07 November 2019

The Tangled Mangled Web Of Clown World

Oh! What a tangled web we weave,

When first we practice to deceive
Sir Walter Scott, Marmion 

There is a certain irony in a blogger beginning his blog by saying "I have no words."

Yet truly there are no words for what we are witnessing unfold in the legacy media. The hypocrisy and the absurdity reaches such a level that even the derisive "Clown World" no longer seems adequate. "Orwellian", "Kafkaesque"...all have been surpassed in the legacy media's quest for ever more drama and controversy.

While the legacy media engages in its dutiful pearl clutching over Donald Trump, Jr., and his seeming "outing" of Eric Ciamarella--the "Humpty Dumpty Whistleblower," who qualifies as as a whistleblower only if you use never-before imagined meanings of the term--it almost casually retaliated against a real whistleblower, the former ABC employee who obtained the hot mic video of ABC News Anchor Amy Rorbach venting frustrations over ABC's decision to squelch an investigative story about Jeffrey Epstein. Literally almost at the same time, the legacy media on the one hand extended the courtesy of pretend anonymity to Eric Ciaramella while denying that same protection to the Epstein whistleblower.

Hypocrisy...absurdity..."Clown World ethics"...all these words apply, and yet somehow none of them do the present reality any semblance of justice.

How is it that ABC News willingly chose to forego a major news scoop three years ago, sitting on the Jeffrey Epstein story for reasons unknown? 

How is it that the legacy media can pretend to be "protecting" Eric Ciamarella's identity when it has echoed across the Twitterverse and even some portions of the legacy media--when even Congressman Adam Schiff failed to fully redact his name from some of the transcripts recently released by his committee (as was discovered by several Alt-Media sources, most notably "71 Republic")?


How is it that neither the Democrats nor the legacy media can be bothered to take note of what the Constitution or federal statutes say regarding the impeachment of the President, or acknowledge that even in Clown World, the rule of law must prevail?

If the legacy media were merely trying to deceive the public, pushing their usual "bread and circuses" pabulum, that would be one thing. If the legacy media and the Democrat majority in the House of Representatives were conspiring to deceive the public to give the Democrats a shot at grabbing political power, that would be another. Yet the legacy media and the Democrats have been so abysmally inept in their deception, it boggles the mind. Even Casey Stengel, sardonic manager of the 1962 Mets--still baseball's gold standard for a truly inept team--and his immortal question "Can't anyone here play this game?" seems pitifully inadequate to the occasion.

Clown World is the land of the insane, apparently.

Clown World is the land of the vengeful, as Facebook and Twitter have engaged in random punitive bans and deletions for accounts daring to publish Eric Ciamarella's name  (including the facebook page for yours truly--in Facebook "jail" for seven days), despite it having been in open discussion online, having been outed  by Paul Sperry of RealClearInvestigations, and having been the most open secret of all in Washington, the city built on open secrets.

Clown World is the land of the unironic triggered virtue signaling, as that gaggle of leftist ladies known as "The View" displayed when Donald Trump Jr., out to promote his book "Triggered", left them in apoplectic high dudgeon by merely pointing out a few (gasp!) empirical facts.

These events would make for a relatively full news week, but all of this has transpired just today (7 November 2019). In just a few short hours, the lunatic left in the US put renewed emphasis on the "lunatic" part.

In one regard, much of this madness seems inevitable. With regards to the current impeachment hysteria, so many demonstrably false assertions have been made that to defend them all invariably leads one into a maze of contradictions. The brazen hypocrisy of the legacy media suppressing vital stories about Jeffrey Epstein was an immediate takeaway from Project Veritas' video drop, which made their punitive retaliation against the whistleblower who provided the video almost a foregone conclusion--it was mere happenstance that it was set against the backdrop of media meanderings about the importance of protecting whistleblowers.

It may also be that the contradictions serve a larger purpose for the legacy media--to sow confusion and chaos in the minds of the public. If people are unsure what to think, they are less likely to question what is reported.

Yet we should question, now most of all, for the contradictions, the chaos, the confusion point to another important truth: the narratives of the legacy media are nothing but lies built upon lies. Adam Schiff's Clown World impeachment inquiry is slowly drowning under a sea of deceptions and contrived leaks from his "secret" hearings, with each leak quickly being discredited as the full transcript of a deposition is made known. ABC News' lawyerly statements on why they suppressed the Jeffrey Epstein story are too clever by half, and leave unanswered the question of why they do not release the story now. Time and again, the legacy media is being caught in yet another bald-faced lie.

While the narratives may be confusing, the facts are not. The facts are still available, the facts are still discernible even within the legacy media's own propagandistic reporting. We know what Amy Rorbach said on the "hot mic" tape, because we can watch the video for ourselves and assess her words for ourselves. We can read the Schiff transcripts from his hearings for ourselves, and most of all we can read the transcript of Donald Trump's phone call to Ukrainian President Zelensky for ourselves, if not to determine his true intent at least to ascertain if there are any grounds for imputing corrupt motive (there are none). We can read the Constitution, and we can look up federal statutes on bribery, corruption, and conflict of interest.

At the core of the tangled mangled web of Clown World lies a simple world of skepticism, of doubt, of critical thinking and of a pursuit of the facts. For many, the pursuit of the facts has been the role of the legacy media, and for many there is hope pursuit of the facts will become the role of the alternative media. Perhaps the alternative media will rise to the moment and become useful distributors of fact and figure. Whether it does or not, every man and every woman should remember that we all have the capacity to pursue the facts. We should all remember we have the power to demand the facts, and to not be turned away until we have the facts.

I have commented too many times to recount how wholly undeserving of trust the legacy media is. The latent left-leaning bias that has always been understood to be the habit of the legacy media has devolved into pure propaganda and clickbait. Presenting information, facts, and figures fails to generate any meaningful media buzz. The media would prefer there also to be high drama, with or without a grounding in the relevant facts. Today, the legacy media proved that once more.

For the sake of drama, the legacy media will lie to you, and do so casually, even contemptuously. The legacy media will lie and prevaricate to defend its chosen narratives at all costs, facts be damned. The legacy media will hide the truth, bury it as deep as it can, to protect the powerful and the elites among us. The past 24 hours have proven all of this in spades.

Such is the tangled mangled web of Clown World.

06 November 2019

The Humpty Dumpty Whistleblower

`And only one for birthday presents, you know. There’s glory for you!’ 

`I don’t know what you mean by “glory,”‘ Alice said. 

Humpty Dumpty smiled contemptuously. `Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘ 

`But “glory” doesn’t mean “a nice knock-down argument,”‘ Alice objected. 

`When I use a word,’ Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’ 

`The question is,’ said Alice, `whether you can make words mean so many different things.’ 

`The question is,’ said Humpty Dumpty, `which is to be master – – that’s all.’


When Lewis Carroll becomes an apt description of present reality, Clown World has gone too far. 

As evidence that we are in exactly that predicament, I submit the constant media hyperventilation over the (in)famous "whistleblower" who set the Democrats' impeachment of President Trump in motion.

Clear The Air

First, a few declarations are in order, for clarity and completeness:
  1. Without addressing the merits and demerits of the whistleblower, my position in all my commentary on this subject to date is that the Democrats have failed to define any actual offense, much less an impeachable one. My derision of their efforts as a "Clown World Impeachment" follows from this lack of substance.
  2. Process is not substance. Criticisms of the Democrats' impeachment process do not entail an intrinsic belief in the President's ultimate guilt or innocence. Rather, they emphasize that only through an open and deliberate process with scrupulous attention to the rights of the accused can we make a fair and reasoned assessment based on the substance.
  3. As regards substance, my opinion, based on the facts publicly presented thus far, is that the Democrats have none.
With these declarations in hand, it comes as no surprise that I take a dim view of the Democrats' impeachment proceedings. However, that view does not preclude a reasoned evaluation of the treatment accorded by Congress and by the legacy media to the person claiming whistleblower protection for having reported a presumed malfeasance by President Trump.

At the present time, the legacy media is steadfast in its refusal to "out" the whistleblower and share his name with the public. As Howard Kurtz of Fox News reports, the media does not consider it to be their role to provide this information, and that failure to protect his identity would discourage future whistleblowers.

For the record, I do not share Howard Kurtz' conclusion, for the reasons I shall illuminate here, and have zero qualms in mentioning the name that has been associated with the presumed whistleblower, a name which has not been refuted by the whisleblower's own attorneys. Also for the record, let us be clear about who the individual is: Eric Ciaramella, so identified by investigative journalist Paul Sperry for RealClearInvestigations just prior to Halloween.

For the rest of this article, I shall consider Eric Ciaramella to be definitively the "whistleblower".

Is He A Whistleblower?

To appraise Eric Ciaramella as a whistleblower, we just first turn to the relevant law--the Intelligence Community Whistleblower Protection Act--found at 50 USC 3033(k)(5) et seq. The key provision is the first paragraph of the section:
An employee of an element of the intelligence community, an employee assigned or detailed to an element of the intelligence community, or an employee of a contractor to the intelligence community who intends to report to Congress a complaint or information with respect to an urgent concern may report such complaint or information to the Inspector General.
The thrust of this is simple: people with concerns about how the US government is handling intelligence matters may take those concerns up with the Inspector General (ICIG).  We should also make note of what matters individuals within the Intelligence Community are empowered to report (emphasis added):

In this paragraph, the term “urgent concern” means any of the following:
(i) A serious or flagrant problem, abuse, violation of law or Executive order, or deficiency relating to the funding, administration, or operation of an intelligence activity within the responsibility and authority of the Director of National Intelligence involving classified information, but does not include differences of opinions concerning public policy matters.
(ii) A false statement to Congress, or a willful withholding from Congress, on an issue of material fact relating to the funding, administration, or operation of an intelligence activity.
(iii) An action, including a personnel action described in section 2302(a)(2)(A) of title 5, constituting reprisal or threat of reprisal prohibited under subsection (g)(3)(B) of this section in response to an employee’s reporting an urgent concern in accordance with this paragraph.
This is where we encounter a problem. If Eric Ciaramella is an Intelligence Community Whistleblower--as the legacy media asserts that he is--then his complaint must involve classified information and must pertain to an intelligence activity, but must not involve an opinion on public policy. Unfortunately for Mr. Ciaramella, President Trump's July 25 telephone call to President Zelensky of the Ukraine does not involve any intelligence activity. The thrust of the call was government corruption and Ukraine's efforts to stamp it out.

Within the context of that July 25 telephone call, there is no "urgent concern" the reporting of which Eric Ciaramella may perform under the aegis of whistleblower protections.

Whatever else he may be, Eric Ciaramella is not a whistleblower, by definition. The law as it is written does not extend that status to him in any capacity.

Who Is Eric Ciaramella?

Even Presidents enjoy a Sixth Amendment right to face their accuser. Thus, it is not only appropriate but imperative that the persona of Eric Ciaramella be fleshed out. As it happens, that persona already has a certain color and  involvement with the efforts to "get" President Trump via the Russian Collusion Hoax. As has been documented by Gateway Pundit and other sources:
At a minimum, Eric Ciaramella comes to this controversy with a bit of personal baggage.

Yet even if that were not true, there are still other aspects of Ciaramella's backstory that are troubling, not the least of which is his interaction with Congressman Adam Schiff and the Permanent Select Committee on Intelligence before he communicated his concerns regarding the July 25 telephone call to the ICIG.

The impact of any of this information on the substance of what he reported is a matter to be adjudicated openly, either by the House of Representatives, the Senate, or the public at large. For this reason alone, not only does Ciaramella not enjoy any expectation of anonymity, but it is imperative that he not remain anonymous. His identity, and his backstory, as relevant facts to the impeachment inquiry, and cannot be considered so long as he hides behind anonymity (brief pause to note the irony of a person named repeatedly on the Internet enjoying "anonymity" in the legacy media).

Why Call Him A Whistleblower?

All of the foregoing begs the question of why the legacy media persists in referring to Eric Ciaramella as "the whistleblower." He is no such creature, and provably so. 

We should note here that the term "whistleblower" carries a connotation of one who reports wrongdoing at great personal risk and expense to himself:
an employee who brings wrongdoing by an employer or other employees to the attention of a government or law enforcement agency and who is commonly vested by statute with rights and remedies for retaliation
While Eric Ciaramella may be placing his employment in jeopardy by his current course of action, it should be noted that there is no plausible basis for any notion that his personal safety is at issue. If anything, it is the defenders of President Trump and not his detractors who have had to look to their personal safety. As for "retaliation", even within government circles the mere continuation of the impeachment imbroglio attests to the probability that Ciaramella would not lack for employment opportunities in the future. Beyond the obvious concerns of a job, "retaliation" is not a plausible concern for Eric Ciaramella.


Yet the legacy media persists in labeling him as "the whistleblower", not because he is, but because the legacy media wants him to be. In true Humpty Dumpty fashion, the legacy media has decided the term "whistleblower" will mean whatever they wish it to mean. For them, "whistleblower" is "a government worker who makes salacious and inflammatory accusations against the President."



Nor is it difficult to surmise why the legacy media would do this. For both Democrats and the legacy media, the implication that there is wrongdoing at issue greatly strengthens their public presentation of their case, and gives all the impeachment hysteria justification. The tactic seeks to put Trump's defenders on the back foot by narrowing the debate to the scope and magnitude of the wrong done, not debating whether in fact any wrong was done at all.



Unfortunately for them, the question of whether there is any impeachable offense involved in the July 25 call is very much the essential question of the moment. It is the essential question because the letter of the law, both within the Constitution and within federal statute, argues mightily against there being any corrupt act by President Trump with regards to that call. Far from being a debate over whether there was an impeachable offense, the real debate is whether there was an offense at all--and the evidences thus far strongly suggest there is no offense, impeachable or otherwise. Even the closed-door depositions of various witnesses such as the former US Ambassador to the Ukraine Marie Yovanovitch do not establish any form of "quid pro quo", corrupt, or otherwise.



These inconvenient realities are all swept aside and ignored by granting Eric Ciaramella the inappropriate appellation of "the whistleblower." In this latest "Orange Man Bad" narrative, sarcastically named "Russian Collusion 2: Ukrainian Boogaloo" by the Twitterverse, facts which undermine the claims are studiously suppressed, most particularly by the legacy media (which seems to not have learned from the Russian Collusion Hoax the lunacy of putting their collective thumb on the scale of a story).



Words Matter



Whether Donald Trump's policies or attitudes towards Ukraine are appropriate or inappropriate is a policy matter that, for this discussion, I will not address. People of good conscience can disagree in good conscience over such matters. Yet, in good conscience, we must address the facts as they are, not as we wish them to be. We must use the words which convey our most accurate understanding of the facts, and we must alter our words as our understandings evolve with the addition of new facts and a more nuanced context. Regardless of the position we take on any topic, the words we use do matter.



It matters that Eric Ciaramella is wrongly termed a "whistleblower". It matters that his allegations, regardless of whatever factual predicates he might have, are incorrectly granted the moral heft inherent in someone reporting "wrongdoing". It matters that the legacy media cynically distorts the facts of his allegation by automatically imputing a sense of malfeasance to President Trump's actions--that imputation is a pre-judging of guilt that is logically unsound, morally indefensible, and absolutely at odds with all established notions of due process and the rule of law.



The legacy media is not Humpty Dumpty, and even if this is Clown World we have not gone through the looking glass. This is the real world. In every Clown World narrative, the consequences are felt in this real world. Though the legacy media may wish to assign whatever meanings it finds convenient to words, no honest discussion, no meaningful debate, can long abide such intellectual insanity. For us to grasp the nettle of President Trump's actions, both good and bad, we must use language honestly, and we must ground our words in the empirical reality that surrounds us.



We must stop calling Eric Ciaramella "the Whistleblower". The Humpty Dumpty Whistleblower is no Whistleblower at all, merely a fictionalized media creation intended to further an already decrepit and largely debunked narrative.



The Humpty Dumpty Whistleblower is a media fiction, but Eric Ciaramella is a real person. He has made real allegations about a real event against a very real President Trump. We should give full weight to all that Eric Ciaramella has to say, but we should do so here in the real world, and not venture once more through the looking glass into Clown World.

02 November 2019

Even In Clown World, The Law Remains The Law

One of the enduring principles highlighted by the seminal Supreme Court case Marbury v Madison (5 US 137) is the centrality of law in our government and in resolving our disputes:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
When we wish to determine who did what wrong in our society, we answer that question with studious application of the law to the facts. The Marbury decision itself is an extended homage to the unyielding reality of the law. No matter the issue at hand, our understanding of its right or wrong begins and ends with the law.

This is the order of things in American civic society.


Now that the Democrats in the House of Representatives have seen fit to put this country irrevocably on a path towards impeaching President Trump, we are well advised to recall the law what the law is, and remind ourselves of the actual text of the various laws that are brought into play by this extended political melodrama.


The Law Of Impeachment


The thrust of impeachment is this: it is the means by which Congress may forcibly remove people from the Executive branch of the government, in accordance with the strictures of Article 2, Section 4 of the Constitution:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Impeachment itself is a two step process, with the first step being the act of impeachment which must take place within the House of Representatives, per Article 1, Section 2, Clause 5 of the Constitution:
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.
Once the House of Representatives impeaches a President, Vice President, or any other "civil Officer" of the United States government, it falls to the Senate to adjudicate that impeachment, and to remove that person from government if two-thirds of Senate members present during the adjudication vote to uphold impeachment and sustain the allegations so made, as established by Article 1, Section 3, Clauses 6 and 7:
The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
These constitutional clauses are the entirety of the law regarding the particulars of impeachment, such as they are.  There are no other statutes within the US code, and the word "impeach" does not appear within the established rules of procedure for the House of Representatives. When Congress seeks to impeach the President, these are the legal guides for the entirety of the effort. When the White House labels an impeachment inquiry process "unconstitutional", these are the texts that admit or deny that claim.

The most important point to note here is that there is no Constitutionally defined "impeachment process."  There is no text in the Constitution that says how many different votes are needed to actually impeach the President. There is no definition for how Articles of Impeachment are to be drafted. There is merely the requirement that the whole House render an impeachment; in theory, any Congressman could on any given day present a resolution containing Articles of Impeachment and should it pass with a bare majority of the votes, the President would be impeached, and the Senate would be given an impeachment trial to conduct.


This is what the law is on impeachment.


Rights Of The Impeached


Given the brevity of the actual legal text for impeachment, how should we appraise the claims raised by the White House as well as Congressional Republicans that the impeachment inquiry process to date violates due process of law and denies the President the fundamental rights of the accused?


The right to due process arises in the Constitution within the Fifth Amendment (emphasis added):

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
It is hardly an expansive reading of the text to argue that expulsion from high office constitutes a deprivation of liberty, and so it is incumbent upon the Congress to ensure that whatever impeachment process is determined by either the House or the Senate for its role in impeachment hews to accepted norms for due process of law. Neither can there be any doubt that the President of the United States enjoys the right to due process as much as any other citizen.

Inherent in due process is respect for the rights of the accused. What are those rights? For that we look to the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
We must note, however, that there is a catch: Sixth Amendment rights are framed in the context of a criminal proceeding. Impeachment is not a criminal proceeding, nor is it a judicial proceeding of any sort. Rather, impeachment is a political proceeding, a point which is emphasized by Article 1, Section 3, Clause 7, which explicitly holds open the potential for additional criminal proceedings even after a successful impeachment and removal from office. Were impeachment merely another form of criminal process, after impeachment, trial, and conviction, the Fifth Amendment proscription against double jeopardy would apply, and no further sanction would ever be permissible. We cannot, from a plain reading of the Amendment, automatically extend the particulars of the Sixth Amendment to an impeachment proceeding within the House of Representatives.

Does this mean President Trump has no claim of right in an impeachment inquiry? Not hardly. 


As I have argued in regards to Big Tech censorship of online content and the nature of Free Speech, the rights of the accused are a fundamental right, preceding not just the Constitution but the whole of American government and American society. The rights of the accused are not merely a legal right, but a moral imperative. Even without the bindings of the Sixth Amendment, the Fifth Amendment assurance that in all things there will be due process argues strongly in favor of the President retaining the substance of Sixth Amendment rights if not the precise form. President Trump absolutely has an expectation of being able to, at some point during the impeachment exercise, confront any and all witnesses arrayed against him, and challenge the veracity and propriety of any evidences submitted. At some point during the process of impeachment, President Trump absolutely must be allowed to be heard. Indeed, his right to be heard and defend himself and his honor are primary reasons I argued for the Democrats to commence a formal impeachment inquiry following the release of the Special Counsel Robert Mueller's report on his investigation into the Russian Collusion Hoax, reasons that were echoed by none other than Robert Mueller himself:

It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge.
A due process of impeachment, therefore, must afford the impeached some opportunity of defense.  The House of Representatives may enjoy the sole power to impeach, but that power carries the intrinsic obligation to hew to established civic and legal norms. There may be some small debate over when space for the opportunity to defend should be created, but there is no debate over the absolute legal, Constitutional, and moral imperative for that space.

This is what the law is on the rights of the impeached.


Impeachable Offenses


Within the Constitution, the list of impeachable offenses given in Article 2 Section 4, is brief: "...Treason, Bribery, and other high crimes and misdemeanors." 


That is the sum total of the legal text on impeachable offenses.


That brief list immediately begs the question, however, of what constitutes "high crimes and misdemeanors."


As a curious aside, the exploration of the meaning of this term is also an ironic case for Constitutional originalism. "High crimes and misdemeanors" is an 18th century term of art encompassing a panopoly of misdeeds particular to the holders of high public office, and if a proper understanding of the term requires its reading according to 18th century linguistic and political norms, of necessity one must view the whole Constitution with like regard. The use of that term of art establishes that what constitutes an impeachable offense fundamentally amounts to what 20th century political reformers termed "abuse of power." Such abuse would include various derelictions of executive responsibility as well as various breaches of the public trust that do not rise to the level of criminal malfeasance.


The inherently nebulous nature of the term, as well as the intrinsically political nature of impeachment, was acknowledged by Alexander Hamilton in Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.
This is supposed by some to lead to President Gerald Ford's cynical (yet at least somewhat accurate) assessment that "an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history...." As Hamilton warned, there is within impeachment the omnipresent danger that the power of one political faction over another will result in partisan concerns overriding the broader national interests in pursuing impeachment. 

Still, the use of the term "high crimes and misdemeanors" does establish that, to be impeached, a President (or other civil officer of the United States) must behave in a fashion which is rejected by a significant majority of the the American people. Following on Hamilton's view on impeachment and the partisan risks entailed, to qualify as an high crime the conduct must be of a nature that rises above internecine partisan bickering. As high crimes are not necessarily statutory offenses, but political offenses that presumably display a degree of disdain and disregard for the national interest and the national polity, the unspoken addendum to Gerald Ford's assessment must be an acknowledgment that the majority of the House which votes impeachment must accept and be prepared to face the wrath of the voters.


This is what the law is on impeachable offenses.


Are We There Yet?


A virtue of the law is that it provides a framework within which conduct may be evaluated and claims regarding that conduct adjudicated. As Marshall noted in Marbury, the role of any court is to apply the law to a particular set of facts, that from those facts a verdict may be reached, and from that verdict, a modicum of justice dispensed. The framework of the law on impeachment provides a framework within which we may interrogate President Trump's actions, statements, and behaviors, and determine if any rise to the level of an impeachable offense.


The current allegation against President Trump revolves around his July 25, 2019 telephone call with Ukrainian President Volodomyr Zelensky, in which President Trump request Ukraine investigate certain matters arising from the 2016 election, as well as matters surrounding former Vice President and current presidential candidate Joe Biden. Laying aside other facts and particulars pertinent to the allegation for the moment, what manner of impeachable offense might be derived from the telephone call and the request?


One view of the call is that it represented an attempt to pressure President Zelensky to provide salacious dirt--"kompromat"--on a political adversary. Following this coercive interpretation, this view fundamentally accuses President Trump of extortion, which could be an ordinary crime under 18 USC 872:

Whoever, being an officer, or employee of the United States or any department or agency thereof, or representing himself to be or assuming to act as such, under color or pretense of office or employment commits or attempts an act of extortion, shall be fined under this title or imprisoned not more than three years, or both; but if the amount so extorted or demanded does not exceed $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
An alternate view is that President Trump sought, non-coercively, salacious kompromat on Joe Biden for use in his Presidential re-election in 2020. This, it is argued, constitutes an illegal campaign contribution by a foreign principle, which is prohibited under 52 USC 30121:

(a)Prohibition It shall be unlawful for—
(1)a foreign national, directly or indirectly, to make—
(A)a contribution or donation of money or other thing of value, or to make an express or implied promise to make a contribution or donation, in connection with a Federal, State, or local election;
(B)a contribution or donation to a committee of a political party; or
(C)an expenditure, independent expenditure, or disbursement for an electioneering communication (within the meaning of section 30104(f)(3) of this title); or
(2)a person to solicit, accept, or receive a contribution or donation described in subparagraph (A) or (B) of paragraph (1) from a foreign national.
One could also argue that seeking such material might constitute the solicitation of a bribe by President Trump, which is prohibited under 18 USC 201.

These are ordinary crimes covered by federal statute--with bribery an explicit impeachable offense per Article 2, Section 4. As a President is charged in his oath of office to see the laws be faithfully executed, the contention that a President who chooses to violate those same laws has abused his office, abused the public trust, and committed an impeachable offense is not at all unreasonable.

The challenge for the Democrats, then is to present facts which establish that one of these offenses has occurred.  Do they have such facts?

As I argued in my last posting, no, they do not.

Whether one argues extortion, illegal campaign finance, or bribery, in every instance one must establish, clearly and unequivocally, that Ukraine opening an investigation into Joe Biden's activities constitutes a "thing of value." A legitimate investigation cannot qualify, else any legitimately predicated investigation of a political candidate arguably becomes a campaign contribution towards that candidate's rivals, which is an absurd position. For the investigation to have any value for Donald Trump in any capacity, it must lack any legitimate predicate.

Alas, for the Democrats, there are multiple factual predicates that support an investigation, as I have already detailed. No amount of Democrat sophistry can evade the factual reality of the manifest conflicts of interest Joe Biden had regarding implementation of US policy towards Ukraine and the dispensing of loan guarantees. Regardless of whether Hunter Biden committed any crime, or did anything wrong in any capacity, his Burisma directorship presents an unavoidable conflict for Joe Biden which he did not seek to mitigate in the slightest, including obtaining a waiver from the Obama administration (assuming such waiver would have been permissible under the circumstances).

With legitimate reasons to investigate Joe Biden, there simply is no logical way to impute a corrupt act by Donald Trump. By every standard of corruption and abuse of power that operates within American law, there is no corrupt act, and no abuse, by Donald Trump.

Unless and until different facts arise to make the case for corruption by Donald Trump, there are no impeachable offenses established within the July 25 phone call. This is a Clown World impeachment, driven, as Hamilton feared, more by the animus of the Democrats and their majority position within the House of Representatives than on any plain reading of the law or the phone transcript.

Yet the Democrats must still conform to the law. At some point they must make their case in public, and to the public. At some point they must allow Donald Trump space to present his defense and rebuttal. Arguably, as their resolution endorsed the principles of transparency, due process, and the rule of law, they should be creating that space even now, although the indications are that Adam Schiff is leveraging the particular language of the resolution to continue his secret depositions, sifting not for evidence of actual malfeasance, but for sound bites which can be leaked to paint a damning picture of Trumpian corruption, regardless of the reality. He certainly seems determined to continue violating House Rules and deny Congressmen access to the records of the hearings thus far, despite Rule XI(e)(2)(A) of the House clearly stating that all such records of standing committees are the property of the whole House:
(2)(A) Except as provided in subdivision (B), all committee records (including hearings, data, charts, and files) shall be kept separate and distinct from the congressional office records of the member serving as its chair. Such records shall be the property of the House, and each Member, Delegate, and the Resident Commissioner shall have access thereto. 
The Democrats must eventually conform to the law, and reveal everything to the public. When they do, they will need to make their case for impeachment, within the framework of law laid out here. Without a piece of information well hidden and not yet revealed to serve as "the smoking gun," when they make their case, it will want for credibility and substance.

Even in Clown World, the law remains the law.