Wednesday, January 29, 2020

An Answer To Jonah Goldberg’s Answer To Dershowitz On Criminality Anchoring Impeachment

‪Jonah Goldberg:

‪Goldberg:  For instance, the president has unreviewable pardon power. But if he encourages unlawful behavior with the promise that he will pardon it after the fact, Congress can impeach him for it.‬

‪Me: Conspiracy to commit that behaviour  ‬

‪G: Again, I’m no constitutional scholar, but I’ve yet to find many actual constitutional scholars on Dershowitz’s side of the argument.    ‬

‪Me: Credentialism ‬

‪G: Does it make any sense that a president has to violate a criminal statute to be impeached? When the Constitution was ratified there were no federal criminal statutes?‬

‪Me: There were common law crimes and codifying them in statutes was known to be forthcoming. ‬

‪G: Remember, the 25th Amendment doesn’t enter the picture until 1967. So basically any crazy behavior would have to be addressed with the impeachment power.‬

‪Me: Crazy behaviour isn’t criminal or criminal like, isn’t a “high crime or misdemeanor” like treason or bribery. Why was 25th Am passed, if not to fill this gap?‬

‪G: A president who spends his time in a smoke-filled VW van isn’t fulfilling his oath to see that the laws are faithfully executed.‬

‪Me: How is such conduct criminal or criminal like? How does it fit in with the language of “Treason, Bribery, or other high Crimes and Misdemeanors,” given the construction rule ejusdem generis? Better a further amendment to deal with this gap, certainly preferable to the latent dangers in the elasticity of vague criteria.‬

‪G: Impeachment is a political process by intention and design and senators are supposed to be statesmen who take the health of the body politic and constitutional order into account. ‬

‪Me: No, it’s an unruly mix of law and politics. It sounds in criminal law. It has its closest analogue to criminal law. It is replete with the language of criminal law. To excise that analogue, to locate impeachment solely within the political, defies that it’s governed by the Constitution, America’s overarching legal framework, denies the applicability of the rules of natural justice—note the deeply unfair House process— and lands you in the land of Maxine Waters: “In impeachment, there is no law.” The flawed impeachments of both Clinton and Trump, both partisan attempts to short circuit their presidencies, demonstrate the dangers of impeachment by way of lawlessness. The anchoring of impeachment by crimes in the nature of bribery or treason, models for the kinds of offences against the state, which inform one of the big ways impeachment is in part political, drives you to your ludicrous examples—“spends his day in a smoke filled van”—to try to demonstrate the lurking danger with only a criminal underpinning. ‬

‪Another absurd hypothetical:‬

‪“If the president routinely went on TV dropping racial epithets and anti-Semitic broadsides, he would be completely within his rights to do so. But I would like to think we live in a country where the democratically elected legislative branch would say, ‘this is unacceptable’ regardless of what the criminal justice system has to say about it.” ‬

‪But put this absurd example against the real examples of impeachment, a most grave and awesome remedy, devolving to but a mere quiver in the politically partisan bow, trying to undo a duly constituted presidential election out of partisanship, which attempt has happened before and is happening now. ‬

‪G: We elect a president and vice president on the same ticket in large part to protect the will of the voters. To say that removing a president overturns the will of the voters is to say that the voters cast ballots for any impeachable behavior the president commits. This is a logical and moral absurdity. ‬

‪Me: No, again, no. To say that criminal or criminal-like behaviour must undergird impeachment is to say that the will of the people will not be overturned unless there is a concrete delict in the nature of a felonious crime against the state, that the democratically expressed will of the people will not be sacrificed on the altar of partisan advantage.   ‬

‪G: Now, none of this is to say that criminal behavior doesn’t make the case for impeachment easier. ‬

‪Me: To say it’s “easier” is absurdly reductive of the repeatedly explained reason for concrete, enumerated, decisive Articles. “Easier” makes a mockery of the founders’ anxious concern over the devolution of impeachment into manifest factionalism, the result turning only on which party has the most votes. ‬

‪G: But that is not Dershowitz’s claim. He flatly says abuse of power in itself is not impeachable. ‬

‪Me: It’s fitting that this part of your finale-flourish betrays a failure to understand what Dershowitz argues. He doesn’t say that abuse of power isn’t impeachable. He doesn’t say it flatly or otherwise. He, rather, stresses the distinction between the motive for impeachment—at its most general, “abuse of power”—and the grounds of the abuse, which must be concrete, enumerated and anchored in specific and articulated  modes of wrongdoing, criminal acts. It must be so in order to check the legislature from rising both above the law and the will of the people by a partisan exercise of raw political power, and in order to check the legislature’s ascension over the executive. ‬

‪Dershowitz’s analogy to criminal law is perfect and correct. There is no criminal law of abuse of power. Rather, it’s the rationale for specific criminal laws, assault, battery, rape, and so on. ‬

‪If you are charged with and arrested for abuse of power, with no notice of what specific law you have broken, you may wish to retain Alan Dershowitz. ‬

On Dershowitz’s Argument Before The Senate In Trump’s Impeachment Trial


‪addendum.  I realized I'm not sympathetic.  My guess is he knew what was coming, ie not serious criticism but insults, etc, and would have been disappointed by silence.  And Trump had no need of him.  The fact that he made the opposite argument (so I read, maybe not) re Clinton is also not charming.  I know he thought more deeply this time, etc.  but he should not have gone ahead given that.  He likes (needs?) the limelight.  ‬
‪Yes, none of this says his arguments aren't right or interesting, but . . . ‬

‪I assume you mean you’re not sympathetic to Dershowitz.‬

‪That like a moth he’s attracted to the flame of notoriety is neither here nor there save at least for one aspect: he has the substance to merit the attention, which is to say, he’s not an empty suit being celebrated for being celebrated. He’s got a brilliant legal mind and what says needs to be paid heed to, agree or disagree. ‬

‪There has not been one presentation in what I’ve seen of the Senate trial, some of it, that can approach in range and depth and analytic brilliance and passion too that of Dershowitz. Except to some extent Ken Starr, So other than the point on substance, that he has a large ego is beside all points that I can think of.‬

‪ How can you say that Trump had no need of him? What analysis have you made of what’s going on that leads you to this conclusion? Some of the most reputed lawyers in America who’ve shaped the defence team thought differently than you, as did Trump. I see Trump’s defence as a coherent whole, in which Dershowitz’s argument played a significant part both substantively and strategically. ‬

‪Your notion—that Dershowitz has changed his mind as to what he argued 20 some years ago is not “charming”—is beyond bizarre. What does what’s charming or not charming have to do with anything?‬

‪ Dershowitz, a constitutional scholar, before this impeachment exercise began, evolved in his thinking about the need for criminality to ground impeachment. Where is the relevance of charm? ‬

‪He made his evolved thinking publicly clear before this exercise began. Where is the relevance of charm? ‬

‪Trump’s lawyers asked him to join their team to argue his changed view and he agreed. Where is the relevance of charm? ‬

‪He made a brilliant and effective presentation, agree or disagree. Where is the relevance of charm? ‬

‪He confronted in his presentation the fact that some two decades ago he argued to the contrary but has come to new judgments about the issue after further research and reflection. Where is the relevance of charm? ‬

‪And same questions on the idea that he shouldn’t have gone ahead this time—an even odder proposition. ‬

Wednesday, January 22, 2020

More On Scruton And Conservatism And Liberalism

‪Roger Scruton: ‬‬


‪I thought Scruton was giving an account of the philosophical roots (or root, since he pretty much makes it one guy) of what now appears to us as more or less the natural way to be.  If you offer custom as a rationale you lose the debate.  Or authority, the reason you should do this, you tell your child, is because I say so.  ‬

‪He was also claiming that this has great drawbacks.  Maybe he underestimates our ability to live a la Rousseau (though Rousseau seems to have had some problems with it) but I have no idea about that.  My gut keeps saying, we now demand of all what only some can manage (self-regulation) so I am sympathetic to his view.  ‬


‪Listen, I’m not taking anything away from his essay. I think it’s great, bears rereading and thinking about. ‬

‪But I don’t know why the balance between stability and tradition on one hand and change on the other is so complicated.‬

‪The argument against the overemphasis on custom as the repository of accumulated wisdom is the hobbling of change and innovation. The argument against the overemphasis on progressive change is precisely the jettisoning of the wisdom of accumulated bottom up experience over time evident in custom. Incremental change is what Scruton plumps for but what exactly is incremental begs the question in specific cases and its overemphasis is an interference when something more than incremental is necessary. ‬

‪Society is massive and complex. Programmatic slow change can lead to reactionary stasis with its own reactionary reflexivity. Progressivism has its obvious menu of flaws, not the least throwing out babies with bath water. ‬

‪So that’s exactly where Meiklejohn comes in. ‬

‪Here is a nice description of the Liberal both believing and doubting by Alexander Meiklejohn, which provides a striking contrast to what might be called the Conservative cast of mind shown in the argument from caution (unintended consequences)and in the argument from tradition, both Scruton’s via Burke:‬

‪...Liberalism both believes and doubts, and “indicates a pattern of culture which criticizes itself. It has customs and standards of behaviour. But it also has the attitude of questioning its own dominant beliefs and standards. The liberal both believes and doubts and if an individual or a group will hold fast both to custom and intelligence, then its experience will inevitably be paradoxical and divided against itself. The being who seeks intelligence is a divided personality...‬

‪This is a succinct account of the very needed balance between tradition and reform. It’s no guarantee of perfection of course. In fact, the end of the quote speaks to the division—social and personal, uncertainty and anxiety that doubting and believing cause. ‬

‪Further, that very tension relates to the tension in the dramas of literary works, their essence being their paradoxical nature, emotion and ideas pulling against each other.‬

‪Scruton argues the wisdom of the common law exemplifies the bottom up accumulation of wisdom manifest in custom and tradition as opposed to legislating from on high as exemplifying progressive top down social engineering:‬

‪...As F. A. von Hayek has shown in Law, Legislation, and Liberty (1982), the common law, for example, contains information that could not be contained in a legislative program--information about conflicts and their resolution, about the sense of justice in action, and about human expectations, which is dispersed through the record of the law and is never available when legislation is the sole legal authority. Hence, the attempt to remake the legal order, through a legislative code that embodies all permissible solutions, is profoundly irrational. Such a code will destroy the source of legal knowledge, which is the judgment of the impartial judge as he confronts the unforeseeable course of human conflict...‬

‪When I before raised a criticism of Scruton’s account of the wisdom of the common law and the irrationality of legislating from on high with a view to, from on high, addressing all problems, my criticism included that Scruton’s account is unreal, that nowhere known to either of us is there a purely legislative approach to law as opposed to cases on specific points, you said, “It’s a point of principle. In the real world it’s a mix.” ‬

‪What’s the use of a point of principle that has no application to or existence in the real world. Even civil code jurisdictions, which in theory start top down from a code, a compendium of all laws, of necessity have cases that gloss the provisions of the code. And I’m unaware of common law justice being being superior to civil code justice, say comparing Quebec civil code law with the common law base of the rest of the provinces and territories in Canada or say UK justice and French justice. ‬

‪My intuition is that the modernity and liberalism of a society will inform more than anything else the quality of justice that emanates from the rule of law in it and that the differences are on the margins. 

Here, the example of our Criminal Code is apt. In a way, the codification of the common law of crime was a rejection of the inefficacy and even incoherence of the latter. Having the Criminal Code makes going back to an uncodified common of crime simply unthinkable. ‬

Sunday, January 19, 2020

Legislation vs Common Law

Agree or Disagree?‬
‪Roger Scruton:‬

‪..As F. A. von Hayek has shown in Law, Legislation, and Liberty (1982), the common law, for example, contains information that could not be contained in a legislative program--information about conflicts and their resolution, about the sense of justice in action, and about human expectations, which is dispersed through the record of the law and is never available when legislation is the sole legal authority. Hence, the attempt to remake the legal order, through a legislative code that embodies all permissible solutions, is profoundly irrational. Such a code will destroy the source of legal knowledge, which is the judgment of the impartial judge as he confronts the unforeseeable course of human conflict..‬

‪I’m inclined to disagree.‬

‪What about statutes that codify the common law and then get case law on their provisions to meet individual instances accompanied by and subject to a continuing project of reform?

‪Take the (Canadian) Criminal Code for example.‬

‪I can’t imagine that an uncodified common law of crime is to be preferred to it. 

‪The French and Quebec Civil Code  provisions generate case‬ law that glosses them. ‬

Monday, January 13, 2020

Interesting Point In The Debate Over The Legality Of Killing Suleimani

‪Interesting point in the argument over the legal justification of the killing of Suleimani. ‬

‪Here is the Obama justification for killing Anwar al- Awlaki, an American terrorist in Yemen. The Obama administration posited the following legal theory:‬

‪...By its nature, therefore, the threat posed by al-Qa’ida and its associated forces‬
‪demands a broader concept of imminence in judging when a person continu-‬
‪ally planning terror attacks presents an imminent threat, making the use of‬
‪force appropriate. In this context, imminence must incorporate considerations‬
‪of the relevant window of opportunity, the possibility of reducing collateral‬
‪damage to civilians, and the likelihood of heading off future disastrous attacks...‬

‪This quote is from, a link to a paper arguing generally for necessity subsuming imminence as the one criterion for for justified self defense. The paper deals principally with domestic instances but in Part V, starting at page 22, it accessibly and straight forwardly deals with imminence as an essential element in justifiable self defense in international relations. ‬

‪The thrust of the argument, btw, in Part V is that the language of imminence in such situations is linguistic window dressing to attempt to meet conventional legal formulae for the legal use of force. In reality, the argument is, necessity supplants imminence and imminence is a distraction in these kinds of contexts. ‬

‪That the previous administration made this argument doesn’t necessarily make it legitimate but it ought at least give pause to reflexive arguments from partisanship that what Trump did here was obviously illegal—ie, the shoe on the other foot test. ‬