Tuesday, January 28, 2020

Principle of no crime without law

From a Harvard Law Review article, cited by Alan Dershowitz:
The principle of no crime without law has been described as one of the most “widely held value-judgments in the entire history of human thought.” It is embedded throughout the Constitution — particularly in its prohibitions against ex post facto laws that criminalize behavior retroactively; against bills of attainder that tailor a crime to fit an accused; and against deprivations of liberty without prior notice of what was illegal.

Quoting these prohibitions alongside the Constitution’s discussion of impeachment, Curtis found it “impossible not to come to the conclusion” that a person should be impeached only for “high criminal offenses against the United States, made so by some law of the United States existing when the acts complained of were done.” Otherwise, he told the senators, “when each one of you ... called God to witness that he would administer impartial justice in this case according to the Constitution and the laws, he meant such laws as he might make as he went along.” Curtis repeated: “There must be some law; otherwise there is no crime.”
Isn't this obviously what is meant by "Rule of Law"?

There is an argument that common law crimes could be prosecuted. But those are also defined in advance. Trump is not even accused of anything that anyone thought was wrong before 2016.

The family court is the place where Rule of Law is ignored. A parent can lose child custody for supposed offenses that are not written anywhere. The judge is allowed to use his own judgment, with broad discretion to use whatever crieria he please. The system does not work, and a lot of states are moving towards a presumption of joint custody.

Before Trump, no one ever said it was a crime for the executive branch to delay delivery of foreign aid, or to foreign information or an investigation. The only thing that makes Trump's actions impeachable is that he supposedly did it "corruptly", but that is never defined. Not even Schiff and the other Dems give any definition of what they now claim are crimes. And they do not argue that Trump violated anything with a pre-Trump definition.

The NY Times is doing everything it can to make it look as if John Bolton has incriminated Trump, but it says:
In his book, Mr. Bolton writes that Mr. Trump told him in August that he wanted to continue freezing congressionally approved security assistance to Ukraine until its government helped with investigations into Democrats including former Vice President Joseph R. Biden Jr. and his son Hunter Biden — exactly what Mr. Trump is on trial for.
This is just some second-hand opinion about what Trump wanted to do. Even if it is true that Trump wanted to continue freezing aid, and it might well be, nobody has ever said that it was a crime to want to continue freezing aid.


MikeAdamson said...

If Congress has approved military aid to Ukraine and the President doesn't implement the transfer then he has failed his constitutional obligation to faithfully execute the law. If his failure is uncovered and so he sends the money as required, has a law been broken? I say obviously yes but I recognize opposing opinions can and do exist. Given that the Attorney General is acting like the President's personal attorney, I don't see how the question can be answered outside of the impeachment framework. Given that the Administration refuses to surrender documents or allow witness testimony, it's clear that impeachment won't render the answer either. We're left with the ability to render an opinion based on tradition and ethics and that's all.

Roger said...

The President is also required by law to ensure Ukraine is fighting corruption. If he did not freeze the money, he could be accused of violating that law.

Nearly every President in US history has had some petty disputes with Congress about how money is spent. Nobody ever considered it impeachable before. In this case, the dispute was primarily between the President and some Deep State underlings who had a policy disagreement about reviving the Cold War. But if they work for the executive branch, then they should be carrying out presidential policy.

Likewise Barr works for the President. However Barr has released the Muller report and a lot of other stuff that Trump's personal attorney should not have done.

The President has released the Ukraine call transcript, which is the main piece of evidence. That is more than any other President has done. This administration is the most open and honest one in history.

Bolton is being allowed to publish his book. He is free to tell everyone that he personally favored giving Ukraine more weapons to kill Russians, and that killing Russians was more important than investigating Burisma corruption.

MikeAdamson said...

"This administration is the most open and honest one in history."

Laughable but I'm sure it's best to agree to disagree.

Roger said...

For every accusation against Trump, the Obama administration did much worse. It defied subpoenas, froze money to Ukraine, spent money contrary to congressional appropriations, lied to the FISA court to spy on the Trump campaign, etc. That is not just my opinion -- it lost court battles on most of those issues.

The Trump lawyers speaking to the Senate seem like the only adults discussing impeachment.

Roger said...

Correction: I said "Bolton is being allowed to publish his book", but I read that the White House says that he has to delete some classified material.

MikeAdamson said...

Odd that John Bolton wouldn't know better than to include classified information in his book.