show the other night, Goldman excepts itself from this rule, and Goldman is also not applying the rule to China. 

Dershowitz at the Senate Impeachment Hearing

Meanwhile, the Impeachment Hearings continue in the Senate, with apparently hardly anyone really caring. Although, Senator Ted Cruz has started a podcast called Verdict that has shot to the top of the podcast charts, where he chats with Michael Knowles at the end of each day of the Senate Trial, the first episode apparently being recorded at 2:30am, after the first day of the Senate trial finally finished back on January 21.  

One item of note this last week was the testimony of Alan Dershowitz, appearing to present arguments in defense of President Trump. Alan Dershowitz appeared in the Richard Nixon trial of 1973 and 1974, as well as Bill Clinton’s impeachment trial in 1998 and 1999. Dershowitz is a lifetime democrat and also a legal professor, who was also involved in the OJ Simpson Trial. 

Noting his support for and vote for Hillary Clinton in the last election, Dershowitz insisted that his defense of Trump and the constitution is non-partisan, and he would be making the same defense if Hillary had been elected and had been brought up on the same charges of impeachment.

Dershowitz summarized the job of the senate under three basic issues: “In exercising that power the Senate must consider three issues in this case. The first is whether the evidence presented by the House managers establishes by the appropriate standard of proof, proof beyond a reasonable doubt, that the factual allegations occurred. The second is whether if these factual allegations occurred, did they rise to the level of abuse of power and/or obstruction of Congress? Finally, the Senate must determine whether abuse of power and obstruction of Congress are constitutionally authorized criteria for impeachment.”

I will ask whether the framers would have accepted such vague and open-ended terms as abuse of power and obstruction of Congress as governing criteria. I will show by a close review of the history that they did not and would not accept such criteria for fear that these criteria would turn our new republic into a British style parliamentary democracy in which the chief’s executives tenure would be in the words of James Madison, the father of our constitution, “At the pleasure of the legislature.”

Dershowitz cited the impeachment trial of Andrew Johnson in the aftermath of the Civil War in 1868. President Johnson was impeached by the House of Representatives on February 24, 1868 and the Senate tried the case in a trial that lasted from March to May 1868. In the end, the Senate voted to acquit President Andrew Johnson by a margin of 35 guilty to 19 not guilty – one vote short of the two-thirds needed to convict and remove a sitting president.

Dershowitz noted that a number of articles of impeachment were brought against President Johnson, including “attempt to bring into disgrace, ridicule, hatred, and contempt and reproach the Congress of the United States.” As well as, “Denying that Congress was authorized by the constitution to exercise legislative power and denying that the legislation of said Congress was obligatory upon him.” Dershowitz cites the presiding judge, Chief Justice Curtis who stated, “Quote, “My first position is that when Congress speaks of treason, bribery, and other crimes and misdemeanors, it refers to and includes only high criminal offenses against the United States made so by some law of the United States existing when the acts complained of were done. And I say,” he continued, “that this is plainly to be inferred from each and every one of the provisions of the constitution on the subject of impeachment.” 

Dershowitz: “The late Justice Antonin Scalia gave the following current example. “If one speaks of Mickey Mantle, Rocky Marciano, Michael Jordan, and other great competitors, the last noun does not reasonably refer to Sam Walton, who was a great competitor but in business, or to Napoleon, a great competitor on the battlefield.” Applying that rule to the groups of words, treason, bribery, and other high crimes and misdemeanors, the last five words should be interpreted to include only serious criminal behavior akin to treason and bribery.”

Dershowitz goes on to insist that ‘abuse of power’ and ‘obstruction of congress” simply are not crimes akin to treason or bribery, or similar high crimes and misdemeanors. 

Dershowitz again: “We just heard that in 1970 Congressman Gerald Ford, who I greatly admired, said the following in the context of an impeachment of a justice. “An impeachable offense is whatever a majority of the House of Representatives considered it to be at a given moment in history, et cetera.” You all know the quote, Congresswoman Maxine Waters recently put it more succinctly in the context of a presidential impeachment. Here’s what she said. “Impeachment is whatever Congress says it is. There is no law.” But this lawless view would place Congress above the law. It would place Congress above the constitution. For Congress to ignore the specific words of the constitution itself and substitute its own judgments would be for Congress to do what it is accusing the president of doing. And no one is above the law, not the president and not Congress.

A little later: “Some framers such as Roger Sherman wanted the president to be removable by the national legislature at its pleasure. Much like the British prime minister can be removed by a simple vote of no confidence by parliament. That view was rejected. Benjamin Franklin opposed decidedly the making of the executive quote, “the mere creature of the legislature.”

“Among the criteria proposed were malpractice, neglect of duty, malconduct, neglect in the execution of office, and this word we’ll come back to, maladministration. It was a response to that last term, a term used in Britain, as a criteria for impeachment that Madison responded, “So vague a term will be equivalent to a tenure during the pleasure of the Senate.” Upon hearing Madison’s objections, Colonel Mason withdrew maladministration and substituted “other high crimes and misdemeanors.”

Later, Dershowitz arrived at “a relevant and contemporaneous issue. Even if a president, any president, were to demand a quid pro quo as a condition to sending aid to a foreign country, obviously a highly disputed matter in this case that would not by itself constitute an abuse of power. Consider the following hypothetical case that is in our news today as the Israeli prime minister comes to the United States for meetings. Let’s assume a Democratic president tells Israel that foreign aid authorized by Congress will not be sent or an Oval Office meeting will not be scheduled unless the Israelis stop building settlements. Quid pro quo. I might disapprove of such a quid pro quo demand on policy grounds, but it would not constitute an abuse of power. Quid pro quo alone is not a basis for abusive power. It’s part of the way foreign policy has been operated by presidents since the beginning of time. The claim that foreign policy decisions can be deemed abuses of power based on subjective opinions about mixed or sole motives that the President was interested only in helping himself demonstrate the dangers of employing the vague subjective and politically malleable phrase, “abusive power”, as a constitutionally permissible criteria for the removal of a president.”

Now, if you’ve been following the news at all this week you know that there were headlines of a “bombshell” early in the week regarding former National Security Advisor, John Bolton’s forthcoming book manuscript. The News actually broke last Sunday night in the New York Times. But Dershowitz thinks it’s a nothing-burger. In his comments to the Senate on Tuesday, he continued: “Now it follows, it follows from this that if a president, any president were to have done what the Times reported about the context of the Bolton manuscript, that would not constitute an impeachable offense. Let me repeat, nothing in the Bolton revelations, even if true would rise to the level of an abusive power or an impeachable offense. That is clear from the history, that is clear from the language of the constitution, you cannot turn conduct that is not impeachable into impeachable conduct simply by using words like quid pro quo and personal benefit.”

The rest of the speech is a fascinating study of constitutional history, law, with various references to specific cases, and I recommend you read the whole thing, which you can do at the links provided in this text, and which you can generally find in all of our daily news briefs, which you can find at crosspolitic.com.

This Toby Sumpter with your CrossPolitic Daily News Brief for Friday, January 31, 2020


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