Legal logic and US Impeachment 2020: Demur

Another entry in Spitzer’s series on legal terms bandied about and relevant to some of the most important issues of our times.

Previously discussed: Quid Pro Quo.  (See: The Surprising Relevance of Latin, JES 2019)

In a criminal case and in the upcoming impeachment trial of the President of the USA, Donald Trump, there are Two Articles of Impeachment. In plain English, two charges.We cannot know as yet how this will play out however here is a suggestion as to how the Honorable Justice Roberts might handle legal matters.

The President, the accused, will be represented by attorneys, among them Alan Dershowitz and Pam Biondi.

The Honorable Congressman Gerald Nadler has stated that the facts are not in doubt. He, and other Democrats, (the Honorable Speaker of the House of Representative Nancy Pelosi and the Hon. Congressman Adam Schiff, among them) have stated repeatedly that as to the facts there is “no doubt.”

It would seem then, that the first step in the case after the reading of the charges would be to Demur.

For example under the British , (Anglo Saxon) legal system which has been adopted and prevails in the US and many counties with a British legal system, admired across the planet,  after the submission of an indictment, a charge, the defense can say, before the start of the case, before evidence, that, ‘There Is No Case To Answer.’

Thus, the President may make a Motion To Dismiss and renew that motion if at first denied after the prosecutions case.

Based on this, Justice Roberts may well decide as follows:

There are two Articles. Article Two accuses the President of Obstruction of Congress. Article One accuses the defendant of Abuse of Power.

Regarding Article Two, the charge rests on the failure to provide materials and testimony alleged to be relevant and supportive of the charge. However, since the legality of those  subpoenas was not litigated and issues of scope, relevance and presidential privilege or attorney client privilege have not been decided in court, this charge must be dismissed.

The struggle and balance of powers between the executive and the legislative bodies is historic and ongoing. This balance must be respected and maintained. Presidential resistance to, and therefore the resistance by the Executive branch to the ‘interference’ or legitimate oversight by the legislators is not only commonplace but essential. It is not Per Se’ an impeachable offense.

However, as to Count One, Article One, there is the charge of the Abuse of Power. There is therefore a question of fact. That fact surrounds the phone call by President Trump to Ukrainian President Zelensky. The facts surrounding the call and the allegations are relevant and are to be determined by the trial in the US Senate.

Regarding the first and primary Article of Impeachment, there is and will doubtless be much controversy.  To view this count of the indictment broadly risks not only bombastic and biased conclusions whereas a narrow approach risks blindness to the implications and background necessary for a fair assessment of the facts.

After all the forum is a political one and the prosecutors, defenders and jurors are politicians. To demand and expect a non political process is naïve or disingenuous. However, the framers of the US Constitution foresaw such possibilities.

In the end no one will deny that to the extent the process is more non partisan, then it is more legitimate.

Here I would like to openly stray into more speculative ground.

What if a US president, say, Bush or Clinton wanted to show that they were serious about stopping smuggling, trafficking and gang activity along the US Mexican border. Further, what if a president felt that sheriffs or a Congressman were also involved and perhaps public figures were involved in bribery.  Could the US president call the Mexican (or Panamanian or Columbian or other) President and ask for an investigation of Mexican or others and US citizens? Could the US President say that aid would be delayed, cooperation suspended, meetings cancelled unless the foreign officials fulfilled the demands for investigation arrests, interdictions and perhaps, prosecutions?  Does it matter if the US citizen investigated is a public figure?

If aid is authorized by Congress it should be distributed. If there is a date for release and the executive threatens to delay or stop such aid and then delivers the aid within the specified limit, is it ‘illegal’ or political pressure?

A problem that causes me concern is that the interpretation of the facts seems to me to be subjective. A circumstantial case that US President Trump was acting improperly and illegally rests on subjective interpretations of his acts, words, demands and mostly, motivations.

If his motivations were to reveal corruption or just in a childish attempt to cement loyalty and cooperation then it might be questionable or it might be legitimate, but not, other High Crimes and Misdemeanors.

I would like to add an insight into the critical terms and definitions upon which the entire affair hinges. The somewhat opaque terms in the US Constitution for which a US President may be convicted and removed from office: Bribery, Treason or OTHER High Crimes and Misdemeanors.

What does that mean? The simple answer is, whatever the Congress, the US House of Representatives and the US Senate say it is.  On the one hand it is a political definition not necessarily an illegal one. On the other hand it is clear that Treason and Bribery are impeachable offenses to most of both parties, Democrats and Republicans.

What about “Other’ High Crimes and Misdemeanors? Does that mean for example that if the President is not guilty of treason but is guilty of speeding or shoving a reporter (a battery) or smashing a window deliberately, then can he be removed from office for the “misdemeanors?” Alone?

To me the term hinges on an invisible comma.

High Crimes and Misdemeanors, means High, Crimes and Misdemeanors. In other words POTUS can be impeached for those crimes and misdemeanors which are ‘High.’ So serious that they justify impeachment and removal from office.

This is of course one of the reasons the US Constitution requires two thirds of the US Senators to vote for conviction.  It had to be serious and preferably beyond partisanship.

Definitions of demurrer

1n(law) a formal objection to an opponent’s pleadings

Synonyms:

demurdemurral

Type of:

objection

the speech act of objecting

n(law) any pleading that attacks the legal sufficiency of the opponent’s pleadings

Type of:

pleading

(law) a statement in legal and logical form stating something on behalf of a party to a legal proceeding

na defendant’s answer or plea denying the truth of the charges against him

  • From vocabulary.com, copied 1/18/2020

 

About the Author
An American born, Israeli, trained, licensed and practiced Trial Lawyer in NYC and Israel. Made Aliya 25 years ago after being an Ass't District Attorney and private Criminal Defense lawyer. Then Justice Ministry in Israel Criminal Law and Legislation and Knesset Commitee participation. Worked in the legal department of the Jerusalem Municipality for AG Eliakim Rubenstein and (PM) Olmert.
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