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09/11/2001 WE REMEMBER
U.S. Politics Proposal: If it Takes 2/3 of the Senate to Convict, it Should be Harder for the House to Impeach.
Posted: Posted December 6th, 2019 by chiarizio
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Here’s why:
When Bill Clinton was impeached, the article with the biggest majority in the HR had less than 53% of the Reps in favor; and the article that came closest to conviction had only 50% of the Senators in favor. That impeachment was a complete waste of the Senate’s time.
I think that for the House to impeach, they should be required to improve the odds that the Senate will convict.

Here’s what:
First, a quorum to consider the question should be at least 60% of the duly sworn and seated members; including a majority of such members from each of at least 60% of the states represented.
Then, to pass an article of impeachment should require the assent of 60% of those present, including a majority of those present from at least 60% of the states represented.

Reasoning:
If you can’t get a majority of a given state’s members to approve an article, the odds are slim you’ll get both of that state’s Senators to approve it.
So, in addition to voting district-by-district, it makes sense (to me) they should also vote state-by-state, the way they do when electing a President after no candidate gets a majority in the Electoral College.
And the three-fifths majority in the House should make it likelier the article in question might get a two-thirds majority in the Senate.
The quorum I propose makes it less likely some kind of “rump” Congress might manage to impeach a Prez (or whatever Federal official) while too many Congressmen were absent.

Hypothetical effects this proposal would have had on historical impeachment’s:
  • It’s been hard, so far, for me to figure out how this would have related to Andrew Johnson’s impeachment; because the Reconstruction Congress was pretty close to the “rump Congress” situation I mentioned earlier. But I suspect he would have been impeached.
  • I also haven’t yet had the time (nor taken the effort) to look at the historical impeachments of non-Presidents.
  • More than 400 Representatives voted to impeach Richard Nixon; at least 300 on each count. Two-thirds of the House’s full membership was 290. He would have been impeached. And he would have been convicted; 85 Senators would have voted to convict on at least one count, and more than two-thirds, including Barry Goldwater, would have voted to do so on the “abuse of power” count. So he did the right thing to resign.
  • Bill Clinton would not have been impeached. More than 200 Representatives voted AGAINST each count. 40% of the House’s full membership was 174 Representatives. Under my proposal 175 or more “Nay” votes would have defeated any article of impeachment. It would have saved the Senate some wasted effort if the House had never gotten that far.
  • I could be wrong, but it looks to me like none of the currently proposed articles of impeachment against Donald Trump comes quite up to 60% of the House in favor. It seems that the most popular one would barely fail. I don’t have enough information to see how the votes would break out state-by-state; in other words, are there 30 or more states, the majority of whose Congressmen, would vote for one of the articles of impeachment? Since it also seems unlikely two-thirds of the Senate would approve any of the articles, my proposal would save the Congress and the Administration and the Supreme Court some time and effort.

    Commentary:
    I doubt anyone here is unaware I think it would serve the best interests of my country (I.e. the USA, in case someone doesn’t know), to have the current occupant of the Presidency removed as soon as possible by any Constitutional means, be it impeachment or the 25th Amendment. However, neither seems likely. That being the case, it might be better to forego the trial in the Senate, if the Constitution required the 3/5 majority (including a majority from each of 3/5 of the states) that I’m proposing here.
    I do not think anyone on either side of these issues can reasonably be accused of treason, as defined in the Constitution. And ther’s clearly no way any such charge could be proven in the manner prescribed by the Constitution. I wish everyone on both sides would quit throwing that word around.

    A “High Crime or Misdemeanor” doesn’t have to be a breach of an existing law.
    Nevertheless, DJT can reasonably be accused of Feloniously violating at least three existing laws;
  • Bribery
  • the Campaign Finances act (which prohibits accepting or requesting foreign help in winning an election)
  • and the Espionage Act (though the element of malice (mens rea or guilty mind), wHitch would be required in a court trial but not an impeachment, might be missing and would in my opinion be difficult to prove).

    These accusations are reasonable to make, and might possibly be provable in the opinions of a good many Senators, though perhaps only a minority of them, and probably not 2/3 of them (that is, 67 of them), according to the best available guesswork to date.

    OTOH it’s become increasingly clear that DJT’s mental state isn’t up to running the country. If the majority of the Cabinet (“or such other body as Congress may by law provide”) chose to point that out to Congress, the 25th Amendment could be used to try to get rid of Trump. But it would still run into the 2/3 majority problem; in the House as well as the Senate. And it would never get that far, because the current Cabinet would never have a majority who’d be willing to tell Congress in writing that Trump’s mental or physical health isn’t up to the job. —— Barring future unforeseen developments!

    ———

    The following cooments are at best tangential to the titular content of this post.



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    I want to argue that this part of impeachment is fine the way it is, but it's not hard to see a future in which the Republican party literally just makes stuff up and then pursues impeachment when they have control of the House against a Democratic president. (Lindsey Graham basically even threatened that openly a while ago.)

    But I think the thing is: not many of the founders felt like impeachment would be that big of a deal. Not that it was minor, but those that felt it needed to be in the Constitution tended to think it would happen with some regularity, and felt that fundamentally a good tool for Congress to possibly keep the President in check. Of course, they didn't anticipate the level of partisan politics to cross branches. They had figured that Congress's desire for power would itself serve as a check on the President's desire for power. Kinda goes out the window when the objectives of Congress refuse to break from the President due to party loyalty.

    It's already such a process though and incredibly difficult to impeach in the first place (this is only the fifth impeachment inquiry of a president, as far as I'm aware at least, though discussion of impeaching a president is practically as old as the Constitution itself). I might argue that it's better that the House can vote to impeach easier, because that increases the chances of a Senate trial for Presidents that might need that to be used against them (it's worth noting that Trump only released the aid after he heard of the whistleblower and concerns of an impeachment inquiry). The idea here being, a President feasibly could be forced to behave more reasonably if they know going too far and pushing the boundaries too much might have some meaningful political consequence. Obviously, Trump has his cult in the Senate, so he knows it won't convict. But at the same time, Johnson only skated through by a single vote in the Senate. And Nixon resigned before he could be, but he probably would have been. (He had GOP support for a long time during the process though. If he didn't record himself, it's almost impossible to imagine him resigning and being impeached though.) And the Clinton impeachment was even more overtly trivial than the Republicans claim the current impeachment to be.

    I guess I'm not saying it can't or shouldn't change. But I do think the ease of which the House could feasibly pass articles of impeachment is probably a good thing given how hard it is to convict in the Senate, and that you need actual cause to impeach in the first place. I don't thiiiiiink we'll see just Republicans picking the most obscene reasons to pass a sham impeachment. (Though if that starts happening, we obviously know it will be Republicans doing that given how long it took for Democrats to finally come to agree that an inquiry was necessary here.)

    Posted December 7th, 2019 by Jet Presto
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    Worthwhile thoughts!
    I need to think about them before I can decide how much I agree with them.
    ——
    In a standard criminal prosecution, one factor the prosecutor considers in deciding whether and when to seek an indictment, is how likely they are to get a conviction. Usually they require an estimate of at least 90% probability, I think: (at least that seems to be the case in fiction, which might not correspond to real life).
    That being the case, I think that at least the House’s majority should include a majority of the states’ delegations from each of a majority of the states. How a state’s Representatives vote is a reasonable estimator of how its Senators would vote.
    ———
    ....
    ———
    One additional thought I’ve had;
    If the HR has to have a 3/5 majority (261 reps right now), including a majority of the states’ delegations from at least 3/5 of the states (30 states right now), then it might be safe to reduce the supermajority required to convict in the Senate to 3/5 of the Senators (60 Senators right now).
    That would have meant Andrew Johnson would have been convicted and removed, which might have set a bad precedent, so maybe that wouldn’t have been good? The House voted 126 to 47 to impeach him; well over 2/3, just under 3/4. That was mostly a GOP against GOP thing. Almost all (79.4%) Reps and almost all (86.4%) Senators were Republicans; another 9.3% (that is, five) of Senators were National Union party, like Johnson himself.
    ....
    Another idea might be if 3/5 of each chamber votes to remove the President twice, with an election and seating of the House and 1/3 of the Senate occurring between those votes, the President should be removed, even if the pro-removal vote is less than 2/3 both times.
    This would be a more relevant idea if the Presidents’ term of office were longer than twice as long as the term between elections for Congress; probably at least thrice as long.

    ———
    ....
    ———
    Not only Presidents can be impeached. All Federal officers (except Senators and members of Congress?), whether elected or appointed, whether executive or judicial (or legislative?), can be impeached the same way. The only difference is that, if the person impeached isn’t the Prexy or the Veep, the Vice President presides over the Senate trial; while if the President or VP is impeached, the Chief Justice presides over the trial in the Senate.
    There have been Federal judges impeached and removed.
    Nineteen people, including one U.S. Senator and one Cabinet member and one Supreme Court Associate Justice, have been impeached. Fifteen were judicial, three were executive (two presidents and one cabinet minister), and only one was legislative. Eight were convicted and removed; seven were acquitted. The other four trials were never completed; the individual resigned during the trial three times, or was removed by another means one time.

    Edited December 7th, 2019 by chiarizio
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    BTW see https://en.wikipedia.org/wiki/Impeachment_investigations_of_United_States_federal_officials to see how often there have been inquiries about impeaching people! 14 presidents, 4 Vice Presidents, 9 cabinet secretaries, 3 federal reserve board members, and 18 others!

    Posted December 7th, 2019 by chiarizio
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    If the officer impeached needed their appointment to office to be confirmed by the Senate, I think the House should need not only a majority of its members, but also a majority of the members from each of a majority of states, to impeach, thus to make it less unlikely the Senate would convict. A "double majority"; that is, a majority of individual members, and a majority of states' delegations' majority.

    If the officer impeached was elected to office, I think the House should need a 3/5 supermajority to impeach, and the Senate should need a 2/3 supermajority to convict. Don't overturn a popular election without a supermajority in the legislative branch.

    For Presidents and Vice-Presidents, I think both the above required double majority, and the above required supermajorities, should be required. 3/5 of the House, and the majority from each of 3/5 of the states' delegations in the House, to impeach; then 2/3 of the Senate to convict.

    I don't know that it's ever happened, but if the impeached officer didn't have to be elected and also didn't have to be confirmed by the Senate, I suppose a simple majority of the House to impeach might be reasonable.

    -----------------------

    The reason nearly evryone impeached has been a federal judge, is that the Constitution doesn't provide any other way to remove a federal judge once the Senate has confirmed them. Judges serve as long as they live and want to serve and are "on good behavior". Aside from conviction of an existing felony or misdemeanor, the only way to prove a lack of "good behavior" on the part of a federal judge, is impeachment.

    Of the nineteen people impeached so far, twelve have left office (eight were convicted by the Senate, four left some other way). and the remaining seven were acquitted. So impeachment has meant removal from office over 63% of the times so far. Also, so far, impeachment has meant never again holding office 100% of the time, even for the acquitted; even though many of the convicted were not de jure stripped permanently by the Senate of the right to ever hold office again.

    Edited December 8th, 2019 by chiarizio
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    Posted January 1st by chiarizio
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    Generally speaking, I concur that it should be quíte difficult to remove a president (for purely or even largely political motivations). I don't really follow the squabbly aspects of politicks, but there literally has been a 24/7 witch hunt against this guy since before the election even. I don't trust either side, but this whole "process" has been nothing but severely detrimental to the republic. If it goes on like this, maga or no maga, there won't be a United States to make or keep great again.

    So yes, the process ought to be more rigorous before hand and ought to require a larger margin in both House & Senate. (Also, I think it would be a good idea to clarify the roles of each: the bickering between the two houses over how the trial is to be conducted is pretty laughable.

    Like him or hate him, just keep in mind that he was duly elected by the People. Their choice ought not be so easily overturned. They wíll remember.


    Posted January 4th by elemtilas
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    Most strikingly, Article I, section 3, clause 6 specifies that Senators, when sitting on a trial of impeachment, “shall be on Oath or Affirmation.” Senators all swear a general Oath to uphold the Constitution, but the Oath taken in impeachment trials is more finely tuned. It is a juror’s oath, not a legislator’s oath. Rule XXV of the Senate Rules in Impeachment Trials provides the text: ”I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”


    I think that, in voting whether or not to impeach, the House should also be on oath-or-affirmation, the same as or similar to the Senate in I.3.6. The Constitution doesn’t specify the wording of the Senate’s oath/affirmation; the Senate’s Rule XXV does.
    So probably the House should set its own oath/affirmation by its own rules.
    Or the Constitution should explicitly say what the wording of the oath should be.

    Note one meaning of “impartial” is “without considering what party anyone belongs to.”

    ———

    In 2016 I was an anti-Trump Republican. Nevertheless I held out hope for the Trump administration until his extremely divisive inaugural address January 20 2017. As there was more and more churnover in his admin, and more and more he skirted Senate confirmations by leaving departments and embassies in the hands of “acting” heads who don’t have to be confirmed, by the end of 2017 I was seriously wondering whether we might be better off with no President at all than with this one. About July of 2018 I became a “yellow-dog Democrat” for the duration of any political influence of Trump or any of his family. I don’t think any of that qualifies as a witch-hunt. In my lifetime I have vigorously opposed the election of many Presidents; but I’ve found all their administrations tolerable: — until Trump’s.

    ———

    But I agree that any impeachment-and-removal process that overturns the result of an election should require a supermajority.

    Note that the Constitution requires 2/3 of the Senators present to convict on the same article of impeachment. It doesn’t say how many of the duly sworn and seated members have to be present. I think that’s an oversight that should be corrected; I think the quorum to vote on impeachment-convictions in the Senate should be 2/3 of the duly sworn and seated Senators.

    Likewise the House should, I think, require a supermajority (I’m recommending 3/5) of the Representatives present to pass an article of impeachment against a holder of elective office; and a quorum of 3/5 of the duly sworn and seated members to be present to hold such a vote.

    There was a big kerfuffle in West Virginia lately about overturning the Governor’s veto. The W.Va. Constitution requires 3/5 of the members who show up on the day to vote to overturn; it doesn’t say how many have to show up. The majority party lied to the minority that they weren’t going to vote that day. Then they voted without even sending staffers out to the rest of the building to round up members who were temporarily out of the chamber! Ignoring the continuous loud objections of the less-than-40%-coincidentally-there-at-the-time minority, they got 60% of their “rump” to override the veto.

    ———

    So;
    To override a Senate confirmation, I think an article of impeachment needs a majority of the House to be present, including a majority of the states’ delegations from a majority of the states; and a “yay” vote from a majority of the members present, including a majority of the state’s present members from a majority of the states having members present.
    To override an election, I think an article of impeachment needs 3/5 of the House to be present, and 3/5 of those present to vote “yay”.
    To override the Electoral College, I think an article of impeachment should pass both of those barriers. The quorum to vote should be 3/5 of the house’s duly sworn and seated members, including the majority of such members from 3/5 of the states represented by such members. Passage of an article of impeachment should require the assent of 3/5 of the members present, including a majority of the members present from each of at least 3/5 of the states having members present.
    And, when voting on an article of impeachment, the representatives should be on oath or affirmation; similar to a grand jury’s oath and/or the extra oath Senators have to take to try an impeachment.

    ———

    Probably in the Senate, and maybe even also in the House, that extra oath-or-affirmation also ought to be required in committee meetings and committee hearings while conducting business or investigations or inquiries concerning or related to the impeachments.

    ———

    No idea how to make any of those amendments happen.



    Posted January 4th by eldin raigmore
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    @Jet_Presto:
    @elemtilas:
    This subforum is the new home of this thread.

    Posted January 12th by eldin raigmore
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    @eldin raigmore

    Concur with your recent post: particularly about the House oughting to be oathbound.

    Posted January 12th by elemtilas
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    @elemtilas:
    BTW I believe “ought” is the archaic past of “owe”?

    Posted January 13th by eldin raigmore
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