My Brother Imagines a Hypothetical World in Which Republicans Answer Hypothetical Questions

Dan has a whole bunch of sensible questions that reporters should be asking members of Congress from both parties about what they believe constitutes an impeachable offense. I agree they should be asking them.

So rather than asking Republican members of Congress about impeaching Trump, we should be getting them to say what they themselves consider impeachable offenses – arguably locking them in, when and if Mueller can prove they were committed.

These are straightforward yes-or-no questions:

  • If a president is found to have solicited or knowingly accepted help from a foreign government to influence an American election, isn’t that an impeachable offense?
  • If a president fires a special prosecutor investigating him, isn’t that an impeachable offense?
  • If a president directly orders the Justice Department to prosecute his political rivals, isn’t that an impeachable offense?
  • If a president pardons himself, isn’t that an impeachable offense?1
  • If a president promises pardons to potential witnesses against him, isn’t that an impeachable offense?

And, bonus essay question:

  • What level of presidential lying to you consider an impeachable offense?

But I think I know what most of the answers will be: “I don’t want to get into hypothetical questions.”

Even so, reporters should be asking them. Maybe the follow-up should be: “Wait, you mean you think there’s actually a sufficient probability of this that you consider the question hypothetical?”


Bonus xkcd on hypotheticals:


  1. Note by MF: For the record, I think there are two good arguments that if a President pardons himself the pardon is invalid. First there is the idea that ‘no man should be the judge in his own cause.’ Second there’s the idea that a pardon is a thing one person confers on another, so a self-pardon just is incoherent. []
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3 Responses to My Brother Imagines a Hypothetical World in Which Republicans Answer Hypothetical Questions

  1. Vic says:

    First off, I don’t think Trump solicited any help, nor was any offered to him, from the Russians. After two years of investigation and near constant leaks from the FBI of everything being investigated, nothing even close to that has surfaced. I’d say it’s a fair bet it’s a non issue. We are simply playing perjury trap games at this point about non-issues.

    And the paying women off to be quiet about things is also a non issue. One can always spend one’s own money to influence an election. It’s the entire point of the process. One can also direct one’s lawyer to do the same (with the assumption that it is a commerce act and one pays him back). One can also use campaign funds, of one’s own, albeit in a more limited way. And one can pay money that BOTH helps a campaign in some fathomable way, but also helps with a non campaign issue (like family life). This Cohen stuff is just smokescreen. No crime was committed and Cohen probably only plead anything under threat from Federal prosecutors (who have a 97+% conviction rate) to charge him until he is poor and in prison for life.

    But the thing that gets me is how few people seem to understand that the President, not Congress, not Federal Judges, not The People, not some principle of independence, has full jurisdiction and control over the FBI. It might not be ideal, it might have problematic moments, etc. But it is the Constitutional system we have. All the people investigating Trump here, work under him and he can fire any and all of them whenever he wants. Meuller is not independent, there is simply no such office to be held. Nor Wray, nor any of the rest of them. They ALL work for him in the Executive Branch.

    If firing a special prosecutor is illegal, show me where? It’s not in the Constitution. Nor can Congress assume the power in some new law (assuming Trump would even sign it) to make him free of the executive, no matter what law they pass. He is part of the Executive branch and subject to the President. Period. Trump can fire him whenever he pleases and there is NOTHING impeachable about it, since it’s his right.

    So far as pardon power, the President has the absolute right to pardon ANYBODY, even the most heinous criminals against the United States. It is an absolute power. It no more matters if they are witnesses against him, than it does that they commit treason, or defraud the Government of millions. It is an absolute power.

    The interesting question is whether he can pardon himself. We simply don’t know. It’s never been tried and never been considered. Any lawyer or judge that tells you one way or the other is just making things up. If SCOTUS decides this issue, it will simply be making things up. The fact is, it is a gaping hole in law. No law exists on the subject. For this reason, it should always be decided in the President’s favor and the responsibility to change it becomes The People’s. Law is a contract. SCOTUS can not and should not be ruling on things that have no basis in our current legal framework, as there is no interpretation involved, and Congress can only get the ball rolling on an Amendment to change/clarify things.

    These really are only hard questions if one comes at it from the point of view that SOMETHING must be done to take care of Trump the Outsider.

  2. Just me says:

    Vic, you write some things that I agree with, and more that I don’t agree with. But of all of the things that you have written on this blog, there is perhaps nothing that I disagree with more than the following: “No law exists on the subject. For this reason, it should always be decided in the President’s favor and the responsibility to change it becomes The People’s.”

    If no law exists on this subject, it should be decided AGAINST the president, and it should be the responsibility of the people to change it if they wish. You’re right that law is a contract. But it is also derived from the people. And if the people have not clearly and objectively given the executive the power to do something, the executive doesn’t have it.

    Said another way, there are no gaps in the law. The government (and the executive more than any other branch) derives its power from the people. If the people didn’t give government a particular power, the government doesn’t have it. No gaps. Just computer code: I or O. Have or don’t have. The question becomes one of ambiguity in the contract (“is that smudge an I or an O?”), and that’s what the the court is for.

    Personally, I think the POTUS does have the power to pardon himself. As you said, “the President has the absolute right to pardon ANYBODY, even the most heinous criminals against the United States. It is an absolute power.” That pardon power would relieve him of jail time (but maybe not state law crimes jail time). However, if he were to pardon himself, that would be an admission of having committed a crime. And there is nothing in the president’s pardon power that shields him for impeachment for his crimes. (Assuming the president committed any crimes – something that has not been proven (yet?)). In fact, quite the opposite since article II section 2 says, “he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”

    • Michael says:

      Vic – what’s your reply to the two arguments noted in the footnote,

      “I think there are two good arguments that if a President pardons himself the pardon is invalid. First there is the idea that ‘no man should be the judge in his own cause.’ Second there’s the idea that a pardon is a thing one person confers on another, so a self-pardon just is incoherent.”

      I would add that for the Framers the ‘judge in his own cause’ stuff would have been one of their background assumptions; the concept was very familiar to them.

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